FILED

NOT FOR PUBLICATION

APR 25 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50042

Plaintiff-Appellee, D.C. No. 3:16-cr-02166-BTM-1 v.

CARLOS TIZNADO-VALENZUELA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, Chief Judge, Presiding

Argued and Submitted March 9, 2018 Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District Judge.

Defendant Carlos Tiznado-Valenzuela appeals the twenty-four month prison

sentence and three-year supervised release term he received from the district court

after pleading guilty to smuggling aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(i)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. and (v)(II). This Court has jurisdiction under 18 U.S.C. § 3742. After reviewing the

district court identification of the correct legal standard de novo, factual findings for

clear error, and application of the Sentencing Guidelines for abuse of discretion, see

United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc), we

affirm.

1. Defendant first challenges the enhancement of his sentence under

U.S.S.G. § 2L1.1(b)(6). Section 2L1.1(b)(6) provides for an upward adjustment if an

alien smuggling offense “involved intentionally or recklessly creating a substantial

risk of death or serious bodily injury to another person.” Although Section 2L1.1

does not define recklessness, it has been interpreted as referring to “a situation in

which the defendant was aware of the risk created by his conduct and the risk was of

such a nature and degree that to disregard that risk constituted a gross deviation from

the standard of care that a reasonable person would exercise in such a situation.”

United States v. Rodriguez-Cruz, 255 F.3d 1054, 1059 (9th Cir. 2001) (citation

omitted). Defendant argues the district court erred in enhancing his sentence under

this provision by: (1) applying a strict liability standard; (2) drawing conclusions that

were not reasonably supported by facts in the record; and (3) creating an unwarranted

sentence disparity between him and his co-defendant. We disagree.

2 “[T]o determine whether the district court identified the correct legal standard,

we review whether the court selected the right Guidelines provision in the first

instance and whether the court correctly interpreted the meaning of that provision.”

Gasca-Ruiz, 852 F.3d at 1170. Usually, the district court “need[s] to do little more

than consult the text of the applicable guideline and its accompanying commentary.”

Id. at 1171. If it does, “we will not assume that the court applied the wrong legal

standard” absent “some indication” that the district court had in mind a different

standard. Id. at 1174–75.

During the sentencing hearing, the district court repeatedly referenced Section

2L1.1(b)(6) and its accompanying commentary. For example, the district court

observed that the “uncontested statements” in the Presentence Report (PSR) “support

[the enhancement] . . . much more so than transporting someone in the trunk of a car,”

a clear reference to examples of reckless conduct provided in the commentary. See

U.S.S.G. § 2L1.1 cmt. n.3. The district court also noted that Defendant “was the

leader of the group” and “specifically created the risk by undertaking this trek . . .

without making sure that they were adequately provisioned.” The hearing transcript

reflects the district court properly considered the risk to the smuggled aliens,

Defendant’s awareness of that risk, and his role in creating it.

3 Further, the district court did not abuse its discretion in applying Section

2L1.1(b)(6) to the facts of this case. The party seeking to adjust an offense level

generally must establish the adjustment is merited by a preponderance of the evidence.

See United States v. Gonzalez, 492 F.3d 1031, 1039 (9th Cir. 2007). But when a

sentencing factor has “an extremely disproportionate effect” on the sentence, the

district court must find the elements are met by clear and convincing evidence. Id.

(citation omitted). Here, the district court did not identify the evidentiary standard it

applied, and neither party argued below or in the briefs that the district court applied

the wrong standard. During oral argument, the parties agreed that the clear and

convincing evidence standard applies. Regardless of which standard applies, the facts

in the PSR are sufficient to support the district court conclusion. See United States

v. Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir. 2000).

First, the facts in the PSR establish the risks created by the smuggling offense

fell within the “wide variety of conduct” covered by Section 2L1.1(b)(6). See

U.S.S.G. § 2L1.1 cmt. n.3. The Guidelines commentary explains that reckless

conduct includes “guiding persons through, or abandoning persons in, a dangerous or

remote geographic area without adequate food, water, clothing, or protection from the

elements.” Id. Here, Defendant guided aliens through the mountains in the extreme

heat of summer without sufficient food and water, causing several participants to

4 “fear[] for their lives.” The risks created by the incident were exactly the kind the

Guidelines were designed to address: “death, injury, starvation, dehydration, or

exposure that aliens potentially face when transported through dangerous or remote

geographical areas, e.g., along the southern border of the United States.” U.S.S.G.

supp. to app. C, amend. 785. Further, the district court did not apply the enhancement

because it found hiking in the region to be “inherently dangerous,” but because of

additional factors such as the length of the journey, the temperature, the time of year,

and whether the aliens were provided adequate food and water. See id.

Second, the facts in the PSR show Defendant was aware of, and can be held

accountable for creating, those risks. This was not his first smuggling expedition, or

even his first unsuccessful one. For example, mere weeks before the charged incident,

Defendant attempted to guide a different group of aliens across the mountains. The

group ran into several challenges, putting Defendant on notice of the physical

demands of the journey and the importance of being adequately provisioned. One

member of the group “was unable to keep up,” and asked to be left behind. He was

eventually found dead. And like the charged incident, that group too ran out of food

and water.

