495 F.2d 160
161 U.S.App.D.C. 334
UNITED STATES of America, Appellant,v.Warren J. COATES.
No. 73-1403.
United states Court of Appeals, District of Columbia Circuit.
Argued Dec. 6, 1973.Decided March 12, 1974.

Peter K. Mair, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry and Paul L. Friedman, Asst. U.S. Attys., were on the brief, for appellant.
William J. Garber, Washington, D.C.  (appointed by this Court) for appellee.
Before McGOWAN, TAMM and LEVENTHAL, Circuit Judges.
LEVENTHAL, Circuit Judge:

1
This is an appeal by the Government from an order of the District Court suppressing as evidence a sawed-off shotgun and shotgun shells removed from the defendant's person.  A police officer's discovery of these items led to a three-count indictment that charged defendant with possession of an unregistered firearm, 26 U.S.C. 5861(d); a firearm not identified by serial number, 26 U.S.C. 5861(i); and a prohibited weapon, 22 D.C.Code 3214(a).  We reverse and remand.

I.  STATEMENT OF FACTS

2
At the suppression hearing, the testimony of the sole witness, Officer Bryant Anderson, Jr., of the Metropolitan Police, set forth the following events.  On Saturday, october 7, 1972, at about 8:30 p.m., Officers Anderson and Himes went to the Whitelaw Hotel at 1839-13th Street, N.W., Washington, D.C. The owner of the hotel had requested the police to give special attention to the building 'because of the high crime rate in his building.'  (Tr. 7).  Officer Anderson's assigned duties had included patrol of the area where the Whitelaw Hotel is located for about two years, and he was able to recognize most of the permanent residents of the hotel.  (Tr. 7, 10).  When visiting the hotel in response to the owner's requests his usual practice is to inspect the common hallways and lavatories to ascertain whether persons he encounters there have a legitimate purpose in being present in the hotel.  Upon meeting a person he does not recognize as a hotel guest, his normal procedure is to ask the person to produce identification and to explain his business in the hotel.

3
When Officer Anderson was asked whether he searches or frisks individuals he encounters, he replied that he does so 'most of the time, especially in the wintertime when they wear long heavy coats where they can conceal weapons easily.'  (Tr. 9-10).  The officer added that he is likely to frisk someone 'if the individual cannot give a good explanation of why he is in the building . . ..'

4
As to the night of October 7, Officer Anderson testified that he and Officer Himes alerted the hotel clerk of their presence and began their inspection of the hotel, starting on the first floor and proceeding to the floors above.  They had just started up to the fourth floor when, in Officer Anderson's words--

5
We just started up the first flight of stairs between the third floor and the landing between the third and fourth floors, about halfway up Mr. Coates came around, came down from the fourth floor, hit the middle landing and was just making the turn to come down that second set of stairs.  As he made the turn he spotted myself and Officer Himes.  As soon as he saw us he made a quick move to go back up the stairs, run up the stairs.  It was quite a jerky move.  I yelled to him to hold it.  He looked at us for just a split second and shrugged his hands down alongside of his legs and said 'shit', in a disgusted manner.  (Tr. 13)

6
Officer Anderson was asked why he had instructed Mr. Coates to 'hold it.'  He replied, 'Mr. Coates looked like he was on the verge of fleeing for some reason unknown to me at that time.'  (Tr. 14)Officer Anderson was asked what happened next.  He continued:

7
At that point Mr. Coates had an advantage on me as far as height.  My head was approximately belt-level to him which gave him a very good kicking position if he chose to do it.  Seeing this advantage, I placed my left hand on his mid-section to walk him back away from the edge of the stairs so I could get even with him.  When I did I felt the butt of the sawed-off shotgun tucked down inside of his pants and under his jacket.  (Tr. 14-15).

8
From the contact of his hand against the defendant's jacket, Officer Anderson was confident he had felt the butt of a sawed-off shotgun or rifle.  (Tr. 16).  Officer Anderson walked the defendant away from the stairs and asked him what was in his pants.  When Mr. Coates replied 'nothing,' the officer reached into the defendant's jacket and removed a sawed-off shotgun.  The officers thereupon conducted a complete search of the defendant's person and found two shotgun shells in his jacket pocket.  The shotgun itself was found to be loaded.

9
On cross-examination, Officer Anderson further testified that the movement by defendant that preceded the command to stop was not a turning around but 'a quick motion to the right as if to bolt . . .'  (Tr. 24).  Was Mr. Coates 'free to go' after he was directed to 'hold it'?  'Not until we checked him,' the officer responded.  (Tr. 23).

10
Further questioning of Officer Anderson about placing his hand on the defendant as he ascended the stairs, proceeded as follows (Tr. 32):

11
Q: Now, when you say that you reached out, did you push him forcefully?

12
A: No, Sir.  Mr. Coates wasn't fighting or causing any immediate danger at that moment.  All I did was place my hand on his stomach above the belt-level in order to protect myself as far as a kick or a movement trying to run me over and back him back.

13
Q: Would you have done that with any individual in the Whitelaw Hotel, any male that you had come in contact with under those circumstances?

14
A: Yes, Sir, I would have.

15
Would he have frisked the defendant had he not felt a weapon at the initial touching?  Officer Anderson replied 'possibly not,' noting that the defendant's clothing was not bulky and that he saw no bulges.  When defense counsel asked whether prior to the initial physical contact he had reason to fear that Mr. Coates was armed, the officer responded 'I am always in fear that someone is armed.'  (Tr. 33-34).

16
Asked by the Court whether he had been kicked by someone standing at a higher level, Officer Anderson answered that such an incident had occurred some three-and-a-half years earlier, when he was responding to a disorderly person call.

17
After the foregoing testimony the District Court ruled on January 26, 1973, that it would grant the motion to suppress.  Its ruling is in the margin.1

18
The Government asked the District Court for a ruling that was more specific as to the ground on which the evidence was suppressed.  The Court complied with the request, stating on February 2, 1973:

19
. . . I find and conclude that the defendant was under arrest as the officer stated.

20
He said he would not let him move and he would not permit him to leave and that he acted without probable cause and found a transient on the steps and said he thought he was going to be kicked so he put his hand up and definitely that man was under arrest.  He could not move.  He did not use the word 'arrest.'

21
I find no probable cause for arrest and the search was as a result.  (Supp. Tr. 3).

II.  DISPOSITION
A.

22
The District Court's ultimate ruling reflects a legal conclusion that Officer Anderson placed the defendant under arrest when he told the latter to 'hold it,' and that this action violated the Fourth Amendment unless supported by probable cause.2  This conclusion was erroneous.  Ever since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Fourth Amendment jurisprudence has recognized a variety of police encounters with citizens which limit personal freedom but do not amount to arrests.  These lesser intrusions, including 'stops' and 'frisks,' are constitutional even in the absence of probable cause required for arrest so long as they satisfy the test of 'reasonableness,' ascertained by balancing the Government interest further by police action against the invasion of individual privacy.  392 U.S. at 20-21, 88 S.Ct. 1868.  The latest word on this kind of police activity appeared in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), where the Supreme Court held that a police officer may constitutionally detain a person 'to determine his identity or to maintain the status quo momentarily while obtaining more information,' expressly viewing such an action as a forcible, but temporary, detention.  407 U.S. at 146, 92 S.Ct. at 1923.  Because the District Court erroneously measured Officer Anderson's action against the probable-cause-to-arrest standard, we must reverse.

B.

23
The Government asks us to go further and rule that throughout his encounter with the defendant, Officer Anderson acted reasonably, both in ordering the defendant to stop and in placing his hands upon the defendant's midsection, the gesture which led to discovery of the concealed firearm.  Such a determination, however, must await further examination by the District Court.  We say this having in mind that although the District Judge erred in saying in his supplementary statement that there was a need for probable cause to support an arrest, what he may have had in mind was a conviction that under the totality of the circumstances the police officer acted unreasonably.  Our remarks should not be taken as any indication of spproval or disapproval of such a conclusion.  Rather, we think that an appellate ruling should be preceded by further reflection on the underlying problems by counsel and by the trial judge.

