                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 19 2019
                         FOR THE NINTH CIRCUIT                        MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


UNITED STATES OF AMERICA,                       No.    17-10556

                Plaintiff-Appellee,             D.C. No.
                                                4:17-cr-00670-RCC-JR-1
 v.

CESAR RENE RIVERA,                              MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    Raner C. Collins, District Judge, Presiding

                            Submitted April 16, 2019**
                             San Francisco, California

Before: D.W. NELSON, FERNANDEZ, and BEA, Circuit Judges.

      Defendant Cesar Rivera appeals his sentence and conviction. He argues that

the district court misapplied a sentencing enhancement, United States Sentencing

Guidelines (U.S.S.G.) § 2L1.1(b)(6), which provides a six-level enhancement for

recklessly creating a substantial risk of death or bodily harm to another. Rivera



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
also appeals the district court’s acceptance of his guilty plea. The magistrate judge,

he argues, committed plain error, under Federal Rule of Criminal Procedure 11,

during his change of plea hearing by not advising him of his right to counsel,

appointed if necessary, at all stages of his legal proceedings. But for this error,

Rivera argues, he would not have pleaded guilty. We affirm.

      Border Patrol agents, on March 27, 2017, arrested Rivera for transporting an

undocumented alien, Luis Flores Baltazar-Pacheco, in the District of Arizona. The

agents found Baltazar-Pacheco inside Rivera’s car trunk. Baltazar-Pacheco, when

questioned by the agents, said he was afraid of being in the trunk and did not know

he could get out of the trunk by using an emergency lever or otherwise.

      The government charged Rivera, in a two-count superseding indictment,

with conspiracy to transport an illegal alien1 and transportation of an illegal alien

for profit.2 Rivera pleaded to both counts without a plea agreement. During the

change of plea hearing, the magistrate judge elicited a factual basis to support

Rivera’s plea and issued a recommendation that the district judge accept Rivera’s

guilty plea. The magistrate judge did not advise Rivera of his right to appointed

counsel at every stage of the proceeding, including at trial. Rivera did not object,

however, to the recommendation and the district judge accepted the plea.


1
  8 U.S.C. § 1324(a)(1)(A)(v)(I), 8 U.S.C. § 1324(a)(1)(A)(ii), and 8 U.S.C.
1324(a)(1)(B)(i).
2
  8 U.S.C. § 1324(a)(1)(A)(ii) and 8 U.S.C. § 1324(a)(1)(B)(i).

                                           2
      In the Presentence Report (PSR), the Probation Office calculated, and the

district court applied, an adjusted offense level of eighteen, which included a six-

level enhancement under U.S.S.G. § 2L1.1(b)(6) for intentionally or recklessly

creating a substantial risk of death or serious bodily injury to another person. The

district court sentenced Rivera to twenty-one months in custody and a three-year

term of supervised release. Rivera timely appealed.

      We review the district court’s factual findings for clear error and its

interpretation of the United States Sentencing Guidelines de novo. United States v.

Smith, 719 F.3d 1120, 1123 (9th Cir. 2013). We review guideline application

decisions for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 1167,

1168 (9th Cir. 2017). Because Rivera raised no objections in the district court for

not complying with Federal Rule of Criminal Procedure 11, we review for plain

error. United States v. Adams, 432 F.3d 1092, 1093–94 (9th Cir. 2006).

      Application note 3 to U.S.S.G. § 2L1.1(b)(6) specifically lists as an example

“transporting persons in the trunk or engine compartment of a motor vehicle” as

conduct to which the enhancement applies. Commentary in the U.S.S.G. manual,

like note 3 to § 2L1.1(b)(6), explains that a guideline “is authoritative unless it is

inconsistent with, or a plainly erroneous reading of, that guideline.’” United States

v. Martin, 796 F.3d 1101, 1108 (9th Cir.2015) (quoting Stinson v. Unites States,

508 U.S. 36, 38 (1993)). Here, the application note’s explanation of U.S.S.G. §


                                           3
2L1.1(b)(6) is not inconsistent with a plain reading of the section. United States v.

Bernardo, 818 F.3d 983, 986 (9th Cir. 2016). Rivera does not dispute the

application note’s authoritativeness; rather, Rivera argues that the note’s car trunk

example is not relevant to the specific facts of his case. Trunk emergency release

levers, Rivera argues, were not common when the application note was written in

1997.

        Our precedents do not analogize to U.S.S.G. application notes’ examples

mechanically. See United States v. Torres-Flores, 502 F.3d 885, 890 (9th Cir.

2007) (declining to apply U.S.S.G. § 2L1.1(b)(6) to an extended-cab pickup truck);

United States v. Dixon, 201 F.3d 1223, 1233 (9th Cir. 2000) (declining to apply

U.S.S.G. § 2L1.1(b)(6) to a hatchback car). In both Torres-Flores and Dixon, we

looked at whether the specific means of transport in those cases increased the

likelihood of an accident, a chance of injury without an accident, or both “over and

above the normal danger of vehicular travel.” United States v. Fine, 975 F.2d 596,

599 n.4 (9th Cir. 1992) (en banc).

