                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             DEC 18, 2008
                              No. 07-14787                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 07-10020-CR-KMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DIMEYS SANCHEZ,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                            (December 18, 2008)

Before CARNES, HULL and PRYOR, Circuit Judges

PER CURIAM:

     Dimeys Sanchez appeals her sentence of 1 year plus 1 day imprisonment
followed by 2 years supervised release for conspiracy to smuggle aliens into the

United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). She contends that the

district court incorrectly calculated her advisory sentencing guidelines range when

it increased her offense level under U.S.S.G. § 2L1.1(b)(6) after finding that her

offense involved intentionally or recklessly creating a substantial risk of death or

serious bodily injury to another person.

                                           I.

      On February 19, 2006, the United States Coast Guard learned that a white

30-foot Scorpion “go-fast” vessel with a black top had departed from Cuba. Coast

Guard officers intercepted the boat as it was traveling north toward the Florida

Keys. The vessel’s operator initially refused to stop, but the officers succeeded in

boarding the boat. They discovered twenty-two Cuban migrants on board, an

occupancy level that “grossly overweighed” the vessel. As a result of the incident,

twelve defendants were charged with various alien smuggling conspiracies and

offenses. Dimeys Sanchez was among those defendants.

      Sanchez pleaded guilty to conspiracy under 8 U.S.C. § 1324(a)(1)(A)(v)(I)

for encouraging aliens to come to the United States unlawfully and for attempting

to bring aliens to a place in the United States other than a designated port of entry.

See 8 U.S.C. § 1324(a)(1)(A)(i), (iv). The district court imposed a sentence of 1



                                           2
year plus 1 day imprisonment followed by 2 years supervised release.

      Sanchez appeals her sentence, contending that the district court improperly

calculated her sentencing guidelines range when it applied an enhancement to her

base offense level under U.S.S.G. § 2L1.1(b)(6). That section provides for an

enhancement where the “offense involved intentionally or recklessly creating a

substantial risk of death or serious bodily injury to another person.” U.S.S.G. §

2L1.1(b)(6). Sanchez asserts that the erroneous application of that section led to a

sentencing guidelines range of 12–18 months imprisonment. Without that

increase, the range would have been 8–14 months imprisonment. She argues the

district court erred because: (1) her co-conspirators’ actions caused the substantial

risk of death or bodily harm and she should not be held responsible for those

actions because they were not reasonably foreseeable; and (2) even if her co-

conspirators’ actions were reasonably foreeseable, that alone would not justify the

enhancement.

                                          I.

      Whether a co-conspirator’s actions were reasonably foreseeable is a question

of fact that we review only for clear error. United States v. Cover, 199 F.3d 1270,

1274 (11th Cir. 2000). A factual finding is clearly erroneous if, after reviewing all

of the evidence, we are “left with a definite and firm conviction that a mistake has



                                           3
been committed.” See United States v. Rodriguez-Lopez, 363 F.3d 1134, 1136–37

(11th Cir. 2004) (citation omitted). Whether the district court misapplied U.S.S.G.

§ 2L1.1(b)(6) is a legal question that we review de novo. See United States v.

McVay, 447 F.3d 1348, 1353 (11th Cir. 2006) (“[W]hether the district court

misapplied the Guidelines remains . . . subject to de novo review [after United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005)”]). Notwithstanding a

district court’s error, “we are not required to vacate the sentence and remand the

case if the court would have likely sentenced [the defendant] in the same way

without the error.” United States v. Scott, 441 F.3d 1322, 1329 (11th Cir. 2006)

(citing United States v. Williams, 503 U.S. 193, 203, 112 S. Ct. 1112, 1120-21

(1992)). Remand is unnecessary if the party defending the sentence shows that the

district court would have imposed the same sentence regardless of the error. See

Williams, 503 U.S. at 203, 112 S. Ct. at 1120–21.

                                          II.

      Sanchez first argues that the district court erred in imposing the U.S.S.G. §

2L1.1(b)(6) enhancement because she was a minor participant in the conspiracy

and she could not have reasonably foreseen the actions of her co-defendants that

created the “substantial risk of death or serious bodily injury.” Sanchez asserts that

she was only a “strawman” used for the purchase of the vessel. She points out that



                                           4
she did not lead the operation, organize the trip, load the boat, or ride along on the

voyage.1 Thus, she concludes, she was not sufficiently involved in the operation to

have reasonably foreseen that her co-conspirators would intentionally or recklessly

create a substantial risk of death or serious bodily injury.

       Sanchez also argues that even if the acts of her co-defendants did recklessly

create a reasonably foreseeable, substantial risk of death or serious bodily injury,

the U.S.S.G. § 2L1.1(b)(6) enhancement cannot be based on reasonable

foreseeability alone. Instead, she asserts that there must be evidence that she aided

or abetted, counseled, commanded, induced or wilfully caused the other person’s

reckless activity. Both arguments fail.

       The statutory maximum sentence for conspiring to smuggle aliens is ten

years imprisonment. See 8 U.S.C. § 1324(a)(1)(B)(i). Section 2L1.1 of the

sentencing guidelines provides for the calculation of the offense level for

defendants who smuggle, transport, or harbor unlawful aliens. Under that section,

“if the offense involved intentionally or recklessly creating a substantial risk of

death or serious bodily injury to another person” the offense level is increased by 2



       1
         She also asserts in her brief that she “had no knowledge nor say in who or how many
aliens were involved.” However, during the change of plea hearing before the district court,
Sanchez conceded that all of the government’s evidence, including evidence that she agreed to
be involved in a conspiracy to smuggle twenty-two Cuban aliens into the United States, was
undisputed.

