                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MAR 30, 2007
                              No. 06-14868                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 06-00103-CR-T-27EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JOSE LUIS HERNANDEZ-MILLAN,

                                                          Defendant-Appellant.


                        ________________________

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

                              (March 30, 2007)

Before DUBINA, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Appellant Jose Luis Hernandez-Millan (“Millan”) appeals his 24-month
sentence imposed following his guilty plea to one count of transporting illegal

aliens for financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & (B)(i) and

18 U.S.C. § 2. On appeal, Millan argues that the district court erred in applying a

sentencing enhancement, pursuant to U.S.S.G. § 2L1.1(b)(5) (2005), for

intentionally or recklessly creating a substantial risk of death or serious bodily

injury to another person. Millan argues that he operated his Chevrolet Suburban,

in which he carried ten aliens, most of whom were lying on the vehicle’s

floorboard without access to seatbelts, in compliance with Florida’s

driver-obstruction and seatbelt statutes, and that the power to regulate traffic is a

power reserved to the states. Millan also argues that the enhancement should not

have been applied because the district court clearly erred in finding that the vehicle

carried “substantially” more passengers than the rated capacity of the vehicle, and

that he operated his vehicle in a safe and lawful manner.

      “With respect to sentencing guideline issues, this court reviews purely legal

questions de novo, a district court’s factual findings for clear error, and, in most

cases, a district court’s application of the guidelines to the facts with ‘due

deference.’” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1136-37 (11th Cir.

2004) (citation omitted). For a factual finding to be clear error, we must, after

reviewing all of the evidence, have a definite and firm conviction that a mistake



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has occurred. United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998).

      When a defendant is convicted of transporting illegal aliens for financial

gain, the guidelines provide for an enhancement to the defendant’s total offense

level where he intentionally or recklessly created a substantial risk of death or

bodily injury to another person. U.S.S.G. § 2L1.1(b)(5) (2005). Section

2L1.1(b)(5) provides for a 2-level increase, unless the resulting offense level is less

than 18, in which case the defendant’s offense level shall be increased to 18. Id.

The applicable commentary to § 2L1.1(b)(5) states in part that:

      Reckless conduct to which the adjustment from subsection (b)(5)
      applies includes a wide variety of conduct (e.g., transporting persons
      in the trunk or engine compartment of a motor vehicle, carrying
      substantially more passengers than the rated capacity of a motor
      vehicle or vessel, or harboring persons in a crowded, dangerous, or
      inhumane condition).

U.S.S.G. § 2L1.1, comment. (n.6) (2005).

      In addition, § 2L1.1(b)(5) and its commentary make no reference to state

motor vehicle regulations, nor is there a prerequisite that the defendant have

violated a state traffic law in order for the enhancement to apply. See U.S.S.G.

§ 2L1.1(b)(5) & comment. (n.6). “Federal law, not state law, controls the

application of the Sentencing Guidelines.” United States v. Madera-Madera,

333 F.3d 1228, 1231 n.2 (11th Cir. 2003). The Tenth Amendment provides that

“[t]he powers not delegated to the United States by the Constitution, nor prohibited

                                           3
by it to the States, are reserved to the States respectively, or to the people.” U.S.

Const. amend. X. It is well-established that Congress has the power to fix the

sentence for federal crimes, and it also has plenary power to govern immigration

issues. Mistretta v. United States, 488 U.S. 361, 364, 109 S. Ct. 647, 650-51,

102 L. Ed. 2d 714 (1989); Kleindienst v. Mandel, 408 U.S. 753, 765-66, 92 S. Ct.

2576, 2583, 33 L. Ed. 2d 683 (1972). Additionally, Congress has the power to

regulate the channels and instrumentalities of commerce, including automobiles,

airplanes, and boats. United States v. Ballinger, 395 F.3d 1218, 1225-26 (11th

Cir.), cert. denied, 126 S. Ct. 368 (2005). Furthermore, the Sentencing

Commission exercises policymaking authority delegated to it by Congress. United

States v. Booker, 543 U.S. 220, 243, 125 S. Ct. 738, 755, 160 L. Ed. 2d 621 (2005).

      We have favorably noted the decisions of other circuit courts applying this

enhancement to smugglers who transported aliens in overcrowded motor vehicles

or without seatbelts. Rodriguez-Lopez, 363 F.3d at 1138 (citing United States v.

Ramirez-Martinez, 273 F.3d 903, 916 (9th Cir. 2001), (which held that application

of the enhancement was not clearly erroneous where the defendant transported

20 people in a dilapidated van without seats or seat belts); United States v. Ortiz,

242 F.3d 1078, 1078-79 (8th Cir. 2001) (affirming application of the enhancement

when the defendant transported 23 aliens in a van equipped with seat belts for only



                                            4
14). But see United States v. Solia-Garcia, 420 F.3d 511, 515-16 (5th Cir. 2005)

(concluding that “act of transporting four aliens lying in the cargo area of a

minivan, with no aggravating factors, constitutes an inherently dangerous practice

such as to create a substantial risk of death or serious bodily injury to those

aliens”).

       Based on the record and our prior case law, we conclude that the district

court did not clearly err in finding that Millan created a substantial risk of death or

serious bodily injury to the aliens that he was transporting. Accordingly, we hold

that the district court properly applied the § 2L1.1(b)(5) enhancement, and affirm

Millan’s sentence.

       AFFIRMED.




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