United States v. Adalberto Rivera

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 12 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-50097
Plaintiff - Appellee, D.C. No. 3:10-cr-05135-LAB-1
v.
MEMORANDUM*
ADALBERTO RIVERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted June 8, 2012
Pasadena, California
Before: B. FLETCHER and WARDLAW, Circuit Judges, and MENDEZ, District
Judge. **
Adalberto Rivera pleaded guilty to bringing in an illegal alien without
presentation and aiding and abetting in violation of 8 U.S.C. § 1324(a)(2)(B)(iii)
and 18 U.S.C. § 2. He appeals from the 48-month sentence of imprisonment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John A. Mendez, United States District Judge for the
Eastern District of California, sitting by designation.
imposed by the district court as both procedurally flawed and substantively
unreasonable. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In January 2011, Rivera entered into a plea agreement with the United States
in which he agreed to plead guilty to charges against him. Rivera and the United
States jointly recommended a sentence of 18 months incarceration. In February
2011, the United States Probation Office disclosed a Presentence Report (“PSR”)
containing its recommended Guidelines range. The PSR noted that Rivera had
been convicted under § 1324 twice before, once in 1998 and once in 2005, and had
received sentences of 36 and 30 months of incarceration, respectively. The PSR
also applied a two-level enhancement for “intentionally or recklessly creating a
substantial risk of death or serious bodily injury” to the transported alien pursuant
to U.S.S.G. § 2L1.1(b)(6). Based on the resulting Guidelines range of 24-30
months, it therefore recommended a sentence of 30 months incarceration. The
district court adopted the PSR’s findings, but after considering at length the 18
U.S.C. § 3553(a) sentencing factors, concluded that 48 months incarceration was
the more appropriate sentence.
1. The district court did not abuse its discretion in adopting the PSR’s
recommendation to increase Rivera’s offense level by two pursuant to
§ 2L1.1(b)(6). The record reflects that the transported alien was pinned for three
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hours in the bed of a pickup truck beneath a bucket assemblage that had been fitted
to his body, rendering him immobile. Heavy tools rested on the alien’s body and
plastic-wrapped paint rollers covered his face. This method of transport was
inherently dangerous because the alien “could not extricate himself.” United States
v. Dixon, 201 F.3d 1223, 1233 (9th Cir. 2000).
2. The district court did not engage in impermissible double-counting when
it relied on the manner in which the alien was transported to both enhance the
offense level under the Guidelines and impose an upward variance. The court
explained why the Guidelines calculation was insufficient to capture Rivera’s
situation in terms of the 18 U.S.C. § 3553(a) sentencing factors. See United States
v. Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009).
Nor did the district court impermissibly triple-count Rivera’s prior alien
smuggling convictions when it imposed the upward variance. The court explained
that greater deterrence than that offered by the high end of the Guidelines
calculation was required in view of the seriousness of the offense, Rivera’s
recidivism despite his prior sentences of 36 and 30 months, and the need to
promote respect for the law. See id.
3. Moreover, all of these factors as discussed on the record by the district
court judge, sufficiently justified the extent of the variance as well.
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4. Because there were no procedural errors, and because the district court
considered the § 3553(a) factors in making its determination, the sentence imposed
was not substantively unreasonable. See United States v. Ressam, 679 F.3d 1069,
1089 (9th Cir. 2012) (“The touchstone of ‘reasonableness' is whether the record as
a whole reflects rational and meaningful consideration of the factors enumerated in
18 U.S.C. § 3553(a).” ) (internal quotation marks and citation omitted).
While the government’s evaluation of the extent of Rivera’s assistance to
authorities should be given “substantial weight,” U.S.S.G. § 5K1.1., cmt. n.3
(1989), the district court was not bound by the government’s sentencing
recommendation. See United States v. Hanna, 49 F.3d 572, 576 (9th Cir. 1995)
(“The extent of [the defendant’s] assistance and its impact on the sentence are
matters left within the sound discretion of the sentencing judge.”) (internal
quotation marks and citation omitted).
AFFIRMED.
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