                                                                            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                            NOT FOR PUBLICATION                              MAR 19 2012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.”).




                                             2
                                          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


                                          3
“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.




                                          4
