USA v. Maria Mata

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REVISED PUBLISHED OPINION FILED. [6649705-2] [09-41092]

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USA v. Maria Mata Case: 09-41092 Document: 00511292908 Page: 1 Date Filed: 11/15/2010 Doc. 0 REVISED NOVEMBER 15, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit N o . 09-41092 FILED October 14, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A R I A CECILIA MATA, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas B e fo r e HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges P E R CURIAM: M a r ia Cecilia Mata appeals the forty-five-month sentence imposed fo llo w in g her plea of guilty to a charge of transporting an undocumented alien fo r financial gain in violation of 8 U.S.C. 1324. Mata contends that the district c o u r t committed error by enhancing her sentence pursuant to U.S.S.G. 2L1.1(b)(6) & 3B1.4. She also contends that the district court committed plain e r r o r by delegating to the probation officer the authority to determine whether M a t a would be required to participate in mental-health treatment as a special c o n d itio n of her supervised release. We conclude that both contentions are w it h o u t merit and affirm Mata's sentence. Dockets.Justia.com Case: 09-41092 Document: 00511292908 Page: 2 Date Filed: 11/15/2010 No. 09-41092 I. At approximately 8:25 p.m. on May 27, 2009, Border Patrol agents stopped a 2001 Ford Escape at the Interstate-35 checkpoint twenty-nine miles north of L a r e d o , Texas. A Ford Escape seats five. Six people were in the car. Mata was d r iv in g , her sixteen-year-old son was in the front seat, and seated in the back w e r e a friend of Mata's who was over the age of eighteen, her friend's minor d a u g h t e r , and Mata's six-year-old daughter. In the cargo area behind the back s e a t , underneath a pile of blankets, luggage, and a stroller, was a Mexican N a tio n a l named Edgar Guerrero-Cruz. Border Patrol agents discovered The agents G u e r r e r o -C r u z while inspecting the vehicle at the checkpoint. a r r e s t e d Mata, who admitted to them that she was being paid to drive GuerreroC r u z , who she knew was illegally present in the United States, from Laredo to S a n Antonio. Mata was charged in a one-count indictment with transporting an u n d o c u m e n te d alien for financial gain by means of a motor vehicle under 8 U .S .C . 1324. She pleaded guilty without a plea agreement. A t issue in this appeal are two sentence enhancements that the probation o ffic e r applied after calculating Mata's base offense level as twelve under the U n ite d States Sentencing Guidelines.1 First, the probation officer enhanced M a t a 's offense level to eighteen on the ground that Mata's "offense involved in t e n t io n a lly or recklessly creating a substantial risk of death or serious bodily in ju r y to another person."2 Second, Mata received a two-level enhancement b e c a u s e the probation officer found that Mata "used or attempted to use a person le s s than eighteen years of age to commit the offense or assist in avoiding 1 See U.S. SENTENCING GUIDELINES MANUAL 2L1.1(a)(3) (2009). See id. 2L1.1(b)(6). 2 2 Case: 09-41092 Document: 00511292908 Page: 3 Date Filed: 11/15/2010 No. 09-41092 d e t e c t io n of, or apprehension for, the offense."3 Mata also received a two-level red u c t io n for acceptance of responsibility, so her final offense level was eighteen. Mata objected to both enhancements at her sentencing hearing. The district c o u r t overruled her objections, adopted the presentence report, and sentenced M a t a to a forty-five-month term of confinement. The district court also placed Mata on a three-year term of supervised r e le a s e following her release from custody. One of the conditions of Mata's s u p e r v is e d release is that she is required to participate in a mental-health p r o g r a m "as deemed necessary by the Probation Department." Mata did not o b je c t to this condition before the district court. On appeal, she contends that it was unconstitutional for the district court to delegate to the Probation D e p a r t m e n t the determination of whether she would have to participate in a m e n ta l-h e a lt h program. II. W e review the district court's interpretation and application of the S e n te n c in g Guidelines de novo.4 A district court's "`[f]actual findings regarding s e n t e n c in g factors are entitled to considerable deference and will be reversed o n ly if they are clearly erroneous.'"5 A factual finding is clearly erroneous if, a ft e r reviewing the entire evidence, the reviewing court "is left with the definite a n d firm conviction that a mistake has been committed." 