United States v. Raul Villarreal ( 2018 )

FILED
NOT FOR PUBLICATION
FEB 23 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50135
Plaintiff-Appellee, D.C. No.
3:08-cr-01332-JAH-1
v.
RAUL VILLARREAL, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50136
Plaintiff-Appellee, D.C. No.
3:08-cr-01332-JAH-2
v.
FIDEL VILLARREAL,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted February 7, 2018
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.
Defendants Raul and Fidel Villareal challenge their sentences on several
grounds.
1. Reviewing for abuse of discretion, Gall v. United States, 552 U.S. 38, 51
(2007), we reject Defendants’ arguments that their sentences are procedurally
unreasonable.
a. The district court adequately explained why it found that the cases cited
by Defendants did not establish unwarranted sentencing disparities. See United
States v. Trujillo, 713 F.3d 1003, 1011 (9th Cir. 2013) ("[A] sentencing judge
presented with nonfrivolous arguments on § 3553(a) factors should ordinarily
explain why he rejects them."). Although the court referred to only one of
Defendants’ cited cases by name, it made clear that it found Defendants’ conduct
here far more egregious than that in the other, cited cases.
b. The court also adequately explained the extent of its departures and the
ultimate sentences it imposed. See United States v. Rudd, 662 F.3d 1257, 1260
(9th Cir. 2011) ("A sentencing judge must explain a sentence sufficiently to
communicate that a reasoned decision has been made and permit meaningful
**
The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
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appellate review." (internal quotation marks omitted)). It is evident from the
record that the court thought that Defendants’ abuse of their official positions to
carry out a scheme whose goal was directly contrary to the mission of Defendants’
agency, coupled with Defendants’ violent efforts to obstruct justice, warranted
sentences well above the pre-departure Guidelines ranges.
c. The district court did not rest its sentencing decisions on clearly
erroneous facts. See Gall, 552 U.S. at 51 (listing "selecting a sentence based on
clearly erroneous facts" as a "significant procedural error"). The court’s finding
that Defendants’ smuggling scheme involved 1,000 aliens was not clearly
erroneous, even assuming that the court had to find that fact by clear and
convincing evidence. Furthermore, we are convinced that, even if the evidence had
supported a finding of only 400 aliens, as Defendants argue, the district court still
would have selected the same ultimate sentences, thus rendering any error
harmless. See United States v. Ellis, 641 F.3d 411, 423 (9th Cir. 2011) (discussing
how, in evaluating the effect of a district court’s factual error on a sentence, we
look at the error’s effect on the ultimate sentence imposed, not its effect on a
particular departure). The primary drivers behind the lengthy sentences were
Defendants’ abuse of their positions and their efforts to obstruct justice.
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2. Reviewing Defendants’ Fifth Amendment arguments de novo, United
States v. Bahr, 730 F.3d 963, 965 (9th Cir. 2013), we conclude that the district
court did not impermissibly draw adverse inferences from their silence or punish
them for failure to cooperate. See Mitchell v. United States, 526 U.S. 314, 329–30
(1999) (holding that a court may not draw an adverse inference from a defendant’s
silence when determining the facts of the offense at sentencing); United States v.
Safirstein, 827 F.2d 1380, 1388 (9th Cir. 1987) ("[A] sentencing judge may not
penalize the exercise of a defendant’s privilege against self-incrimination by
enhancing his sentence based upon the defendant’s failure to cooperate by
implicating other persons or otherwise admitting guilt to crimes with which he is
not charged."). The only statement made by the district court that came close to
being problematic was its comment regarding Defendants’ "remaining mum." But
that comment, considered in context, was an explanation for the relatively lenient
sentences imposed in cases that the court was comparing to this case for purposes
of 18 U.S.C. § 3553(a)(6). Because "a sentencing disparity based on cooperation is
not unreasonable," it was proper for the court to consider Defendants’ lack of
cooperation in the § 3553(a)(6) context. United States v. Carter, 560 F.3d 1107,
1121 (9th Cir. 2009).
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3. The district court did not err by considering acquitted, dismissed, and
uncharged conduct when it compared Defendants to similarly situated defendants
for purposes of § 3553(a)(6). In comparing defendants under § 3553(a)(6), a court
will almost necessarily have to consider the facts of the cases, including acquitted
conduct, in order to tell whether the defendants are similarly situated and, if so,
whether any sentencing disparities are "unwarranted." Defendants’ Fifth and Sixth
Amendment arguments are similarly unavailing. See United States v. Treadwell,
593 F.3d 990, 1017–18 (9th Cir. 2010) (rejecting the Sixth Amendment argument
advanced by Defendants); United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th
Cir. 2000) (noting that the Fifth Amendment may require the government to prove
certain facts by clear and convincing evidence at sentencing, but that such facts
may still underlie a sentence).
4. The district court did not abuse its discretion by imposing on Raul and
Fidel sentences of 336 and 270 months, respectively. See United States v. Autery,
555 F.3d 864, 871 (9th Cir. 2009) (holding that the substantive reasonableness of a
sentence is reviewed for abuse of discretion). Although Defendants’ sentences are
significantly lengthier than the top end of their pre-departure Guidelines ranges, we
are not persuaded that this is the "rare case" in which it is clear that the sentencing
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court committed a clear error of judgment. United States v. Ressam, 679 F.3d
1069, 1086–88 (9th Cir. 2012) (en banc).
5. The district court did not err in calculating Fidel’s Guidelines range by
applying a two-level enhancement for bodily injury. We review for abuse of
discretion the district court’s determination as to "whether the specific
constellation of facts at issue meets the governing legal standard" set out in the
Guidelines. United States v. Gasca-Ruiz, 852 F.3d 1167, 1171 (9th Cir.) (en banc),
cert. denied, 138 S. Ct. 229 (2017). Here, the court did not abuse its discretion in
determining that the relevant injuries were "painful and obvious." U.S.S.G.
§§ 1B1.1 cmt. n.1(B), 2L1.1(b)(7)(A) (2015).
AFFIRMED.
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