United States v. Mamta Sharma , 552 F. App'x 693 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10457
Plaintiff - Appellee, D.C. No. 2:12-cr-00027-GEB-2
v.
MEMORANDUM*
MAMTA SHARMA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Submitted January 13, 2014**
San Francisco, California
Before: WALLACE and BYBEE, Circuit Judges, and MAHAN, District Judge.***
Mamta Sharma appeals from her sentence, challenging the district court’s
application of the sentencing guidelines following her guilty plea for conspiracy to
encourage or induce an alien to come to, enter or reside in the United States for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
private financial gain, in violation of 8 U.S.C. § 1324(a). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The district court’s interpretation and application of the United States
Sentencing Guidelines is reviewed de novo. United States v. Upshaw, 226 F.3d
1101, 1102 (9th Cir. 2000). A district court’s factual findings during sentencing
are reviewed for clear error. United States v. Showalter, 569 F.3d 1150, 1159 (9th
Cir. 2009). “In order to reverse a district court’s factual findings as clearly
erroneous, we must determine that the district court’s factual findings were
illogical, implausible, or without support in the record.” United States v. Spangle,
626 F.3d 488, 497 (9th Cir. 2010).
The district court did not clearly err in its factual findings leading to the
imposition of a three-level sentencing enhancement based on Sharma’s role in the
conspiracy. “If the defendant was a manager or supervisor . . . and the criminal
activity involved five or more participants or was otherwise extensive,” a three-
level sentence enhancement is imposed. U.S.S.G. § 3B1.1(b). The enhancement
applies if the sentencing judge finds that the defendant exercised some control over
at least one of the other participants in the enterprise. United States v. Morgan,
238 F.3d 1180, 1186-87 (9th Cir. 2001). Therefore, a defendant who “organizes
others in the commission of the criminal activity” may receive a role enhancement
“even though he does not retain a supervisory role over the other participants.”
United States v. Montano, 250 F.3d 709, 716 (9th Cir. 2001) (quoting United
States v. Varela, 993 F.2d 686, 691 (9th Cir. 1993)).
Here, Sharma engaged in a multi-year scheme in which she, and others,
conspired to submit fraudulent marriage and fiancé visa applications on behalf of
Indian nationals seeking to enter the United States illegally. Sharma’s involvement
included traveling with and escorting recruits to and from India, dressing and
coaching recruits for Indian engagement and wedding ceremonies, and assisting at
least one Indian national with completing a marriage license application and
opening a bank account in the United States. Given the facts of this case, it was
not clear error for the sentencing judge to find that Sharma was a manager or
supervisor and that the criminal activity involved five or more participants.
Sharma also contends that the district court plainly erred by applying an
additional six-level increase under U.S.S.G. § 2L1.1(b)(2) for smuggling,
transporting, or harboring unlawful aliens. Here, according to the stipulated facts
in the plea agreement, the conspiracy involved more than 25 petitions submitted on
behalf of the aliens. Sharma claims that § 2L1.1(b)(2) does not apply to her
criminal activities, but she failed to object, we have not addressed this issue, and
other courts have reached varying conclusions. Therefore, the district court did not
plainly err in applying a six-level enhancement under U.S.S.G. § 2L1.1(b)(2).
United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003) (“An error
cannot be plain where there is no controlling authority on point and where the most
closely analogous precedent leads to conflicting results”).
The sentence is AFFIRMED.