6 A factual finding is 3 See id. 3B1.4. United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010). 4 United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (quoting United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)). The district court must find that the government has proven any fact necessary to support a sentence enhancement by a preponderance of the evidence. See United States v. Conner, 537 F.3d 480, 491-92 (5th Cir. 2008) (citing U.S. SE N T E N C I N G GUIDELINES MANUAL 6A1.3 cmt.). United States v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005) (citation and internal quotation marks omitted). 6 5 3 Case: 09-41092 Document: 00511292908 Page: 4 Date Filed: 11/15/2010 No. 09-41092 n o t clearly erroneous so long as it is "`plausible in light of the record as a w h o le .'"7 A court of appeals may not reverse a district court's finding of fact b a s e d only on its belief that, "`had it been sitting as the trier of fact, it would h a v e weighed the evidence differently'" and reached a different conclusion.8 A. The district court did not err by applying the reckless-endangerment e n h a n c e m e n t under 2L1.1(b)(6) of the Sentencing Guidelines. Whether Mata's c o n d u c t in transporting Guerrero-Cruz qualifies as "intentionally or recklessly c r e a t in g a substantial risk of death or serious bodily injury to another person" a s required by 2L1.1(b)(6) is a question of law, so our review is de novo.9 But w e review only for clear error the underlying factual findings on which the d is t r ic t court based its legal conclusion.1 0 T h e application of 2L1.1(b)(6) "requires a fact-specific inquiry" 1 1 because t h e reckless-endangerment enhancement is intended to apply to "a wide variety o f conduct."1 2 "[A] single, bright-line test is not necessarily appropriate for a g u id e lin e that must be applied to [the] wide variety of factual settings" in which d e fe n d a n t s transport aliens for financial gain.1 3 Accordingly, we have a r t ic u la t e d a nonexclusive list of five factors to guide district courts in their 7 Williams, 610 F.3d at 292 (quoting United States v. Miller, 607 F.3d 144, 148 (5th Cir. 2010)). United States v. Charon, 442 F.3d 881, 891 (5th Cir.) (quoting United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005)), cert. denied, 549 U.S. 915 (2006). 9 8 See United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). See id. United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). See U.S. SENTENCING GUIDELINES MANUAL 2L1.1 cmt. 5 (2009). Zuniga-Amezquita, 468 F.3d at 889. 10 11 12 13 4 Case: 09-41092 Document: 00511292908 Page: 5 Date Filed: 11/15/2010 No. 09-41092 a p p lic a t io n of 2L1.1(b)(6): "the availability of oxygen, exposure to temperature e x t r e m e s , the aliens' ability to communicate with the driver of the vehicle, their a b ility to exit the vehicle quickly, and the danger to them if an accident occurs." 1 4 O n ly the fourth and fifth of those factors are pertinent to this case. Out of this fact-bound area of the law a few guiding principles have em erged. As to the fourth factor, we have affirmed the enhancement in s it u a t io n s in which it would have been difficult for the alien to extricate herself fr o m the vehicle in the event of an emergency because the alien was jammed into a compartment1 5 or wedged into a tight space. 