24
This case requires a further fleshing out of the justification required by the Fourth Amendment for various encounters between police and citizens.  Terry and Adams dealt with a police officer's constitutional power to detain suspects, and to disarm them, under circumstances suggesting the commission of a particular crime.  Cases in this circuit since Terry have involved similarly suspicious circumstances.3  But police encounters with citizens are not all of a single kind.  They are, as the Supreme Court observed in Terry, 'incredibly rich in diversity.'  392 U.S. at 13, 88 S.Ct. 1868.  Analysis is not aided by labelling them all as 'stops.'  Encounters very in the degree of intrusion; plainly there is a difference between an order to stop and give identification and a command to remain in a certain place for questioning for as long as twenty minutes.4  And although some restraint and constraint may be present whenever police officers confront citizens to ask questions, see Allen v. United States, 129 U.S.App.D.C. 61, 391 F.2d 476 (1968), such encounters differ in their potential for intimidation and abrasion.5  Delineation of the Fourth Amendment limitations on police investigative activity 129 U.S.App.D.C. 61, 390 F.2d 476 differences.6

25
Plainly the circumstances under which Officers Anderson and Himes met the defendant, as they appear in this record, are less supportive of suspicion of criminal conduct than the circumstances we have encountered in our previous cases.7  Without implying that the same degree of suspicion is required to justify the police officers' actions in this case, we note that our remand provides an opportunity to the Government to supplement its evidentiary presentation, focusing on any further facts which explain the officers' particular response.  In addition, the remand will give the Government an opportunity to clarify whether it relies upon a police authority to respond to particular suspicious circumstances and threats of crime present here, or upon a more generalized police power to stop persons momentarily and ask their business.8

26
There is in this case the additional fact of Officer Anderson's placing his hands on the defendant.  The Government makes the point that this action was not a full-fledged pat-down for weapons, which the Supreme Court has indicated is not necessarily justified in all situations where an officer may detain for investigation.  Adams v. Williams, supra, 407 U.S. at 149, 62 S.Ct. 1921.  Yet an assessment of the reasonableness of police action must reflect an awareness that non-consensual physical contact represents a special intrusion into a person's privacy.  The mere fact that an officer may reasonably stop someone to ask questions does not necessarily make it reasonable for the officer to lay his hands on the person involved.  Sanctity of the person is a concern of the law generally, and a special concern of the Fourth Amendment in particular.

27
Fourth Amendment jurisprudence involves prudence for the police as well as fairness for citizens.  A police officer 'need not defer . . . protective measures to the point of peril.'  Young v. United States, supra,435 F.2d at 409.  Courts must be careful not to use hindsight in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger.9  On the other hand, law enforcement officers must be sensitive to the rule that requires an articulable justification under the circumstances for laying their hands on a citizen; scrutiny of that justification must include such matters as whether less intrusive protective measures were available and unreasonably ignored.  Officer Anderson's testimony in this case that he is 'always in fear that someone is armed' properly reflects the need for police to be prepared for any contingency, but it does not support a routine authority to conduct a pat-down of any and all citizens a policeman encounters.

28
The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

29
So ordered.

1
 THE COURT: I am going to grant the motion to suppress.  I find that in this hotel that admittedly is a transients hotel two police officers entered one night at the request of the owner because crimes had been committed in and around that hotel for sometime
And at the request of the owner and the knowledge of the Clerk at the desk the two officers began inspecting and checking out the place, the first floor, the second floor and the third floor and they were on their way up to the fourth floor on the steps, which steps were in the form of two flights, and the officer found about three steps above him in the middle of the steps this defendant, who came down and he looked at them and they looked up at him.  He raised his hands and then dropped them and used some language and the officer said, stop.
Then the man did stop and he didn't do anything to indicate that he was going to do anything to the officer.  The officer said he could have turned and run up the steps but actually didn't run, and he didn't turn.  He made some kind of a movement but it was not a running movement.
But with that the officer put out his hand against the stomach of the defendant, who was some three steps above him.  The officer said this was to protect himself from being kicked.  Well, the officer said his head was at the belt-level of the defendant and he put his hand up above him around the belt.  I don't see how that could have stopped a kick.
In any event, there was no kick and the man was just standing there.  And by putting his hand up against the defendant's belt the officer felt the butt of a gun.  The officer then checked the man out and searched him and found there was a sawed-off shotgun that has been admitted here in evidence.
I think this was an illegal search.  I am going to grant the motion to suppress.

2
 We are concerned here only with Fourth Amendment limitations on police conduct, since there is no contention that the behavior of Officer Anderson exceeded statutory or other limitations on his authority

3
 See, e.g., United States v. James, 147 U.S.App.D.C. 43, 452 F.2d 1375 (1971) (informant's tip that suspects were carrying narcotics); Young v. United States, 140 U.S.App.D.C. 333, 435 F.2d 405 (1970) (suspects riding in car observed tailing bank delivery truck; United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972) (suspect observed fleeing from scene of robbery).  See also Stephenson v. United States, 296 A.2d 606 (D.C.Ct.App. 1972), reviewing the 'stop-and-frisk' cases in the District of Columbia Court of Appeals

4
 Compare ALI, Model Code of Pre-Arraignment Procedure, 110.2(1) (Official Draft No. 1, 1972), authorizing stopping of persons under certain circumstances for a period not to exceed twenty minutes

5
 To the extent that there is an element of constraint inherent in any police-citizen encounter, the Supreme Court has declined to treat that fact as decisive in a determination whether consent to a police search is voluntary.  Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)

6
 See Bailey v. United States, 128 U.S.App.D.C. 354, 361, 389 F.2d 305, 312 (1967) (Leventhal, J., concurring)

7
 The officers met Mr. Coates on the stairs, a place where they could expect to encounter guests, since the Whitelaw Hotel has no elevator for use of its patrons.  Officer Anderson testified that he did not recognize Mr. Coates as a permanent hotel resident, but he added that the hotel has transient guests whom he would not recognize by sight, and both permanent and transient paying guests might themselves invite persons who reside elsewhere to their rooms.  The time of the encounter was 8:30 p.m. on a Saturday night-- not an hour at which the mere presence of someone up and about in the hotel may fairly arouse suspicion

8
 Metropolitan Police Department General Order No. 304-10, effective July 1, 1973, prescribes procedures for 'police-citizen contacts, stops, frisks, and motor vehicle spot checks.'  The directive defines a 'contact' as 'face-to-face communication with an individual under circumstances in which the individual is free to leave,' and a 'stop' as a 'temporary detention of a person for the purpose of determining whether probable cause exists to arrest.'  This directive is an illustration of the kind of police practice which may become relevant on remand, when the District Court may inquire whether similar guidelines were in effect at the time the police officers encountered Mr. Coates

9
 'As a society, we routinely expect police officers to risk their lives in apprehending dangerous people.  We should not bicker if in bringing potentially dangerous situations under control they issue commands and take precautions which reasonable men are warranted in taking.'  Bailey v. United States, 128 U.S.App.D.C. 354, 364, 389 F.2d 305, 315 (1967) (Leventhal, J., concurring)


                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                        REVISED APRIL 17, 2006
                                                              March 15, 2006
              IN THE UNITED STATES COURT OF APPEALS
                                                          Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                     Clerk

                             No. 04-41757

UNITED STATES OF AMERICA

               Plaintiff - Appellee

     v.

JULIAN RODRIGUEZ-MESA

               Defendant - Appellant

          Appeal from the United States District Court
                for the Southern District of Texas

Before KING, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:

     Defendant-appellant Julian Rodriguez-Mesa pleaded guilty to

one count of transporting an alien and was sentenced to nineteen

months in prison and two years of supervised release.         The

question presented in this appeal is whether the district court,

in sentencing Rodriguez-Mesa, erred in applying the enhancement

for “intentionally or recklessly creating a substantial risk of

death or serious bodily injury to another person” for Rodriguez-

Mesa’s transportation of an illegal alien.       See U.S. SENTENCING

GUIDELINES MANUAL § 2L1.1(b)(5) (2003) [hereinafter U.S.S.G.].

                                 -1-
Although we conclude that the district court did not err in

applying the Guidelines, we must nevertheless VACATE and REMAND

for resentencing in light of United States v. Booker, 543 U.S.

220 (2005).

                I. FACTUAL AND PROCEDURAL BACKGROUND

     On July 7, 2004, Julian Rodriguez-Mesa drove a Plymouth

Voyager minivan to the Sarita, Texas border patrol checkpoint.1

After observing that Rodriguez-Mesa appeared to be nervous, the

border patrol agent at the primary inspection point directed him

to a secondary inspection for further investigation.   At the

secondary inspection, agents discovered a male occupant, later

identified as Rosendo Ponce-Mata, a citizen of Mexico, in a

compartment that had been built in the center console of the

minivan.   The compartment was located between the front seats of

the vehicle, and there was a door located on top of the

compartment.   The compartment covered half of Ponce-Mata’s body,

including his head and his torso, but his legs extended on to the

floorboard of the front passenger’s side of the vehicle.

     Rodriguez-Mesa and Ponce-Mata were advised of their Miranda

rights and both agreed to make statements to the border patrol

agents.    Rodriguez-Mesa admitted that he was transporting Ponce-

Mata in order to rid himself of a $400 debt that he owed to a man

     1
        Rodriguez-Mesa was accompanied by Annie Rojas, who rode
in the front passenger’s seat. Rojas was processed and released
at the checkpoint.

