United States v. Alfredo Ruiz-Hernandez ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 20, 2007
No. 07-10933 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00489-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO RUIZ-HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 20, 2007)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Alfredo Ruiz-Hernandez appeals his 24-month sentence for transporting
illegal aliens for commercial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),
(B)(i). Ruiz-Hernandez, a native and citizen of Mexico, was apprehended in the
United States by U.S. Border Patrol (“USBP”) agents while transporting five
illegal aliens, one of whom was 15 years old, from California to Florida. On
appeal, Ruiz-Hernandez argues that the district court erred by (1) applying the
sentence enhancement for transporting an unaccompanied minor pursuant to
U.S.S.G. § 2L1.1(b)(4); (2) finding that he did not qualify for a minor-role
reduction under U.S.S.G. § 3B1.2; and (3) refusing to grant him a sentence
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
I. Transporting a Minor
The Sentencing Guidelines provide for a two-level increase if a defendant
“smuggled, transported, or harbored a minor who was unaccompanied by the
minor’s parent or grandparent.” U.S.S.G. § 2L1.1(b)(4). A minor is defined as
someone under the age of 16. U.S.S.G. § 2L1.1 cmt. n.1. Ruiz-Hernandez argues
that the district court erred in applying § 2L1.1(b)(4) because (1) the district court
wrongly concluded that the enhancement lacked a scienter requirement, and (2) the
evidence was insufficient to establish that one of the aliens was a minor.
We review the district court’s interpretation of the Sentencing Guidelines de
novo, including its determination that an enhancement does not require scienter.
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United States v. McClain, 252 F.3d 1279, 1284 (11th Cir. 2001). Here, the district
court correctly determined that § 2L1.1(b)(4) does not require scienter; on its face,
the guideline clearly applies regardless of whether the defendant had knowledge of
the minor’s age. See id. at 1286.1
We review the district court’s factual findings for clear error. Id. at 1284.
For a factual finding to be clearly erroneous, we must be “left with a definite and
firm conviction that a mistake has been committed.” United States v. Robertson,
493 F.3d 1322, 1330 (11th Cir. 2007) (internal quotation marks omitted) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L.
Ed. 2d 518 (1985)). When a defendant challenges a factual basis of his sentence,
the government bears the burden of establishing the disputed fact by a
preponderance of the evidence. United States v. Cataldo, 171 F.3d 1316, 1321
(11th Cir. 1999).
The district court did not clearly err by applying § 2L1.1(b)(4) because the
government established, by a preponderance of the evidence, that Ruiz-Hernandez
1
In McClain we found that U.S.S.G. § 3B1.4 (using a minor to commit a crime) lacked a
scienter requirement as to the minor’s age because it did not contain “qualifying language
reserving the enhancement for defendants who knew that the [relevant individual] was a minor.”
252 F.3d at 1286. We further reasoned that requiring the government to prove scienter at
sentencing “would simply encourage defendants to close their eyes and ears” and, moreover, that
the “defendant’s knowledge of a minor’s age would be nearly impossible to prove, and would
undoubtedly be the subject of lengthy ‘mini-trials.’ Such application . . . would render the
sentencing enhancement practically impotent, and . . . frustrate the legislative intent behind its
enactment.” Id.
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transported a minor. The minor passenger was in possession of his birth
certificate, which a USBP agent testified appeared valid. Although Ruiz-
Hernandez speculated that the document may not have belonged to its holder, he
provided no evidence to support this allegation or otherwise rebut the
government’s proffered evidence. Accordingly, the birth certificate was sufficient
to prove its holder’s age by a preponderance.2
II. Minor-Role Reduction
A district court’s determination of a defendant’s role in an offense
constitutes a factual finding to be reviewed for clear error. United States v.
Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant
bears the burden of proving, by a preponderance of the evidence, that he is entitled
to a mitigating-role reduction under U.S.S.G. § 3B1.2. Id. at 939. To determine
whether the reduction applies, a district court first should measure the defendant’s
role against the relevant conduct for which he has been held accountable. Id. at
940. “Only if the defendant can establish that [he] played a relatively minor role in
the conduct for which [he] has already been held accountable–not a minor role in
any larger criminal conspiracy–should the district court grant a downward
2
Furthermore, because it would be nearly impossible for the government to obtain photo
identification in most cases of this nature, requiring this type of proof would thwart the
intentions of Congress to punish those who transport minors.
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adjustment for minor role in the offense.” Id. at 944.
Although, in many cases, this first method of analysis will be dispositive, the
district court also may measure the defendant’s culpability in comparison to that of
other participants in the relevant conduct. Id. at 944-45.
Ruiz-Hernandez’s role in the offense was identical to the conduct for which
he was held accountable, and he did not show that he was substantially less
culpable than the other participant in the offense. Although he asserts that his
conduct was “nothing more than transporting” the other aliens in his car, this was
exactly the conduct for which he was held accountable. Accordingly, the district
court did not clearly err in denying Ruiz-Hernandez a minor-role reduction.
III. Acceptance of Responsibility
We review for clear error a district court’s factual findings concerning a
reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). United
States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005) (per curiam). “The
defendant bears the burden of clearly demonstrating acceptance of responsibility
and must present more than just a guilty plea.” United States v. Sawyer, 180 F.3d
1319, 1323 (11th Cir. 1999). “A district court’s determination that a defendant is
not entitled to [a reduction for] acceptance of responsibility will not be set aside
unless the facts in the record clearly establish that a defendant has accepted
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personal responsibility.” Id.
In determining whether a defendant qualifies for a reduction under §
3E1.1(a), the district court may consider the nature of the defendant’s legal
challenges to his conviction and sentence, along with the other circumstances of
the case. United States v. Smith, 127 F.3d 987, 989 (11th Cir. 1997) (en banc). We
have held that factual objections to the sentence that amount to a denial of factual
guilt are inconsistent with acceptance of responsibility. Id.
Ruiz-Hernandez did not meet his burden of “clearly demonstrating” his
acceptance of responsibility because the court found that he was not truthful at his
sentencing hearing when he denied certain statements he made to a USBP agent,
which amounted to a denial of factual guilt. See id. Thus, although Ruiz-
Hernandez pled guilty to the offense, his denial was inconsistent with acceptance
of responsibility and, therefore, he did not meet his burden. Accordingly, we
affirm.
AFFIRMED.
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