United States v. Mejia-Luna ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10472
Plaintiff-Appellee,
v.  D.C. No.
CR-06-01736-RCC
MARCO ANTONIO MEJIA-LUNA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
February 9, 2009—San Francisco, California
Filed April 23, 2009
Before: Dorothy W. Nelson, William A. Fletcher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
4779
4782 UNITED STATES v. MEJIA-LUNA
COUNSEL
Harriette P. Levitt, Tucson, Arizona, for defendant-appellant
Marco Antonio Mejia-Luna.
A.U.S.A. Munish Sharda (argued), A.U.S.A. Christina M.
Cabanillas and Diane J. Humetewa, United States Attorney
for the District of Arizona , Tucson, Arizona, for plaintiff-
appellee United States of America.
OPINION
TALLMAN, Circuit Judge:
After a three-day trial, a jury convicted Marco Antonio
Mejia-Luna on two counts of transporting illegal aliens for
private financial gain, causing serious bodily injury or placing
in jeopardy the life of a person, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(ii), 1324(a)(1)(B)(i), and 1324(a)(1)(B)(iii).
Mejia-Luna now appeals his conviction and his 48-month sen-
tence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
I
A group of five undocumented aliens arranged to be smug-
gled into the United States from Mexico. In August 2006, the
aliens, led by guides, walked through the desert and crossed
into the United States. The party arrived at a small house. The
guides told the five aliens to wait for a white vehicle to pick
them up and take them to Phoenix, Arizona, and then departed
with another group. Shortly thereafter, a white sports utility
UNITED STATES v. MEJIA-LUNA 4783
vehicle arrived at the house. The five aliens piled into the
vehicle, as the guides had instructed, and laid down in the
back to conceal themselves. Mejia-Luna, the driver of the
white vehicle, did not converse with the aliens at any time.
Nevertheless, he drove the aliens toward Phoenix.
Two border patrol agents later observed the white SUV
traveling on Interstate 10 and began to follow it. In an attempt
to elude the agents, Mejia-Luna began driving erratically. He
ultimately exited the interstate, ran a stop sign, and rolled the
vehicle while attempting to make a speeding turn. Mejia-Luna
climbed from the wreckage and fled on foot, but was appre-
hended by one of the agents after an uninterrupted chase. The
five aliens were immediately taken into custody. At least one
alien received medical assistance on the scene.
Mejia-Luna was indicted on two counts of unlawfully
transporting aliens within the United States, in violation of 8
U.S.C. § 1324(a)(1)(A)(ii), which included statutory sentenc-
ing range enhancements because Mejia-Luna committed the
offense for financial gain, see 8 U.S.C. § 1324(a)(1)(B)(i),
and caused serious bodily injury to, or placed in jeopardy the
life of, a person, see 8 U.S.C. § 1324(a)(1)(B)(iii).
During the three-day jury trial, the government presented
the testimony of two of the five illegal aliens, who recounted
their arrangement to be smuggled into the United States and
the details of payment. The aliens also testified about their
injuries and the injuries others suffered as a result of the roll-
over accident. The jury returned guilty verdicts on both counts
in the indictment. The jury also found the sentencing enhance-
ments to be true in a special verdict form.
The presentence investigation report (“PSR”) prepared by
the Probation Department calculated Mejia-Luna’s adjusted
offense level as 20, which included a 6-level increase for
intentionally and recklessly creating a risk of death or serious
bodily injury and another 2 levels for causing bodily injury to
4784 UNITED STATES v. MEJIA-LUNA
another, pursuant to sections 2L1.1(b)(5) and (b)(6), respec-
tively, of the Sentencing Guidelines. Based on his criminal
history, the PSR recommended a Guidelines sentencing range
of 37 to 46 months. The government filed objections, arguing
for, inter alia, a 4-level upward adjustment for causing “seri-
ous bodily injury” to another, instead of the 2-level increase
for causing “bodily injury.” U.S. Sentencing Guidelines Man-
ual (“U.S.S.G.”) § 2L1.1(b)(6) (2005). The district court
agreed with the government on this point.1 An adjusted
offense level of 22 yielded a sentencing range of between 46
and 57 months in custody. The district court ultimately sen-
tenced Mejia-Luna to 48 months incarceration, to be followed
by 36 months of supervised release. Mejia-Luna now appeals
his conviction and sentence.
