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U.S. v. TORRES-FLORES

No. 05-50898.

502 F.3d 885 (2007)

UNITED STATES of America, Plaintiff-Appellee, v. Carlos TORRES-FLORES, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed September 4, 2007.

Attorney(s) appearing for the Case

Matthew C. Shaftel and Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Carol C. Lam, United States Attorney for the Southern District of California, San Diego, CA; Roger W. Haines, Jr., Assistant United States Attorney, San Diego, CA; Christopher P. Tenorio, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

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)1 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...

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