                                 -2-
by the name of Ricardo Garcia of Houston, Texas.   Rodriguez-Mesa

stated that he picked up the minivan from Garcia and that Ponce-

Mata was already inside the vehicle when he took possession of

the minivan.

     In his statement, Ponce-Mata told the agents that he had

crossed into the United States illegally, without documentation,

and that he had made arrangements to be smuggled from Mexico to

Houston for $2000.   Ponce-Mata claimed that when Rodriguez-Mesa

picked him up on July 7, 2004, Rodriguez-Mesa instructed him to

hide in the compartment located in the center console of the

minivan.2   In his sworn deposition on August 3, 2004, Ponce-Mata

gave a similar account to what he had earlier told the border

patrol agents, but he added that he was not endangered by being

transported in the minivan’s console area.   He testified that he

was not locked in the compartment, had enough air to breathe, and

was able to feel the vehicle’s air conditioning system.

     On July 28, 2004, Rodriguez-Mesa was charged in a one-count

indictment with transporting an illegal alien in violation of 8

U.S.C. § 1324(a)(1)(A)(ii) and (B)(ii).   The indictment also

contained an additional section entitled “Aggravating Factor.”

This section alleged that Rodriguez-Mesa “intentionally or

recklessly created a substantial risk of death or serious bodily

     2
        Rodriguez-Mesa refuted this statement at his
rearraignment hearing, instead asserting that Ponce-Mata was
already inside of the compartment when he picked up the minivan.

                                -3-
injury to another person” in violation of U.S.S.G. § 2L1.1(b)(5).

Without a written plea agreement, Rodriguez-Mesa pleaded guilty

to the alien transporting charge, but he refused to plead guilty

to the aggravating factor alleged in the indictment.3

     3
        At his rearraignment hearing, the following exchange
occurred between Rodriguez-Mesa and the district court in
discussing his guilty plea:

     THE COURT:          [W]hat is your plea     to   Count 1,
                         guilty or not guilty?

     DEFENSE COUNSEL:    Guilty, he’ll say, except for the
                         aggravating factor.

     THE COURT:          I’m   not  asking   you  to plead,
                         [Defense Counsel]. Is this guilty
                         or not guilty, Mr. Mesa?

     RODRIGUEZ-MESA:     Guilty, except for the aggravating
                         factor, Your Honor.

     THE COURT:          Are you pleading guilty because you
                         are in fact guilty?

     RODRIGUEZ-MESA:     Of the smuggling, yes, ma’am.     Not
                         of the aggravating factor.

     THE COURT:          Pardon?

     RODRIGUEZ-MESA:     I’m pleading guilty to the smuggling
                         of the illegal alien, but I don’t
                         feel that I’m guilty about the
                         aggravating factor.

     THE COURT:          Why is that?

     RODRIGUEZ-MESA:     He could have gotten up   any time he
                         wanted to. He wasn’t in   danger. He
                         was--he could breathe.     He had--he
                         was actually sleeping.    He had like
                         a–-

     THE COURT:          Did he have a seat belt down there?

                               -4-
     In the Presentence Report (“PSR”), the probation officer

made the following sentencing recommendations:   The base offense

level was 12, U.S.S.G. § 2L1.1(a)(2); six points were added

because during the commission of the offense, Rodriguez-Mesa

“recklessly created a substantial risk of death or serious bodily

injury to another person by concealing an illegal alien in the

console area of the transport vehicle,” U.S.S.G. § 2L1.1(b)(5);

and three points were subtracted for acceptance of

responsibility, U.S.S.G. § 3E1.1(a).    Based on these adjustments,

the probation officer recommended a total offense level of 15.

With Rodriguez-Mesa’s criminal history category of I, the

recommendation resulted in a guideline imprisonment range of

eighteen to twenty-four months.

     Rodriguez-Mesa filed written objections to the PSR,

disputing the six-level enhancement under U.S.S.G. § 2L1.1(b)(5)

on two grounds.   First, he contended that, under Blakely v.

Washington, 542 U.S. 296 (2004), the enhancement violated his

Sixth Amendment right to a jury trial because the judge used

facts not admitted by him or proven to a jury beyond a reasonable

doubt.   Second, he argued that the enhancement for reckless

endangerment was not supported by the facts.   He alleged, as

support, that Ponce-Mata’s sworn deposition showed that Ponce-

     RODRIGUEZ-MESA:      No, ma’am.

2 R. at 21-22.

                                  -5-
Mata was not in any danger, had enough air to breathe, and could

have opened the lid to the compartment at any time.

     In an addendum to the PSR, the probation officer maintained

that the increase was applicable, stating that

     [i]n respect to the Blakely objection, objections which
     deal with the constitutionality of a case will be
     addressed by the Court at sentencing.        As per the
     reckless endangerment adjustment [pursuant to U.S.S.G.
     § 2L1.1(b)(5)], the defendant was transporting an illegal
     alien in a compartment built into the center console area
     of the transport vehicle. Had an accident occurred, the
     illegal alien would not be in a position to free himself.

     The district court overruled Rodriguez-Mesa’s objections to

the PSR at sentencing.    In rejecting Rodriguez-Mesa’s Blakely

objection, the district court stated that it had to “go with the

law of the Circuit”4 and concluded that Rodriguez-Mesa was not

entitled to a jury trial on the adjustment for reckless

endangerment but that it would “make a finding, if any, by beyond

a reasonable doubt.”   After considering Ponce-Mata’s sworn

deposition and photographs of the compartment and Ponce-Mata in

the compartment,5 the district court also rejected Rodriguez-

Mesa’s objection to the reckless endangerment enhancement under

U.S.S.G. § 2L1.1(b)(5).   Specifically, the district court found

     4
        See United States v. Pineiro, 377 F.3d 464, 465 (5th Cir.
2004) (holding that “Blakely does not extend to the federal
Guidelines”), vacated, 543 U.S. 1101 (2005).
     5
        Rodriguez-Mesa does not dispute the accuracy of the
photographs that the government submitted as evidence.

                                 -6-
that the console was not designed for passenger use,6 the console

looked like it was the same size as from the factory, and Ponce-

Mata’s “head and upper body were stuffed in the console, and his

feet were twisted around underneath the glove compartment.”7     The

district court concluded that the reckless endangerment

enhancement should apply, “find[ing] beyond a reasonable doubt

that Mr. Rodriguez-Mesa created a substantial risk of serious

bodily injury by transporting an illegal alien in that fashion.”

On December 15, 2004, the district court sentenced Rodriguez-Mesa

to nineteen months in prison and two years of supervised release.

     Rodriguez-Mesa now appeals, arguing that: (1) the district

court erred in applying a six-level enhancement under U.S.S.G.

§ 2L1.1(b)(5); and (2) this court should vacate and remand for

resentencing because he raised a Blakely objection at the

district court and the government has failed to prove that the

error was harmless beyond a reasonable doubt.

                     II. STANDARD OF REVIEW

     Although the Supreme Court in Booker excised and struck down

the statutory provisions that made the Sentencing Guidelines

     6
        See 3 R. at 11 (“Well, sticking his head through the
center console and wrapping his legs around the center console is
not a position, is not any way designed the way he was using this
for passenger use.”).
     7
        According to Ponce-Mata’s sworn deposition, he is five
feet, six inches, weighing 170-180 pounds.

                               -7-
mandatory,8 “a district court is still required to calculate the

guideline range and consider it advisory.”   United States v.

Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir. 2005) (citing

Booker, 543 U.S. at 245-46, and United States v. Mares, 402 F.3d

511, 518-19 (5th Cir. 2005), cert. denied, 126 S. Ct. 43 (2005)).

After Booker, we continue to review the district court’s

interpretation and application of the Guidelines de novo and its

factual determinations for clear error.   United States v. Solis-

Garcia, 420 F.3d 511, 513-14 (5th Cir. 2005); see also United

States v. Villanueva, 408 F.3d 193, 203 n.9 (5th Cir. 2005)

(noting that this court continues to review factual findings with

respect to the application of adjustments under the Guidelines

for clear error), cert. denied, 126 S. Ct. 268 (2005); United

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005) (concluding

that this court continues after Booker to review the district

court’s interpretation and application of the Guidelines de

novo).9

     8
        Booker, 543 U.S. at 259 (severing and excising “the
provision that requires sentencing courts to impose a sentence
within the applicable Guidelines range (in the absence of
circumstances that justify a departure)”) (citing 18 U.S.C.
§ 3553(b)(1)).
     9
        There was some discussion at oral argument regarding
Solis-Garcia’s impact on our standard of review. In Solis-
Garcia, this court noted that the standard of review has not
changed since Booker. See Solis-Garcia, 420 F.3d at 513-14
(noting that this court continues to apply the same standard of
review to a sentence imposed under the Guidelines that we applied
prior to Booker, i.e., we review the district court’s
interpretation of the Guidelines de novo and the district court’s

                               -8-
                           III. DISCUSSION

     Section 2L1.1(b)(5) provides that a defendant’s base offense

level must be at least 18 “[i]f the offense involved

intentionally or recklessly creating a substantial risk of death

or serious bodily injury to another person . . . .”     U.S.S.G.

