United States v. Preciado , 506 F.3d 808 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-50649
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00745-GT
CARINA S. PRECIADO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., Senior District Judge, Presiding
Argued and Submitted
August 9, 2007—Pasadena, California
Filed October 31, 2007
Before: Alex Kozinski and Johnnie B. Rawlinson,
Circuit Judges, and Miriam Goldman Cedarbaum,*
Senior District Judge.
Per Curiam Opinion
*The Honorable Miriam Goldman Cedarbaum, Senior United States
District Judge for the Southern District of New York, sitting by designa-
tion.
14327
UNITED STATES v. PRECIADO 14329
COUNSEL
Steven F. Hubachek, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
Peter J. Mazza, Assistant U.S. Attorney; Karen P. Hewitt,
U.S. Attorney; Bruce C. Castetter, Assistant U.S. Attorney,
San Diego, California, for the plaintiff-appellee.
OPINION
PER CURIAM:
Preciado met with a man named “El Huate,” who asked her
to smuggle drugs into the United States. Preciado agreed and
two weeks later El Huate came to her home in Mexico. Pre-
ciado left her two-year-old son with her sister Magdalena,
who was staying at Preciado’s home. El Huate drove Preciado
and her other four children, whose ages ranged from seven
months to six years, to a nearby McDonald’s, where a van
with 150 pounds of marijuana was waiting. Preciado drove
the van to the United States with the four children, and she
14330 UNITED STATES v. PRECIADO
was detained at the border after agents found the marijuana
concealed in the van’s dash, driver’s side panels and gas tank.
After Preciado was arrested, Magdalena came to the border
and took custody of the children.
Preciado pled guilty to importing marijuana. See 21 U.S.C.
§§ 952, 960. Finding that Preciado used her children as
decoys to avoid detection, the district court applied a sentenc-
ing enhancement under U.S.S.G. § 3B1.4 for using a minor to
avoid detection of an offense. Preciado appeals this sentenc-
ing enhancement, and we have jurisdiction under 28 U.S.C.
§ 1291.
[1] A two-level sentencing enhancement may be imposed
under U.S.S.G. § 3B1.4 “[i]f the defendant used or attempted
to use a person less than eighteen years of age to commit the
offense or assist in avoiding detection of, or apprehension for,
the offense.” The district court may only impose the § 3B1.4
enhancement if it is “supported by a preponderance of the evi-
dence,” United States v. Castro-Hernandez, 258 F.3d 1057,
1059 (9th Cir. 2001). We review the district court’s finding
that Preciado used her children to avoid detection for clear
error. United States v. Jimenez, 300 F.3d 1166, 1169 (9th Cir.
2002).
[2] A defendant only uses a minor in the offense if he
“acted affirmatively to involve the minor in the crime.”
United States v. Parker, 241 F.3d 1114, 1121 (9th Cir. 2001).
However, “a minor’s own participation in a federal crime is
not a prerequisite to the application of § 3B1.4,” as § 3B1.4
can be applied for “intentionally using a minor as an innocent
decoy.” Castro-Hernandez, 258 F.3d at 1060. In cases where
a defendant is smuggling drugs and has a minor with him, we
look to circumstantial evidence in determining whether the
defendant used the minor to avoid detection. For example,
evidence that the defendant had a ready child care alternative
or that he brought children along to a previously planned
crime supports a finding that the minors were used to avoid
UNITED STATES v. PRECIADO 14331
detection. See Jimenez, 300 F.3d at 1169; Castro-Hernandez,
258 F.3d at 1061.
[3] Here, we find both types of circumstantial evidence.
First, Preciado had a more-than-ready alternative for child
care: Her sister Magdalena took care of Preciado’s two-year-
old while Preciado took her other four children on a drug run
to the United States. Preciado argues that she only left her
two-year-old with Magdalena because he was sleeping when
Preciado left to get the van, and that Preciado didn’t leave all
five of her children with Magdalena because she had never
done so before. The fact that Magdalena had never cared for
all five children at once before doesn’t mean that Preciado
didn’t have a “ready alternative” to bringing her children with
her. Castro-Hernandez, 258 F.3d at 1061. There is nothing
suggesting that Magdalena couldn’t have cared for all five
children at once. Indeed, after Preciado was arrested, Magda-
lena ended up caring for all five of the children anyway. This
case is therefore like Castro-Hernandez, where we upheld a
§ 3B1.4 enhancement when some of the defendant’s children
were with a relative who was caring for them while the defen-
dant was smuggling drugs. Id.
[4] Second, Preciado made plans to smuggle drugs when
she met with El Huate two weeks before the date of the crime
and thus had plenty of time to arrange for child care. Our case
is therefore distinguishable from Jimenez, where we found
that the district court erred in imposing a § 3B1.4 enhance-
ment because the defendant (who was living in the United
States) planned the crime on the spur of the moment while she
was already in Mexico with her son for a family party. Jime-
nez, 300 F.3d at 1168. Under those unique circumstances, we
reasoned that defendant’s routine in bringing her son on fam-
ily trips rendered child care alternatives irrelevant. Id. at 1169.
But a defendant who has sufficient advance notice can gener-
ally make child care arrangements rather than bring a child
along while committing a crime. Under such circumstances,
the district court can plausibly infer that defendant brought
14332 UNITED STATES v. PRECIADO
her four children so as to facilitate her passage across the bor-
der by making it look like she was on a family visit.
Preciado’s remaining arguments are addressed in the
accompanying memorandum disposition.
AFFIRMED.