II
Mejia-Luna first contends that the district court improperly
permitted Immigration and Customs Enforcement Senior Spe-
cial Agent Richard Hill to testify as an expert witness regard-
ing the structure and methods of alien smuggling operations.
He argues that this testimony was irrelevant and unfairly prej-
udicial. We review the district court’s decision to admit such
expert testimony for abuse of discretion. United States v. Per-
laza, 439 F.3d 1149, 1175 n.29 (9th Cir. 2006). We reverse
only if the decision admitting it was “manifestly erroneous.”
United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000).
[1] We have previously upheld the admission of expert tes-
timony of this nature in alien smuggling prosecutions. United
States v. Lopez-Martinez, 543 F.3d 509, 514-15 (9th Cir.
2008) (holding that the district court did not plainly err by
admitting expert testimony about the methods and patterns of
1
The government also argued, unsuccessfully, for an additional 2-level
upward adjustment for reckless endangerment during flight, see U.S.S.G.
§ 3C1.2, which would have resulted in an adjusted offense level of 24 and
a sentencing range of 57 to 71 months imprisonment.
UNITED STATES v. MEJIA-LUNA 4785
alien smugglers in the region). “The federal courts uniformly
hold . . . that government agents or similar persons may testify
as to general practices of criminals to establish the defen-
dants’ modus operandi.” United States v. Johnson, 735 F.2d
1200, 1202 (9th Cir. 1984). Agent Hill explained how alien
smuggling operations typically operate, the division of
responsibility among numerous actors, the methods used, and
the manner and method of payment. The testimony assisted
the jury in understanding alien smuggling schemes, their
operational framework, and Mejia-Luna’s particular role as a
“load” driver in the operation. See United States v. Gil, 58
F.3d 1414, 1422 (9th Cir. 1995) (affirming district court’s
admittance of expert testimony regarding tactics typically
employed by drug traffickers).
[2] Mejia-Luna’s argument that there was no evidence con-
necting him to a smuggling operation lacks merit. There was
substantial evidence supporting his involvement. He picked
up the aliens in his white SUV at the drop point where the
guides had told them to wait for a white vehicle. He arrived
shortly after the drop-off in a vehicle that matched the guides’
description. Without saying a word to any of them, Mejia-
Luna allowed the aliens to enter his vehicle and conceal them-
selves, and he then drove them toward Phoenix—the aliens’
destination and the location where payment was to be made
at the end of the smuggling route. Following the guidance of
our prior opinions in analogous drug smuggling cases, this is
sufficient evidence to overcome a relevancy objection in the
alien smuggling context. See United States v. Vallejo, 237
F.3d 1008, 1015-16 (9th Cir. 2001) (holding that expert testi-
mony regarding the structure of drug trafficking organizations
was improper where “Vallejo was not charged with conspir-
acy to import drugs; nor did the Government introduce any
evidence establishing a connection between Vallejo and a
drug trafficking organization”), as amended by 246 F.3d 1150(9th Cir. 2001); see also United States v. Valencia-Amezcua,
278 F.3d 901, 909 & n.5 (9th Cir. 2002) (explaining the hold-
ing in Vallejo and concluding that the district court did not
4786 UNITED STATES v. MEJIA-LUNA
commit plain error by admitting agent’s expert testimony
regarding the structure and scope of methamphetamine lab
operations).
[3] We hold that the district court did not abuse its discre-
tion in permitting Agent Hill’s expert testimony to assist the
jury in understanding alien smuggling ventures, testimony
which was both relevant and non-prejudicial.2
III
We turn to Mejia-Luna’s attack on the sufficiency of the
evidence. By means of a special verdict form, the jury unani-
mously found beyond a reasonable doubt that, in connection
with the commission of the offense, Mejia-Luna (1) acted for
the purpose of obtaining a commercial advantage or private
financial gain, (2) placed in jeopardy the life of a person, and
(3) caused serious bodily injury to a person. Mejia-Luna chal-
lenges the first and third findings.
In reviewing the sufficiency of the evidence, we view the
evidence in the light most favorable to sustaining the verdict
rendered and determine whether any rational trier of fact
could have found the defendant guilty of each element of the
crime beyond a reasonable doubt. United States v. Heller, 551
F.3d 1108, 1113 (9th Cir. 2009).