§ 2L1.1(b)(5).   The commentary to § 2L1.1(b)(5) explains that

     [r]eckless conduct to which the adjustment from
     subsection (b)(5) applies includes a wide variety of
     conduct (e.g., transporting persons in the trunk or
     engine compartment of a motor vehicle, carrying
     substantially more passengers than the rated capacity of
     a motor vehicle or vessel, or harboring persons in a
     crowded, dangerous, or inhumane condition).

U.S.S.G. § 2L1.1(b)(5) cmt. n.6.10     Besides the latter part of

the commentary, which mentions harboring persons in a dangerous

condition, nothing in the commentary directly speaks to

transporting an alien in a compartment located inside of a

vehicle.   See id.   Although the factual scenario in this case is

not expressly included in this list of reckless conduct, this

factual determinations for clear error). Because there was no
factual dispute regarding the facts necessary to support the
enhancement in Solis-Garcia, see id. at 514, the only question
before the court was the application question--i.e., “[w]hether
Solis’s conduct in transporting the illegal aliens qualifies as
‘intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person’ as required for a
§ 2L1.1(b)(5) sentence enhancement”--which was, under our
standard of review, considered de novo. Id.
     10
        “[C]ommentary in the Guidelines Manual that interprets
or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United
States, 508 U.S. 36, 38 (1993).

                                 -9-
court has not limited § 2L1.1(b)(5) to the examples mentioned in

the commentary.   See United States v. Garcia-Guerrero, 313 F.3d

892, 896 (5th Cir. 2002) (stating that “[t]he commentary

expressly states that the adjustment applies to ‘a wide variety

of conduct’”).

     We have not found any published opinions that address the

particular circumstances created by Rodriguez-Mesa in

transporting an illegal alien in a compartment concealed between

the front passenger’s seats.   Most of our decisions addressing

the application of § 2L1.1(b)(5) involve transporting aliens

unrestrained in the bed of a pickup truck or in an overcrowded

vehicle without seats or seatbelts.   See, e.g., Angeles-Mendoza,

407 F.3d at 750-51 (concluding that the adjustment under

§ 2L1.1(b)(5) was appropriate where the “defendants smuggled

aliens in the back of their truck and modified the vehicle to

allow more smuggled aliens to fit in by removing the back

seats”); United States v. Cuyler, 298 F.3d 387, 391 (5th Cir.

2002) (holding that the defendant’s act of transporting four

aliens in the bed of a pickup truck recklessly created a

substantial risk of injury to the aliens); id. at 390-91 (citing

numerous circuit courts holding that § 2L1.1(b)(5) applies in

cases where the defendant smuggled aliens in an overcrowded van,

often without seats or seatbelts).

     These cases are not particularly relevant here.    Although

Ponce-Mata was not wearing a seatbelt, in view of the fact that

                               -10-
he was transported in a compartment located between the front

passenger’s seats, it seems less likely that Ponce-Mata would

have been thrown from the vehicle in the event of an accident.

Cf. Solis-Garcia, 420 F.3d at 516 (noting that transporting

illegal aliens without requiring them to wear seatbelts is not by

itself enough for the § 2L1.1(b)(5) enhancement).    In addition,

Ponce-Mata was positioned directly beside Rodriguez-Mesa and

could have communicated any discomfort he may have experienced or

in the case of an emergency.   These factors distinguish this case

from many of the cases cited above and from the examples cited in

the commentary.   See U.S.S.G. § 2L1.1(b)(5) cmt. n.6; see also

Cuyler, 298 F.3d at 390-91.

     The parties both point to Solis-Garcia--our most recent

published decision addressing the application of U.S.S.G.

§ 2L1.1(b)(5)--as relevant and helpful in deciding whether the

district court in the present case erred.   In Solis-Garcia, this

court held that “the act of transporting four aliens lying in the

cargo area of a minivan, with no aggravating factors, [does not]

constitute[] an inherently dangerous practice such as to create a

substantial risk of death or serious bodily injury to those

aliens.”   420 F.3d at 516 (emphasis added).   In support of its

holding, the court contrasted the facts in Solis-Garcia with

those in Cuyler, 298 F.3d at 388-89.   The court noted that unlike

an individual riding in the bed of a pickup truck who is not

protected by the passenger compartment of the vehicle, see

                               -11-
Cuyler, 298 F.3d at 391, “[a]n individual riding in the cargo

area of a minivan has access to oxygen, is not exposed to extreme

heat or cold, and can easily extricate himself from his position

on the floor of the van.”   Solis-Garcia, 420 F.3d at 516.      The

court also rejected the idea that § 2L1.1(b)(5) punishes

offenders simply for transporting illegal aliens without

requiring them to wear seatbelts.     Id. (“The § 2L1.1(b)(5)

enhancement as written, one would think, does not extend so far

as to increase punishment for offenders simply for transporting

illegal aliens without requiring them to wear seatbelts.”).

Recognizing that the contours of § 2L1.1(b)(5) are dependent upon

carefully applying the guideline in a case-by-case analysis, the

court concluded that the defendant did not create a substantial

risk of death or serious bodily injury.     Id.

     Rodriguez-Mesa argues that the holding and reasoning of

Solis-Garcia apply with equal force to his case and militate

against the district court’s application of the reckless

endangerment enhancement.   He contends that there is no

meaningful distinction between his case and Solis-Garcia because

Ponce-Mata had access to oxygen, was not exposed to extreme heat

or cold, and could easily extricate himself from his position on

the floor of the minivan.   See id.   In contrast, the government

claims that Solis-Garcia stands for the proposition that the

reckless endangerment enhancement does not apply to transporting

illegal aliens who are not wearing seatbelts without proof of

                               -12-
additional aggravating factors.   According to the government,

this case involves aggravating factors that were not present in

Solis-Garcia, thereby distinguishing it from the instant case.

     We agree with the government that this case is

distinguishable from our recent opinion in Solis-Garcia.     Here,

unlike Solis-Garcia, Ponce-Mata could not have easily extricated

himself from a position where “his head and upper body were

stuffed in the console, and his feet were twisted around

underneath the glove compartment.”   Cf. id. (stating that an

individual riding in the cargo area of a minivan “can easily

extricate himself from his position on the floor of the van”).

That Ponce-Mata was required to maintain this contorted position

on the floor of the minivan (for at least an hour before the

checkpoint and potentially for another 250 miles from the

checkpoint to Houston), with the upper half of his body stuffed

into the console and his arms pinned to his sides, suggests

exposure to a “substantial risk of . . . serious bodily injury.”

See Cuyler, 298 F.3d at 390 (stating that the illegal aliens who

were unrestrained in the bed of the pickup truck “almost

certainly would have been injured in the event of an accident”).

Contrary to Rodriguez-Mesa’s assertions, the photographs indicate

that it would have been difficult to extricate Ponce-Mata,

regardless of whether the lid of the console opened easily,

because of Ponce-Mata’s crammed position in the compartment.     Cf.

United States v. Dixon, 201 F.3d 1223, 1233 (9th Cir. 2000) (“[A]

                              -13-
person hiding inside a locked trunk could not extricate himself,

while a person hiding in a hatchback area easily could extricate

himself by pushing up the lightweight, flimsy hatchback cover.”).

     The presence of this additional aggravating factor--the

inability of Ponce-Mata to extricate himself--distinguishes this

case from Solis-Garcia and supports the district court’s

application of the reckless endangerment enhancement in this

case.     Cf. Solis-Garcia, 420 F.3d at 516 (“In this case, it is

not asserted . . . that the aliens were subjected to any other

risks.”).     Accordingly, based on our own “case-specific

analysis,” we conclude that the district court did not err in

applying § 2L1.1(b)(5) to this set of facts.     See id. (“Defining

the contours of this enhancement is dependent upon carefully

applying the words of the guideline in a case-specific

analysis.”).

     Although we hold that the district court did not err in

applying the reckless endangerment enhancement of U.S.S.G.

§ 2L1.1(b)(5), we must determine the effect that Booker has on

Rodriguez-Mesa’s sentence.11    Rodriguez-Mesa argues that his

sentence “runs afoul of Booker in two separate, though related,

ways.”     First, he asserts that he received a sentence greater

     11
        Here, unlike the court in Villegas, we must reach the
Booker issue because we conclude that the district court did not
err in applying the Guidelines. Cf. Villegas, 404 F.3d at 364-65
& n.8 (addressing “antecedent error that the district court
committed by misapplying the Guidelines” and pretermitting review
of alleged Booker error).

