FILED
NOT FOR PUBLICATION JAN 22 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10568
Plaintiff - Appellee, D.C. No. 2:13-cr-00143-SRB-5
v.
MEMORANDUM*
HEILER OSIEL BARRIONUEVO-
ROBLERO, AKA Cesar Bartolon-
Gonzalez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted January 14, 2015
San Francisco, California
Before: M. SMITH, NGUYEN, and FRIEDLAND, Circuit Judges.
Heiler Barrionuevo-Roblero was convicted of conspiracy to harbor and
transport illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(ii), (iii), and (v)(I), and harboring
illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(ii). He appeals his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentence of 42 months followed by three years of supervised release. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We vacate the
sentence and remand for resentencing.
Assuming, without deciding, that United States v. Leal-Del Carmen, 697
F.3d 964, 969-70 (9th Cir. 2012), applies in the sentencing context, the district
court properly found that Barrionuevo-Roblero failed to show that the
government’s deportation of witnesses was done in bad faith, or prejudiced him.
See id.
Reviewing for clear error, see United States v. Hernandez-Franco, 189 F.3d
1151, 1159-60 (9th Cir. 1999), the district court properly enhanced the offense
level by two points under U.S. Sentencing Guidelines Manual § 2L1.1(b)(6)
(2014), see id. cmt. n. 5, and properly applied a preponderance of the evidence
standard because the facts supporting the enhancement were based on the nature
and extent of the charged offenses. See United States v. Johansson, 249 F.3d 848,
855 (9th Cir. 2001). Furthermore, the district court properly refused to grant a
minor role reduction because Barrionuevo-Roblero was not “substantially less
culpable than the average participant” in the offense, see U.S. Sentencing
Guidelines Manual § 3B1.2 cmt. n.3(A) (2014).
2
However, the district court’s finding that Barrionuevo-Roblero was a
“manager or supervisor” under § 3B1.1(b) of the Sentencing Guidelines was
clearly erroneous because there was no evidence in the record that Barrionuevo-
Roblero was the “manager . . . or supervisor of one or more other participants” in
the charged offenses. See U.S. Sentencing Guidelines Manual § 3B1.1 cmt. n.2
(2014) (emphasis added); see also id. n.1 (defining “participant” as “a person who
is criminally responsible for the commission of the offense”); United States v.
Whitney, 673 F.3d 965, 975 n.6 (9th Cir. 2012). Additionally, the government
impermissibly declined to move for a third-level reduction in total offense level
pursuant to § 3E1.1(b) of the Sentencing Guidelines because it did not challenge
the reduction under § 3E1.1(a), and did not provide a reason for declining to move
for the third point that was tied to the preservation of trial resources. See U.S.
Sentencing Guidelines Manual app. C, amend. 775 (2014).
Since we are remanding for resentencing for the reasons set forth above, we
need not reach the issue of whether the sentence was substantively unreasonable.
United States v. Forrester, 616 F.3d 929, 950 (9th Cir. 2010).
VACATED AND REMANDED.
3