                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3222
                                  ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the Northern
                                      * District of Iowa.
Angel Carasa-Vargas,                  *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: May 9, 2005
                                Filed: August 11, 2005
                                 ___________

Before WOLLMAN, BRIGHT, and BYE, Circuit Judges.
                          ___________

BYE, Circuit Judge.

       Angel Carasa-Vargas appeals his eighteen-month sentence imposed by the
district court1 following a plea of guilty to transporting eleven illegal aliens in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii). We affirm.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                           I

       On January 22, 2004, Carasa-Vargas and co-defendant Carlos Diaz-Dominguez
were stopped by Tama County, Iowa, authorities while driving a Chevrolet Suburban.
In addition to Carasa-Vargas and Diaz-Dominguez, police discovered eleven illegal
Mexican aliens in the vehicle. Carasa-Vargas had been hired by Diaz-Dominguez to
assist him in transporting the aliens to various locations within the United States. The
Suburban was rated to carry a maximum of nine passengers and police discovered
some of the excess passengers lying across the laps of others or on the floor, and only
two occupants were using seatbelts.

       On April 9, 2004, Carasa-Vargas pleaded guilty to one count of transporting
illegal aliens. At sentencing, the district court calculated a base offense level of
twelve which it increased to fifteen based on the number of aliens involved in the
offense. See United States Sentencing Guidelines § 2L1.1(b)(2)(A). Over Carasa-
Vargas's objection, the district court imposed a three-level enhancement under
U.S.S.G. § 2L1.1(b)(5) for creating a substantial risk of injury during the commission
of the offense, resulting in an adjusted offense level of eighteen. The district court
rejected Carasa-Vargas's request for a downward adjustment under U.S.S.G. § 3B1.2
for minor or minimal role in the offense but did award a three-level downward
adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Based on a
final adjusted offense level of fifteen, and a criminal history category I, the district
court sentenced Carasa-Vargas at the bottom end of the eighteen to twenty-four
month sentencing range.

      In anticipation of changes to the Guidelines foreshadowed by the Supreme
Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), the district court
proposed two alternate sentences. First, the district court calculated the sentencing
range without the three-level enhancement under § 2L1.1(b)(5) and arrived at a



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sentence of eighteen months.2 Second, assuming the Guidelines would be held
unconstitutional in whole or in part, and, based on the sentencing factors outlined in
18 U.S.C. § 3553(a)(1)-(7), the district court proposed another eighteen-month
sentence.

       On appeal, Carasa-Vargas argues the district court erred by imposing the three-
level upward adjustment under § 2L1.1(b)(5) because it exposed him to a sentence
beyond the statutory maximum in violation of Jones v. United States, 526 U.S. 227
(1999). He also argues imposition of the three-level enhancement over his Blakely
objection violated his Sixth Amendment rights, and it was unconstitutional because
it was not imposed against his similarly situated co-defendant. Finally, Carasa-
Vargas argues the district court erred in refusing to award a downward adjustment
based on his role in the offense.

                                            II

                                            A

       Carasa-Vargas first argues the district court's imposition of the three-level
upward adjustment exposed him to a sentence in excess of the statutory maximum in
violation of Jones. We disagree.

      Jones involved a defendant convicted of car jacking and aiding and abetting car
jacking in violation of 18 U.S.C. § 2119. 526 U.S. at 230. Jones was advised the
maximum sentence for a violation of § 2119 was fifteen years. Id. at 231. The

      2
        Assuming the three-level upward adjustment under § 2L2.1(b)(5) was
inapplicable, Carasa-Vargas's adjusted base offense level was fifteen. At a level
fifteen, Carasa-Vargas was only eligible for a two-level downward adjustment for
acceptance of responsibility, resulting in a final adjusted base offense level of thirteen
with a sentencing range of twelve to eighteen months.

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statute, however, provided for a maximum sentence of twenty-five years if serious
bodily injury resulted. Id. At trial, the jury found Jones guilty of car jacking but was
not asked to make any findings with respect to serious bodily injury so as to trigger
the higher maximum sentence. Nevertheless, at sentencing the district court, relying
on information in the presentence report, found serious bodily injury by a
preponderance and imposed the twenty-five-year maximum sentence. Id. On appeal,
the Supreme Court concluded Jones had not been charged with the more serious
offense and the district court's twenty-five-year sentence unconstitutionally exceeded
the maximum permitted under the charged offense since it was based on judge-found
facts. Id.

       Carasa-Vargas analogizes the district court's application of the three-level
enhancement for creating a substantial risk of serious injury to the principle
enunciated in Jones. He points out he was charged under 8 U.S.C. § 1324(a)(1)(A)(ii)
which carries a maximum sentence of ten years, but 8 U.S.C. § 1324(a)(1)(B)(iii)
increases the statutory maximum for transporting illegal aliens to twenty years if "the
person causes serious bodily injury to, or places in jeopardy the life of, any person."
According to Carasa-Vargas, the imposition of a sentencing enhancement which
closely tracks the language of § 1324(a)(1)(B)(iii) resulted in the same constitutional
violation identified in Jones.

