United States v. Ruiz-Estrada

MEMORANDUM ^**

Victor Manuel Ruiz-Estrada appeals from the 24-month sentence following his guilty-plea conviction of bringing an illegal alien into the United States without presentation and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Ruiz-Estrada challenges the district court’s application of a two-level upward adjustment under U.S.S.G. § 3B1.4 for the use or attempted use of a minor to commit the crime of alien smuggling. We cannot say that the district court clearly erred in finding the enhancement. The district court found that Ruiz-Estrada, who falsely claimed U.S. citizenship at the primary inspection, was attempting to use his U.S. citizen children to avoid detection. The court noted that Ruiz-Estrada had twice previously been arrested for alien smuggling with some of his children in the car. See United States v. Castro-Hernandez, 258 F.3d 1057, 1059-60 (9th Cir.2001).

Ruiz-Estrada also contends that he is entitled to resentencing because the district court gave the sentencing guidelines presumptive weight in violation of United States v. Zavala, 443 F.3d 1165, 1170-71 (9th Cir.2006), en banc reh’g granted, 462 F.3d 1066 (2006). Even if we assume that it is improper for a district court to treat the guidelines sentencing range as the presumptive sentence, Ruiz-Estrada is not entitled to any relief. The record in this case shows that the district court did not treat the guidelines range as the presumptive sentence.

Ruiz-Estrada’s second motion to file a late reply brief is denied.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.