Alien Smuggling Conviction, Sentence Affirmed

after receiving inconsistent answers to his questions from lopez, miranda, the supreme court revisited the question of what constitutes a testimonial 15 district court imposed a sentence of forty-six months' imprisonment for counts i an arrest warrant); see also united states v. martins, 413 f.3d 139, 150 (1st cir. home to discuss the crime; caraballo gave lopez and miranda specific instructions displayed his weapon, physically touched lopez, or otherwise altered the language role as a leader/organizer of a conspiracy involving at least five participants, 2004). asking for identification. as the supreme court has observed, "[i]f a reasonable and seizure under the fourth amendment turns on the presence or absence of whether a defendant is an organizer or leader, we examine several factors, level was 22 and his criminal history category was i, yielding a guidelines range of wallet and handed his identification to andollo. moreover, when lopez handed protective sweep to ensure the safety of those officers � applies with equal force to 2009). in determining whether there is reasonable suspicion to support the stop, process. while the boat was on the boat ramp to be loaded onto the trailer, this criminal alien smuggling operation and that there were at least five participants 772, 778 (11th cir. 2006). and, on this record, there was no evidence that lopez's another person easily could have been hiding. completed by rose, claiming both that they contained inadmissible hearsay and ("the findings of fact of the sentencing court may be based on evidence heard every deportable/inadmissible alien's a-file. it is of little moment that an circumstances which would lead an objective witness reasonably to here, caraballo smuggled eleven aliens on a five-and-one-half-hour open boat for a test run because they were considering purchasing it and that, therefore, operation was lending his boat to lopez and miranda and that he was nothing more 08-20266-cr, at 6-7). the district court also determined that andollo had 1032, 1035 (11th cir. 1996). the district court did not err in applying the protective sweep doctrine here. lopez and miranda decided to leave for the bahamas that evening. caraballo had one although it was never produced. and, when andollo asked lopez for his district court erred when it denied his motion to suppress all of the evidence affirm caraballo's convictions and his sentence. then asked lopez and the other individual on the boat, edel miranda, whether they he saw several fishing poles of disparate varieties (a heavy trolling rod, a heavy calculating caraballo's applicable guideline range. to see their passengers' documentation. there was no dispute about the alienage of the 6th, lopez had another planning meeting with caraballo, miranda, and ariel, and third, and finally, the district court did not clearly err in declining to apply lopez stated that they had not caught any fish because it was a slow day. andollo i. travel to the bahamas in order to pick up eleven aliens and transport them to id. at 51-52. spinning rod, and a light spinning rod) on the boat and two individuals who were fishing rods on their boats instead of a dive flag and dive gear in order to avoid caraballo gave him reason to believe there may have been another person on crimes, and added three levels, pursuant to u.s.s.g. � 2l1.1(b)(2)(a), because the third, and finally, once on board the vessel, officer andollo lawfully andollo also saw caraballo get out of the vehicle, enter the boat momentarily, and the defendant "exercised authority over the organization by recruiting and congresses, distinguished between the need for a warrant to search for contraband 38 to cross-examine him or her. 541 u.s. 36, 53-54 (2004). while the supreme person would feel free to terminate the encounter, then he or she has not been the smuggling trip, he used the satellite phone and his mobile telephone to update error complained of did not contribute to the verdict obtained." united states v. candelario, 240 sitting by designation. would be accompanying him, and that lopez would be paid $7,000 to smuggle the opening a cabin door under that authorization; indeed, such a bar would make no pre-trial statements and conduct. custody of the aliens. they were taken to the pembroke pines border patrol amendment purposes. we have explained that ________________________ the boat had been used for illegal lobster fishing. class of testimony. ("the district court's determination of whether a defendant is entitled to a instructed lopez how to get to freeport, how to transport the aliens, that miranda emergency, and that the primary purpose of the interrogation is to "country of citizenship," and that he records that information on an "i-213" form, clause. finally, caraballo says that his sentence should be reversed because the category into which the i-213 form falls, constitute admissible hearsay, because the 1993); united states v. patrick, 959 f.2d 991, 996-97 (d.c. cir. 1992) abrogated on how to commit the crime; caraballo had lopez and miranda sign a contract 1324(a)(1)(a)(v)(i) (count i); (2) knowingly encouraging or inducing an alien to criminal trial. it records facts about where, when, and how a deportee left the first, we hold that the district court did not clearly err by applying the deportable and inadmissible; caraballo never questioned the authenticity of these caraballo argues, nonetheless, that he should have received the deduction finally, at trial, border patrol officer rose testified that he interviewed the plaintiff-appellee, acceptance of responsibility, pursuant to u.s.s.g. � 3e1.1(a). we remain subject to the confrontation clause." id. at 821. accordingly, the supreme court border patrol officer stephen lloyd rose. after gathering routine biographical alien's basic biographical information and any other immigration documents 99 (2d cir. 2005) (agreeing with the first, seventh, fifth, sixth, one panel of the the i-213 form is primarily used as a record by the ins for the purpose of boat before they began placing it onto the trailer. indeed, andollo had called for clear error). witness' testimony credible with respect to his perception of the number of life ramirez-martinez, 273 f.3d 903, 916 (9th cir. 2001) (holding that application of the to participate in the alien smuggling operation by his roommate, martinez, and return to the truck. law, an officer does not need probable cause to stop a boat to check for fishing of lopez and miranda to provide fishing licenses, their conflicting stories, and the with lopez, miranda, and caraballo, andollo developed probable cause to believe administrative processing at the pembroke pines border patrol station in 2009). we explained that "[t]he i-213 forms do not contain statements harmful to the defense 11 united states v. gupta, 463 f.3d 1182, 1198 (11th cir. 2006) (quoting u.s.s.g. � defendant was unable to cross-examine, or similar pretrial statements then both said that they did not have fishing licenses, but caraballo claimed that he because he went to trial only to preserve a constitutional objection to the validity of recklessly creating a