                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            Oct. 21, 2009
                             No. 09-10701                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 08-10019-CR-JLK

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ARAMIS PENATE SIGLER,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (October 21, 2009)

Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.

PER CURIAM:
       Appellant Aramis Penate Sigler appeals his 46-month sentence for

conspiracy to encourage or induce aliens to enter the United States. Sigler first

argues on appeal that the district court erred in applying a two-level enhancement

for reckless endangerment during flight, pursuant to U.S.S.G. § 3C1.2, because

there was no evidence that he actively caused or procured his codefendant’s actions

in fleeing from law enforcement. He further argues that the district court failed to

articulate specific factual findings, based on the record, supporting its conclusion

that he actively caused or procured the reckless behavior of his codefendant.

       Sigler also asserts that the district court engaged in impermissible

double-counting in determining his sentence, using evidence of reckless

endangerment during flight to enhance his sentence under both U.S.S.G.

§ 2L1.1(b)(6) and U.S.S.G. § 3C1.2. Sigler did not raise this argument in the

district court.

                                            I.

       “The standard of review for improper factual findings is clear error, while

the application of the law to those facts by the trial court, such as its interpretation

and application of the United States Sentencing Guidelines, is reviewed de novo.”

United States v. Cook, 181 F.3d 1232, 1233 (11th Cir. 1999) (citations omitted).

       Sentencing Guidelines § 3C1.2 provides: “If the defendant recklessly created



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a substantial risk of death or serious bodily injury to another person in the course

of fleeing from a law enforcement officer, increase by 2 levels.” U.S.S.G. § 3C1.2.

The note to § 3C1.2 states: “Under this section, the defendant is accountable for his

own conduct and for conduct that he aided or abetted, counseled, commanded,

induced, procured, or wilfully caused.” Id. cmt. n.5. The government has the

burden to demonstrate, by a preponderance of the evidence, that the defendant’s

conduct satisfies the standard set forth in Application Note 5. Cook, 181 F.3d at

1236. Further, we have held that, where a § 3C1.2 enhancement is applied, the

district court must support its decision with “a specific finding, based on the record

before it, that the defendant actively caused or procured the reckless behavior at

issue.” Id. (internal quotation marks omitted). “The district court’s factual findings

for purposes of sentencing may be based on, among other things, evidence heard

during trial, undisputed statements in the PSI, or evidence presented during the

sentencing hearing.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).

      Based on our review of the record, we conclude that the district court erred

when it applied the two-level enhancement under § 3C1.2 because it failed to

articulate specific findings regarding whether Sigler actively caused the high-speed

flight from the Coast Guard, or aided and abetted his codefendant’s conduct.

Because the district court’s failure to make specific findings precludes meaningful



                                           3
appellate review, we vacate the district court’s ruling on this enhancement and

remand the case for the district court to make more specific findings.

                                            II.

      We review de novo a double-counting claim. United States v. Matos-

Rodriguez, 188 F.3d 1300, 1310 (11th Cir. 1999). Where, as here, the claim was

not preserved, we review only for plain error. United States v. De La Garza, 516

F.3d 1266, 1269 (11th Cir. 2008), cert. denied, 129 S. Ct. 1668 (2009).

               Under plain error review, there must be (1) an error,
               (2) that is plain, (3) that affects the defendant’s
               substantial rights, and (4) that seriously affects the
               fairness, integrity, or public reputation of judicial
               proceedings. Id. For an error to affect substantial rights,
               ‘in most cases it means that the error must have been
               prejudicial: It must have affected the outcome of the
               district court proceedings.’ United States v. Olano, 507
               U.S. 725, 734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508
               (1993). The defendant has the burden of persuasion as to
               prejudice. United States v. Rodriguez, 398 F.3d 1291,
               1299 (11th Cir.2005).

Id. at 1269.

      “Double counting during sentencing is permissible if the Sentencing

Commission intended the result, and if the result is permissible because each

section concerns conceptually separate notions related to sentencing. Further, this

court presumes the Sentencing Commission intended to apply separate guideline

sections cumulatively, unless specifically directed otherwise.” Matos-Rodriguez,

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188 F.3d at 1310 (internal quotation marks omitted). When acts of reckless

conduct are temporarily and spatially separated, an enhancement based on separate

guidelines provisions is permissible. Id. at 1312.

      The guidelines provide: “If the offense involved intentionally or recklessly

creating a substantial risk of death or serious bodily injury to another person,

increase by 2 levels, but if the resulting offense level is less than 18, increase to

level 18.” U.S.S.G. § 2L1.1(b)(a). The guidelines also provide: “If the defendant

recklessly created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer, increase by 2

levels.” U.S.S.G. § 3C1.2.

      To avoid impermissible double-counting for the same conduct, the

guidelines state: “If subsection (b)(6) applies solely on the basis of conduct related

to fleeing from a law enforcement officer, do not apply an adjustment from §3C1.2

(Reckless Endangerment During Flight).” U.S.S.G. § 2L1.1 cmt. n.5.

      The record reveals that the district court did not rely upon the same reckless

endangerment conduct in applying enhancements under both § 2L1.1(b)(6) and

§ 3C1.2 here. Thus, there was no impermissible double-counting. With respect to

§ 2L1.1(b)(6), the district court’s application of the enhancement was supported by

the reckless and dangerous situation on the vessel that there was only one life



                                            5
jacket available for 22 people on the boat. In contrast, the district court’s

enhancement under § 3C1.2 was based on the Coast Guard’s hour-long chase of

the defendants, who were evading law enforcement officials and the injuries

resulting from that flight. Sigler has therefore not demonstrated plain error in this

regard.

      For the above-stated reasons, we affirm Sigler’s sentence in part, and vacate

and remand it in part.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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