United States v. Elsa Audelo-Marquez ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10127
Plaintiff-Appellee, D.C. No.
4:16-cr-01379-FRZ-BGM-1
v.
ELSA LIDIDA AUDELO-MARQUEZ, MEMORANDUM*
AKA Elsa L. Audelo-Marquez,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted March 4, 2019**
Phoenix, Arizona
Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.
After a jury trial, Elsa Lidia Audelo-Marquez (“Audelo-Marquez”) was
convicted of conspiring to transport illegal aliens for profit with endangerment
(“Count One”) and the transportation of illegal aliens for profit with endangerment
(“Counts Two and Three”) in violation of 8 U.S.C. § 1324(a)(1). At sentencing,
*
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).
the district court calculated the advisory guideline range to be 27 to 33 months but
varied downward to sentence Audelo-Marquez to a sentence of 12 months and one
day imprisonment. Audelo-Marquez appeals her conviction on sufficiency of the
evidence grounds and her sentence on the grounds that the district court erred in
granting an enhancement under United States Sentencing Guidelines (“U.S.S.G.”)
§ 2L1.1(b)(6) and in failing to grant a reduction under § 3E1.1. Because the
Government presented sufficient evidence that both of the men transported by
Audelo-Marquez were unlawfully in the United States and because the district
court did not abuse its discretion at sentencing, we affirm.
“[C]ircumstantial evidence can be used to prove any fact, including facts
from which another fact is to be inferred, and is not to be distinguished from
testimonial evidence insofar as the jury’s fact-finding function is concerned.”
United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990) (internal quotation
marks and citation omitted). We have specifically held that the Government is not
required to produce direct evidence, either through testimony or documentation, to
prove the alienage of an individual allegedly transported in violation of 8 U.S.C.
§ 1324(a)(1). See United States v. Noriega-Perez, 670 F.3d 1033, 1037-40
(9th Cir. 2012). Testimony of material witnesses also alleged to have been
unlawfully transported with the non-testifying individual and other circumstantial
evidence, such as the circumstances of apprehension, can be sufficient evidence of
alienage. Id.2
Here, Audelo-Marquez argues that the Government failed to produce
sufficient evidence at trial that one of the two men she transported was illegally in
the United States. But the jury was presented with evidence that the man was at a
known stash house before he was found in Audelo-Marquez’s trunk and that he
was hiding at a border checkpoint; Audelo-Marquez’s own testimony that she had
driven down that day to transport two undocumented individuals; and testimony
from the other man that Audelo-Marquez transported in her trunk about the
circumstances of the journey, including that he was born in Mexico and had paid to
enter the United States unlawfully. Viewed in the light most favorable to the
prosecution, id. at 1037, the material witness testimony and the “circumstances [of
the non-testifying individual’s apprehension] that strongly suggested [he] had
recently been smuggled into the United States,” id. at 1039, sufficed for a rational
jury to find beyond a reasonable doubt that he was unlawfully in the United States.
The district court also did not abuse its discretion in applying the
§ 2L1.1(b)(6) enhancement, which is triggered “[i]f the offense involved
intentionally or recklessly creating a substantial risk of death or serious bodily
injury to another person.” U.S.S.G. § 2L1.1(b)(6). A district court abuses its
discretion in applying a particular guideline to the facts of a given case if the
court’s conclusion is “illogical, implausible, or without support in inferences that
may be drawn from facts in the record.” United States v. Gasca-Ruiz, 852 F.3d
1167, 1175 (9th Cir. 2017) (en banc) (quoting United States v. Hinkson, 585 F.3d
31247, 1251 (9th Cir. 2009 (en banc)). Audelo-Marquez drove a vehicle at 75 miles
per hour with two individuals in the car trunk, which was closed for at least part of
the trip on a day where the temperature was around 100 degrees. Even if Audelo-
Marquez took steps to mitigate the risk of harm to the two men in her trunk, it was
not “illogical, implausible, or without support” in the record for the district court to
conclude that she “intentionally or recklessly create[ed] a substantial risk of death
or serious bodily injury to another person.” U.S.S.G. § 2L1.1(b)(6).
Finally, the court did not abuse its discretion in refusing to grant the
acceptance of responsibility reduction under § 3E1.1. Although a district court
may not hold that a defendant who elects to go to trial is per se ineligible for the
reduction, see United States v. Ramos-Medina, 706 F.3d 932, 940 (9th Cir. 2013),
the court did not do so here. Nor did the district court clearly err in concluding that
Audelo-Marquez’s challenges to the dangerousness and recklessness of her actions
established that she did not demonstrate sincere contrition for her crimes.1 See id.AFFIRMED.
1
Audelo-Marquez makes an argument for the first time on appeal that relies
on a sealed part of the record. We decline to exercise our discretion to consider
this argument given that the district court did not have the opportunity to address it.
See Tibble v. Edison Int’l, 843 F.3d 1187, 1193 (9th Cir. 2016) (en banc)
(“Generally, we do not ‘entertain[] arguments on appeal that were not presented or
developed before the district court.’” (quoting Visendi v. Bank of Am., N.A., 733
F.3d 863, 869 (9th Cir. 2013))).
4