     Case: 09-41133   Document: 00511224394    Page: 1   Date Filed: 09/03/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                               September 3, 2010

                                 No. 09-41133                      Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee
v.

JUAN CARLOS BAUTISTA-MONTELONGO,

                                            Defendant - Appellant




           Appeal from the United States United States District Court
              for the Southern District of Texas, McAllen Division


Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
        A two-count indictment charged the appellant, Juan Carlos Bautista-
Montelongo (Bautista) with possession of marijuana with intent to distribute
(Count Two) and with an accompanying conspiracy (Count One).             Bautista
pleaded guilty to Count One. Following sentencing, Bautista appealed the
application of a two-level offense enhancement. Finding no error, we AFFIRM.
                                       I.
        On March 18, 2009, Texas game wardens saw two fishing boats crossing
the Lake Falcon international reservoir from Mexico into the United States.
When the wardens tried to stop the boats, they sped away in different directions.
One boat escaped, but the other, driven by Bautista, was apprehended. The boat
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                                     No. 09-41133

had 483.5 kilograms of marijuana aboard. Bautista stated that two unknown
men came to his fishing camp and paid him $300 to drive the boat.                    The
Presentence Investigation Report calculated Bautista’s base offense level at 28.
      Based upon these undisputed facts, the trial court applied a two-level
sentence enhancement to Bautista because he was acting as the captain or the
pilot of a boat that was carrying a controlled substance.                 See U.S.S.G.
§ 2D1.1(b)(2)(B).1 After applying various other sentence adjustments,2 none of
which are material to the current appeal, the total offense level was 25.
Bautista had no criminal history, making his criminal history category I. The
advisory sentencing range was 57 to 71 months of imprisonment, and the court
sentenced him to 57 months. Bautista filed a timely notice of appeal, contesting
only the captain-pilot enhancement.
                                           II.
      Thus, the only issue raised on appeal is whether the district court properly
increased the offense level under § 2D1.1(b)(2)(B) because Bautista was the
captain, pilot, or navigator of the boat. The district court’s application of the
Guidelines to the facts is a question of law to be reviewed de novo. United States
v. Harris, 597 F.3d 242, 250 (5th Cir. 2010).
      Under U.S.S.G. § 2D1.1, a two-level increase in offense level is warranted
if “the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any
other operation officer aboard any craft or vessel carrying a controlled
substance.”     § 2D1.1(b)(2)(B) (Nov. 2008).           Bautista, relying upon the

      1
        The provision is now found at § 2D1.1(b)(2)(C) (Nov. 2009). We use the citation as
it was when Bautista was sentenced.
      2
       Reductions totaling seven levels were awarded. In addition to the captain-pilot
enhancement, a two-level increase was applied due to reckless endangerment.

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                                  No. 09-41133

commentary to the guidelines, see § 2D1.1, cmt. n.8, contends that § 2D1.1(b)(2)
must be interpreted in the light of § 3B1.3, which calls for a sentence
enhancement when a “special skill” is used to commit crime. U.S.S.G § 3B1.3.
He thus argues that the captain-pilot increase applies only when a captain-pilot
defendant is a professional or has some higher degree of special skill, such as
high-seas navigation.
      Bautista further contends that the enhancement should not be applied to
him because: he did not use a compass; did not navigate the high seas; had no
crew (other than his co-conspirator) and no command structure; was not the sole
individual with knowledge of the route; and was not listed on customs sheets as
the captain. To summarize, Bautista maintains that he is not a pilot within the
meaning of § 2D1.1(b)(2) because he does not have special skills when the
captain-pilot enhancement is interpreted in connection with § 3B1.3.
      The issue presented is one of first impression for this court. We are not,
however, without guidance, as three circuits have addressed the captain-pilot
increase, and all three have refused to construe it as narrowly as Bautista urges.
See United States v. Cartwright, 413 F.3d 1295, 1298 (11th Cir. 2005); United
States v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003); United States v. Senn,
129 F.3d 886, 896-97 (7th Cir. 1997); United States v. Guerrero, 114 F.3d 332,
346 (1st Cir. 1997). In each of these cases, the defendant(s) made arguments
similar to Bautista’s, and all such arguments were rejected, with the courts
holding that the terms within § 2D1.1(b)(2) should be given their everyday
meaning.   In so holding, the courts refused to apply rigid requirements of
professionalism to the captain-pilot enhancement, opting instead for a common
sense approach.     In Senn, the Seventh Circuit addressed the very issue


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presented here and found that special skills, as defined in § 3B1.3, are not
required under § 2D1.1(b)(2). 129 F.3d at 895.
      We adopt the holdings of our sister circuits. Thus, here, where Bautista
drove a boat containing contraband, the trial court properly applied the captain-
pilot enhancement.
                                       III.
      For the reasons stated above, the district court did not err in assessing the
captain-pilot enhancement against Bautista. The trial court’s imposition of the
two-level enhancement is therefore


                                                                     AFFIRMED.




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