1 6 We have also upheld the im p o s it io n of the enhancement where the aliens, who were being transported in a van, were completely surrounded by boxes "practically piled up to the top of the v a n " that were too big for the aliens to easily move.1 7 As to the fifth factor, the e n h a n c e m e n t is proper only if the aliens would be in greater danger if an a c c id e n t occurred than "an ordinary passenger not wearing a seatbelt in a m o v in g vehicle."1 8 As a result, the mere fact that an alien is transported in a p o r t io n of the car that is not designed to hold passengers is not, without more, s u ffic ie n t to support the enhancement.19 14 Id. See, e.g., United States v. Rodriguez-Mesa, 443 F.3d 397, 403 (5th Cir. 2006). See, e.g., United States v. Garza, 587 F.3d 304, 309 (5th Cir. 2009). Zuniga-Amezquita, 468 F.3d at 890. Id. at 890. 15 16 17 18 See, e.g., Solis-Garcia, 420 F.3d at 516 (holding that a defendant who transported four aliens in the cargo area of a minivan did not warrant the 2L1.1(b)(6) enhancement because the dangers "associated with riding in the cargo area . . . are generally the same dangers that arise from an individual not wearing a seatbelt in a moving vehicle"); see also United States v. Dixon, 201 F.3d 1223, 1233 (9th Cir. 2000) (reversing the district court's application of the reckless-endangerment enhancement where the defendant had transported aliens in the trunk area of his hatchback car on the ground that "a person hiding in a hatchback area easily could extricate himself by pushing up the lightweight, flimsy hatchback cover"). 19 5 Case: 09-41092 Document: 00511292908 Page: 6 Date Filed: 11/15/2010 No. 09-41092 I n this case, the district court made two findings in support of its decision t o apply the reckless-endangerment enhancement. First, the court found that t h e stroller under which the Guerrero-Cruz was hiding would impede his ability t o exit the vehicle quickly because it was not lightweight, "clunky," and "not that e a s y to move out of the way." Second, the court found that it was "likely" and " h ig h ly foreseeable" that, in the event of an accident, the stroller "would cause m o r e damage" and "the injuries [to Guerrero-Cruz ] would be much more severe t h a n if he were just in the back covered with blankets." Had we been sitting as t h e trier of fact, we might have concluded that the stroller would not have s ig n ific a n t ly impeded the alien's ability to exit the vehicle.2 0 But the districtc o u r t's contrary finding--assisted as it was by its viewing of photos of the s t r o lle r and other items covering Guerrero-Cruz, photos which have not been m a d e part of the record on appeal--is certainly plausible in light of the record a s a whole. So too is its finding that the presence of the stroller in the car c r e a t e d a substantial risk that Guerrero-Cruz would suffer serious injury in the e v e n t of an accident. We thus conclude that these findings of fact were not c le a r ly erroneous. As a consequence, the district court did not err by enhancing M a t a 's sentence for reckless endangerment under 2L1.1(b)(6). B. N o r did the district court err by applying the use-of-a-minor enhancement u n d e r 3B1.4 of the Guidelines. A defendant who "used or attempted to use a p e r s o n less than eighteen years of age to commit the offense or assist in avoiding d e t e c t io n of, or apprehension for, the offense" is subject to a two-level sentence e n h a n c e m e n t under 3B1.4. A defendant uses or attempts to use a minor Cf. United States v. McKinley, 272 F. App'x 412, 413 (5th Cir. 2008) (per curiam) (unpublished) (vacating the defendant's sentence after concluding that the defendant's decision to hide four adult, male aliens under a king-size mattress did not create a danger of suffocation, reasoning that "[a] 15-pound mattress does not create a substantial risk of death or serious bodily injury to four adult men" (citations, internal quotation marks, and brackets omitted)). Although this unpublished decision does not bind us, see 5TH CIR. R. 47.5.4, we find its reasoning persuasive. 