                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-13794                ELEVENTH CIRCUIT
                                                            December 18, 2008
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 07-10044-CR-KMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ISRAEL GUERRA GONZALEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                             (December 18, 2008)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Israel Guerra Gonzalez appeals his sentence of 24 months of imprisonment
for conspiring to induce aliens to enter the United States and unauthorized entry

into Cuban territorial waters. 8 U.S.C. § 1324(a)(1)(A)(v)(I); 50 U.S.C. § 192.

Guerra Gonzalez challenges the three-level enhancement of his sentence for

creating a substantial risk of death or serious bodily injury. We affirm.

      We review de novo the application of the risk or death or serious injury

enhancement to a sentence. United States v. Rodriguez-Lopez, 363 F.3d 1134,

1137 (11th Cir. 2004). The decision that Guerra Gonzales created a risk of death

or serious injury to the aliens he transported is a factual finding that we review for

clear error. Id. A district court may enhance a sentence by three levels if the

defendant created, either intentionally or recklessly, a substantial risk of death or

serious injury to the illegal aliens who he smuggled or transported and the total

offense level is less than eighteen. United States Sentencing Guidelines §

2L1.1(b)(6) (Nov. 1997). The commentary to section 2L1.1(b)(6) “emphasizes

that [the] provision applies to an array of factual scenarios and should be applied

flexibly[.]” Rodriguez-Lopez, 363 F.3d at 1138; U.S.S.G. § 2L1.1(b)(6) cmt. n.5

(“[r]eckless conduct to which the adjustment from subsection (b)(6) applies

includes a wide variety of conduct”).

      The district court did not clearly err when it found that Guerra Gonzalez

created a substantial risk of death or serious bodily injury. Guerra Gonzalez



                                           2
attempted to smuggle twelve aliens from Cuba to the Florida keys on a boat

equipped with only five life vests. The aliens would have in all likelihood died or

suffered serious injuries if they had fallen overboard in the open seas without a

flotation device. The application of the enhancement is consistent with the

instruction to apply the enhancement flexibly.

      Guerra Gonzalez’s sentence is AFFIRMED.




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