UNITED STATES of America, Plaintiff-Appellee, v. Carlos TORRES-FLORES, Defendant-Appellant, 502 F.3d 885

Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge IKUTA. KOZINSKI, Circuit Judge: We address whether the district court erred in refusing to give a lesser-included-offense instruction to the jury, and whether defendant was eligible for a sentencing enhancement pursuant to U.S.S.G. § 2L1.1(b)(5) (2005) for transporting an alien in a manner creating a “substantial risk of death or serious bodily injury.” Facts Carlos Torres-Flores drove up to the San Ysidro Port of Entry in an extended-cab pickup on March 23,' 2005.

Although he told the border inspector he had nothing to declare, the inspector became suspicious and proceeded to investigate. When the inspector opened the driver’s side door, he saw a “big hump” in the carpet behind the back seat. That “hump” turned out to be Fortino Marquez-Cruz, an alien who lacked authorization to enter the United States. Defendant was arrested and charged with bringing an unauthorized alien to the United States without presenting him for inspection at the port of entry, -in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). He was convicted and sentenced to 30 months imprisonment.

On appeal, defendant challenges the district court’s decision not to give a lesser-included-offense instruction and its decision, at sentencing, that defendant was eligible for an enhancement pursuant to U.S.S.G. § 2L1.1(b)(5) (2005). Analysis

Section 1324(a)(2)’ makes it both a felony and a misdemeanor to knowingly or recklessly bring to the United States “an alien [who] has not received prior official authorization to come to, enter, or reside in the United States.” Whether the crime is a misdemeanor, punishable by no more than one year imprisonment, or a felony, punishable by up to 15 years imprisonment, depends on the existence of certain aggravating factors laid out in subsections 1324(a)(2)(B)(i)-(iii).

In addition to the elements specifically listed in the statutory text, we have-held that the felony offense contains an implied specific intent element, namely that defendant have acted with intent to “violate, immigration laws.” United States v. Barajas-Montiel, 185 F.3d 947, 952-53 (9th Cir.1999); see also United States v. Nguyen, 73 F.3d 887, 894 n. 4 (9th Cir.1995) (noting that when criminal intent is an- implied element of a crime it “is no less an element of the offense here than if it had been expressly provided for in the statute”).

Defendant claims that the district judge erred in refusing to instruct the jury that it could find defendant guilty of a misdemeanor . offense under

section 1324(a)(2)(

A) while acquitting him of a felony offense under

section 1324(a)(2)(B). A defendant is entitled to a lesser-included instruction if he shows that: 1) “the offense on which instruction is sought is a lesser-includéd offense of that charged” and 2) that the “jury rationally could conclude that the defendant was guilty of the lesser-included offense but not of the greater.” United States v. Pedroni, 958 F.2d 262, 267-68 (9th Cir.1992). Everyone agrees that the misdemeanor offense here contains all of the elements of the felony, minus the specific intent requirement and the aggravating factors, and is therefore a lesser included within the greater felony offense.

The parties dispute whether the district court abused its discretion in concluding that a rational jury could not have convicted defendant of the lesser offense while acquitting as to the greater. See United States v. Naghani, 361 F.3d 1255, 1262 (9th Cir.2004) (after we’ve determined that the charged offense contains all the elements of a lesser offense, we review the decision not to give a lesser-included instruction for abuse of discretion).

On this record, a rational jury could not have doubted that the statutory aggravating factor referenced in the indictment was presen1&wkey;that the alien was “not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry.” See 8 U.S.C. § 1324(a)(2)(B)(iii). The primary inspector at the port of entry, Agent Gibbs, testified that defendant failed to present Marquez-Cruz for inspection,, an account backed up by the referral slip Gibbs -filled out before sending defendant to secondary.

Although defendant attacked the credibility of the agent on other grounds, defendant never contested that Marquez-Cruz was not presented to the agent for inspection. When proposed instructions were being discussed, counsel for defense did not object to the district judge’s observation that “there is no dispute” as to this element. And, in closing argument, defense counsel conceded that Agent Gibbs “found” Marquez-Cruz behind the back seat.

