                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 21 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-50371

               Plaintiff - Appellee,              D.C. No. 3:10-cr-04109-L

  v.
                                                  MEMORANDUM *
EDGAR JUAN RIVERA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Edgar Juan Rivera appeals from the 41-month sentence imposed following

his guilty-plea conviction for transportation of illegal aliens and aiding and

abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II). We have jurisdiction




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291, and we affirm.

      The government contends that this appeal should be dismissed in light of the

appeal waiver set forth in Rivera’s plea agreement. We decline to reach the issue

of whether this appeal falls within the scope of the appeal waiver and instead

affirm on the merits. See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th

Cir. 2007) (en banc).

      Rivera first contends that the district court erred when it increased his base

offense level to 18 pursuant to U.S.S.G. § 2L1.1(b)(6) because the offense

involved a substantial risk of death or serious bodily injury. Rivera contends that

the district court instead should have applied a two-level enhancement for reckless

endangerment during flight pursuant to U.S.S.G. § 3C1.2, which would have

resulted in a base offense level of 14. The district court did not err because the

Guidelines specifically cite “transporting persons in the trunk . . . of a motor

vehicle” as an example of reckless conduct that justifies the section 2L1.1(b)(6)

enhancement. See U.S.S.G. § 2L1.1 cmt. n.5.

      Rivera also contends that an unwarranted sentence disparity was created

because the district court applied the section 2L1.1 (b)(6) enhancement to Rivera

and not to his co-defendant. The district court did not err because Rivera, unlike

his co-defendant, led the Border Patrol agents on a dangerous high-speed chase


                                           2                                       11-50371
while two people were in the trunk of the car he was driving.

      Finally, the sentence at the bottom of the Guidelines range is substantively

reasonable and there is no unwarranted sentencing disparity where, among other

things, Rivera absconded from supervision while on bond. See United States v.

Espinoza-Baza, 647 F.3d 1182, 1195 (9th Cir. 2011).

      AFFIRMED.




                                         3                                    11-50371