                                 -14-
than that authorized by the facts admitted by him, in violation

of Booker’s Sixth Amendment holding.    Second, he alleges “Fanfan

error” because the district court sentenced him under the

mandatory application of the Guidelines.     Rodriguez-Mesa

correctly recognizes that there are two types of error addressed

in Booker.   See United States v. Walters, 418 F.3d 461, 463 (5th

Cir. 2005) (“Booker error is found where the district court

applied the mandatory Guidelines and enhanced a defendant’s

sentence on the basis of facts neither admitted by him nor found

by a jury beyond a reasonable doubt, in violation of the Sixth

Amendment[,]” whereas “‘Fanfan error’ is found where the district

court applied the mandatory Guidelines to enhance a defendant’s

sentence absent any Sixth Amendment Booker error.”); see also

Villegas, 404 F.3d at 364 (same).     Regardless of whether

Rodriguez-Mesa’s error is characterized as a Booker or Fanfan

error, he preserved that error by raising a Blakely objection in

the district court.   Compare United States v. Garza, 429 F.3d

165, 170 (5th Cir. 2005) (stating that a Blakely objection in the

district court preserves Booker error and reviewing under the

harmless-error standard), cert. denied, 126 S. Ct. 1444 (2006),

with United States v. Gonzalez-Ribera, 2006 WL 319270, at *1 (5th

Cir. Feb. 13, 2006) (unpublished) (stating that a Blakely

objection in the district court preserves Fanfan error and

reviewing for harmless error) (citing Walters, 418 F.3d at 463);

see also United States v. Rodriguez, 433 F.3d 411, 415-16 (4th

                               -15-
Cir. 2006) (concluding that the defendant properly preserved his

claim of Fanfan error (“statutory Booker error”) by raising a

timely Blakely objection at sentencing, and noting that the

court’s position that a Blakely objection preserves Fanfan error

for harmless-error review “is consistent with the unanimous view

of the nine courts of appeals to have considered the question[,]”

including the Fifth Circuit).

     When there is preserved Booker or Fanfan error, as here,

“the only question is whether the government has met its burden

to show harmless error beyond a reasonable doubt in the

imposition of [the defendant’s] sentence.”12   Walters, 418 F.3d

at 464.   Although at least one panel of this court has questioned

whether the harmless beyond a reasonable doubt standard applies

to a preserved Fanfan error,13 we are bound to follow Walters,

     12
        Although Rodriguez-Mesa argues that Booker error is
structural and therefore insusceptible to harmless-error
analysis, we have rejected this argument on numerous occasions.
See United States v. Arnold, 416 F.3d 349, 362 n.23 (5th Cir.
2005) (rejecting the argument that Booker error is structural and
insusceptible to harmless-error analysis, and stating that
“[n]either Booker error nor Fanfan error is structural”), cert.
denied, 126 S. Ct. 504 (2005) (citing United States v. Malveaux,
411 F.3d 558, 560 n.9 (5th Cir. 2005), cert. denied, 126 S. Ct.
194 (2005), and United States v. Martinez-Lugo, 411 F.3d 597, 601
(5th Cir. 2005), cert. denied, 126 S. Ct. 464 (2005)).
     13
        See United States v. Mendoza-Blanco, 440 F.3d 264, 265
n.7 (5th Cir. 2006) (stating that although the panel must follow
the panel’s decision in Walters, “we note that the standard of
review it applied--requiring the Government to show that
preserved Fanfan error was harmless beyond a reasonable doubt--
was not contested in the case and appears to be incorrect because
Fanfan error is nonconstitutional error” but deciding that “the
issue is irrelevant here because the Government cannot meet

                                -16-
which applied the harmless beyond a reasonable doubt standard to

a preserved Fanfan challenge.   See United States v. Ruiz, 180

F.3d 675, 676 (5th Cir. 1999) (noting that “this panel may not

overrule or ignore a prior panel decision”).    Based on the record

before us, we cannot say that the error was harmless beyond a

reasonable doubt because the district court did not indicate what

it would have done absent the mandatory Guidelines.   Therefore,

the government has not met its burden of proving that the Booker

or Fanfan error was harmless beyond a reasonable doubt.

     Accordingly, although we hold that the district court’s

application of U.S.S.G. § 2L1.1(b)(5) was warranted here, we must

nevertheless vacate and remand for resentencing in accordance

with Booker.   See United States v. Palomares-Alcantar, 406 F.3d

966, 968 (8th Cir. 2005) (holding that the district court’s

application of § 2L1.1(b)(5) was warranted, but remanding the

case for resentencing under an advisory Guidelines regime).

                          IV. CONCLUSION

     For the foregoing reasons, we AFFIRM Rodriguez-Mesa’s

conviction, VACATE Rodriguez-Mesa’s sentence, and REMAND for

resentencing in accordance with this opinion.

either burden”). Similarly, the government cannot meet either
burden in the present case. See id.

                                -17-


156 F.Supp. 220 (1957)
John AARON et al., Plaintiffs,
v.
William G. COOPER et al., Defendants.
Civ. A. No. 3113.
United States District Court E. D. Arkansas, W. D.
September 21, 1957.
*221 Wiley A. Branton, Pine Bluff, Ark., Thurgood Marshall, New York City, for plaintiffs.
A. F. House, Little Rock, Ark., for defendants Cooper and others.
Osro Cobb, U. S. Atty., Little Rock, Ark., Donald B. MacGuineas, Chief, Gen. Litigation Section, Carl Eardley, Special Litigation Counsel, Civil Division, Dept. of Justice, Washington, D. C., James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., for the United States, as amicus curiae.
Thomas Harper, Fort Smith, Ark., Kay Matthews, Walter L. Pope, Little Rock, Ark., for defendants Faubus, Clinger, and Johnson.
RONALD N. DAVIES, District Judge.
This cause having been heard upon separate applications of the United States, as amicus curiae, and of the plaintiffs for a preliminary injunction, and it appearing that:
1. Certain Negro students have been accepted for admission to the Little Rock Central High School and are eligible to attend classes there in accordance with a plan for gradual school integration, adopted by the Little Rock School District on May 24, 1955, and applicable at the senior high school level upon the opening of the school term in the fall of 1957; this Court, by decree and judgment of August 28, 1956, approved said plan of gradual school integration and its decree was affirmed by the United States Court of Appeals for the Eighth Circuit, 243 F.2d 361; and this Court on September 3, 1957, ordered the members of the Little Rock School Board and the Superintendent of the Little Rock Public Schools to comply forthwith with the plan of school integration approved by this Court's decree of August 28, 1956, 143 F.Supp. 855, as to senior high school classes in the Little Rock School District.
2. The foregoing orders of this Court confirmed and enforced the constitutional right of the Negro children involved to attend the Little Rock Central High School.
3. On September 2, 1957, upon orders of Defendant Orval E. Faubus, Governor of the State of Arkansas, and in conformity therewith Defendant General Sherman T. Clinger, Adjutant General of the State of Arkansas, and Defendant Lt. Col. Marion E. Johnson, of the Arkansas National Guard, stationed members of the Arkansas National Guard at the Little Rock Central High School and said Defendant Governor Faubus ordered that the Arkansas National Guard prevent and restrain by force the Negro students, eligible to attend classes in *222 said high school under the plan of school integration referred to above, from entering the school and attending classes, and since September 2, 1957, Defendants Governor Faubus, General Clinger and Lt. Col. Johnson have prevented said Negro students from attending such school by the armed force of the Arkansas National Guard.
4. The use of the Arkansas National Guard to deny access to the school by the Negro children upon the orders of the Defendant Governor Faubus obstructs and interferes with the carrying out and effectuation of this Court's orders of August 28, 1956, and September 3, 1957, contrary to the due and proper administration of justice.
5. Although the use of the armed force of the State of Arkansas to deny access to the school by Negro children has been declared by Governor Faubus to be required to preserve peace and order, such use of the Arkansas National Guard was and is unlawful, and in violation of the rights of the Negro children under the Fourteenth Amendment as determined by this Court.
6. An injunction is necessary in order to protect and preserve the judicial process of this Court, to maintain the due and proper administration of justice and to protect the rights guaranteed by the Constitution to the Negro children involved; now, therefore,
It is hereby ordered and decreed that Defendant Orval E. Faubus, Governor of the State of Arkansas, General Sherman T. Clinger, Adjutant General of the State of Arkansas, and Lt. Col. Marion E. Johnson of the Arkansas National Guard, their officers, agents, servants, employees, attorneys, all persons subject to their joint or several orders and directions, and all persons in active concert, participation or privity with them, be and they are hereby enjoined and restrained from hereafter (a) obstructing or preventing, by means of the Arkansas National Guard, or otherwise, Negro students, eligible under said plan of school integration to attend the Little Rock Central High School, from attending said school or (b) from threatening or coercing said students not to attend said school or (c) from obstructing or interfering in any way with the carrying out and effectuation of this Court's orders of August 28, 1956, and September 3, 1957, in this cause, or (d) from otherwise obstructing or interfering with the constitutional right of said Negro children to attend said school.
Provided that this Order shall not be deemed to prevent Orval E. Faubus, as Governor of the State of Arkansas, from taking any and all action he may deem necessary or desirable for the preservation of peace and order, by means of the Arkansas National Guard, or otherwise, which does not hinder or interfere with the right of eligible Negro students to attend the Little Rock Central High School.

