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Sentencing enhancement upheld where defendant induced the Customs and Boarder Patrol to fire on his fleeing vessel

Defendant McQueen was convicted of attempted alien smuggling and failing to obey an order by federal saw enforcement to heave to the U.S. Customs and Boarder Patrol (CBP) vessel (18 U.S.C. 2237(a)(1). His sentence was enhanced by sentencing guidelines section 2L1.1(b)(5)(A) because a firearm was discharged by law enforcement in the course of the chase. In U.S. v Mcqueen the 11th Circuit Court of Appeals affirmed the sentencing enhancement.

McQueen’s boat was spotted by a CBP patrol plane heading west toward Palm Beach County, Florida. The boat matched the description of the Mary Carla, a 33-foot vessel suspected of smuggling aliens or drugs into the U.S. The CBP patrol boats attempted to interdict the Mary Carla about 11.8 nautical miles offshore by activating their blue lights, sirens, and spotlights, and commanded its operator to stop. The operator of the Mary Carla, McQueen, attempted to flee, turning east away from land and the CBP boats pursued him, firing illuminated warning shots, followed by the launching of four pepper balls into the boat’s cabin, and then more warning shots as McQueen continued to flee. The officers had to board the Mary Carla while it was still moving. Inside they found 14 aliens.

The enhancement applies if the discharge of the firearm was induced or willfully caused by the defendant. The issue was whether McQueen induced the CBP to discharge the firearm. Applying U.S. v. William where the court affirmed the application of the enhancement in a robbery context by concluding that the victim discharged his gun because he was induced by the defendant’s conduct. There the defendant attempted a carjacking by approaching a truck and pointing his gun inside. In response the occupant shot at Williams.

McQueen claimed his actions did not actually induce the discharges. He claims their discharges were hasty, reckless, and unnecessary and that no one, including McQueen, would consider firing on the Mary Carla to be appropriate. In essence, his argued that because it was not reasonably foreseeable that his actions would result in law enforcement discharging a firearm, he did not induce the discharge. The government’s argued that the discharge was a reasonable response to McQueen’s conduct and therefore attributable to McQueen. The issues was whether the law enforcement’s discharge of the warning shots was a reasonably foreseeable result of McQueen’s conduct or in other words whether McQueen legally caused the discharges.

Interpreting the word “induced” in the context of Williams, the 11th Circuit found it to mean “attributing to a defendant the acts or omissions of another that are brought about, produced, or caused by the defendant’s conduct.” In view of McQueen’s conduct in attempting to smuggle 14 aliens into the U.S. using a 33 foot boat in the dead of night, and the CBP interdicting his boat 12 nautical miles from shore, and his failure to stop after officers activated their lights, sirens and spotlights, the resulting warning shots were not accidental but rather responses to McQueens continued criminal conduct. McQueen failed to stop after they ordered him to do so. They then fired the two illuminated shots which were a measured response to McQueen’s continued criminal conduct. He brought about the discharge of the firearm.

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