In U.S. v. McQueen, No. 10-14798 (Feb. 15, 2012), the Court affirmed the imposition of the six-level enhancement of U.S.S.G. § 2L1.1(b)(5)(A), for the discharge of a firearm, to a defendant convicted of alien smuggling, when the discharge involved warning shots and "pepper balls" fired by Customs and Border Protection agents on a boat that was fleeing interdiction on the high seas west of Palm Beach County, Florida.
The Court noted that the relevant conduct guideline, U.S.S.G. § 1B1.3(a)(1)(A), encompasses conduct that the defendant "induced." The Court recognized that dictionaries typically define "induce" to mean "to lead a person by persuasion or influence." However, in U.S. v. Williams, 51 F.3d 1004, 1011 (11th Cir. 1995), the Court had attributed to a defendant the discharge he "brought about," without regard to whether he persuaded a victim to discharge a weapon. The Court concluded that it was bound by Williams to interpret "induce" to encompass a discharge of a weapon that was "reasonably foreseeable" to the defendant. "A ‘reasonable’ alien smuggler who flees law enforcement on the high seas would foresee the use of illuminated warning shots to gain compliance."