Findings of Fact and Conclusions of Law
This cause having been heard upon the separate applications of plaintiffs and of the United States, as amicus curiae, for a preliminary injunction against defendants Orval E. Faubus, Governor of the State of Arkansas, Major General Sherman T. Clinger, Adjutant General of the State of Arkansas, and Lt. Col. Marion E. Johnson, Unit Commander of the Arkansas National Guard, the Court makes the following findings of fact and conclusions of law:

Findings of Fact
1. This action was brought by minor citizens and residents of the city of Little Rock, Arkansas, through their legal representatives, against the initial defendants, the Little Rock School District, its Board of Directors, and its Superintendent as a class action seeking integration of public schools in the Little Rock School District.
2. On May 20, 1954 (three days after the Supreme Court's first decision in the public school segregation cases, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873), the Little Rock School Board released a public statement to the effect that it was the Board's *223 responsibility to comply with federal constitutional requirements and they intended to do so when the Supreme Court of the United States outlined the method to be followed; and that during this interim period the Board would develop school attendance areas consistent with the location of white and colored pupils with respect to present and future facilities in the School District; would make the necessary revisions in pupil records in order that transition to an integrated school system might serve the best interest of the School District; and would make research studies needed for the implementation of a sound school program on an integrated basis.
3. The School Board instructed the superintendent, defendant Virgil Blossom, to prepare a plan for the integration of the schools in the School District. Such a plan was prepared and approved by the Board on May 24, 1955. This plan is set forth verbatim in this Court's opinion entered in this case on August 27, 1956 (Aaron v. Cooper, 143 F.Supp. 855, 859), and the statement of the plan there set forth is incorporated herein by reference. Briefly, the plan provided for a three-phase program of integration. Phase 1 begins at the senior high school level (grades 10-12) and is scheduled to start in the fall of 1957 upon the completion of a new senior high school building. Phase 2 begins at the junior high school level (grades 7-9) and would start following successful integration at the senior high school level (estimated at two to three years). Phase 3 begins at the elementary level (grades 1-6) and would start after successful completion of phrases 1 and 2. Complete integration is planned to be effected not later than 1963.
4. Subsequent to adoption of the plan, defendant Blossom read and explained it to approximately 200 groups in an effort to obtain public acceptance of its provisions and the resulting orderly integration of the schools. By its plan the School Board is seeking to integrate its schools and at the same time maintain and improve the quality of education available at these schools. Its objectives are to provide the best possible education that is economically feasible, to consider each child in the light of his individual ability and achievement, to provide necessary flexibility in the school curriculum from one attendance area to another, to select, procure, and train an adequate school staff, to provide the opportunity for children to attend school in the attendance area where they reside, to attempt to provide information necessary for public understanding, acceptance, and support, and to provide a "teachable" group of children for each teacher.
5. At the present time there are four senior high schools in the School District. Central High School has been an all-white high school and accommodates approximately 2,000 students. Technical High School has been an all-white school and will accommodate approximately 250 students. Horace Mann High School has been an all-Negro school and will accommodate 925 students. Construction of the Hall High School, which accommodates 925 students, has recently been completed and it is in operation this current term.
6. In accordance with its plan, the School Board has reorganized its attendance areas. Under the plan Technical High School will remain a city-wide school for all students, but Central, Horace Mann, and Hall High Schools will each have separate attendance areas. There are two Negro students at the senior high school level residing in the Hall High School attendance area, and there are numbers of Negro and white students residing in the Central and Horace Mann High School attendance areas.
7. In preparing for integration, the school authorities have established attendance areas, studied the aptitudes of the children, started an in-service program for staff members, a program of information to members of the community, and other appropriate steps.
8. As stated in the plan, the School Board is prepared to start integration *224 in the fall of 1957 at the high school level. Its reason for starting at that level is that fewer students, teachers, buildings, etc., will be involved and the school authorities hope to be able to learn by experience and to be better able to enter the next phase of the plan.
9. The defendant school authorities have worked diligently in a good faith effort to prepare and to effectuate a plan of integration that will be to the best interest of all parties and to the public. Superintendent Blossom is a highly qualified and experienced school administrator and has given much thought and study to the many problems relating to integration. He has had the cooperation of the School Board in his effort to achieve integration without lowering the quality of education offered to all the school children.
10. On August 28, 1956, this Court, after a full trial, entered its decree and judgment approving the plan of school integration adopted by the School District on May 24, 1955, and ordering that jurisdiction of this case be retained for the purpose of entering such other and further orders as might be necessary to obtain the effectuation of the plan. On April 26, 1957, that decree and judgment was affirmed by the United States Court of Appeals for the Eighth Circuit (243 F.2d 361).
11. The City of Little Rock has a long history of peaceful and amicable relations between the white and Negro races. Approximately 20 percent of the population is colored. The Negroes reside in scattered sections of the city, and some neighborhoods are composed of both white and colored residents. For at least twenty-five years there has been no reported incident of violence arising from racial tension, either between adults or between children of school age. In January 1956, the city public transportation system abolished the previously existing arrangement of seating whites and Negroes in separate sections of the buses. No incident of violence as a result of this change has come to the attention of the city authorities.
12. In preparation for the carrying out of the school plan at the senior high school level at the opening of the fall term, 1957, the superintendent and the principals of the senior high schools arranged for colored students who reside in the Central High School attendance area to elect whether or not they desired to attend that school. Approximately 40 to 50 such students elected to attend that school. Their records were carefully studied by the school authorities. They approved the applications of 13 of these colored students on the basis of their scholastic ability, their general deportment, their character, and their health, determining that these 13 students were particularly well suited to make the adjustment involved in their attending a school theretofore composed solely of white children. The superintendent and the high school principals held several meetings with these students and their parents to prepare them for the adjustments necessary to their attending Central High School. All steps necessary to the transfer of these students and their enrollment in Central High School were completed before the opening of the fall term, 1957. Four of these 13 colored students chose not to transfer to Central High School. Consequently, the carrying out of the school plan for this term involved the placing of only 9 colored students in a student body of approximately 2,000. The faculty and the white student body at Central High School were prepared to accept the 9 colored children as fellow students.
13. On the evening of September 2, 1957, the Governor of Arkansas and the Adjutant General of Arkansas, who is the commanding officer of the Arkansas National Guard (acting under orders issued to him by the Governor), stationed units of the Arkansas National Guard at the Little Rock Central High School. Those guardsmen were under the command of Lt. Col. Marion E. Johnson. On September 2, 1957, the Governor of Arkansas issued to the Adjutant General an order directing him to place off limits to white students those schools for colored *225 students and to place off limits to colored students those schools theretofore operated and recently set up for white students; and that this order was to remain in effect until the demobilization of the Guard or until further orders. This order was in effect at the time of the hearing in this case on September 20, 1957.
14. Up to this time, no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School.
15. The fall term at Central High School began on September 3, but none of the 9 eligible colored students appeared at the school that day because they had been advised not to do so since the National Guard was stationed at the school. On the evening of September 3, however, these students were advised by school officials to attend Central High School the next morning.
16. On the morning of September 4, 1957, the units of the National Guard at the Central High School, acting pursuant to the Governor's order, stood shoulder to shoulder at the school grounds and thereby forcibly prevented the 9 Negro students, who were eligible under the School Board's plan to attend that school, from entering the school grounds. At that time, a crowd of spectators congregated across the street from the school grounds. No acts of violence were committed or threatened by the crowd, although some of them made rude and disparaging remarks about the colored students. The guardsmen made no effort to disperse the crowd or to assist and protect the colored students in their efforts to enter the school. They did not prevent any white students from entering the school. The evidence indicates that the Arkansas National Guard, which is composed of 10,500 men, could have maintained peace and order without preventing the eligible colored students from attending Central High School.
17. On September 3, 1957, the Court, upon consideration of a Petition for Instruction filed in this cause on that date by the defendant school authorities, ordered that they integrate, in accordance with their plan approved by the Court, the senior high school grades in the School District forthwith. On September 7, 1957, the Court denied the application of the School District for a stay of the Court's order of September 3.
18. Since September 2, and up to the time of the hearing in this Court on September 20, 1957, the units of the Arkansas National Guard have remained at Central High School and have continued to prevent eligible Negro students from attending the school, pursuant to the order issued to them by the Governor of Arkansas through the Adjutant General of Arkansas. The acts of Governor Faubus, General Clinger, and Lt. Col. Johnson in preventing, by means of the Arkansas National Guard, eligible Negro students from attending Central High School directly obstruct and interfere with the carrying out and effectuation of this Court's orders of August 28, 1956, and September 3, 1957, contrary to the *226 due and proper administration of justice.
19. The minor plaintiffs and the other Negro students who are eligible under the School District's plan to attend Central High School have suffered immediate and irreparable injury from said acts of Governor Faubus, General Clinger, and Lt. Col. Johnson, in that the colored students were forcibly deprived of their right to attend Central High School in accordance with the School Board's plan, this Court's orders of August 28, 1956, and September 3, 1957, and the Federal Constitution. The minor plaintiffs and other eligible Negro students on whose behalf this suit is brought have no adequate legal remedy and are entitled to a preliminary injunction against Governor Faubus, General Clinger, and Lt. Col. Johnson restraining them from obstructing or preventing, by means of the Arkansas National Guard or otherwise, eligible Negro students from attending Central High School, from threatening or coercing said students not to attend said school, from otherwise obstructing or interfering in any way with the carrying out and effectuation of this Court's orders of August 28, 1956, and September 3, 1957, and from otherwise obstructing or interfering with the constitutional right of said Negro students to attend said school.
20. Such injunction is necessary in order to protect and preserve the judicial process of the Court, to maintain the due and proper administration of justice, and to protect the constitutional rights of the minor plaintiffs and other eligible Negro students on whose behalf this suit is brought.