Indeed, any assertion- that defendant had presented the alien for inspection would have contradicted Torres-Flores’ entire defense — that he was a “blind mule” who drove to the port of entry unaware that Marquez-Cruz was hiding behind his back seat. The only real question is whether the jury could have convicted defendant of the misdemeanor without also finding that he acted with the intent that would convert the crime into a felony. Barajas-Montiel defined the implicit intent element in a

section 1324(a)(2)(

B) offense as a specific intent “to violate immigration laws.” 185 F.3d at 953. In applying this requirement, we , have held that the government need not prove that defendant intended to violate Title 8 of the U.S. Code. In a later smuggling case, United States v. You, 382 F.3d 958 (9th Cir.2004), we held that acting with “the purpose of avoiding [the aliens’] detection by immigration authorities” is “synonymous with having acted with, necessary intent as required in Bara-jas-Montiel.” Id. at 966 (alterations in original) (internal quotation marks omitted).

In order to convict defendant of either the misdemeanor or the felony, the jury had to find that defendant “knowingly” brought Marquez-Cruz to the United States — in other words, that he was aware of Marquez-Cruz’s presence in the vehicle. As already noted, there was no dispute that defendant did not present Marquez-Cruz for inspection. According to You, this is tantamount to an intent to violate the immigration laws.

Torres-Flores argues, however, that he may have had a different motive for failing to present Marquez-Cruz for inspection, namely that Marquez-Cruz may have wanted to avoid confronting law enforcement officers for a non-immigration-related reason, such as a fear that he would be found to have violated probation. There is no support in the record for any such finding.

In any event, that Marquez-Cruz may have had a non-immigration-related reason for wishing to avoid detection does not change the fact that Torres-Flores knowingly hid him from immigration authorities and thus (according to You) acted with the intent to violate the immigration laws. Regardless of defendant’s subjective reasons for failing to present Marquez-Cruz for inspection, a rational jury could not have found that defendant lacked the requisite intent while also finding that he knowingly helped Marquez-Cruz evade detection by immigration authorities.

The district court therefore did not abuse its discretion in denying the lesser-included-offense instruction. 2. Defendant also challenges the district court’s determination that the offense involved “a substantial risk of death or serious bodily injury to another person,” a determination that resulted in a 6-level increase in his offense level and more than doubled the applicable Guidelines range from 12-18 months to 30-37 months. See U.S.S.G. § 2Ll.l(b)(5) (2005).

The extended-cab pickup truck defendant was driving had been modified to create additional space for. a passenger to hide behind the back seat.' Border agents discovered the alien passenger, Marquez-Cruz, hiding in this makeshift compartment. We start with the observation that, although vehicular travel is generally quite safe, it is not risk-free. Every passenger traveling on our highways faces a small, but non-trivial, risk of death or injury.

This baseline risk is inherent in all vehicular travel and must therefore be disregarded in determining whether the offense was committed in a manner that involved a “substantial risk of death or serious bodily injury to another person.” We focus on the ways in which the method of transporting the alien increased the risk of death or injury beyond that faced by a normal passenger traveling on our streets and highways. The risk could be increased in a number of ways:

(1) The driver could increase the likelihood of an accident by taking a dangerous route (e.g., off-road) or driving in a dangerous manner (e.g., recklessly or drunk); (2) the method of transportation could increase the likelihood of an accident (e.g., a severely overloaded vehicle); (3) the method of transportation could increase the risk of an injury even in the absence of an accident (e.g., passengers transported with insuffi-dent ventilation or subject to injury from moving mechanical parts); or (4) the method of transportation could increase the risk that an accident, if it should occur, would cause injury or death (e.g., passengers transported in a manner that makes them more likely to be injured by crumpled metal or shattered glass than if they had been seated normally).

The district court found an increase in only the last of those four risks, namely, that if an accident occurred, Marquez-Cruz was more likely to be hurt. The district court didn’t find that defendant’s conduct increased the likelihood of an accident; and the court specifically found that Marquez-Cruz’s placement didn’t increase the risk of injury absent an accident: “If there’s no collision, there’s no problem.” We must therefore decide whether the increased risk of injury in case of an accident was significant enough to merit a 6-level enhancement in the offense level.

