United States v. Antonio Plaketta

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50156
Plaintiff-Appellee, D.C. No. 3:16-cr-02698-BAS
v.
MEMORANDUM*
ANTONIO PAULITO PLAKETTA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Antonio Paulito Plaketta appeals from the district court’s judgment and
challenges the 33-month sentence imposed following his guilty-plea conviction for
transportation of certain aliens and aiding and abetting, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), (v)(II). We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
affirm.
Plaketta contends that the district court erred in enhancing his offense level
under U.S.S.G. § 2L1.1(b)(6) (permitting enhancement where the offense
“involve[s] intentionally or recklessly creating a substantial risk of death or serious
bodily injury to another person”). We review the district court’s identification of
the correct legal standard de novo, the district court’s findings of fact for clear
error, and the application of the Guidelines to those facts for abuse of discretion.
See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).
Contrary to Plaketta’s contention, the record demonstrates that the district applied
the correct legal standard. Under the circumstances of this case, the court’s
shorthand reference to “bodily injury,” rather than “serious bodily injury,” is
insufficient to overcome the presumption that the district court knows the law and
applied it in making its decision. See United States v. Carty, 520 F.3d 984, 992
(9th Cir. 2008) (en banc). Moreover, the record reflects that the district court
considered the facts of this particular case and did not apply a per se rule. The
district court did not abuse its discretion in concluding that the manner in which
the alien was transported in this case made the additional risk to him “significantly
greater than the risks normally borne by ordinary passengers during normal
vehicular travel.” United States v. Torres-Flores, 502 F.3d 885, 891 (9th Cir.
2007).
2 17-50156
AFFIRMED.
3 17-50156