                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0414n.06

                                            No. 08-5140

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                                 Jun 09, 2009
United States of America,                               )
                                                                           LEONARD GREEN, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
                                                        )    THE EASTERN DISTRICT OF
Abel Cigarroa-Luna,                                     )    TENNESSEE
                                                        )
       Defendant-Appellant.                             )


Before: SILER, COOK, and GRIFFIN, Circuit Judges.

       PER CURIAM. Pursuant to an oral plea agreement, defendant Abel Cigarroa-Luna pled

guilty to one count of illegal reentry into the United States following deportation, under 8 U.S.C. §

1326(a). He was sentenced to a term of 46 months. He appeals his sentence, arguing that the district

court erred in applying a two-level enhancement under the sentencing guidelines for reckless

endangerment during flight, USSG § 3C1.2. Because there was a nexus between the flight and the

offense of conviction the enhancement was not erroneous. We AFFIRM.

                                         BACKGROUND

       In 2007, Cigarroa-Luna was charged with one count of illegal reentry into the United

States following deportation, without consent of the Attorney General, a violation of 8 U.S.C. §

1326(a). He later pled guilty to the offense but objected to a two-level enhancement for having

“recklessly created a substantial risk of death or serious bodily injury to another person in the
No. 08-5140
United States v. Cigarroa-Luna

course of fleeing from a law enforcement officer.” USSG § 3C1.2. He argued that in order for

this enhancement to apply, there must be a nexus between the reckless endangerment during

flight and the offense of conviction and that it was not present here because his flight related to

fear of being pursued for state charges, not illegal reentry. After considering the appropriate

sentencing factors and overruling the objection, the court imposed a sentence of 46 months.

                                          DISCUSSION

                               A. Facts Underlying the Enhancement

       The two-level reckless endangerment enhancement was based on Cigarroa-Luna’s flight

from Tennessee police officers in June 2007. On that day authorities from the Unicoi County,

Tennessee Sheriff’s Department attempted to serve warrants on Cigarroa-Luna at his residence.

When officers saw Cigarroa-Luna leave his vehicle, they activated their blue lights and siren.

Cigarroa-Luna refused to stop and the officers pursued him through two counties. Cigarroa-Luna

ran red lights and stop signs and forced vehicles off of the road, eventually crashing. When the

officers arrested him, they discovered he had false identification. He was charged with felony

evading and was served with outstanding warrants and booked into the Unicoi County Jail, where

an administrator recognized him from a previous period of incarceration. He was eventually

charged with the instant offense.

                                            B. Analysis

       We review the application of the sentencing guidelines de novo and findings of fact at

sentencing for clear error. See United States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002).



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United States v. Cigarroa-Luna

       At the time of the district court hearing in this case, we had not issued a published

opinion on the issue of whether the reckless endangerment during flight enhancement requires a

nexus between the flight and offense of conviction. Since then, we decided United States v. Dial,

524 F.3d 783 (6th Cir.), cert. denied, 129 S.Ct. 232 (2008). Dial rejected an earlier unpublished

opinion, United States v. Lykes, 71 Fed. App’x 543, 553, n.7 (6th Cir. 2003), which noted that

the enhancement did not contain a nexus requirement. Dial, 524 F.3d at 787, n. 2. Dial adopted

the approach of the Fifth Circuit in United States v. Southerland, 405 F.3d 263 (5th Cir. 2005),

which held that, based on reading the guidelines as a whole, there is a nexus requirement and that

in order to determine whether such a nexus exists, the court looks to the state of mind of the

defendant during flight. Dial, 524 F.3d at 788. In discerning the state of mind, the court looks in

part to the geographic and temporal proximity between the flight and the underlying offense. Id.

       Here, the district court found that the nature of the outstanding warrants was unclear.

Based upon Cigarroa-Luna’s own admission, it found Cigarroa-Luna had no knowledge of

outstanding state warrants or any knowledge of why the officers were present. These findings are

not challenged by Cigarroa-Luna on appeal and are supported by the record. In light of our

decision in Dial, to decide whether there is a sufficient nexus between the flight and illegal

reentry, we look to Cigarroa-Luna’s state of mind when he fled. Given that Cigarroa-Luna knew

he was in this country illegally, and did not know about any outstanding warrants that would

provoke the police to pursue him, his state of mind must have been related to avoiding arrest for

illegal reentry. Looking at the geographic and temporal proximity, the flight occurred during the

ongoing offense of illegal entry. Therefore, there was a sufficient nexus between his flight and

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United States v. Cigarroa-Luna

the illegal reentry, and application of the enhancement for reckless endangerment during flight

was not error.

       AFFIRMED.




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