United States v. Lucio Villanueva-Hernandez

999 F.2d 546 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Lucio VILLANUEVA-HERNANDEZ, Defendant-Appellant. Nos. 92-10591, 92-10630. United States Court of Appeals, Ninth Circuit. Submitted July 6, 1993. * Decided July 13, 1993. Before TANG, POOLE and NORRIS, Circuit Judges. 1 MEMORANDUM ** 2 In these consolidated appeals, Lucio Villanueva-Hernandez appeals his twelve-month sentence imposed following conviction after a jury trial for transporting illegal aliens in violation of 8 U.S.C. § 1324 (a)(1)(B). Villanueva-Hernandez argues the district court improperly relied on his prior border patrol "stops" involving undocumented aliens as a basis for an upward departure because no "stop" resulted in criminal proceedings. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. 1 3 We consider the following three-prong test in evaluating a district court's decision to depart upward from the applicable Guidelines…