NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-50416 Plaintiff-Appellee, D.C. No. 3:18-cr-02899-LAB-1 v. ALBERTO DANIEL CASTELLANOS, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted December 10, 2019 Pasadena, California Before: WARDLAW and LEE, Circuit Judges, and KENNELLY,** District Judge. Alberto Castellanos appeals his forty-eight month sentence for his guilty- plea conviction of transporting undocumented immigrants for financial gain, 18 U.S.C. §§ 1324(a)(1)(A)(ii), (v)(II), and (a)(1)(B)(i), and high-speed flight from a Border Patrol checkpoint, 18 U.S.C. § 758. He argues that the district court erred * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. by dividing his continuous flight from Border Patrol into two segments and applying the United States Sentencing Guidelines (U.S.S.G.) § 2L1.1(b)(6) adjustment for the highway segment and the additional § 3C1.2 enhancement for the surface-street segment. We agree. Because the court applied the § 2L1.1(b)(6) adjustment solely based on Castellanos’s dangerous driving while fleeing Border Patrol, it erred in segmenting the chase to apply the additional § 3C1.2 enhancement for the same conduct. See United States v. Lopez-Garcia, 316 F.3d 967, 971-73 (9th Cir. 2003); U.S.S.G. §§ 2L1.1 cmt. n.3, 3C1.2 cmt. n.1. The government argues that the application of § 3C1.2 was proper, because the district court “only partially relied” on Castellanos’s driving when it applied § 2L1.1(b)(6)—it also focused on his endangering individuals by transporting them in the trunk of his car. See United States v. Bernardo, 818 F.3d 983, 986 (9th Cir. 2016) (explaining that mode of transportation may warrant a § 2L1.1(b)(6) adjustment if based on characteristics such as lack of seatbelts or adequate ventilation); U.S.S.G. § 2L1.1(b)(6) cmt. n.3 (listing transport of individuals in the trunk of a car as an example of reckless conduct warranting a § 2L1.1(b)(6) adjustment). But each time the district court analyzed the risks to the individuals in Castellanos’s trunk, it focused exclusively on Castellanos’s high-speed and erratic driving, and made no reference to the condition of the trunk. Because the district court was clear that Castellanos’s “endangering people with the way he was 2 driving” was the basis for its application of § 2L1.1(b)(6), the additional § 3C1.2 enhancement for dangerous driving was error. Despite the district court’s error, we may affirm a sentence “on any ground supported by the record, even if it differs from the rationale of the district court.” United States v. Nichols, 464 F.3d 1117, 1122 (9th Cir. 2006). To decide if we can affirm the application of both § 2L1.1(b)(6) and § 3C1.2, we must start by determining whether the record establishes that any conduct other than Castellanos’s flight would support the § ...
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