                                               5
levels, but if the resulting offense level is less than 18, the offense level is

increased to level 18. U.S.S.G. § 2L1.1(b)(6). The commentary to that section

provides that “reckless conduct” covers a “wide variety of conduct” including

“carrying substantially more passengers than the rated capacity of a motor vehicle

or vessel.” U.S.S.G. § 2L1.1 cmt n.5. “Offense” is defined in the sentencing

guidelines as “the offense of conviction and all relevant conduct under 1B1.3 . . .

unless a different meaning is specified or is otherwise clear from the context.”

U.S.S.G. § 1B1.1 cmt. n.1(H). Because no “different meaning is specified or . . .

otherwise clear from the context” § 1B1.3(a)(1)(B) provides the definition of

relevant conduct under U.S.S.G. § 2L1.1(b)(6). See U.S.S.G. § 1B1.1 cmt. n.1(H).

“Relevant conduct” under § 1B1.3(a)(1)(B) includes “all reasonably foreseeable

acts and omissions of others in furtherance of . . . jointly undertaken criminal

activity.”2 U.S.S.G. § 1B1.3(a)(1)(B).

       As to Sanchez’s first argument, the district court did not clearly err in

finding that the actions of her co-conspirators that created the substantial risk of

death or serious bodily injury were reasonably foreseeable.3 Sanchez agreed to be

       2
          Sanchez does not argue that her co-conspirators’ actions were not in furtherance of
jointly undertaken criminal activity.
       3
            Although the district court did not make an explicit factual finding about reasonable
foreseeability, that finding was implicit in the district court’s application of U.S.S.G. §
2L1.1(b)(6). The district court stated that “[T]he defendant need not have personally engaged in
the . . . behavior to receive this enhancement. However, it can be attributable to her as relevant

                                                 6
involved in a conspiracy to smuggle twenty-two Cuban aliens into the United

States. The 30-foot vessel was purchased in Sanchez’s name. She attended a

meeting about the smuggling operation where she provided the vessel’s operator

with a cover story to use if approached by Coast Guard officers. At that meeting,

there was a list of the Cuban aliens to be picked up and a handheld Global

Positioning System with the coordinate route entered.

       The district court, therefore, did not clearly err in finding that it was

reasonably foreseeable that the 30-foot vessel purchased under Sanchez’s name

would transport twenty-two Cuban migrants to the United States, and that the

overcrowding on the vessel would recklessly create a substantial risk of death or

serious bodily injury to those on board. The fact that Sanchez’s participation in the

operation was not more extensive does not mean that the actions of her co-

conspirators were not reasonably foreseeable.

       As to Sanchez’s second argument, the district court did not misapply

U.S.S.G. § 2L1.1(b)(6). It was not required to find that Sanchez aided or abetted,

counseled, commanded, induced or wilfully caused the specific activity or actions

that made her co-conspirator’s conduct reckless. The only Eleventh Circuit



conduct if done by others in jointly undertaken criminal activity.” Here, relevant conduct as
applied to jointly undertaken criminal activity requires that a co-defendant’s actions be
reasonably foreseeable. See U.S.S.G. § § 2L1.1(b)(6), 1B1.3.

                                                7
authority Sanchez offers in arguing that for this requirement is United States v.

Cook, 181 F.3d 1232 (11th Cir. 1999), which involved a U.S.S.G § 3C1.2

enhancement for reckless endangerment during flight. Application note 5 to §

3C1.2 specifies that a “defendant is accountable for his own conduct and for

conduct that he aided or abetted, counseled, commanded, induced, procured, or

willfully caused.” In Cook, we held that the inclusion of that note altered the

definition of “relevant conduct” for that section. Cook, 181 F.3d at 1235. In other

words, “all reasonably foreseeable acts and omissions of others in furtherance of . .

. jointly undertaken criminal activity” have been defined out of relevant conduct

under § 3C1.2 and its application notes. Id. For that reason Cook is inapplicable

and does not support the argument that the district court misapplied U.S.S.G. §

2L1.1.

      Even if we assume that the district court did err in applying U.S.S.G. §

2L1.1, remand is unnecessary because the district court likely would have imposed

the same sentence anyway. See Scott, 441 F.3d at 1329. The sentence Sanchez

received would still be within the guideline range (8 to 14 months) that would have

resulted without applying § 2L1.1(b)(6). There is also the fact that the district

court initially was going to give Sanchez a sentence of 3 years imprisonment but

then decided to lower it to 1 year and a day because of her co-defendant’s lesser



                                           8
sentence. That makes it unlikely that the court would have been inclined to

sentence her any lower than the sentence she did receive. Thus, we are persuaded

that the district court would have imposed the same sentence even without the §

2L1.1(b)(6) enhancement.

      We conclude that the district court did not err in applying U.S.S.G. § 2L1.1,

and even if it did, remanding the case is unnecessary because we are persuaded that

the district court would have imposed the same sentence regardless of that

enhancement.

      AFFIRMED.




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