In making this determination, we accord “considerable weight” to the Guidelines’ application notes, United States v. Fine, 975 F.2d 596, 599 n. 4 (9th Cir.1992) (en banc), which provide examples that give some indication of what kinds of risks substantially increase a concealed passenger’s chances of injury or death over and above the normal danger of vehicular travel.

What is notable about these examples— “transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle” — is that in each, unlike here, the means of travel either exacerbates the likelihood of an accident, subjects the passenger to a risk of injury even during an accident-free ride, or both.

Consistent with the examples in the application notes, our decisions have upheld § 2L1.1(b)(5) enhancements for vehicular travel only when the circumstances increased the likelihood of an accident or the chance of injury without an accident. United States v. Hernandez-Guardado, 228 F.3d 1017, 1027-28 (9th Cir.2000), involved overloaded vans with passengers lying unrestrained on the floorboards. United States v. Miguel, 368 F.3d 1150, 1152 (9th Cir.2004), involved the transportation of three individuals in the trunk of a car in 100-degree heat. In United States v.

Ramirez-Martinez, 273 F.3d 903, 916 (9th Cir.2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir.2007) (en banc), defendant was found to have transported “twenty people in a dilapidated van without seats or seat belts.” This case is most similar to United States v. Dixon, 201 F.3d 1223 (9th Cir.2000), which involved the transportation of aliens in the hatchback area of a vehicle. Id. at 1233. We recognized that a hatchback — like the makeshift compartment in this case — is similar to the application note’s example of a trunk in that neither is designed to transport people.

A passenger riding there is therefore more likely to be injured in the event of an accident than someone riding in the same car who is securely strapped into a passenger seat. Nonetheless, we found that the incremental danger posed by riding in a hatch-back was not so “obvious” as to render the overall danger “substantial” without additional evidentiary support. In addition to the application notes and our caselaw, we also consider the magnitude of the enhancement.

Section 2L1.1(b)(5) raised defendant’s offense level to 18 — a 6-level increase. That’s greater than the 2-level increase for recklessly endangering others while fleeing from law enforcement, see U.S.S.G. § 3C1.2 (2005), greater than the 2-level increase for using a minor in the commission of the offense, see id. § 3B1.4, greater than the 4-level increase for leading a criminal conspiracy, see id. § 3Bl.l(a), and greater than the 4-level increase for causing death by possessing biochemical weapons, see id. § 2M6.1.

The magnitude of the increase suggests that this enhancement is meant to apply only when the additional risk to the concealed passenger is significantly greater than the risks normally borne by ordinary passengers during normal vehicular travel. Here there was some additional risk, but only in the highly unlikely event of an accident. We do not think that the incremental risk was significant enough to warrant doubling or even tripling defendant’s sentence. The district court erred in applying the Guidelines to the facts of this case.

Because a rational jury could not have convicted defendant of the lesser misdemeanor offense outlined in 8 U.S.C. § 1324(a)(2)(A), without also convicting him of the felony offense, the district court did not abuse its discretion in refusing to give a lesser-included instruction. But, because we conclude that the district court erred in finding that defendant was subject to a sentencing enhancement under U.S.S.G. § 2Ll.l(b)(5) (2005), we vacate his sentence and remand for re-sentencing. AFFIRMED IN PART, VACATED IN PART AND REMANDED. . This provision is currently codified at U.S.S.G. § 2L1.1(b)(6) (2006). .

Defendant also claims that the district court erred in refusing to give an instruction on derivative citizenship. Because the record contains less than a scintilla of evidence that Marquez-Cruz was a derivative citizen, we cannot conclude that the district court abused its discretion in refusing to give the proffered instruction. United States v. Wofford, 122 F.3d 787, 789 (9th Cir.1997). . We have yet to resolve whether a defendant's right to a lesser-included instruction in a noncapital case springs solely from Fed. R.Crim.P. 31(

c) or also from the Fifth Amendment Due Process Clause. Compare Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (noting the federal common law and Rule 31(

c) provide a right to such instruction), with Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (holding that a defendant in a capital case has a due process right to a lesser-included instruction when the facts would allow the jury to impose a life sentence rather than death). Beck left open whether the due process right extends to defendants in noncapital cases. 447 U.S. at 638 n. 14, 100 S.Ct. 2382 ("We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case.”).