       The flaw in Carasa-Vargas's argument is he was not charged under one statute
and sentenced, based upon judge-found facts, under a second statute to a higher
maximum. Nor was he ever exposed to a higher statutory maximum. The district
court specifically stated it could not impose a maximum sentence beyond ten years
based upon facts not submitted to the jury. Thus, there was no Jones violation.




                                          -4-
                                          B

    Carasa-Vargas next argues the three-level enhancement violated his Sixth
Amendment rights under Blakely.

        In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court extended
Blakely, holding that the Guidelines regime ran afoul of the Sixth Amendment insofar
as it required judges, based on judge-found facts, to impose more severe sentences
than could have been imposed based solely on facts found by the jury or admitted by
the defendant. Id. at 750. To remedy the Sixth Amendment problem, the Supreme
Court declared the entirety of the Guidelines "effectively advisory," but instructed
district courts to "consult those Guidelines and take them into account when
sentencing." Id. at 757, 767.

       For purposes of this appeal, we assume the district court's imposition of the
three-level enhancement violated Carasa-Vargas's Sixth Amendment rights. Here,
however, the district court proposed two alternate identical eighteen-month sentences
in the event the enhancement or the Guidelines in their entirety were held
inapplicable. Further, the judgment reflects the district court specifically considered
the sentencing factors set forth in 18 U.S.C. § 3553(a)(1)-(7). Thus, we conclude the
error did not effect the ultimate sentence and was harmless beyond a reasonable
doubt. See United States v. Bassett, 406 F.3d 526, 527 (8th Cir. 2005) (per curiam).

                                          C

     Next, Carasa-Vargas argues the district court erred by imposing the three-level
enhancement in his case but not against Diaz-Dominguez.

      At the time Diaz-Dominguez was sentenced, United States v. Pirani, No. 03-
2871, slip op. at 14 (8th Cir. August 5, 2004), vacated, 2004 WL 1748930 (8th Cir.

                                         -5-
Aug. 16, 2004), which held the Guidelines were in part unconstitutional, was the law
of this circuit. The district court avoided the constitutional error by declining to
impose the enhancement. By the time Carasa-Vargas was sentenced, Pirani had been
vacated and the district court considered the enhancement in fashioning his sentence.
We now know the district court should have considered all appropriate enhancements
when sentencing Diaz-Dominguez. Carasa-Vargas would have us believe we could
remedy this situation by directing the district court not to consider the enhancement
in his case, and thereby commit sentencing error. "Two wrongs don't make a right."
See The New Dictionary of Cultural Literacy, 57 (3d ed. 2002).

                                           D

    Finally, Carasa-Vargas argues the district court erred by refusing to grant a
downward adjustment for his minor or minimal role in the offense.

       After Booker, we continue to review the district court's application of the
Guidelines de novo and its findings of fact for clear error. United States v.
Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005). Whether a defendant qualifies for a
role reduction is a question of fact. United States v. Surratt, 172 F.3d 559, 567 (8th
Cir. 1999). The Guidelines provide for a reduction of between two and four levels
to reflect a defendant's mitigating role in the offense. U.S.S.G. § 3B1.2. A
defendant's role in the offense is measured by the relevant conduct for which he is
held responsible. United States v. McCarthy, 97 F.3d 1562, 1574 (8th Cir. 1996)
("Once a defendant's relevant conduct for sentencing purposes has been determined,
that same relevant conduct is used not only in determining the defendant's base
offense level but also for any role in the offense adjustments."); see also United States
v. Ramos-Torres, 187 F.3d 909, 915 (8th Cir. 1999) ("The propriety of a downward
adjustment is determined by comparing the acts of each participant in relation to the
relevant conduct for which the participant is held accountable and by measuring each
participant's individual acts and relative culpability against the elements of the

                                          -6-
offense.") (citation omitted). The defendant bears the burden of proving a reduction
applies. United States v. Thompson, 60 F.3d 514, 517 (8th Cir. 1995).

       Here, Carasa-Vargas was actively involved in and pleaded guilty to
transporting illegal aliens. He was recruited to the enterprise by his co-codefendant
but thereafter the duos' involvement was largely indistinguishable. In other words,
both were equal partners in driving the illegal aliens from Arizona to various
locations throughout the county. Accordingly, we cannot say the district court's fact
finding that Carasa-Vargas did not qualify for a role-in-the-offense reduction was
clearly erroneous.

                                         III

      The judgment of the district court is affirmed.
                     ______________________________




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