                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 23 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 16-50135

              Plaintiff-Appellee,                D.C. No.
                                                 3:08-cr-01332-JAH-1
 v.

RAUL VILLARREAL,                                 MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No. 16-50136

              Plaintiff-Appellee,                D.C. No.
                                                 3:08-cr-01332-JAH-2
 v.

FIDEL VILLARREAL,

              Defendant-Appellant.


                   Appeals from the United States District Court
                      for the Southern District of California
                    John A. Houston, District Judge, Presiding

                      Argued and Submitted February 7, 2018
                               Pasadena, California


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.

      Defendants Raul and Fidel Villareal challenge their sentences on several

grounds.

      1. Reviewing for abuse of discretion, Gall v. United States, 552 U.S. 38, 51

(2007), we reject Defendants’ arguments that their sentences are procedurally

unreasonable.

      a. The district court adequately explained why it found that the cases cited

by Defendants did not establish unwarranted sentencing disparities. See United

States v. Trujillo, 713 F.3d 1003, 1011 (9th Cir. 2013) ("[A] sentencing judge

presented with nonfrivolous arguments on § 3553(a) factors should ordinarily

explain why he rejects them."). Although the court referred to only one of

Defendants’ cited cases by name, it made clear that it found Defendants’ conduct

here far more egregious than that in the other, cited cases.

      b. The court also adequately explained the extent of its departures and the

ultimate sentences it imposed. See United States v. Rudd, 662 F.3d 1257, 1260

(9th Cir. 2011) ("A sentencing judge must explain a sentence sufficiently to

communicate that a reasoned decision has been made and permit meaningful


      **
        The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
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appellate review." (internal quotation marks omitted)). It is evident from the

record that the court thought that Defendants’ abuse of their official positions to

carry out a scheme whose goal was directly contrary to the mission of Defendants’

agency, coupled with Defendants’ violent efforts to obstruct justice, warranted

sentences well above the pre-departure Guidelines ranges.

      c. The district court did not rest its sentencing decisions on clearly

erroneous facts. See Gall, 552 U.S. at 51 (listing "selecting a sentence based on

clearly erroneous facts" as a "significant procedural error"). The court’s finding

that Defendants’ smuggling scheme involved 1,000 aliens was not clearly

erroneous, even assuming that the court had to find that fact by clear and

convincing evidence. Furthermore, we are convinced that, even if the evidence had

supported a finding of only 400 aliens, as Defendants argue, the district court still

would have selected the same ultimate sentences, thus rendering any error

harmless. See United States v. Ellis, 641 F.3d 411, 423 (9th Cir. 2011) (discussing

how, in evaluating the effect of a district court’s factual error on a sentence, we

look at the error’s effect on the ultimate sentence imposed, not its effect on a

particular departure). The primary drivers behind the lengthy sentences were

Defendants’ abuse of their positions and their efforts to obstruct justice.




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      2. Reviewing Defendants’ Fifth Amendment arguments de novo, United

States v. Bahr, 730 F.3d 963, 965 (9th Cir. 2013), we conclude that the district

court did not impermissibly draw adverse inferences from their silence or punish

them for failure to cooperate. See Mitchell v. United States, 526 U.S. 314, 329–30

(1999) (holding that a court may not draw an adverse inference from a defendant’s

silence when determining the facts of the offense at sentencing); United States v.

Safirstein, 827 F.2d 1380, 1388 (9th Cir. 1987) ("[A] sentencing judge may not

penalize the exercise of a defendant’s privilege against self-incrimination by

enhancing his sentence based upon the defendant’s failure to cooperate by

implicating other persons or otherwise admitting guilt to crimes with which he is

not charged."). The only statement made by the district court that came close to

being problematic was its comment regarding Defendants’ "remaining mum." But

that comment, considered in context, was an explanation for the relatively lenient

sentences imposed in cases that the court was comparing to this case for purposes

of 18 U.S.C. § 3553(a)(6). Because "a sentencing disparity based on cooperation is

not unreasonable," it was proper for the court to consider Defendants’ lack of

cooperation in the § 3553(a)(6) context. United States v. Carter, 560 F.3d 1107,

1121 (9th Cir. 2009).




                                          4
      3. The district court did not err by considering acquitted, dismissed, and

uncharged conduct when it compared Defendants to similarly situated defendants

for purposes of § 3553(a)(6). In comparing defendants under § 3553(a)(6), a court

will almost necessarily have to consider the facts of the cases, including acquitted

conduct, in order to tell whether the defendants are similarly situated and, if so,

whether any sentencing disparities are "unwarranted." Defendants’ Fifth and Sixth

Amendment arguments are similarly unavailing. See United States v. Treadwell,

593 F.3d 990, 1017–18 (9th Cir. 2010) (rejecting the Sixth Amendment argument

advanced by Defendants); United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th

Cir. 2000) (noting that the Fifth Amendment may require the government to prove

certain facts by clear and convincing evidence at sentencing, but that such facts

may still underlie a sentence).

      4. The district court did not abuse its discretion by imposing on Raul and

Fidel sentences of 336 and 270 months, respectively. See United States v. Autery,

555 F.3d 864, 871 (9th Cir. 2009) (holding that the substantive reasonableness of a

sentence is reviewed for abuse of discretion). Although Defendants’ sentences are

significantly lengthier than the top end of their pre-departure Guidelines ranges, we

are not persuaded that this is the "rare case" in which it is clear that the sentencing




                                            5
court committed a clear error of judgment. United States v. Ressam, 679 F.3d

1069, 1086–88 (9th Cir. 2012) (en banc).

      5. The district court did not err in calculating Fidel’s Guidelines range by

applying a two-level enhancement for bodily injury. We review for abuse of

discretion the district court’s determination as to "whether the specific

constellation of facts at issue meets the governing legal standard" set out in the

Guidelines. United States v. Gasca-Ruiz, 852 F.3d 1167, 1171 (9th Cir.) (en banc),

cert. denied, 138 S. Ct. 229 (2017). Here, the court did not abuse its discretion in

determining that the relevant injuries were "painful and obvious." U.S.S.G.

§§ 1B1.1 cmt. n.1(B), 2L1.1(b)(7)(A) (2015).

      AFFIRMED.




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