United States v. Leticia Rivas , 665 F. App'x 632 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 14 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10483
Plaintiff-Appellee, D.C. No.
2:13-cr-00388-ROS-1
v.
LETICIA RIVAS, AKA Leticia Montano, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Submitted December 12, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Leticia Rivas, also known as Leticia Montano, challenges the district court’s
application of a six-level sentencing enhancement for smuggling, transporting, or
*
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).
harboring more than 24 aliens. See U.S.S.G. § 2L1.1(b)(2). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The government did not need to prove that Rivas knew there were 25 or
more unlawful aliens at 6621 West Miami (the “Miami Property”) for the district
court to impose the sentencing enhancement. The enhancement provides: “If the
offense involved the smuggling, transporting, or harboring of six or more unlawful
aliens, increase as follows . . . .” U.S.S.G. § 2L1.1(b)(2) (emphasis added). This is
followed by a chart showing the number of unlawful aliens involved and the
corresponding increases in sentence levels. Id. An offense involving 25–99
unlawful aliens results in a six-level enhancement. Id. § 2L1.1(b)(2)(B). The plain
language of the Sentencing Guideline does not require that the defendant have
knowledge of the number of aliens involved, and we do not read a scienter
requirement into it. See United States v. Gonzalez, 262 F.3d 867, 869–70 (9th Cir.
2001) (per curiam).
The district court did not clearly err in finding that there was sufficient
evidence linking Rivas to the Miami Property. Rivas pleaded guilty to conspiracy
to harbor illegal aliens, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii) and
(a)(1)(A)(v)(I). Beginning in mid-2008, using her property management company
Sol Realty, Rivas leased and directed others working for her to lease houses to
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“unqualified” or “illegitimate” renters who did not have valid identification or
proof of income. Despite knowing that some of the properties she managed were
likely being used for unlawful purposes, Rivas did not take steps to prevent the
homes she leased from being used for illegal purposes. Instead, she gave advice to
renters to help them avoid having the police called on the homes they rented, but
did not occupy. She also gave advice to an undercover agent about how to better
hide the illegal aliens she knew he was harboring at a home he rented from Sol
Realty. Finally, Rivas was connected to the Miami Property where the illegal
aliens giving rise to the enhancement were found; she signed the Miami Property
lease. The district court did not clearly err in enhancing Rivas’s sentence.
It is of no import that the raid on the Miami Property occurred before the
time period for the conspiracy charged in the indictment. For purposes of
enhancing a defendant’s sentence, a court may consider a defendant’s relevant
conduct, “largely unrestrained by whether the defendant has been held criminally
accountable for such actions.” United States v. Williams, 217 F.3d 751, 754 (9th
Cir. 2000).
AFFIRMED.
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