        The addition of trunk emergency release levers, Rivera argues, allow for safe

and easy egress from locked trunks decreasing “the likelihood of an accident or the

chance of injury without an accident.” Torres-Flores, 502 F.3d at 890. Rivera goes

on to argue that on the day the undocumented alien was in his trunk the weather

was nice and fatal accidents in Arizona were just as common regardless of whether


                                          4
a passenger was wearing a seatbelt. These facts, Rivera argues, means transporting

the alien in his trunk did not increase the likelihood of the alien being injured with

or without an accident and § 2L1.1(b)(6) is therefore inapplicable. The natural

extension and logical conclusion of Rivera’s arguments is that application note 3 to

§ 2L1.1(b)(6) is no longer valid. In other words, because car trunks now have

release levers, it is no longer dangerous to transport people in them. These

arguments are not persuasive.

      First, while Rivera cites Torres-Flores and Dixon to bolster his argument,

neither case involved car trunk transport. In those cases, our Court analogized

pick-up truck and hatchback transport to car trunk transport, which is the example

in § 2L1.1(b)(6)’s application note 3 and the factual circumstances in this case.

Rivera assumes, moreover, that Torres-Flores created a new requirement that a

district court must specifically find through independent fact-finding that the

applicable conduct “either exacerbates the likelihood of an accident, subjects the

passenger to a risk of injury even during an accident-free ride, or both.” Bernardo

makes clear this assumption is incorrect. 818 F.3d at 987–88 (“Torres-Flores did

not formulate a new requirement for applying § 2L1.1(b)(6) that supersedes or

contradicts the Guidelines notes; rather, it explained that the conduct listed in the

Guidelines notes shows the sorts of risks that meet the § 2L1.1(b)(6)

requirement.”).


                                           5
      Second, we are bound by our reasoning in Bernardo which held that

transporting a person in a car dashboard created a substantial risk of death or

serious harm even if the person was strapped inside. In arriving our holding in

Bernardo, we analogized to the authoritative application note’s example of

transporting a person in a car trunk—this case’s exact factual scenario. Bernardo,

818 F.3d at 987 (“[I]t is reasonable to conclude that stashing a person in a

dashboard compartment is analogous to ‘transporting persons in the trunk or

engine compartment of a motor vehicle.’ The dashboard of a vehicle, like a trunk

or engine compartment, is not meant to hold a human body. A person strapped

inside a dashboard, like a person in a locked trunk or engine compartment, cannot

easily escape from the enclosure to enter the passenger compartment of the

vehicle.” (internal citations omitted)).

      Third, Rivera’s argument that § 2L1.1(b)(6) does not apply to his conduct

because he told the alien there was a release lever is unpersuasive. Notwithstanding

that the district court did not find Rivera’s testimony at the sentencing hearing

credible on this point, Rivera provides no case law to support his contention that

telling the alien about the release lever would make § 2L1.1(b)(6) inapplicable.

The application note and case law tell us that transporting a human being in a car

trunk is dangerous regardless of whether the trunk had a release lever or whether

the person in the trunk knew about the release lever. The Sentencing Guidelines,


                                           6
moreover, are regularly amended. If the Sentencing Commission believed that the

advent of trunk release levers made car trunk transport less dangerous, the

Commission could have amended that application note. It has not. We, therefore,

affirm the district court’s sentence.

      Federal Rule of Criminal Procedure 11(b) requires the district court, during a

change of plea hearing, to advise a defendant of certain rights, including the right

to appointed counsel at all stages of the defendant’s criminal proceedings. Fed. R.

Crim. P. 11(b)(1)(D). Here, the magistrate judge who presided over Rivera’s

change of plea hearing did not make this advisal. The government does not dispute

that this was plain error. To overturn his conviction, however, the government

argues, the defendant has the burden of establishing “a reasonable probability that,

but for the error, he would not have entered the plea.” United States v. Dominguez

Benitez, 542 U.S. 74, 76 (2004). This is a high burden for the defendant and the

United States Supreme Court intended it that way reasoning that:

        First, the standard should enforce the policies that underpin Rule 52(b)
        generally, to encourage timely objections and reduce wasteful reversals by
        demanding strenuous exertion to get relief for unpreserved error. . . . Second,
        it should respect the particular importance of the finality of guilty pleas, which
        usually rest, after all, on a defendant’s profession of guilt in open court, and
        are indispensable in the operation of the modern criminal justice system. . . .
        And, in this case, these reasons are complemented by the fact, worth repeating,
        that the violation claimed was of Rule 11, not of due process.
Id. at 82–83 (internal citations omitted).

      Here, Rivera has not shown that there is a reasonable probability, but for the


                                            7
error—failure to recite Rule 11(b)(1)(D)—he would not have pleaded guilty. First,

in this case and during the change of plea hearing, appointed counsel represented

Rivera. Second, while the magistrate judge did not explicitly say “you have the

right to an appointed attorney during trial,” she did explain to Rivera the role of his

appointed attorney during trial, including selecting a jury. Rivera, therefore, cannot

claim he was unaware that he would have counsel at trial. Third, during the admit-

deny hearing for a violation of his pretrial release conditions, which took place at

the same time as the change of plea hearing, the magistrate judge advised Rivera of

his right to appointed counsel. Fourth, this was not Rivera’s first interaction with

the criminal justice system. He had been convicted three times previously and he

was represented by counsel in two of those cases and waived his right to counsel in

the third case. And, fifth, Rivera has a master’s degree and attended a couple of

years of law school.

      These facts indicate that Rivera knowingly and voluntarily pleaded guilty

and would have done so even if the magistrate judge had recited Rule 11(b)(1)(D).

We, therefore, affirm Rivera’s conviction.

      AFFIRMED.




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