United States v. Heiler Barrionuevo-Roblero

MEMORANDUM

Heiler Barrionuevo-Roblero was convicted of conspiracy to harbor and transport illegal aliens, 8 U.S.C. § 1324 (a)(l)(A)(ii), (iii), and (v)(I), and harboring illegal aliens, 8 U.S.C. § 1324 (a)(1)(A)(iii) and (a)(l)(B)(ii). He appeals his 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. § 8742 (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 § 2Ll.l(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.…