United States v. Eduardo Navarro ( 2021 )

FILED
NOT FOR PUBLICATION
OCT 4 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10032
Plaintiff-Appellee, D.C. No.
4:18-cr-02106-JAS-EJM-1
v.
EDUARDO SOLOMAN NAVARRO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted September 13, 2021
San Francisco, California
Before: WALLACE, SCHROEDER, and FORREST, Circuit Judges.
Eduardo Navarro appeals from his jury conviction and sentence for
transportation of illegal aliens and conspiracy to transport illegal aliens.
The district court properly allowed the videotaped depositions of
undocumented immigrants. The government sustained its burden to show that it
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
made good faith efforts to procure the witnesses, and they were nevertheless
unavailable because they would not return to the United States. See United States
v. Santos-Pinon, 146 F.3d 734, 736 (9th Cir. 1998).
The district court did not abuse its discretion in limiting the scope of
Navarro’s testimony concerning his prior head injury. The testimony would have
had little probative value and was potentially prejudicial to the jury’s
understanding of the case. The district court’s fleeting reference to Navarro’s self-
interest in testifying could not have materially influenced his decision not to
testify. The court took steps to ensure Navarro understood his right to decide
whether to testify on his own behalf, and to ensure that he had the opportunity to
make the decision in consultation with his counsel so that the decision was
knowing and voluntary. See United States v. Pino-Noriega, 189 F.3d 1089, 1094
(9th Cir. 1999).
The prosecutor’s reference to the lack of evidence on an issue raised in
opening argument was not plain error. The comment did not relate directly to
Navarro’s failure to take the stand, as there was another witness who could have
testified as to the same issue. Thus, it was by no means clear that Navarro’s failure
to testify was being called to the jury’s attention. See United States v. Mayans, 17
F.3d 1174, 1185 (9th Cir. 1994).
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Navarro claims the district court should have permitted the parties to present
argument to the jury after the district court gave an aiding and abetting instruction
in response to a jury question. The inability to give argument was not prejudicial,
however, because Navarro has not explained how an argument on aiding and
abetting would have materially differed from the argument he made with respect to
his principle defense—that he was merely present at the scene of the crime. This
case is therefore not similar to United States v. Gaskins, 849 F.2d 454 (9th Cir.
1988), on which Navarro relies. There, the jury was given both an aiding and
abetting and a mere presence instruction after closing argument, and the defense
had no opportunity to argue the mere presence defense. Id. at 457, 460.
Navarro claims sentencing error with respect to the reckless-endangerment
enhancement the district court applied in connection with Navarro’s shutting the
door on the aliens in the trunk of the car. There is no basis for concluding the
enhancement resulted in an increase in Navarro’s sentence, however, even
assuming any error. Remand is not required where the district court would have
imposed the same sentence absent application of a single erroneous factor. See
United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010). The district court
considered multiple factors that yielded a much more lenient sentence than the
Guidelines recommended. The district court imposed a sentence of 36 months
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probation where the advisory guideline range was 30–37 months imprisonment.
Remand for resentencing is not appropriate.
AFFIRMED.
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