                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 18 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10128

              Plaintiff-Appellee,                D.C. No.
                                                 4:15-cr-01453-RM-DTF-1
 v.

DONALD RAY BUMANN STRANGE,                       MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Rosemary Marquez, District Judge, Presiding

UNITED STATES OF AMERICA,                        No.   16-10234

              Plaintiff-Appellee,                D.C. No.
                                                 4:15-cr-01824-CKJ-EJM-1
 v.

EDUARDO CAMPOS,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                   Cindy K. Jorgenson, District Judge, Presiding

                       Argued and Submitted April 20, 2017
                            San Francisco, California

Before: REINHARDT and BERZON, Circuit Judges, and AMON,** District
Judge.

      We address in this memorandum disposition two unrelated cases presenting

similar issues, argued together by the same lawyers. Defendant-Appellants Donald

Ray Bumann Strange and Eduardo Campos (“Defendants”) appeal the district

courts’ applications of the offense-level enhancement provided by U.S. Sentencing

Guidelines Manual (“Guidelines” or “U.S.S.G.”) § 2L1.1(b)(6) in their respective

cases.1 They also challenge § 2L1.1(b)(6) as unconstitutionally vague. Campos

further appeals the district court’s imposition of a special assessment. We affirm

on each issue with respect to each Defendant.

      1. Both Defendants’ vagueness challenges to U.S.S.G. § 2L1.1(b)(6) are

precluded by the Supreme Court’s recent decision in Beckles v. United States, 137

S. Ct. 886, 892 (2017), which held that Guidelines provisions are not subject to

void-for-vagueness challenges under the Due Process Clause.


      **
             The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
      1
       All references to the Guidelines are to the 2015 edition, the operative
edition at the time Defendants were sentenced. See 18 U.S.C. § 3553(a)(4)(A)(ii).
                                          2
      2. We affirm the district court’s application of U.S.S.G. § 2L1.1(b)(6) in

each Defendant’s case.

      Section 2L1.1(b)(6) provides for an offense-level increase where the offense

“involved intentionally or recklessly creating a substantial risk of death or serious

bodily injury to another person.”2 Application Note 5 to § 2L1.1 further provides:

“Reckless conduct to which the adjustment from subsection (b)(6) applies includes

a wide variety of conduct (e.g., transporting persons in the trunk or engine

compartment of a motor vehicle . . .).” “[T]he ‘commentary in the Guidelines

Manual that interprets or explains a guideline is authoritative unless it is

inconsistent with, or a plainly erroneous reading of, that guideline.’” United States

v. Bernardo, 818 F.3d 983, 985 (9th Cir. 2016) (ellipsis omitted) (quoting United

States v. Martin, 796 F.3d 1101, 1108 (9th Cir. 2015)).

      We review for clear error the district court’s factual findings and for an

abuse of discretion its application of the Guidelines to the facts. United States v.

Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

      a. The district court found that Strange transported two individuals in the

trunk of a car in July in Arizona. One of the individuals in Strange’s trunk testified


      2
       No party disputes that U.S.S.G. § 2L1.1, which addresses offenses
concerning “[s]muggling, [t]ransporting, or [h]arboring an [u]nlawful [a]lien,”
covers the Defendants’ conduct.
                                           3
that it was hot in the trunk, and the district court concluded there was no way for

the passengers to communicate with Strange or to access the passenger

compartment of the car. In light of these findings, which are not clearly erroneous,

and Application Note 5, the district court did not abuse its discretion in applying

the § 2L1.1(b)(6) enhancement to Strange. See Bernardo, 818 F.3d at 986–87

(deferring to Application Note 5 and upholding application of the § 2L1.1(b)(6)

offense-level increase because the conduct at issue, transporting a person in a

dashboard compartment, was “analogous to transporting persons in the trunk or

engine compartment of a motor vehicle” (internal quotation marks and citation

omitted)); United States v. Dixon, 201 F.3d 1223, 1233 (9th Cir. 2000).

      b. Campos also transported two individuals in the trunk of a car. One of his

concealed passengers stated that he could not communicate with Campos from

within the trunk and at one point indicated that he feared asphyxiation. Although

an escape lever and instructional diagram were present in the trunk, both

individuals in the trunk testified that they were not aware of the lever, nor were

they instructed on how to use it. Further, the district court found that Campos

drove on the highway at a lawful but “high rate of speed” before reaching the

checkpoint in Arizona where he was apprehended, a fact indicating that, even had

Campos’s passengers known about the escape lever, it would have been of limited


                                           4
utility. The district court’s factual determinations were not clearly erroneous, and

the court did not abuse its discretion in applying the § 2L1.1(b)(6) enhancement

under these circumstances. See Bernardo, 818 F.3d at 986; United States v.

Torres-Flores, 502 F.3d 885, 890 n.8 (9th Cir. 2007); U.S.S.G. § 2L1.1 cmt. n.5.

      3. We affirm the district court’s imposition of a $5,000 special assessment

on Campos pursuant to 18 U.S.C. § 3014(a).

      The record indicates that, at the time of sentencing, Campos was employed

full time, that he was welcome to continue living with his family, and that a

monthly payment of $150 would not endanger Campos’s ability to cover his

existing expenses. Because Campos’s capacity to work is relevant to whether he

can comply with a three-year payment plan, the district court properly took into

account that Campos was “able-bodied.”

      The district court did not clearly err in finding Campos able to pay the

special assessment. See United States v. Orlando, 553 F.3d 1235, 1240 (9th Cir.

2009). Further, at the time of sentencing, imposition of an assessment of $5,000,

payable in $150 installments starting 60 days after judgment, was reasonable in

light of the language of the statute and Campos’s circumstances. See 18 U.S.C. §

3014(a); Orlando, 553 F.3d at 1240.




                                          5
      Accordingly, we AFFIRM the judgments of the district courts in United

States v. Strange, No. 16-10128, and United States v. Campos, 16-10234.




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