Conclusions of Law
1. This Court has jurisdiction of the subject matter of this action and of the parties.
2. The Governor of Arkansas, as Chief Executive and Commander-in-Chief of its military forces, has a vital interest in the maintenance of law and order and broad discretionary powers to suppress insurrection and to preserve the peace. Article 6, Section 6, of the Constitution of the State expressly provides that:
"The Governor shall be commander-in-chief of the military and naval forces of the State, except when they shall be called into the actual service of the United States."
Article 6, Section 7, provides that the Governor "shall see that the laws are faithfully executed".
As the Chief Executive of the state, he is appropriately vested with the discretion to determine whether an exigency requiring military state aid for that purpose has arisen.
3. The Governor does not, however, have lawful authority to use the National Guard to deprive the eligible colored students from exercising their right to attend Central High School, which right is guaranteed by the Federal Constitution, the School District plan of integration, and the Court's orders entered in this cause. If it be assumed that the Governor was entitled to bring military force to the aid of civil authority, the proper use of that power in this instance was to maintain the Federal Court in the exercise of its jurisdiction, to aid in making its process effective and not to nullify it, to remove, and not to create, obstructions to the exercise by the Negro children of their rights as judicially declared.
4. This action is not a suit against the State of Arkansas. It does not seek to invalidate any provision of Arkansas statute or of the Arkansas Constitution. It merely seeks to enjoin the Governor and other officials of the state from committing acts beyond their lawful authority and contrary to the Federal Constitution.
5. The acts of defendants Governor Orval E. Faubus, Governor of the State of Arkansas, General Sherman T. Clinger, Adjutant General of Arkansas, and Lt. Col. Marion E. Johnson, Unit Commander of the Arkansas National Guard, in forcibly preventing colored students, *227 who are eligible under the School Board's plan to attend Central High School, from doing so are beyond their lawful authority. Said acts unlawfully obstruct and interfere with the carrying out and effectuation of the Court's orders of August 28, 1956, and September 3, 1957, contrary to the due and proper administration of justice; and they violate the constitutional rights of said colored children.
6. An injunction against said Governor Faubus, General Clinger, and Lt. Col. Johnson is necessary in order to protect and preserve the judicial process of the Court, to maintain the due and proper administration of justice, and to protect the constitutional rights of the minor plaintiffs and other eligible Negro students on whose behalf this suit is brought.


278 F.3d 605
UNITED STATES of America, Plaintiff-Appellee,v.Myron SMITH, Defendant-Appellant.
No. 00-6308.
United States Court of Appeals, Sixth Circuit.
Argued November 14, 2001.
Decided and Filed January 25, 2002.

1
COPYRIGHT MATERIAL OMITTED Perry H. Piper, Assistant United States Attorney (argued and briefed), Chattanooga, TN, for Appellee.

2
Nikki C. Pierce (argued and briefed), Federal Defender Services, Greeneville, TN, for Appellant.

3
Before: KEITH and COLE, Circuit Judges; MARBLEY, District Judge.*

OPINION

4
MARBLEY, District Judge.

5
Defendant Appellant, Myron "Bam" Smith ("Smith"), appeals the sentence imposed by the district court following Smith's conviction for distribution of a controlled substance, cocaine base, in violation of 21 U.S.C. § 841(a)(1). Smith assigns error to the district court's denial of a downward departure in the sentence based on (1) the fact that his case falls outside the heartland of cases that have applied the career offender provision of the United States Sentencing Guidelines, given the small quantities of narcotics involved in the present offense and in the predicate felonies that gave rise to Smith's career offender status; and (2) Smith's limited mental capacity. Jurisdiction is proper under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

6
For the following reasons, the sentence is VACATED and the case REMANDED for resentencing in accordance with this Opinion.

I. BACKGROUND

7
On February 8, 2000, Smith was charged in a three-count indictment based on a series of narcotics transactions that he conducted with undercover operatives who had been working at the direction of the Cleveland Police Department. Through the series of transactions, Smith purported to sell a total of 2.3 grams of crack-cocaine to the undercover operatives. Each count of the indictment charged Smith with distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). Smith was arrested on February 22, 2000.

8
On April 24, 2000, the government filed a notice of intent to use three of Smith's prior state convictions for the sale of co-caine to enhance punishment and impeach, pursuant to 21 U.S.C. § 851(a)(1). The government did not include in its notice of intent a fourth state conviction for the sale and casual exchange of cocaine. The prior convictions related to crimes committed by Smith between 1989 and 1991, and involved sales of 0.19 gram, 4 rocks, 0.1 gram, and 0.2 gram of cocaine, respectively.

9
On April 28, 2000, Smith pled guilty to Count One of the indictment pursuant to the terms of a written plea agreement with the government. The remaining charges were dismissed. Subsequent to the guilty plea, a United States Probation Officer prepared a Presentence Investigation Report. In calculating Smith's Offense Level and Criminal History Category, the probation officer determined that the three convictions cited by the government, along with Smith's fourth state conviction for the sale and casual exchange of cocaine, constituted predicate offenses under § 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G." or "Sentencing Guidelines") to find Smith a career offender. Relying on his career offender status, the probation officer determined that Smith's offense level should be 34, rather than 20, as it would have been had he not been a career offender. She recommended that the offense level be adjusted downward three levels based on Smith's acceptance of responsibility, and concluded that Smith's Total Offense Level was, therefore, 31.

10
The probation officer then calculated Smith's Criminal History. She determined that his career offender status established a criminal history score of 14. Relying on U.S.S.G. § 4A1.1(e), the officer then added two points to that score because the offense that she was investigating was committed less than two years after Smith's release from custody for the previous conviction for the sale and casual exchange of cocaine. Under the Sentencing Guidelines, the total criminal history score of 16 placed Smith in Criminal History Category VI. Based on the calculated Offense Level and Criminal History Category, the probation officer concluded that the Guideline range for Smith's imprisonment was 188 to 235 months.

11
Prior to sentencing, Smith submitted a Sentencing Memorandum to the district court, seeking a downward departure based on the following grounds: (1) the failure of the career offender guidelines to consider adequately the disproportionate treatment of drug offenders sentenced to the same penalty range for offenses involving drastically different drug quantities; and (2) Smith's diminished mental capacity. With respect to the first basis for departure, Smith noted that each of the prior convictions that was relied on as a predicate felony to determine his criminal history status involved a fairly small amount of crack-cocaine. He asserted that the small amounts that he was selling removed his case from the heartland of cases where the career offender guidelines have been applied. Rather, Smith claimed that his criminal history was the result of a severe drug problem that he attempted to support by selling small amounts of drugs to friends and acquaintances. With respect to the second basis for departure, Smith asserted that he suffers from numerous mental health problems, including depression with psychotic features, and an abnormally low I.Q. (around seventy) that places him in the second percentile range.

