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United States v. Partlow

November 18, 1998

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
DANNY PARTLOW, DEFENDANT-APPELLEE.



Before: Betty B. Fletcher, David R. Thompson, and Edward Leavy, Circuit Judges.

The opinion of the court was delivered by: Leavy, Circuit Judge.

FOR PUBLICATION

D.C. No. CR-97-01477-1- HBT

OPINION

Appeal from the United States District Court for the Southern District of California Howard B. Turrentine, Senior Judge, Presiding

Argued and Submitted August 5, 1998--Pasadena, California

Opinion by Judge Leavy

COUNSEL

OPINION

The United States timely appeals the sentence imposed after Appellee, Danny Partlow, pled guilty to transportation of illegal aliens in violation of 8 U.S.C. S 1324(a)(2)(B)(iii), arguing that the district court erred in its application of the Sentencing Guidelines. We review the district court's interpretation of the Sentencing Guidelines de novo, United States v. Newland, 116 F.3d 400, 402 (9th Cir. 1997), and reverse and remand for resentencing.

ANALYSIS

Partlow was convicted of a violation of 8 U.S.C.S 1324(a) (2)(B)(iii), for attempting to enter the United States on May 3, 1997, with an undocumented alien hidden in a specially constructed compartment in his van. The parties agree that the base offense level is 12 under the applicable Sentencing Guideline, U.S.S.G. S 2L1.1. The district court found as specific offense characteristics that Partlow recklessly created a substantial risk of death or serious bodily injury and that the offense was committed other than for profit. It then determined the adjusted offense level as follows:

"A. Base Offense Level (S 2L1.1(a)(1)) 12" "B. Substantial Risk of Injury (S 2L1.1(b)(5)) 18" "C. Not for Profit (S 2L1.1(b)(1)) 3" "D. Acceptance of Responsibility (S 3E1.1) -3" "Adjusted Offense Level 12" U.S.S.G. S 1B1.1(b) requires the sentencing court to "[d]etermine the base offense level and apply any appropriate specific offense characteristics . . . contained in the particular guideline in Chapter Two in the order listed." (emphasis added). Guideline S 2L1.1(b) provides:

"(b) Specific Offense Characteristics (1) If (A) the offense was committed other than for profit, . . . and (B) the base offense level is determined under ...


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