                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-2735
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Southern District of Iowa.
Juan Ramon Palomares-Alcantar,            *
                                          *            [PUBLISHED]
             Appellant.                   *

                                ________________

                                Submitted: March 15, 2005
                                    Filed: May 5, 2005
                                ________________

Before WOLLMAN, LAY, and HANSEN, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Juan Ramon Palomares-Alcantar pleaded guilty to knowingly transporting
illegal aliens within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
The district court1 sentenced him to 18 months in prison and two years of supervised
release. Palomares-Alcantar appeals his sentence. For the reasons discussed below,




      1
       The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
we affirm the district court’s Guidelines calculations, but we remand for resentencing
consistent with United States v. Booker, 125 S. Ct. 738 (2005).

                                          I.
      The following facts were undisputed. Palomares-Alcantar was driving a 1995
Ford Econoline van containing 20 individuals whom he knew to be illegal aliens.
They were traveling from Phoenix, Arizona, to Chicago, Illinois. There were only
seats and seatbelts for Palomares-Alcantar and one passenger; the remaining 19
passengers rode on the floor of the van. The Iowa State Patrol stopped the van on the
morning of March 14, 2004, for speeding on Interstate 80 near Atlantic, Iowa. Some
of the aliens told the police that they had paid between $1,200 and $1,500 to an
unknown alien smuggler–someone other than Palomares-Alcantar–to be transported.

       Some facts regarding the van were in dispute. The presentence report
described it as having the rated capacity to carry 15 people, but at sentencing,
Immigration and Customs Enforcement Special Agent Martha Trevino described the
van as having the rated capacity to carry seven people. She provided the district court
with seven photographs of the van. One photograph showed a frontal view of the
van, and another photograph showed the van with the doors to the rear passenger
compartment opened. The remaining photographs showed that the van’s tires were
bald, with the tread eroded to the point that the steel belts underneath were visible.
There was no evidence as to whether Palomares-Alcantar knew of the condition of
the tires. The district court examined the photographs and found that it was
“unquestionably not a 15-passenger van,” but that the district court was “going to
disregard the issue of the rating of the van” in making its Guidelines calculations.

       The district court made the following Guidelines calculations. Palomares-
Alcantar’s base offense level was 12, see U.S. Sentencing Guidelines Manual (USSG)
§ 2L1.1(a)(2), he received a three-level enhancement because of the number of illegal
aliens transported, see USSG § 2L1.1(b)(2)(A), his offense level was increased to 18

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because he intentionally or recklessly created a substantial risk of death or serious
bodily injury to others, see USSG § 2L1.1(b)(5), and he received a three-level
reduction for acceptance of responsibility, see USSG § 3E1.1.

       Palomares-Alcantar argued that he was entitled to a three-level reduction
because the offense was not committed for profit, see USSG § 2L1.1(b)(1). He
acknowledged, however, that the applicability of this reduction was moot if the
district court found that he intentionally or recklessly created a substantial risk of
death or serious bodily injury because § 2L1.1(b)(5) established an offense level of
18 with or without the § 2L1.1(b)(1) reduction. Palomares-Alcantar objected to the
application of § 2L1.1(b)(5), arguing that he did not intentionally or recklessly create
a substantial risk of death or serious bodily injury to others. Finally, he objected to
the Guidelines on the basis of Blakely v. Washington, 124 S. Ct. 2531 (2004).

       The district court overruled Palomares-Alcantar’s Blakely objection,
concluding that it was bound to apply the Guidelines until the Supreme Court or the
Eighth Circuit declared otherwise. The district court also overruled Palomares-
Alcantar’s objection to the application of § 2L1.1(b)(5). The district court concluded
that the presence of 21 people in the van, regardless of whether it was designed to
carry seven or 15 people, “was far in excess of any ability for the safety design of the
van to provide safe transportation under the best of circumstances.” The
overcrowding of the van was exacerbated, the district court continued, by the absence
of seats or seatbelts for the 19 passengers who were riding on the floor of the van, and
by the baldness of the van’s tires. Under these conditions, driving the van from
Phoenix at interstate highway speeds intentionally or recklessly created a substantial
risk of death or serious bodily injury to the passengers in the van, the district court
concluded. Because § 2L1.1(b)(5) applied to Palomares-Alcantar’s conduct, the
district court concluded, there was no need to rule on whether the offense was
committed for profit within the meaning of USSG § 2L1.1(b)(1).



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       Based on a total offense level of 15 and a Category I criminal history,
Palomares-Alcantar’s Guidelines imprisonment range was 18-24 months. The district
court sentenced him to 18 months in prison and two years of supervised release. Had
the district court adopted the Guidelines calculations urged by Palomares-Alcantar,
his total offense level would have been 12, and his Guidelines imprisonment range
would have been 10-16 months.

       Palomares-Alcantar appeals, arguing that the district court erred by finding that
he intentionally or recklessly created a substantial risk of death or serious bodily
injury; if so, he is entitled to the § 2L1.1(b)(1) reduction because he did not commit
the offense for profit; and, in any event, his sentence violates Blakely and Booker.

                                             II.
       We conclude that the district court did not clearly err in finding that Palomares-
Alcantar intentionally or recklessly created a substantial risk of death or serious
bodily injury to others, and that the district court properly applied § 2L1.1(b)(5). See
United States v. Flores-Flores, 356 F.3d 861, 862-63 (8th Cir. 2004) (affirming the
application of § 2L1.1(b)(5) where the defendant was transporting 11 illegal aliens
from Arizona to Michigan in a van that had only four seats and seatbelts, requiring
eight of the aliens to ride on the floor); United States v. Rio-Baena, 247 F.3d 722, 723
(8th Cir. 2001) (affirming the application of § 2L1.1(b)(5) where the defendant was
transporting 21 illegal aliens from Phoenix to Chicago in a van that had no seats or
seatbelts for them); United States v. Ortiz, 242 F.3d 1078, 1078-79 (8th Cir. 2001)
(affirming the application of § 2L1.1(b)(5) where the defendant was transporting 23
illegal aliens in a van equipped with seats and seatbelts for 14 passengers).

      Because § 2L1.1(b)(5) was correctly applied, it is irrelevant (as Palomares-
Alcantar acknowledges) whether he committed the offense for profit because his
offense level would remain 18 with or without a § 2L1.1(b)(1) reduction.



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       Finally, the government concedes error under Booker. Although the district
court’s Guidelines calculations were correct, the district court (understandably)
treated the Guidelines as mandatory. Having preserved a timely Blakely objection
below, Palomares-Alcantar is entitled to a resentencing hearing at which the district
court treats the Guidelines as advisory and imposes a sentence based on its
consideration of all the factors listed in 18 U.S.C. § 3553(a). Accordingly, we
remand this case to the district court for resentencing consistent with Booker, 125 S.
Ct. at 764-65, 769.
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