                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 13 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 14-50099

              Plaintiff - Appellee,              D.C. No. 8:13-cr-00116-CJC-1

  v.
                                                 MEMORANDUM*
FERNANDO MARTINEZ-CUEVAS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                             Submitted April 9, 2015**
                               Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges and QUIST,*** Senior District
Judge.




        *
             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).
        ***
             The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
                                         -2-
      Fernando Martinez-Cuevas appeals from the district court’s judgment and

challenges his 46-month sentence imposed following his guilty plea to one count

of aiding and assisting an inadmissible alien convicted of an aggravated felony to

enter the United States, in violation of 8 U.S.C. § 1327. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Martinez-Cuevas argues that the district court erred by applying a sentencing

enhancement under U.S.S.G. § 2L1.1(b)(6) for “intentionally or recklessly creating

a substantial risk of death or serious bodily injury to another person.” The

commentary notes for U.S.S.G. § 2L1.1 provide:

      Reckless conduct to which the adjustment from subsection (b)(6)
      applies includes a wide variety of conduct (e.g., . . . harboring persons
      in a crowded, dangerous, or inhumane condition; or guiding persons
      through . . . a dangerous or remote geographic area without adequate
      food, water, clothing, or protection from the elements).

U.S.S.G. § 2L1.1 cmt. n.5. The undisputed facts in the record show that Martinez-

Cuevas along with others used a panga boat – an open air vessel – to transport

twenty-three passengers at night in the open sea for several hours. The boat lacked

basic safety features such as a fire extinguisher, navigational lights, sound

producing devices, visual distress signals, and other flotation devices such as life

rafts or life-saving rings. In addition, the boat was crowded with fuel cans.
                                         -3-
Accordingly, the district court did not err in applying an enhancement under

U.S.S.G. § 2L1.1(b)(6).

      Martinez-Cuevas also argues that 8 U.S.C. § 1327 violates the Due Process

Clause because it is a strict liability crime. In United States v. Flores-Garcia, 198

F.3d 1119, 1123 (9th Cir. 2000), we interpreted 8 U.S.C. § 1327 and concluded

that “[t]he defendant’s knowledge of an alien’s prior felony conviction is not an

element of 8 U.S.C. § 1327; the government need only prove that the defendant

knew that the alien he aided or assisted was inadmissible to the United States.”

Martinez-Cuevas argues that Flores-Garcia was wrongly decided. However, we

are bound by the holding in Flores-Garcia. See Miller v. Gammie, 335 F.3d 889,

899 (9th Cir. 2003) (en banc). Moreover, under the holding of Flores-Garcia, 8

U.S.C. § 1327 contains the mens rea requirement that the defendant have known

“that the alien he aided or assisted was inadmissible to the United States.”

Flores-Garcia, 198 F.3d at 1123. Therefore, 8 U.S.C. § 1327 is not, as Martinez-

Cuevas argues, a strict liability crime. See United States v. Bailey, 444 U.S. 394,

406 n.6 (1980) (explaining that a strict liability crime is a “crime for which

punishment can be imposed without proof of any mens rea at all.” (emphasis

added)); see, e.g., United States v. Cupa-Guillen, 34 F.3d 860, 863 (9th Cir. 1994)

(rejecting defendant’s argument that 8 U.S.C. § 1326(b)(2) is a strict liability crime
                                        -4-
because the statute contains the requirement that the government prove that the

defendant acted with the general intent to re-enter the United States). Accordingly,

we reject Martinez-Cuevas’ challenge to the constitutionality of 8 U.S.C. § 1327.

      AFFIRMED.