12
On September 8, 2000, Smith was sentenced to a total imprisonment term of 188 months, within the lowest range of the applicable Sentencing Guidelines. During the sentencing hearing, Smith argued the merits of his Sentencing Memorandum. In response to Smith's argument regarding the relatively minimal amounts of drugs he had sold, the court stated, in relevant part:

13
[T]his is a sad situation, but I do not believe that the career offender provision here was not intended for people like Mr. Smith.... And although Mr. Smith's drug sales for which he was convicted were not all that great, they were still drug sales.

14
In response to Smith's argument regarding his limited mental capacity, the court accepted Smith's assertion that he falls within the lower quartile in terms of intelligence, but rejected Smith's motion for a downward departure on that basis. The court explained that it would not rely on Smith's low intelligence as a basis for reducing his sentence because Smith's mental capacity did not affect the likelihood that he would resume selling drugs in the future. The court noted that Smith's mental capacity had no beneficial impact on his previous criminal behavior.

15
The court declared that it was denying the motion for a downward departure, and then added:

16
[T]his sentence you're going to receive will be the longest sentence that you've received.... That's the way that the Congress of the United States designed things. The sentence that you receive is very, very harsh primarily because of actions of our Congress.... Congress has decided that people who engage in repeated sales of drugs are going to be put away for a long time. We can agree or we can disagree with congressional action, but that's what the Congress has decided. And until Congress decides otherwise, then that's going to be the law.

17
After explicitly describing Smith's sentence, the court asserted that it was imposing that term because it was the "bare minimum" that it could impose.

18
A judgment was entered on the sentence on September 14, 2000. On September 15, 2000, Smith filed a timely notice of appeal to this Court.

19
The issue presented on appeal is whether the district court erred by refusing to grant Smith's motion for a downward departure based upon: (1) the fact that the career offender classification over-represents the seriousness of his criminal history; and (2) his diminished mental capacity.

II. STANDARD OF REVIEW

20
This appeal presents mixed questions of law and fact. The Court reviews de novo the issue of whether the district court was aware of its authority to depart downward. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995) (citations omitted). The sentencing court's ultimate decision regarding departure is reviewed for an abuse of discretion. Koon, 518 U.S. at 91, 116 S.Ct. 2035.

III. DISCUSSION

21
District courts may exercise discretion in sentencing in unusual cases that present either mitigating or aggravating factors that are not taken adequately into consideration by the Sentencing Guidelines, but that impact the appropriate punishment for the crime. See Koon v. United States, 518 U.S. 81, 92-93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (discussing the history of the Sentencing Guidelines and the discretion that Congress intended for sentencing judges to retain); U.S. Sentencing Guidelines § 5K2.0 (permitting district courts to grant departures based on aggravating or mitigating factors that make the sentencing range imposed by the Sentencing Guidelines inappropriate). Additionally, U.S.S.G. § 4A1.3 specifically recognizes that, in certain circumstances, a downward departure may be warranted if a defendant's calculated criminal history category significantly over-represents the seriousness of his criminal history or the likelihood that he will commit further crimes.

22
A district court's denial of a downward departure can be reviewed by this Court only if the district court incorrectly believed that it lacked the authority to grant such a departure as a matter of law. United States v. Farrow, 198 F.3d 179, 199 (6th Cir.1999); United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994); see United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995) (noting that "the refusal of a district judge to make a downward departure is not ordinarily appealable"). Sentencing judges have no duty to state affirmatively that they know they have the authority to grant downward departures, as this Court generally presumes that district judges are aware that they have such discretionary authority. Byrd, 53 F.3d at 145 (citations omitted). We are, therefore, reluctant to view as ambiguous a ruling in which a sentencing judge does not affirmatively express an awareness of his authority to depart from the Sentencing Guidelines. Id. This Court also presumes that a sentencing court properly exercises its discretion under the Sentencing Guidelines when it determines that a downward departure is unwarranted. United States v. Owusu, 199 F.3d 329, 349 (6th Cir.2000) (citations omitted).

A. Limited Mental Capacity

23
The Court finds that the sentencing court below was, in fact, aware of its authority to depart from the guidelines on the basis of Smith's limited mental capacity. The district court directly addressed this argument, and rejected it because of its concern that Smith's mental capacity had little or no positive impact on his recidivism. Therefore, the court's decision not to grant a downward departure on that basis is not reviewable by this Court.

B. Career Offender Status

24
This Court finds that the usual presumption that sentencing courts are aware of their authority to depart does not apply to the lower court's decision to deny a departure on the basis that Smith's criminal history category overstated his prior criminal conduct, as the record below is ambiguous in this regard. It is unclear whether the sentencing judge was aware that he could depart downward because Smith's case fell outside of the heartland of cases in which the career offender provision is usually applied, given the relatively small quantities of drugs involved in his predicate convictions.

25
This Court recently ruled that, in certain circumstances, the small quantity of drugs upon which a defendant was previously convicted may be a factor, in combination with other mitigating facts, that takes a case out of the heartland of the Guidelines' career offender provision, and justifies a downward departure. In United States v. Washington, Nos. 00-3389, 00-3392, 2001 WL 1301744 at *5 (6th Cir.2001), we found that the district court did not abuse its discretion when it granted a downward departure because the defendant's criminal history category significantly over-represented his prior crimes. In Washington, the defendant had previously been convicted for three crimes involving, respectively, eleven rocks of cocaine, one rock of cocaine, and 20.1 grams of cocaine, and had never served time in jail for any of the offenses. See also United States v. Perez, 160 F.3d 87, 89 (1st Cir.1998) (en banc) (plurality opinion) (stating that "smallness," or the fact that the amounts of drugs involved and the defendant's role in prior offenses were both minimal, in combination with other factors, may justify a downward departure).

26
In recognizing the salience of Washington, we distinguish this Court's prior ruling in United States v. Hays, 899 F.2d 515 (6th Cir.1990), where we said that the small quantity of drugs seized in the particular case for which a career offender was being sentenced could not be relied upon as a mitigating factor to permit a downward departure. Id. at 519-20. Hays is inapposite to the case sub judice because the Hays court did not consider whether the predicate convictions overstated the seriousness of the defendant's criminal past. Indeed, the Hays court was not concerned with predicate convictions at all. Rather, that court was concerned with the impact of the offense under consideration on mitigation. In Washington, the issue was whether the defendant was properly deemed to fall outside the heartland of the career offender provision because the predicate convictions over-represented the seriousness of the defendant's criminal history. In this case, the trial court was likewise faced with whether the predicate convictions overstated the seriousness of the defendant's criminal past.1

27
Washington clarified that sentencing judges have the discretion to determine that a defendant's criminal history category may overstate his actual criminal history based on the fact that his predicate drug convictions involved small amounts of narcotics. It is unclear, however, whether the sentencing judge below was aware that he had the authority to draw such a conclusion. This ambiguity arises from certain statements made by the court on the record during sentencing. Specifically, the sentencing judge's contention that he was bound by Congress' decision to punish severely repeat offenders, whether he agreed with that decision or not, along with his declaration that he was imposing the "bare minimum" that he could, indicate that the court was not aware of its ability to depart from the Guidelines on this basis.

28
Because the sentencing court did not have the benefit of this Court's ruling in Washington at the time Smith was sentenced, the Court finds that a remand is necessary for the district court to clarify whether it was aware that a downward departure may have been granted because Smith's criminal history category significantly over-represents the seriousness of his prior criminal conduct.2 In so finding, we do not disturb the rule of Byrd that sentencing judges are not required to state affirmatively that they know they have the authority to grant a downward departure, even when they decide that such a departure is unwarranted. Rather, we confine our ruling to the particular statements made by the sentencing judge below indicating that he believed he lacked the authority to grant a downward departure.

IV. CONCLUSION

29
For the foregoing reasons, this Court HOLDS that the district court may have been unaware of its authority to grant a downward departure based on the fact that the Defendant's criminal history category over-represents his actual criminal history, and, therefore, the sentence is hereby VACATED and the case REMANDED for resentencing in accordance with this Opinion.

Notes:

*
 The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation

1
 Particularly in light ofKoon's explicit discussion of the method by which sentencing judges should utilize the discretion granted to them by Congress, Koon, 518 U.S. at 92-96, 116 S.Ct. 2035, we would have trouble concluding that Hays prevents courts from doing precisely what we approved in Washington (i.e. using their discretion to determine that certain facts make a case unusual enough to fall outside the heartland of a particular provision of the Sentencing Guidelines).

2
 Of course, the district court is not required to grant a departure if it believes that, based on the facts presented, Smith's criminal history category does not over-represent the seriousness of his prior criminal conduct or the likelihood that he will commit crimes in the future