substantial risk of death or serious bodily injury because there example, where a defendant goes to trial to assert and preserve issues testimonial hearsay admitted in violation of caraballo's sixth amendment enhancement to caraballo's guidelines calculation. see united states v. ramirez, our court has also addressed when hearsay is testimonial for sixth two levels is available if the defendant "clearly demonstrates acceptance of (1) the exercise of decision making authority, (2) the nature of was about to leave with the boat and any poached lobsters or fish would be easy to for the southern district of florida once the cabin door was open, eleven aliens appeared in plain view, huddled warrant [the] intrusion." united states v. yuknavich, 419 f.3d 1302, 1311 (11th suppress on any ground supported by the record. united states v. mejia, 82 f.3d ________________________ in davis v. washington, two years later, the supreme court elaborated on enhancement). it presented evidence that caraballo gave directions to miranda and unpersuaded. also rodriguez-lopez, 363 f.3d at 1138 (explaining that this "provision applies to ramp that is not a designated port of entry, taken together, is a powerful indication that those house around august 2nd or 3rd. of caraballo, lopez, and miranda. during his post-arrest interview, miranda told was first introduced to the alien smuggling venture when gardino martinez invited 1240, 1244 (11th cir. 2003). level at 12, pursuant to u.s.s.g. � 2l1.1(a)(3), which applies to alien smuggling (and unlike the certificates of analysis in melendez-diaz), the basic biographical officers to have made an arrest in order for their search of the apartment to be to lopez and miranda for a test run and that he had met lopez several days earlier. a district court may enhance a sentence by two levels if the defendant pursuant to u.s.s.g. � 3b1.1(a), and for refusing to award him a reduction for honorable jane a. restani, chief judge, united states court of international trade,* from the immigration files of the aliens he smuggled, in violation of the federal 803(8)(b). we have already held that immigration files contained in an a-file, a asked lopez, miranda, and caraballo whether they had a fishing license. indeed, city of north miami marine patrol officer dagoberto andollo noticed a twenty- through the i-213 forms was testimonial in nature because the declarants, the 27 doctrine to cases where officers possess a reasonable suspicion that their safety is harbors an individual posing a danger to those on the arrest scene." 494 u.s. 325, arising from the fact that the i-213 forms were the only evidence of the aliens' identities, because smuggling venture. crime, (5) the degree of participation in planning or organizing the a wide variety of conduct (e.g., transporting persons in the trunk or engine sentence for reckless endangerment, pursuant to u.s.s.g. � 2l1.1(b)(6), for his in his professional experience, the use of such mismatched rods, and the behavior the aliens would have likely died or suffered serious injuries if the boat had required a forensic analyst, at the request of the police, to test seized evidence for describe them, and the district court was well within its discretion to discount form and warrants of deportation, does not violate rule 803(8)(b)." united states four-level leadership enhancement. miranda's testimony, as it plainly did.4 offense, (6) the nature and scope of the illegal activity, and (7) the u.s.s.g. � 2l1.1(b)(6). the commentary explains that reckless conduct "includes an acceptance of responsibility reduction to caraballo's sentencing guidelines confrontation rights. he claims that any evidence the government introduced 2005). there is no dispute that the i-213 forms constitute hearsay. however, they dangerous, or inhumane condition." u.s.s.g. � 2l1.1 cmt. n.5 ; see2 or had wielded decision-making authority. united states v. ndiaye, 434 f.3d rules of evidence. caraballo also contends that the district court clearly erred in enhancing his 36 c. sentencing guidelines calculation ii. permanent part of an alien's a-file. the government offered a redacted portion of caraballo did not know that they were smuggling aliens. lopez gave the same received into evidence by the district court contained only routine biographical played a leadership or organizational role under u.s.s.g. � 3b1.1(a), there was that a warrant of deportation is non-testimonial in nature and not subject to united states of america, than an innocent bystander. in fact, even in the letter he sent to the probation john ley in many of the cases where we have affirmed a finding that a defendant statement in melendez-diaz v. massachusetts, 129 s. ct. 2527 (2009). there, the jan 27, 2010 permits. state v. casal, 410 so. 2d 152, 154-55 (fla. 1982). and there is no bar to maryland v. buie, the supreme court held that a protective sweep may be person might be hiding." id. at 327; see also united states v. miller, 430 f.3d 93, shelnutt, 400 f.3d 1070, 1087-88 (7th cir. 2005) ("[i]t was not necessary for the finding of fact on this issue was clearly erroneous. further, the record does not eleventh circuit ensuing sentence. he claims that the district court erred in admitting evidence elicit routine biographical information that is required of every foreign entrant for satellite phone on the vessel. the satellite telephone records also revealed that the court also found that a four-level aggravating role enhancement under u.s.s.g. � states v. acosta, 363 f.3d 1141, 1145 (11th cir. 2004) (citations and quotation unrestrained easily can be thrown from the bed of the pickup in the event of an accident or other v. torrealba, 339 f.3d 1238, 1242 (11th cir. 2003). to open any containers except those found in the sleeping and living areas. fla. interrogation under circumstances objectively indicating that the make her statements as a witness but, instead, as an individual seeking police agreeing to tell a fabricated story to the authorities if they were caught; caraballo caraballo's guidelines calculation. would tell the authorities that caraballo was simply selling the boat to him and miranda's, and caraballo's mobile telephones as well as from a satellite telephone of preparing for a criminal prosecution. border patrol officer rose testified that available for use at a later trial," constitute part of the "core class" of testimony. the probation office accepting responsibility for the crimes for which he had been same facts included in the forms, such as their observation of the defendants's boat and the primary purpose of the interrogation is to enable police assistance to including these: 31 u.s. court of appeals constitute testimonial hearsay whose admission was in violation of the involved five or more participants or was otherwise extensive." in determining were not business records, because the hearsay exception for business records does manner in which they quickly attempted to trailer the boat to caraballo's truck, suggest that the sweep was anything other than a limited protective sweep; andollo suppress all of the evidence recovered from the search of the boat as well as the 1168-69 (11th cir. 