Falling Asleep at the Wheel Does Not Support 6-Level Enhancement for Creating Substantial Risk of Injury or Death in Transporting Aliens Case

U.S. v. Aranda-Flores, --- F.3d ----, 2006 WL 1618960 (10th Cir. June 13, 2006)

10th vacated D’s 79-month sentence for transporting illegal aliens as having been improperly enhanced under U.S.S.G. § 2L1.1(b)(5) (adding a 6 level enhancement for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.”) D had been driving, fell asleep at the wheel and collided with another vehicle, causing the deaths of that driver and one of his own passengers.

The 10th stated that the enhancement focuses on the D’s conduct, not on the resulting deaths. The fact that D intentionally drove at night and on a 2-lane road to avoid detection, and that he drove 8 hours straight with only one stop, did not recklessly create a risk, contrary to the district court’s findings. Falling asleep at the wheel is not enough. The 10th notes that other evidence, not in the record, could support recklessness: that D had a propensity to fall asleep at the wheel; that he ignored warnings that he was falling asleep; that he embarked on the trip while sleep deprived. Driving without a US license does not indicate he was unfit to drive and his motive to avoid detection by itself was not material. (Warning: in dicta the court voiced that the D, “as a carrier of four passengers on an illegal mission, should be held to a heightened duty of care,” but it nevertheless found that the evidence showed only negligence).