A
[4] First, the government need not prove actual payment or
an agreement to pay the defendant directly in order to show
that Mejia-Luna committed the transporting offense for the
purpose of commercial advantage or private financial gain.
See United States v. Angwin, 271 F.3d 786, 805 (9th Cir.
2
Moreover, the district court took adequate precautions to protect
against potential unfair prejudice by limiting the scope of the expert testi-
mony.
UNITED STATES v. MEJIA-LUNA 4787
2001), overruled on other grounds by United States v. Lopez,
484 F.3d 1186 (9th Cir. 2007). “It merely requires that the
offense was done for the purpose of financial gain.” Id.;
accord United States v. Schemenauer, 394 F.3d 746, 751 (9th
Cir. 2005).
In Angwin, a group of aliens illegally entered the United
States from Mexico with the assistance of guides. 271 F.3d at
793. They reached an area where Angwin and another person
picked them up in a motorhome. Id. at 793-94. The motor-
home was later stopped at a checkpoint, where agents discov-
ered the undocumented aliens. Id. at 792-93. Challenging his
conviction on various smuggling counts, Angwin asserted that
there was insufficient evidence of his personal financial gain.
Id. at 805. We rejected that contention, noting:
Angwin’s argument is without merit . . . . Given
Vincente-Morales’ testimony that he expected that
he would have to pay for his transportation once he
arrived in Los Angeles, the substantial evidence of
the defendant’s guilt, and the lack of any other possi-
ble explanation for Angwin’s conduct, the evidence
was more than sufficient for a rational jury to con-
clude beyond a reasonable doubt that Angwin com-
mitted the offense for the purpose of private
financial gain.
Id.; accord United States v. Yoshida, 303 F.3d 1145, 1152
(9th Cir. 2002) (holding that a reasonable jury could conclude
that defendant was a member of the smuggling operation and
therefore expected to reap some of its financial reward).
[5] There was substantial evidence presented at trial that
Mejia-Luna committed the offense with pecuniary motives.
Two of the aliens testified that they were each to pay $2,000
to some unknown person once they reached Phoenix. As dis-
cussed above, the evidence connected Mejia-Luna to this for-
profit illegal smuggling operation. Furthermore, Agent Hill
4788 UNITED STATES v. MEJIA-LUNA
testified about how these organizations operate, including the
methods employed and the timing of payment. Agent Hill’s
description of the organizational structure was consistent with
the aliens’ testimony about their particular experience and
payment arrangements. Moreover, the absence of any non-
pecuniary motive by Mejia-Luna also supports the jury’s con-
clusion that he acted with financial motivations. See Schemen-
auer, 394 F.3d at 751 (“No explanation for Schemenauer’s
participation in a revenue-producing scheme was suggested
other than an intent to share in the payments to be made.”);
Yoshida, 303 F.3d at 1152 (“In addition, Yoshida, as a
stranger to the aliens, had no benevolent reason to lead them
into the United States. It was reasonable for the jury to infer
that Yoshida expected some payment for her role . . . .”).
[6] The facts presented in the instant case are at least as
strong as those found sufficient in Angwin. We are satisfied
that, viewing the evidence in the light most favorable to the
verdict, there was sufficient evidence for the jury to conclude
that Mejia-Luna committed the offense motivated by the hope
of financial gain.
B
[7] Finally, we turn to Mejia-Luna’s claim that there was
insufficient evidence for the jury to conclude that he caused
serious bodily injury to a person in connection with the
offense. At the outset, we acknowledge that, because Mejia-
Luna does not challenge the jury’s finding that he placed in
jeopardy the life of another, the sufficiency of the evidence to
support the conviction is not in dispute. Section
1324(a)(1)(B)(iii) of the alien smuggling statute provides that
a person may be imprisoned not more than 20 years if, during
the commission of a transporting offense, he either “cause[d]
serious bodily injury . . . to, or place[d] in jeopardy the life of,
any person.” 8 U.S.C. § 1324(a)(1)(B)(iii) (emphasis added).