2001) (affirming a role enhancement under �3b1.1(a) where the another two levels because caraballo acted as an organizer or leader, pursuant to petitioner objected to the admission of three "certificates of analysis" which caraballo on their progress and their estimated time of arrival in miami. miranda miranda were nervously and obviously scanning the shoreline as their boat confrontation clause, harmless error occurs where it is "clear beyond a reasonable doubt that the caraballo also claimed that officer andollo's search of his boat exceeded and caraballo, and noting how nervous lopez appeared to be, officer andollo 26 once andollo had lawfully boarded the vessel, the conduct of lopez, miranda, and andollo his identification, he appeared very nervous and his hands were shaking. plainly see, however, the bulge of lopez's wallet in his pocket. after andollo in rodriguez-lopez, we upheld the application of a sentencing guidelines on this point comes from the testimony of rose, and, as we have noted, he said that 3 acting clerk 32 the government also presented evidence that at least five individuals answers to the question of whether he had caught any fish. lopez and miranda concealed in a dwelling house or similar place and the need for a warrant to search caraballo had organized three other similar illegal alien smuggling trips, and that offered that he had previously assisted in caraballo's alien smuggling ventures by before marcus and wilson, circuit judges, and restani, judge.* samples continued his investigation and obtained records from lopez's, citation omitted); united states v. bain, 736 f.2d 1480, 1488 (11th cir. 1984) lopez and miranda, the nature and arrangement of their fishing equipment, and the violated the fourth amendment when he boarded the vessel and opened the cabin trip, and contacted lopez fifty-eight times by telephone between july 25 and versus photographs taken during the search of the vessel that showed only three life described as "quite plainly affidavits," were testimonial statements because they violating the florida fisheries laws was supported by several specific, objective, role despite ample proof to the contrary, and admitted only that he gave miranda the living or sleeping areas of the boat. determining whether the answers elicited were testimonial). the district court testified that they knew they were engaging in an alien smuggling venture and they never asked to u.s.s.g. � 3b1.1(a), a district court may increase a defendant's offense level by confrontation clause, caraballo's convictions still could not be reversed because any such error warrant, or the existence of exigent circumstances prompts their entry."); leaf v. were testimonial in nature, rendering their admission a violation of the sixth poaching, andollo approached the boat and its occupants. he walked up to an ice, and water for lopez to use during the journey. finally, lopez testified that jackets. while miranda testified for the defendant that there were enough life vests 17 the i-213 form only to demonstrate that the aliens found on caraballo's boat were 30 retained; the suspect's age, education and intelligence; the length of the suspect's ship, motor boat, wagon, or automobile . . . it is not practicable to secure a warrant, baker, 432 f.3d at 1203 (quotation marks, citation and footnote omitted). put english. ten were chinese nationals and one was a guyanese national. none had indeed, the supreme court observed that the sole purpose of the certificates was to weapons; any physical touching of the suspect, and the language and tone of voice 33 reasonable suspicion to conduct an investigatory stop based on the behavior of posed to all aliens upon entry into the united states, rose completed an i-213 reasonable suspicion that [the defendant] had engaged . . . in a crime." united fact that it was the first day of lobster season. the court also found that the failure 18 to smuggle the aliens. however, the government presented evidence, which the lopez's wallet in his pocket. andollo asked lopez to remove the object in his the united states. similarly, extrajudicial statements . . . contained in formalized provides that: "in all criminal prosecutions, the accused shall enjoy the right . . . to provided andollo with probable cause to search the vessel. finally, the district the hatch of the cabin to ensure that no one else was on board who could jeopardize redacted i-213 forms.1 because the offense intentionally or recklessly created a substantial risk of death or range under the united states sentencing guidelines. after thorough review, we august, and that only three or four flotation devices were actually found on board provide prima facie evidence at trial. id. at 2538. moreover, these certificates deference on appeal and will not be disturbed unless clearly erroneous."). guidelines. we address and reject each of the arguments in turn. that the boat was displaying inconsistent types of fishing rods, and that lopez and district court could find on this record that caraballo was a leader and organizer of caraballo and lopez, and fifteen calls were placed between caraballo and miranda that a defendant is subject to a �3b1.1 role enhancement for clear error). pursuant 8 prior to sentencing, caraballo filed written objections to his psi, arguing, decided to conduct a fisheries check on board the vessel, and called for assistance present in any one case." ramirez, 426 f.3d at 1356. rather, these factors are `[a] solemn declaration or affirmation made for the purpose of establishing or cir. 2002) (affirming role enhancement under � 3b1.1(a) where the defendant gave smuggling charges was harmless beyond a reasonable doubt. 572 f.3d 1352, 1362-63 (11th cir. rules of evidence and the confrontation clause of the sixth amendment. enforcement officers do not violate the fourth amendment simply by approaching explanation the aliens provided for their arrival in the united states was improbable and not an individual on the street or in some other public place and asking a question or instructing co-conspirators"); united states v. suarez, 313 f.3d 1287, 1294 (11th to be served concurrently. claimed a larger share of the profits than other participants). an alien smuggler transported twenty-two cuban nationals on a small boat between we review the findings of fact made by the district court for clear error and here, the i-213 forms did not contain any non-cumulative evidence harmful to the transporting aliens on roadways without sufficient seats or seatbelts, conduct that a black truck with a boat trailer hurriedly backed up to load the boat, and one of the violation of laws or rules . . . ." (7/14/2008 order on motion to suppress, case no. entry, the incriminating nature of the scene was readily apparent. andollo did not the rules of evidence contain an explicit exception for public records and collective knowledge of the officer[] involved in the stop, [he] had an objectively protect them from the elements. further, andollo did not search any container in fish. lopez first replied "yes" and then said "no." asked to clarify his response, production of evidence for use at trial." id. second, the district court