20 6 Case: 09-41092 Document: 00511292908 Page: 7 Date Filed: 11/15/2010 No. 09-41092 w it h in the meaning of 3B1.4 if the defendant directs, commands, encourages, in t im id a t e s , counsels, trains, procures, recruits, or solicits the minor.2 1 At issue in this appeal is the portion of 3B1.4 that authorizes the enhancement if the d e fe n d a n t uses a minor to "assist in avoiding detection of . . . the offense." The d e t e r m in a t io n of whether Mata used or attempted to use a minor to assist in a v o id in g detection within the meaning of 3B1.4 is a conclusion of law that we r e v ie w de novo, while any findings of fact made in support of that determination w e review for clear error.22 W e have suggested, but never held in a published opinion, that a d e fe n d a n t who makes a decision to bring a minor along during the commission o f a previously planned crime as a diversionary tactic or in an effort to reduce s u s p ic io n is subject to having her sentence enhanced under 3B1.4.2 3 We so h o ld today, consistent with our previous unpublished decisions in United States v . Zertuche,2 4 United States v. Farias,2 5 United States v. Gutierrez,2 6 and United 21 See U.S. SENTENCING GUIDELINES MANUAL 3B1.4 cmt. 1 (2009). See United States v. Molina, 469 F.3d 408, 413 (5th Cir. 2006) 22 See id. at 415 (noting that this court had previously upheld a 3B1.4 enhancement where "the defendant brought minor children on a drug run to avoid detection by law enforcement") (citing United States v. Gutierrez, 251 F.3d 156, 2001 WL 300644, at *1 (5th Cir. Feb 28, 2001) (per curiam) (unpublished table decision), cert. denied, 534 U.S. 823 (2001)). 228 F. App'x 462, 463 (5th Cir) (per curiam) ("In light of the undisputed evidence that a co-defendant was to smuggle a quantity of cocaine hidden in an infant carrier seat and that the co-defendant's infant child was brought to the bus station, we conclude that the district court did not clearly err in finding that [the 3B1.4] enhancement was warranted."), cert. denied, 552 U.S. 921 (2007). 112 F. App'x 374, 374 (5th Cir. 2004) (per curiam) ("Farias admitted that he was instructed to take his children on drug-smuggling trips to avoid detection by law enforcement, and his children accompanied on two such trips. He failed to provide any other plausible explanation for taking his children with him on those trips. The district court did not clearly err [in applying 3B1.4]."). 251 F.3d 156, 2001 WL 300644, at *1 ("The district court could infer that Gutierrez had orchestrated the presence of his children in an attempt to give the appearance of a family traveling together and thereby avoid detection by law enforcement. Such an inclusion of children is a `use' of minors for purposes of 3B1.4."). 26 25 24 23 7 Case: 09-41092 Document: 00511292908 Page: 8 Date Filed: 11/15/2010 No. 09-41092 S ta te s v. Ibarra-Sandoval.2 7 This holding takes heed of the general rule that t h e defendant must take some affirmative action to involve the minor in the o ffe n s e2 8 and that "[a]bsent other evidence, the mere presence of a minor" at the s c e n e of a crime "is insufficient to support the application of 3B1.4." 2 9 When a defendant's crime is previously planned--when, for example, she leaves the h o u s e knowing she is on her way to smuggle drugs, or intending to pick up a p e r s o n who is unlawfully present in the United States--the act of bringing the c h ild along instead of leaving the child behind is an affirmative act that involves t h e minor in the offense. Intentionally using a minor as a decoy is "use" of a m in o r under 3B1.4.30 T h is is not to say that every defendant who brings a minor child along w h ile smuggling drugs or aliens is subject to having her sentence enhanced u n d e r 3B1.4. The district court should consider additional circumstantial e v id e n c e to determine whether the defendant used the minor to avoid d e t e c t io n .3 1 For example, in Molina, we held that the district court erred by 216 F.3d 1079, 2000 WL 729068, at *1 (5th Cir. May 8, 2000) (unpublished table decision) ("[T]he guideline is broad enough to encompass circumstances where adult criminals benefit from a minor's passive participation in the criminal scheme. . . . [W]e conclude that the district court was entitled to infer that Ibarra and Torres transported the small child in the vehicle as part of a strategy calculated to reduce the chance that law enforcement agents would delay their trip to make a careful inspection of the vehicle for drugs. We conclude that this use of a child as a diversionary tactic to transport drugs undetected across the border is a `use' of a minor under 3B1.4."), cert. denied, 531 U.S. 939 (2000). Cf. United States v. Alarcon, 261 F.3d 416, 422 (5th Cir. 2001), cert. denied, 534 U.S. 1099 (2002). Alarcon reviewed the sufficiency of the evidence in support of a conviction for the use of a minor in avoiding detection in violation of 21 U.S.C. 861(a)(2), id., but we have previously found Alarcon to be "instructive as to what conduct constitutes use of a minor" under 3B1.4, see Molina, 469 F.3d at 415 n.6. 