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U.S. v. Guzman-Mata, No. 08-10061 (8-27-09). The 9th (N. Smith joined by Noonan and Berzon) hold that alien smuggling under 8 U.S.C. 1324(a)(1)(A) is categorically an "alien smuggling offense" triggering a +16 level adjustment under the Guidelines, 2L1.2(b)(1)(A). The argument was that the family exception in the statute for assisting spouse, child, or parent in being smuggled takes it out of strict categorical application. "Nice try," says the 9th, but that provision is an affirmative defense, and the elements setting out the offense categorically apply. The government does not bear the burden of showing that the exception does not apply.

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