did not clearly err in applying a leadership role degree of control and authority exercised over others. contact by telephone throughout the entire voyage; instructed miranda and lopez door, revealing eleven aliens. reports containing "matters observed pursuant to duty imposed by law as to which the proper administration of our immigration laws and policies. the district court him nervous, and, notably, he did not board the vessel to conduct a search until information from each of the aliens based on a set of the same objective questions simply opened the door to the one large concealed living area of the boat where amendment's confrontation clause. the district court granted the motion in part 35 the basic facts are these: on august 7, 2007, at approximately 11:30 a.m., evidentiary error "unless there is a reasonable likelihood that [the errors] affected the defendant's we review evidentiary rulings for an abuse of discretion. united states v. marks omitted). cir. 2008). driving maneuver of the sort that is unavoidable in highway driving."); united states v. offered for the sentencing judge's consideration. id. 4 hearsay that, while subject to traditional limitations upon hearsay evidence, is not on a twenty-five-foot fishing boat that was not equipped with nearly enough life b. admissibility of the i-213 forms of the smuggled aliens on the first day of lobster season, the obviously nervous demeanor of lopez and satellite telephone was in the area of freeport, bahamas, on the morning of the offense level is less than 18, in which case the total offense level is increased to 18. lopez to participate in the smuggling operation; the smugglers met at caraballo's crawford and the confrontation clause. 396 f.3d 678, 680 (5th cir. 2005). of the aliens that he smuggled (the "a-files"), which included the i-213 form of the police.") (quotation marks and citation omitted). thus, the initial encounter (1/13/2009 sentencing tr., at 16). small compartment. unlike the tenth circuit, "a majority of circuits have extended the protective sweep substantial rights." united states v. emmanuel, 565 f.3d 1324, 1332 (11th cir. 2009); there were no additional persons on board who could cause him harm. in formal statement[s] to government officers are generally testimonial . . that the district court made multiple errors in calculating the applicable sentencing seized." united states v. drayton, 536 u.s. 194, 201 (2002). "[t]he simple act of which would lead an objective witness reasonably to believe that the lopez participated in each of them and had been paid for his services. group of people disembarking from the vessel, the discovery of thirty-four cuban nationals on board and the government presented photographic evidence of the three life telephone and a gps. notably, caraballo also required lopez to sign an fruits of the stop, search, and seizure that ensued on the morning of august 7, 2007 his conduct). in each such instance, however, a determination that a him to meet with the defendant caraballo. at that time, caraballo asked lopez to the united states, and that the i-213 form is filled out for all aliens who are unable 2005) ("we hold . . . that police who have lawfully entered a residence possess the discretion when it failed to exclude the first page of the aliens' i-213 forms (taken defendant has accepted responsibility will be based primarily upon automatically preclude a defendant from consideration for such a pocket. it was a wallet. lopez opened it and handed andollo his identification back-up from other law enforcement officers because the suspects' conduct made 7 crawford v. washington, the supreme court held that the confrontation clause district court miscalculated the applicable sentencing range under the sentencing his safety. he observed eleven overheated and frightened passengers tightly fall squarely within an exception to hearsay. undertaken lawfully pursuant to an in-house arrest where the officer "possesses a u.s.s.g. � 3e1.1 cmt. n.2. it is also clear that a defendant has not accepted in short, we affirm the determinations of the district court in all respects. bars the admission of the testimonial statements of a witness who did not appear at findings under oath. the supreme court held that these certificates, which it confrontation, because it "is recorded routinely and not in preparation for a board. their answers to andollo's questions had been inconsistent; lopez, in application of the enhancement when the defendant transported twenty-three aliens in a van information -- the entrant's name, date of birth, place of birth, parents' names, this timely appeal followed. we accept the district court's factual findings at sentencing unless clearly jackets. indeed, andollo testified that the aliens were "packed like sardines" in the nor did the admission of the i-213 forms violate caraballo's rights under the affirmed. received a four-level enhancement for being a leader or organizer of a criminal no. 09-10428 have been proper even if andollo did not have reasonable suspicion. law back-up arrived. the question of whether hearsay statements are `testimonial' for purposes of the 16 office after he was tried and convicted, caraballo again attempted to minimize his 14 in the presentence report, or evidence presented at the sentencing hearing."). the search."). see united states v. edwards, 211 f.3d 1355, 1359 (11th cir. 2000) (stating that the harmless to produce documentation showing that they have lawfully entered the united indeed, the portion of the i-213 form offered by the government and prosecution. in the cabin space of the small craft. particularly given that they had entered the venture. counts xiii though xxiii on the lesser included offense of violating 8 u.s.c. � serious bodily injury to another, pursuant to u.s.s.g. � 2l1.1(b)(6), and by acceptance of responsibility for his criminal conduct even though he address, u.s. residence, if they have one, immigrant visa information" and once at that home, had witnessed caraballo collecting payment from the chinese many of our sister circuits have found sufficient to support the application of this which he described as a "record of biographical data." (11/3/2008 trial tr., at 47). eleven aliens found in the cabin of the vessel, and then prepared their a-files. an defense. the presence of eleven people, only one of whom could speak english, crammed into 3b1.1, cmt. n.4). "there is no requirement that all of the considerations have to be a. motion to suppress its application of law to those facts de novo. united states v. king, 509 f.3d 1338, the commentary and application notes of the sentencing guidelines are authoritative2 stat. �� 379.3313(1)-(2); hill v. state, 238 so. 2d 608, 611 (fla. 1970). a person police questioning does not constitute a seizure." united states v. perez, 443 f.3d crimes is entitled to a reduction of his sentence if the sentencing court finds that he 426 f.3d 1344, 1355 (11th cir. 2005) (we review a district court's determination on other grounds by apprendi v. new jersey, 530 u.s. 466 (2000); but see united asked lopez whether he had been fishing, asked lopez for his identification, and that declarants would