At oral argument, however, counsel clarified that Mejia-
Luna’s sufficiency of the evidence challenge did not relate to
UNITED STATES v. MEJIA-LUNA 4789
his conviction, but rather only to the sentencing determina-
tion. Therefore, this claim on appeal requires further explana-
tion.
[8] In calculating his adjusted offense level, the district
judge imposed the 4-level upward adjustment for “serious
bodily injury” pursuant to section 2L1.1(b)(6)(2), instead of
the 2-level adjustment for mere “bodily injury” as recom-
mended by the PSR. The Sentencing Guidelines define “seri-
ous bodily injury” to mean an “injury involving extreme
physical pain or the protracted impairment of a function of a
bodily member, organ, or mental faculty; or requiring medical
intervention such as surgery, hospitalization, or physical reha-
bilitation.” U.S.S.G. § 1B1.1 cmt. n.1(L).3 Mejia-Luna con-
tends that, if we find the evidence insufficient to support the
jury finding in the special verdict form that he caused serious
bodily injury to another, we should vacate the criminal judg-
ment and remand for resentencing because the district court
relied upon the jury’s finding in imposing the more severe of
the two upward adjustments. While oddly framed, Mejia-
Luna is actually challenging the district court’s conclusion at
sentencing that he caused serious bodily injury to another in
connection with the transporting offense.
A district court generally applies the preponderance of the
evidence standard of proof when finding facts at sentencing.
United States v. Armstead, 552 F.3d 769, 776 (9th Cir. 2008).
We typically review the district court’s factual findings for
clear error and the application of the Guidelines to the facts
of the case for abuse of discretion. United States v. Kimbrew,
406 F.3d 1149, 1151 (9th Cir. 2005). Because Mejia-Luna did
not adequately raise this objection at trial, however, we
review this claim on appeal under our familiar plain error
standard:
3
This definition differs slightly from the definition applicable to the
alien smuggling statute. See 18 U.S.C. § 1365(h)(3).
4790 UNITED STATES v. MEJIA-LUNA
Before an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is
plain, and (3) that affects substantial rights. If all
three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceed-
ings.
United States v. Santiago, 466 F.3d 801, 803 (9th Cir. 2006)
(quoting United States v. Maciel Vasquez, 458 F.3d 994, 996
n.3 (9th Cir. 2006)).
[9] At trial, the two alien witnesses testified about the inju-
ries suffered as a result of the roll-over accident and the medi-
cal treatment administered following the incident. Both
witnesses continued to endure pain at the time of their testi-
mony. It is undisputed that the district court properly
instructed the jury with respect to the definition of “serious
bodily injury.” See 18 U.S.C. § 1365(h)(3).4 We have long
held that “the existence and definition of serious bodily injury
in a given case is primarily a jury question dependent upon an
evaluation of all the circumstances of the injury or injuries.”
United States v. Johnson, 637 F.2d 1224, 1246 (9th Cir. 1980)
(“[T]he jury must use its own judgment to assess the severity
of the injuries.”), abrogated on other grounds by Schmuck v.
United States, 489 U.S. 705 (1989).
[10] The district court did not plainly err in concluding, as
did the jury in rendering its special verdict, that Mejia-Luna
4
As applied in the alien smuggling statute, “serious bodily injury”
means “bodily injury which involves: (a) substantial risk of death; (b)
extreme physical pain; (c) protracted and obvious disfigurement; or (d)
protracted loss or impairment of the function of a bodily member, organ
or mental faculty.” 18 U.S.C. § 1365(h)(3). The jury was also instructed
as to the definition of the lesser “bodily injury.” See 18 U.S.C.
§ 1365(h)(4).
UNITED STATES v. MEJIA-LUNA 4791
caused another person serious bodily injury when sentencing
Mejia-Luna to 48 months in custody.
IV
Because there was sufficient evidence for a reasonable jury
to conclude that Mejia-Luna was involved in an organized
alien smuggling operation operated for-profit, the district
court did not abuse its discretion in allowing reliable expert
testimony regarding the structure and methods of alien smug-
gling schemes. There was also sufficient evidence to support
the jury’s findings on the special verdict form that, in commit-
ting the offense, Mejia-Luna acted for the purpose of obtain-
ing a commercial advantage or private financial gain and
caused serious bodily injury to another. The district court did
not commit plain error in imposing the four-year sentence.
AFFIRMED.