United States v. Edgar Rivera

FILED
NOT FOR PUBLICATION MAY 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50371
Plaintiff - Appellee, D.C. No. 3:10-cr-04109-L
v.
MEMORANDUM *
EDGAR JUAN RIVERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Edgar Juan Rivera appeals from the 41-month sentence imposed following
his guilty-plea conviction for transportation of illegal aliens and aiding and
abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II). We have jurisdiction
*
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).
under 28 U.S.C. § 1291, and we affirm.
The government contends that this appeal should be dismissed in light of the
appeal waiver set forth in Rivera’s plea agreement. We decline to reach the issue
of whether this appeal falls within the scope of the appeal waiver and instead
affirm on the merits. See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th
Cir. 2007) (en banc).
Rivera first contends that the district court erred when it increased his base
offense level to 18 pursuant to U.S.S.G. § 2L1.1(b)(6) because the offense
involved a substantial risk of death or serious bodily injury. Rivera contends that
the district court instead should have applied a two-level enhancement for reckless
endangerment during flight pursuant to U.S.S.G. § 3C1.2, which would have
resulted in a base offense level of 14. The district court did not err because the
Guidelines specifically cite “transporting persons in the trunk . . . of a motor
vehicle” as an example of reckless conduct that justifies the section 2L1.1(b)(6)
enhancement. See U.S.S.G. § 2L1.1 cmt. n.5.
Rivera also contends that an unwarranted sentence disparity was created
because the district court applied the section 2L1.1 (b)(6) enhancement to Rivera
and not to his co-defendant. The district court did not err because Rivera, unlike
his co-defendant, led the Border Patrol agents on a dangerous high-speed chase
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while two people were in the trunk of the car he was driving.
Finally, the sentence at the bottom of the Guidelines range is substantively
reasonable and there is no unwarranted sentencing disparity where, among other
things, Rivera absconded from supervision while on bond. See United States v.
Espinoza-Baza, 647 F.3d 1182, 1195 (9th Cir. 2011).
AFFIRMED.
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