reasonably expect to be used prosecutorially. also suggested that caraballo had not accepted full responsibility, that the aliens the truck, said that he had a license and that there were no fish on board the boat; united states from international waters at a location other than a designated port of and articulable facts, including the display of inconsistent fishing rods on the boat or tone of his voice. see id. ("factors relevant to this inquiry include, among other 1291 (11th cir. 2006) (citation omitted). must have a license, permit, or authorization number to take saltwater fish, and the was ample space for the aliens in the cabin of the boat; that he should not be given or confessions, and statements that were made under circumstances 24 identification was on the boat. however, the officer could see the outline of probable cause). "the substance of all the definitions of probable cause is a _________________________ then return to the truck. when speaking to andollo, lopez gave inconsistent proceeded to trial on all of the counts of the indictment, not just those involving 8 under u.s.s.g. � 3e1.1(a), a sentencing guidelines calculation reduction of of the fourth amendment, the first congress, and, later, the second and fourth experience and evaluate whether the officer can "point to specific and articulable reasonable belief based on specific and articulable facts that the area to be swept his account was consistent with that of lopez. miranda added that he was asked country." 430 f.3d 1142, 1145 (11th cir. 2005) (emphasis added). similarly, the cir. 2005) (citation omitted); lopez-garcia, 565 f.3d at 1313. an officer may i am persuaded that the two level increase should apply here. first, i did not find the on january 13, 2009, the district court sentenced caraballo to forty-six circumstances objectively indicate that there is no such ongoing ("[t]he mobility of the vessel was an exigent circumstance justifying an immediate enforcement officers. officer andollo saw that once the vessel reached the shore, united states, 267 u.s. 132, 153 (1925) (stating that in conducting "a search of a 9 the district court admitted a portion of the smuggled aliens' i-213 immigration 2 an officer left behind to secure the premises while a warrant to search those data, name, date of birth, place of birth, mother and father's name, height, weight, defendant "controlled and directed" others in the transportation of illegal drugs and information recorded on the i-213 form is routinely requested from every alien come to, enter, and reside in the united states, in violation 8 u.s.c. � jury, and then the sentencing judge, obviously credited -- that caraballo recruited contacted miranda and lopez thirty-nine times by telephone during the smuggling court concluded that the search of the cabin was a constitutionally permissible notice and inspection. suspecting that caraballo's boat was engaged in lobster miranda and lopez had picked them up in the bahamas and transported them by small boat to pertinent to the alien. the government offered at trial only the biographical based on that information, caraballo was released and lopez and miranda were marcus, circuit judge: the district court stated:4 21 the statute, 8 u.s.c. � 1324(a)(2)(b)(iii), and that, after trial, he wrote a letter to an enhancement as a leader; and that he should be awarded an acceptance of the second co-conspirator, edel miranda, also testified against caraballo. found on the boat. these records showed that sixteen calls were made between people during a five-hour voyage, and, therefore, that the reckless endangerment orders to other agents, oversaw the movement and distribution of illegal drugs, and documents. the admission of the redacted i-213 forms did not violate the federal responsibility for his offense." we have explained that, "[t]he sentencing his sentencing hearing and offered the testimony of miranda. substantial risk of death or serious bodily injury to another person. id. at 1137 lead an objective witness reasonably to believe that the statement would be at most, a brief investigative stop that was clearly supported by reasonable probable cause was demonstrated by these facts: again, andollo observed make an investigative stop if "under the totality of the circumstances, from the catch. in particular, he was looking for lobster poachers, who often displayed agent samples that he and lopez had told caraballo only that they were taking the caraballo argues that he was not an organizer or a leader of a criminal customs and border patrol agent mark samples arrested and took custody if hearsay is "testimonial," that is, for example, made under v. agustino-hernandez, 14 f.3d 42, 43 (11th cir. 1994); see also renteria- sentencing guideline enhancement for intentionally or recklessly creating a united states v. gould, 364 f.3d 578, 584 (5th cir. 2004) (en banc); united states not extend to cases where "the regularly conducted business activity is the unless the statement is not hearsay as provided by rule 801(d) or falls into one of the declarant while testifying at the trial or hearing, offered in evidence to prove individual still on the boat, anderson lopez, and asked him if they had caught any whenever an alien "lands on united states soil" he asks them for "[b]iographical rose gathered that biographical information from the aliens in the normal course of created, either intentionally or recklessly, a substantial risk of death or serious and questioned lopez, miranda, and caraballo at the outset. the interaction was, miranda as they scanned the shoreline apparently surveilling the area for law showed that the seized substances contained cocaine. in massachusetts, state law states. rose explained that the i-213 forms are routinely prepared and became a things: whether a citizen's path is blocked or impeded; whether identification is abimel caraballo appeals his convictions for alien smuggling and his possessed decision-making authority); united states v. mesa, 247 f.3d 1165, aliens into the united states. ariel, in turn, provided lopez with a satellite special assessment in the amount of $1,475 and a fine of $2,500. specifically, the 337 (1990). "a `protective sweep' is a quick and limited search of premises . . . . confrontation clause." united states v. lamons, 532 f.3d 1251, 1261 n.15 (11th for the eleventh circuit and lopez use of his boat. again, the district court did not clearly err in 3b1.1(a) was appropriate because the evidence demonstrated that caraballo was a 12 instructed them how generally to commit the crime. in addition, the government the basic information he collected from the eleven aliens during their interviews at form, entitled record of deportable/inadmissible alien, for each one. august 3, caraballo and lopez called each other fifty-eight times. there were also differently, generally, the standard pedigree information contained in the a-files would not that are not cumulative of other evidence admitted at trial," because officers testified about the ________________________ of evidence. hearsay is generally defined as "a statement, other than one made by months' imprisonment, followed by three years of supervised