United States v. Fredy Reyes

FILED
NOT FOR PUBLICATION NOV 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50086
Plaintiff - Appellee, D.C. No. 2:12-cr-00020-SJO
v.
MEMORANDUM*
FREDY OSWALDO GAMEZ REYES,
a.k.a. Luis Enrique Aguirre, a.k.a. Douglas
Omar Castillo, a.k.a. Chapo, a.k.a. Freddy
Oswaldo Gamez, a.k.a. Freddy Oswaldo
Gamez-Reyes, a.k.a. Carlos Lopez, a.k.a.
Carlos Ramirez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted June 3, 2014
Pasadena, California
Before: REINHARDT, FISHER, and MURGUIA, Circuit Judges.
Fredy Oswaldo Gamez Reyes appeals from the district court’s judgment and
challenges the 96-month sentence imposed following his guilty-plea conviction for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
harboring and concealing illegal aliens for financial gain, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(iii) and (a)(1)(B)(i). We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), and we affirm.1
Gamez Reyes contends that the district court erred when it applied a
two-level aggravating role enhancement under U.S.S.G. § 3B1.1(c). We review
for clear error the district court’s factual findings. See United States v. Rivera, 527
F.3d 891, 908 (9th Cir. 2008). The record reflects that Gamez Reyes supervised
the guards located at the stash houses where smuggled aliens were held until they
paid their fee. Accordingly, because Gamez Reyes “exercised some control over
others involved in the commission of the offense,” the court did not clearly err in
applying the enhancement. See United States v. Whitney, 673 F.3d 965, 975 (9th
Cir. 2012) (citation and internal quotation marks omitted). We reject Gamez
Reyes’s contention that the district court legally erred by failing to explicitly
compare Gamez Reyes’s conduct with others in the alien smuggling operation. See
id. (“It is not necessary that the district court make specific findings of fact to
1
In an opinion filed concurrently with this memorandum disposition
we address Gamez Reyes’s claims that the district court erred by imposing a two-
level enhancement for smuggling, transporting, or harboring an unaccompanied
minor, see U.S.S.G. § 2L1.1(b)(4), and a two-level enhancement for involuntarily
detaining an alien through coercion or threat or in connection with a demand for
payment, see U.S.S.G. § 2L1.1(b)(8)(A).
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justify the imposition of the role enhancement.”). Further, contrary to Gamez
Reyes’s contention, the district court properly relied on Gamez Reyes’s admission
that he had the ability to remove one of the aliens from the stash house to a hotel
when it determined that Gamez Reyes had a managerial or supervisory role in the
offense. See United States v. Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir.
2009) (to succeed on a due process claim, defendant must establish that the
challenged information is false or unreliable and that it demonstrably was the basis
for the sentence).
Gamez Reyes next contends that the sentence is substantively unreasonable
because the district court placed too much weight on unreliable evidence that he
allegedly sexually assaulted two of the smuggled aliens. The district court did not
abuse its discretion in imposing Gamez Reyes’s sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of
the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,
including the nature of the offense, Gamez Reyes’s personal characteristics, and
the need to protect the public. See id. The district court properly considered each
of the section 3553(a) sentencing factors, and was within its discretion to consider
Gamez Reyes’s admission that he engaged in sexual conduct with a smuggled
alien, over whom he had control. See United States v. Gutierrez–Sanchez, 587
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F.3d 904, 908 (9th Cir. 2009) (“The weight to be given the various factors in a
particular case is for the discretion of the district court.”).
Finally, Gamez Reyes contends that the district court erred by failing to
resolve disputed facts regarding the alleged sexual assaults, in violation of Federal
Rule of Criminal Procedure 32. We review de novo whether a district court
complied with Rule 32. United States v. Stoterau, 524 F.3d 988, 1011 (9th Cir.
2008). The district court overruled Gamez Reyes’s objections and credited the
allegations of sexual assault. The district court made “an explicit factual finding
that resolves the dispute,” and therefore complied with Rule 32. United States v.
Carter, 219 F.3d 863, 867 (9th Cir. 2000). We reject Gamez Reyes’s claim that he
was entitled to an evidentiary hearing on this issue. See United States v. Stein, 127
F.3d 777, 780–81 (9th Cir. 1997) (“Where the district court allows the defendant to
rebut the recommendations and allegations of the presentence report either orally
or through the submission of written affidavits or briefs, Rule 32 does not require
an evidentiary hearing.” (internal quotation marks omitted)).
AFFIRMED.
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