FILED
NOT FOR PUBLICATION MAR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50085
Plaintiff - Appellee, D.C. No. 3:10-cr-02917-DMS-1
v.
MEMORANDUM *
RAFAEL GOMEZ-HAWKINS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted March 7, 2012 **
Pasadena, California
Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
Rafael Gomez-Hawkins (Gomez) appeals his jury conviction and
sentence for two counts of transporting illegal aliens in violation of 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1324(a)(1)(A)(ii). We affirm. Because the parties are familiar with the history
of this case, we need not recount it here.
I
The district court did not abuse its discretion in formulation of the jury
instructions. See United States v. Chang Da Liu, 538 F.3d 1078, 1088 (9th Cir.
2008) (describing standard of review). Gomez argues that the material witnesses
testifying against him received favored treatment from the government and that
such treatment required the district court to give the “Witness Receiving Benefits”
instruction to the jury. The district court instructed the jury pursuant to Ninth
Circuit Model Jury Instruction § 3.9, which effectively instructs jurors that they
may take into account witness interest, bias, or prejudice as well as “any other
factors that bear on believability.” In reviewing the instructions given as a whole,
we conclude that the court adequately guided the jury’s deliberation. See United
States v. Shipsey, 363 F.3d 962, 968 (9th Cir. 2004) (“Where the instruction
actually given was legally sufficient, a defendant cannot successfully contend that
declining to use his specific formulation was an abuse of discretion.”).
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II
The district court did not commit plain error by imposing a six-level
sentencing enhancement under U.S.S.G. § 2L1.1(b)(6) for “intentionally or
recklessly creating a substantial risk of death.” The Sentencing Guidelines
specifically cite “transporting persons in the trunk or engine compartment of a
motor vehicle” as an example of reckless conduct that satisfied the standard.
§ 2L1.1, cmt. n.5. The district court found on an undisputed record that Gomez
transported two illegal aliens in the trunk of his car through the very hot and dry
California desert. Given the Guideline commentary and the record, the district
court did not err in imposing the enhancement.
Gomez argues that the district court erroneously applied a preponderance of
the evidence standard of proof, rather than requiring proof by clear and convincing
evidence. But the factual basis of the enhancement was undisputed, so, even if a
“clear and convincing” standard applied, the court did not err.
III
The district court did not clearly err in denying Gomez’s request for a two-
level sentence “minor role” adjustment. See United States v. Rodriguez-Castro,
641 F.3d 1189, 1192 (9th Cir. 2011) (describing standard of review). The
Sentencing Guidelines permit such an adjustment when a defendant proves that he
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“play[ed] a part in committing the offense that makes him substantially less
culpable than the average participant.” U.S.S.G. § 3B1.2, cmt. n.3(A). The record
here supports the district court’s conclusion that Gomez failed to prove by a
preponderance of the evidence that he was a minor participant. See United States
v. Pizzichiello, 272 F.3d 1232, 1237 (9th Cir. 2001) (citing United States v. Ladum,
141 F.3d 1328, 1348 (9th Cir. 1998)). Gomez was convicted for unlawfully
transporting two illegal aliens. He was arrested with the aliens in the car he was
driving with no other passengers. According to the material witnesses, Gomez
was the one who picked the aliens up at a safe house on the U.S. side of the border
and then drove them around until he found a suitable place to put them in his trunk.
Gomez identified no other person that might have been involved. Thus, although
others may well have been involved, the district court did not clearly err in denying
the minor role adjustment request.
AFFIRMED.
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