release as well as a interviews conducted on board the vessel, because, he claims, officer andollo indicated violations of the fisheries laws. then, once at the boat ramp, lopez, � 2 (counts xiii-xxiii). of deportable/inadmissible alien form -- is routinely completed by customs and v. taylor, 248 f.3d 506, 513 (6th cir. 2001) ("[t]he principle enunciated in buie jackets on board the vessel. the photographs which were taken contemporaneously path was blocked, that his identification was retained, or that he did not understand properly ruled that the primary purpose of rose's questioning of the aliens was to testimonial and analogous to a business record and thus were not barred by the constitution or federal law. stinson v. united states, 508 u.s. 36, 45 (1993); united states knew nothing about the alien smuggling plan. caraballo also purchased fuel, bait, in the second place, as caraballo also conceded, during his conversation believe that the defendant and others had unlawfully obtained lobsters and violated u.s.c. � 1324(a)(2)(b)(iii). based on those findings, caraballo's total offense calculation. see united states v. kendrick, 22 f.3d 1066, 1068 (11th cir. 1994) confrontation clause. the confrontation clause of the sixth amendment with the seizure of the vessel and the aliens and those who were operating the vessel has accepted responsibility for the crime." united states v. rodriguez, 959 f.2d were confined to the boat's cabin during a five-and-one-half-hour ocean voyage in here, andollo's suspicion that lopez, martinez, and caraballo were that, before they left for the bahamas, caraballo instructed him to go to the marina challenge to a statute or a challenge to the applicability of a statute to ninth, and d.c. circuits that protective searches may be undertaken even without testimony that he, caraballo, miranda, martinez, and ariel attended planning 22 193, 195 (11th cir. 1992). this activity that involved five or more participants (rather than only a two-level seats or seat belts); united states v. ortiz, 242 f.3d 1078, 1078-79 (8th cir. 2001) (affirming as we read the record and the district court's findings, the brief questioning would denied the suppression motion, concluding that andollo had authority under fla. 6 approached haulover inlet. andollo testified that these were real signs that erroneous, and we review the application of the sentencing guidelines to the facts agreement stating that, if lopez was caught by the police or the coast guard, he portion of the i-213 forms of the aliens. violate the fourth amendment when he "seized" the eleven aliens crammed into (january 27, 2010) believe that the statement would be available for use at a later trial, the it is narrowly confined to a cursory visual inspection of those places in which a aliens. miranda had also seen thirteen or fourteen chinese people at caraballo's reasonable witness to believe that the statement would be used at a later trial. be confronted with the witnesses against him." u.s. const. amend. vi. in packed inside of a small, enclosed cabin. only one of the passengers could speak authorization must be in the possession of the person at the time he takes or in addition, a panel of this court determined in united states v. cantellano, individuals found on the boat and government witnesses had independently established that cuba and the florida keys that was not equipped with a sufficient number of life enable police assistance to meet an ongoing emergency," and the declarant did not violate the confrontation clause because it was not testimonial in nature. cataloging of unambiguous biographical matters becomes a permanent part of the pembroke pines border patrol station is collected from all aliens upon entering the district court rejected miranda's testimony concerning the safety of the adjustment is not intended to apply to a defendant who puts the serious injury to the aliens he transported is a factual finding that we review for that day. see lopez-garcia, 565 f.3d at 1314 (holding that the validity of a search meet an ongoing emergency. they are testimonial when the protective sweep to protect himself based upon the nervous behavior of lopez, participated in the conspiracy; at sentencing, the government cited lopez's trial 20 convicted. the argument is unpersuasive. notably, caraballo contested his guilt (focusing on the primary purpose of the 911 operator's interrogation in opportunity to cross-examine the declarant. ariel met in caraballo's living room on august 4th to discuss the plan. on august any immigration papers, and they appeared to the officer to be "extremely scared." limited protective sweep. capsized or if they had fallen overboard in the open seas without a flotation device. he did not, however, produce a fishing license. the district court properly denied the defendant's motion to suppress the d. c. docket no. 08-20266-cr-cma evidence that the defendant had recruited participants, had instructed participants, eight telephone calls that caraballo made on the morning of the smuggling to the in the cabin for all of the aliens, he could not remember the exact number or "[i]t is the testimonial character of the statement that separates it from other through xxiii, and he continuously maintained that his only involvement in the unless they are plainly erroneous, inconsistent with the regulation they interpret, or contrary to passengers on the boat jumped into the water, waist-deep, to expedite the loading possesses the saltwater fish. fla. stat. � 379.354(1)(a), (3). in fact, under florida august 3; caraballo financed the trip (including the purchase of 180 gallons of 1270, 1304 (11th cir. 2006) (affirming role enhancement under � 3b1.1(a) where 25 gasoline); and caraballo agreed to pay lopez $7,000 for his role in the smuggling leader or organizer of a criminal activity involving at least five participants. confessions," and "statements that were made under circumstances which would suggests no more than a consensual one. enhancement was appropriate where the defendant transported twenty people in a van without forms in violation of both the federal rules of evidence and the confrontation de novo. united states v. rodriguez-lopez, 363 f.3d 1134, 1136-37 (11th cir. equipped with seat belts for only fourteen). trial unless the witness was unavailable and the defendant had a prior opportunity gonzalez v. i.n.s., 322 f.3d 804, 817 n.16 (5th cir. 2002) (finding that the i-213 show three life jackets, not 11. the defendant did not count them before. he didn't and denied it in part, observing that "[t]o the extent the `a-files' include the boat's small cabin. testimonial materials, such as affidavits, depositions, prior testimony, 37 reasonable ground for belief of guilt." united states v. smith, 459 f.3d 1276, constitutionality of 8 u.s.c. � 1324(a)(2)(b)(iii). he reiterated these arguments at inter alia, that he should not be given a two-level enhancement for intentionally or the florida fisheries laws. we add that the exigency of the situation -- caraballo testimonial," id. at 56. it also described "testimonial" hearsay as being "typically defendant's a-file, particularly a certificate of nonexistance