United States v. Irma Nuno-Para, United States of America v. Jesus Garcia-Reyes

Irma Nuno-Para (Nuno) and Jesus Garcia-Reyes (Garcia) petition for rehearing following our previous memorandum disposition in which we vacated their sentences and remanded for resentencing. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1268 (9th Cir.1988), overruled, Mistretta v. United States, — U.S. -, 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989). In light of Mistretta, in which the United States Supreme Court held the Sentencing Reform Act of 1984 and promulgation of the sentencing guidelines by the Sentencing Commission constitutional, we grant appellants’ petition for rehearing and consider the merits of their appeals.

FACTUAL BACKGROUND AND PROCEEDINGS

Nuno and Garcia were charged in a six count indictment which alleged a scheme involving the transportation of illegal aliens from San Diego to Los Angeles. Pursuant to a plea bargain, both appellants pleaded guilty to one count of aiding and abetting the transportation of illegal aliens. The government dismissed the remaining charges in the indictment, and the district court ordered the preparation of presen-tence reports.

The presentence reports state that appellants were central figures in a large-scale alien smuggling ring…