Further, because Defendant acted as a foot guide during the charged incident,

the district court logically concluded that he was a “leader of the group” and could be

5 held responsible for the group’s unpreparedness. Based on his status and prior

experiences, Defendant could have “urged the [aliens] to obtain adequate provisions,”

or to use the provided provisions appropriately. See Rodriguez-Cruz, 255 F.3d at

1059. If they did not comply, he “could . . . have refused to go.” See id.

Considering all of these facts, the district court’s application of Section

2L1.1(b)(6) was not “illogical, implausible, or without support in inferences that may

be drawn from facts in the record.” See Gasca-Ruiz, 852 F.3d at 1175 (citation

omitted).

Nor did the district court create an “unwarranted” sentence disparity between

Defendant and his co-defendant. See 18 U.S.C. § 3553(a)(6). Nothing in the record

suggests his co-defendant had similar prior smuggling experiences. Thus, the

evidence that the co-defendant acted recklessly was not as strong. As the district court

noted, the earlier sentencing of the co-defendant was based on his record. See Gall

v. United States, 552 U.S. 38, 55 (2007) (“[I]t is perfectly clear that the District Judge

considered the need to avoid unwarranted disparities, but also considered the need to

avoid unwarranted similarities among other co-conspirators who were not similarly

situated.”) (emphasis in original).

2. Defendant next challenges the decision to aggregate the number of

smuggled aliens from prior incidents as relevant conduct under U.S.S.G. § 1B1.3.

6 This resulted in a three-level increase under U.S.S.G. § 2L1.1(b)(2). Because this

Court concludes the district court did not err in applying the substantial risk

enhancement, this Court need not address this challenge. Regardless of the district

court’s enhancement under Section 2L1.1(b)(2), Defendant’s offense level would

increase to 18 under Section 2L1.1(b)(6). Thus, the enhancement did not impact his

calculated Guidelines range.

3. Defendant’s final challenge is that the three-year term of supervised

release is procedurally and substantively unreasonable because it defies the policy

outlined in U.S.S.G. § 5D1.1(c). Under Section 5D1.1(c), a court “ordinarily should

not impose a term of supervised release” when the defendant is a deportable alien

“who likely will be deported after imprisonment.” But a court should “consider”

imposing supervised release “if the court determines it would provide an added

measure of deterrence and protection based on the facts and circumstances of a

particular case.” U.S.S.G. § 5D1.1 cmt. n.5. A district court can satisfy Section

5D1.1(c) without explicitly referring to that Guideline so long as the court provides

a “specific and particularized explanation” that an added measure of deterrence is

necessary. See United States v. Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir. 2012).

Turning first to Defendant’s procedural challenge, “[i]n order for an objection

to preserve a sentencing issue on appeal, it must have a specific substantive basis.”

7 United States v. Grissom, 525 F.3d 691, 694 (9th Cir. 2008); see also Fed. R. Crim.

P. 51(b). “This standard is not met when [a party] lodges a general objection to the

court’s calculation of the defendant’s sentencing offense levels, then on appeal asserts

specific grounds of error.” Grissom, 525 F.3d at 694. Here, Defendant’s counsel

made a general procedural objection at the close of the sentencing hearing. Nothing

in the record suggests the objection was based on the district court decision to impose

a term of supervised release, much less the court’s failure to adequately explain that

decision. Thus, we review for plain error.

To establish plain error, Defendant must show (1) the proceedings below

involved error, (2) the error is plain, and (3) the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 732–35 (1993). Defendant’s challenge fails

under the third prong. Regardless of whether the district court explanation was

sufficiently “particularized” to satisfy Section 5D1.1(c), it did not affect Defendant’s

substantive rights. Considering the district court’s discussion of his repeated behavior

and “the need to deter him and others,” it is clear the outcome would be the same if

this matter were returned to the district court for further explanation. See United

States v. Dallman, 533 F.3d 755, 761–62 (9th Cir. 2008). The argument that the

district court findings are insufficient because they focus on the need to deter alien

smuggling, rather than illegal reentry, is meritless. By repeatedly attempting to

8 smuggle aliens into the United States, Defendant was repeatedly attempting to

illegally enter the United States. And as a result, he has been repeatedly deported.

We review the substantive reasonableness of Defendant’s sentence for abuse

of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). We have

“upheld as substantively reasonable terms of supervised release for other defendants

who were to be removed at the end of their custodial sentence.” United States v.

Castro-Verdugo, 750 F.3d 1065, 1072 (9th Cir. 2014) (citing Valdavinos-Torres, 704

F.3d at 692–93). Further, the three-year term of supervised relief is consistent with

U.S.S.G. §§ 5D1.1(a) and 5D1.2(a)(2). Thus, the district court decision was not

unreasonable and was within its discretion.

AFFIRMED.

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