of record, were non- whether the information elicited is testimonial. see davis, 547 u.s. at 828, 830 filed generally that business records are "statements that by their nature were not miranda, and caraballo were moving as quickly as possible to load the boat onto a on all of the charges brought against him, not just those contained in counts xiii supported by any evidence. id. at 1363-64. also, we explained that there could be no prejudice were made under oath and under circumstances which would lead an objectively his role, despite . . . evidence to the contrary." united states v. rubio, 317 f.3d the partial i-213 forms were not admitted in violation of the federal rules in the united states court of appeals first to ensure there were no police present. miranda also testified that, throughout rated capacity of a motor vehicle or vessel, or harboring persons in a crowded, we consider the totality of the circumstances in light of the officer's own lopez; purchased provisions for the journey including the gas; stayed in constant participation in the commission of the offense, (3) the recruitment of premises is obtained."); united states v. garcia, 997 f.2d 1273, 1282 (9th cir. facts which, taken together with rational inferences from those facts, reasonably looking around nervously and appeared to be scanning the shoreline for law states v. torres-castro, 470 f.3d 992, 997 (10th cir. 2006) (recognizing that, five-foot fishing boat entering haulover inlet in miami, florida. using binoculars, the english language (1828)). thus, "extrajudicial statements . . . contained in enter, and reside in the united states illegally, in violation of 8 u.s.c. � designated port of entry, in violation of 8 u.s.c. � 1324(a)(2)(b)(iii) and 18 u.s.c. same right to conduct a protective sweep whether an arrest warrant, a search observed by police officers and other law enforcement personnel." fed. r. evid. reduction. in rare situations a defendant may clearly demonstrate an dispose of -- made it impossible to seek a warrant in due course. see carroll v. in the first place, as caraballo conceded, officer andollo properly stopped 19 cabin and sweating badly. these conditions are undeniably dangerous and contacted immigration and customs enforcement ("ice") agents, who took three men attempted to load the boat onto the trailer. officer andollo testified that, with shaking, nervous hands. assistance in an emergency. id. at 828. hawkins, 905 f.2d 1489, 1493 (11th cir. 1990). however, we review "de novo for his role in the offense, particularly because caraballo denied his guilt and caraballo's pre-sentence investigation report ("psi") set his base offense . [as are] affidavits, custodial examinations, prior testimony that the 1324(a)(2)(a). had fishing licenses; they said no. the defendant, caraballo, who was the driver of at risk, even in the absence of an arrest"). that same day, the lack of immigration records for those thirty-four people, and the fact that the 39 confrontation clause prohibits its admission at trial unless (1) the even if the admission of the i-213 forms was in violation of the hearsay rule or the1 individuals are illegally entering the country. moreover, lopez and miranda unambiguously involved in the operation. the district court did not clearly err in applying the caraballo raises three challenges in this appeal. first, he claims that the offense level of 20 and a criminal history category of i, yielding a guidelines range the initial stop was brief and minimally intrusive: officer andollo only furthered a prosecution. the supreme court has instructed us to look only at the authority included the power to search and inspect vessels without a warrant when without a license, and that they had engaged in this criminal activity on the vessel at trial, co-conspirator lopez, testified on behalf of the united states that he caraballo also challenges his sentence of forty-six months' imprisonment, arguing 10 caraballo argues that the district court erred in denying his motion to proving some fact.'" id. at 51 (quoting 2 n. webster, an american dictionary of accomplices, (4) the claimed right to a larger share of the fruits of the on may 6, 2008, a federal grand jury, sitting in the united states district exercises his constitutional right to a trial. this may occur, for preservers. the district court found that the cabin was not designed to hold eleven know how many there were. i don't know how he can then say that there was [sic] held that a victim's statements in response to a 911 operator's questions did not for contraband concealed in a movable vessel.") (internal quotation marks and like a warrant of deportation and a certificate of nonexistance of record of the vessel onto the trailer. andollo also saw the driver of the truck, the stat. � 370.01(6) to enforce fish and wildlife commission laws, and that his taking some chinese aliens from miami beach to the home of a conspirator, and through xii and twelve months' imprisonment for counts xiii through xxiii, all asked lopez whether his identification was in the wallet, lopez produced the the presence of illegal drugs, and required the analyst to provide the police with his appeal from the united states district court "admission of routinely and mechanically kept i.n.s. records, such as the i-194 entering the united states, and the form itself is filled out for anyone entering the with regard to officers making an arrest � that the police may conduct a limited matters there was a duty to report, excluding, however, in criminal cases matters particular, appeared extremely nervous; and caraballo had quickly boarded the identification, lopez said that his identification was on the boat. andollo could andollo asked lopez to provide identification; lopez replied that his guidelines provide that a defendant who shows remorse or contrition for his whether the entrant had an immigration visa. the i-213 form -- entitled a record 5 1324(a)(1)(a)(iv) (counts ii-xii); and (3) bringing aliens to a place other than a primary purpose of the law enforcement officer's questioning in determining enhancement pursuant to u.s.s.g. � 2l1.1(b)(6) was fully warranted. the district defendant-appellant. meetings. see united states v. wilson, 884 f.2d 1355, 1356 (11th cir. 1989) recovered from an unlawful search, and in admitting a standard ins form taken enhancement. id. at 1138.3 enforcement officers upon their approach, and the unusual speed with which the inhumane condition[s]") (citation and quotation marks omitted). 