While defendant here asserts a right under both provisions, we also need not resolve the issue, because, to the extent the Due Process Clause affords defendants greater protections than Rule 31(c), it would not affect the outcome of this case. The due process right recognized in Beck applies only "when the evidence would have supported” conviction of the lesser offense but acquittal of the greater. 447 U.S. at 627, 100 S.Ct. 2382 (internal quotation marks omitted). For the reasons we explain below, such is not the case here. See pages 888-89 infra. . Such an element would be a rare novelty in our legal system.

Just as “ignorance of the law or a mistake of law is no defense to criminal prosecution,” Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), knowledge of the law is almost never an element of a crime. . The jury was specifically instructed that it could convict only if it found that defendant “knowingly brought Fortino Marquez-Cruz to the United States.” Although the text of the statute does not contain an express mens rea element that applies to the act of "bringing” an alien to the United States, we've recognized that

section 1324(a)(2) "provides for criminal penalties for any person who knowingly brings an 'unauthorized' alien into the United States.” Gete v. I.N.S., 121 F.3d 1285, 1288 n. 2 (9th Cir.1997) (emphasis added). To construe the prefatory clause of

section 1324(a)(2) otherwise would render the misdemeanor a strict liability crime, a species of offense that is heavily disfavored in our legal system. See Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) ("The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.”). . Fifteen of every 100,000 Americans died in a car crash in 2005; 911 more were injured. Nat'l Highway Traffic Safety Admin., Traffic Safety Facts 2005 verso (2006), available at http://www-nrd.nhtsa.dot.gov/Pubs/ TSF2005.pdf. .

The dissent suggests that the district court found that Marquez-Cruz was subject to injury even in the absence of an accident because of the compartment's sharp metal edges, see Dissent at 892, 895, but this contradicts the district court’s findings quoted in the text. Moreover, the district court's discussion makes clear that it was concerned only with the dangers Marquez-Cruz would have faced if defendant had crashed the truck: "[I]f there’s a collision ... what’s going to happen? ... Metal bends. Things happen. Fires occur. Explosions occur. And this person ... can’t get out....” .

Riding in the trunk exposes the passenger to the risk of suffocation or heat stroke. See U.S. Dep’t of Transp., Motor Vehicle Trunk Entmpment Report to Congress (2000), available at http://www.nhtsa.dot.gov/cars/ problems/studies/Trunk/# ter3 ("The combination of high temperature, humidity, and poor ventilation all contribute to the extreme danger of car trunks.”). Passengers stowed in engine compartments presumably face similar harms in addition to the risk of being injured by engine heat or moving components.

Severely overloading a vehicle is likely to make it more difficult to handle, thereby increasing the likelihood of an accident. . The probability of defendant getting in an accident was probably close to 0.03%. We calculate that probability based on defendant's plan to drive 135 miles from the San Ysidro checkpoint to Marquez-Cruz’s destination in Los Angeles, and the frequency of accidents in March 2005 — 203 crashes for every 100 million miles driven. Nat'l Highway Traffic Safety Admin., n. 6 supra, at 44. . The district court sentenced defendant to the bottom of the enhanced sentencing range of 30-37 months.

The bottom of the un-enhanced sentencing range was 12 months. . We recognize that there is an intracircuit conflict regarding how we review application of the Guidelines to the facts. Compare United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (“This court reviews ... the district court’s application of the Sentencing Guidelines to the facts of this case for abuse of discretion.”), with United States v. Williamson, 439 F.3d 1125, 1137, n. 12 (9th Cir.2006) ("We review the

interpretation and application of the Guidelines de novo.”); see also United States v. Staten, 466 F.3d 708, 713 n. 3 (9th Cir.2006) (recognizing the conflict). But because we would reverse even under the more deferential abuse of discretion standard, it is unnecessary for us to call the case en banc to resolve the conflict.