29 28 27 Molina, 469 F.3d at 415 (citations and internal quotation marks omitted). Accord United States v. Preciado, 506 F.3d 808, 810 (9th Cir. 2007) (per curiam), cert. denied, 128 S. Ct. 2980 (2008). See, e.g., United States v. Caldwell, 448 F.3d 287, 292 (5th Cir. 2006) (explaining that "direct evidence [that] conclusively establishes" the factual basis for a sentence enhancement is not required because "the sentencing court is permitted to make common-sense inferences 31 30 8 Case: 09-41092 Document: 00511292908 Page: 9 Date Filed: 11/15/2010 No. 09-41092 im p o s in g the 3B1.4 enhancement where there was no evidence that the d e fe n d a n t in a drug-conspiracy case "believed that his seventeen-year-old g ir lfr ie n d 's presence in the vehicle during the drug run would assist in avoiding d e t e c t i o n " and there was a plausible alternate explanation for the girlfriend's p r e s e n c e in the vehicle.3 2 The 3B1.4 enhancement also was unwarranted w h e r e the defendant's minor son was in the car with her when she was arrested w h ile attempting to smuggle drugs across the border but "the defendant (who w a s living in the United States) planned the crime on the spur of the moment w h ile she was already in Mexico with her son for a family party."3 3 But where a d d it io n a l circumstantial evidence tends to confirm that the defendant brought t h e minor along as a decoy and to avoid detection, the 3B1.4 enhancement is w a r r a n te d .34 I n this case, the district court found that Mata had chosen to bring her fr ie n d and the three minor children with her to give the appearance that the g r o u p was traveling as a family unit and to reduce the likelihood of coming u n d e r suspicion for being engaged in criminal conduct. More specifically, the d is t r ic t court found that Mata chose to bring her children along because it would h e lp make the presence of the stroller in the trunk seem more plausible. The c o u r t also found that Mata could have avoided bringing her children with her by le a v in g them under the care of her friend, who, like Mata, lived in San Antonio. A preponderance of the evidence supported each of these findings. Taken from the circumstantial evidence"). 32 Molina, 469 F.3d at 415. Preciado, 506 F.3d at 811 (describing United States v. Jimenez, 300 F.3d 1166, 1168 (9th Cir. 2002)). See, e.g., United States v. Castro-Hernandez, 258 F.3d 1057, 1060-61 (9th Cir. 2001) (affirming application of the 3B1.4 enhancement where at least four pieces of circumstantial evidence supported the conclusion that the defendant had used his minor son for purposes of avoiding detection of the fact that he was smuggling drugs), cert. denied, 534 U.S. 1167 (2002). 34 33 9 Case: 09-41092 Document: 00511292908 Page: 10 Date Filed: 11/15/2010 No. 09-41092 t o g e t h e r , these findings provide ample support for the district court's conclusion t h a t Mata attempted to use the presence of the three minors in her car to assist in avoiding detection of her offense. The district court did not err by enhancing M a t a 's sentence under 3B1.4. III. Finally, Mata contends that the district court committed plain error by im p e r m is s ib ly delegating to a probation officer its judicial authority to determine w h e t h e r Mata should be required to participate in a mental-health program as a condition of her supervised release. After Mata filed her brief, a panel of this C o u r t held in United States v. Bishop that a district judge's delegation of its a u t h o r it y in this manner is not, in light of this Court's precedent, plainly e r r o n e o u s .35 Bishop forecloses Mata's position. IV . For the reasons discussed above, the judgment of the district court is A F F IR M E D . 35 603 F.3d 279, 280-82 (5th Cir.), cert. filed, No. 10-5298 (July 6, 2010). 10

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