28 an array of factual scenarios and should be applied flexibly . . . [to include] court declined to define what a "testimonial" statement is, id. at 52, it did observe forty-one to fifty-one months' imprisonment and three years of supervised release. sense as fishing rods and other accouterments are often stored inside of the cabin to confrontation clause, because the "primary purpose" of the questioning "was to statements are nontestimonial when made in the course of police which the warrant must be sought"); see also california v. acevedo, 500 u.s. 565, finally, the district court determined that caraballo had not accepted responsibility 29 water voyage from the bahamas to miami in august in a small and enclosed cabin, 569 (1991) (citing carroll and explaining "[c]ontemporaneously with the adoption [publish] offense involved eleven aliens. the psi then increased the offense level to 18 defendant abimel caraballo, exit his vehicle, enter the boat momentarily, and then florida state law also authorized andollo to board the boat, to "open and eleven aliens, did not testify at trial. we remain unpersuaded. incidental or secondary use of the interviews underlying the i-213 forms actually see, e.g., united states v. cuyler, 298 f.3d 387, 391 (5th cir. 2002) ("aliens who are3 pembroke pines, florida. (id.). the redacted i-213 forms that were admitted would be harmless beyond a reasonable doubt. we will not reverse a conviction based on an f.3d 1300, 1307 (11th cir. 2001) (quotation marks and citation omitted). on the morning of the alien smuggling venture. in addition, between july 25 and responsibility where he proceeded to trial and "consistently attempted to minimize responsibility deduction because he went to trial only to contest the monitoring the haulover inlet area to ensure that fishermen were complying with did not violate caraballo's constitutional rights in admitting the smuggled aliens's after opening the hatch further and offering the passengers water, andollo court for the southern district of florida, returned a twenty-three count indictment because the vehicle can be quickly moved out of the locality or jurisdiction in the jury convicted caraballo of counts i through xii as charged and of conducted a protective sweep that included opening the cabin door to ensure that 1341 (11th cir. 2007). in addition, we may affirm the denial of a motion to sufficient number of jackets for these folks who were inside the cabin. that is a very form falls under the public records exception to the hearsay rule). from other officers before boarding. after climbing onto the boat, andollo opened detention and questioning; the number of police officers present; the display of compartment of a motor vehicle, carrying substantially more passengers than the inspect . . . areas where saltwater products are normally kept aboard vessels," and during trial, facts admitted by a defendant's plea of guilty, undisputed statements in united states v. gari, we held that the admission of i-213 forms in support of alien establish or prove past events potentially relevant to later criminal that do not relate to factual guilt (e.g., to make a constitutional when taken in concert, these circumstances yielded a reasonable ground to formalized testimonial materials, such as affidavits, depositions, prior testimony, or of thirty-three to forty-one months' imprisonment. height, weight, address, country of citizenship, and information concerning error doctrine applies to violations of the confrontation clause). for violations of the activity involving five or more participants because he merely owned the boat used station in pembroke pines, florida, where they were interviewed by customs and crawford, explaining: miami. lopez said that he, martinez, caraballo, and another individual named reduction for acceptance of responsibility is a finding of fact that is entitled to great state regulations concerning the number and size of lobsters they were permitted to the closed cabin of a twenty-five-foot boat on an august day in south florida, arriving at a boat his lawful authority under florida law, and, therefore, the fruits of the search four levels "[i]f the defendant was an organizer or leader of a criminal activity that 13 circumstances where alien smugglers subject others to crowded, dangerous, or 547 u.s. 813, 822 (2006) (emphasis added). the supreme court emphasized that answer. the defendant caraballo also told agent samples that he had lent the boat aliens on board the vessel, finding it not to be credible. instead, it relied on enhancement for the creation of a substantial risk of death or serious injury where u.s.s.g. � 3b1.1(c). accordingly, the psi concluded that caraballo had a total at the haulover inlet in miami, florida. untied states without proper immigration papers. the only evidence in the record caraballo also argues that the district court abused its considerable the hearsay exceptions." united states v. baker, 432 f.3d 1189, 1203 (11th cir. because it was the first day of lobster season, the marine patrol officer was government to its burden of proof at trial by denying the essential trailer. indeed, lopez was observed jumping into waist-deep water to expedite the of lopez, miranda, and caraballo during lobster season reasonably suggested that abimel caraballo, testimonial statements, such statements are inadmissible," but also finding that, injury to the alien whom he has smuggled or transported, unless the resulting jackets. id. at 1137-38. we explained that such conduct was equivalent to the vessel. miranda, and caraballo. caraballo presented no evidence that the district court's charging caraballo with (1) conspiring to encourage and induce aliens to come to, no such identification is required to support alien smuggling offenses. see id. at 1363 n.9. from their a-files) on two grounds: first, because the evidence was impermissible border patrol agents in the course of their non-adversarial duties, not in the course that the conversation was voluntary. nor was there any indication that andollo that the three had violated the fisheries laws of florida by fishing or lobstering soon thereafter, caraballo moved in limine to exclude the immigration files justified; the only question is whether the search was objectively reasonable."); obtained during and derived from the search of his boat. second, he contends that the government also objected to the psi, arguing that caraballo should have ins a-file, he explained, generally contains an i-213 form which records the 23 (explaining that the decision about whether the defendant created a risk of death or the district court did not clearly err in applying the � 2l1.1(b)(6) enhancement to contained nothing more. arrested. id. at 1203-04 (quotation marks and citations omitted). factual elements of guilt, is convicted, and only then admits guilt and declarant is unavailable, and (2) the defendant has had a prior statement would be available for use at a later trial, fall within the core should be suppressed. after conducting an evidentiary hearing, the district court fifth circuit, in united states v. rueda-rivera, determined that items in a inhumane. during the search of the boat, only three life jackets were found on what to say in the event they were caught; set miranda's and lopez's pay; and hearsay under the federal rules of evidence; and, second, because it amounted to officers "have reason to believe that fish or saltwater products are taken . . . in 34 suspicion. see united states v. lopez-garcia, 565 f.3d 1306, 1313 (11th cir. tracking the entry of aliens into the united states. this routine, objective the district court also expressly found that andollo engaged in the expresses remorse. conviction by trial, however, does not the truth of the matter asserted." fed. r. evid. 801(c). "hearsay is inadmissible