                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 11-10134
                Plaintiff-Appellee,           D.C. No.
               v.                         2:06-cr-00778-
ADAN PINEDA-DOVAL,                            SMM-1
             Defendant-Appellant.
                                            OPINION

       Appeal from the United States District Court
                for the District of Arizona
      Stephen M. McNamee, District Judge, Presiding

                  Argued and Submitted
       February 14, 2012—San Francisco, California

                   Filed August 27, 2012

    Before: Betty B. Fletcher, William C. Canby, Jr., and
             Susan P. Graber, Circuit Judges.

               Opinion by Judge B. Fletcher;
                 Dissent by Judge Graber




                            9841
               UNITED STATES v. PINEDA-DOVAL            9843




                        COUNSEL

Daniel L. Kaplan, Assistant Federal Public Defender, Phoe-
nix, Arizona, for the defendant-appellant.

Ann Birmingham Scheel, Acting United States Attorney,
Randall M. Howe, Deputy Appellate Chief, Bridget S. Bade
(argued), Assistant United States Attorney, Phoenix, Arizona,
for the plaintiff-appellee.
9844                UNITED STATES v. PINEDA-DOVAL
                               OPINION

B. FLETCHER, Circuit Judge:

   Defendant-Appellant Adan Pineda-Doval (“Pineda-Doval”)
appeals the district court’s imposition of ten concurrent life
sentences for his convictions for ten counts of transportation
of illegal aliens resulting in their deaths. See 8 U.S.C.
§ 1324(a)(1)(A)(ii), (a)(1)(B)(iv). In the prior appeal, we
affirmed Pineda-Doval’s convictions but remanded for resen-
tencing. On remand, the district court reimposed the life sen-
tences. We vacate and remand for resentencing.

                           BACKGROUND

   Because we discussed the facts of this case in the prior
appeal, United States v. Pineda-Doval, 614 F.3d 1019,
1023-24 (9th Cir. 2010), we provide only a short summary
here. Pineda-Doval, a Mexican national and migrant worker
who was twenty-one years old at the time, drove a large
Chevy Suburban carrying twenty undocumented immigrants
into Arizona. They encountered Border Patrol Agent Corey
Lindsay about forty-five miles from the border. Agent Lind-
say followed the Suburban for some time. Pineda-Doval then
attempted to swerve around a spike strip that was deployed by
other agents, with whom Agent Lindsay had communicated.
At some point during the pursuit and before reaching the
spike strip, Pineda-Doval exclaimed “encomendarse a Dios!”
—translated at trial to “commend yourself to God, because we
are being pursued.” The Suburban evaded the spike strip but
the sudden shift in weight caused it to roll end-over-end.
Many passengers were thrown from the Suburban, and ten
passengers died. After a seven-day trial, a jury found Pineda-
Doval guilty on all charged counts. For each of the ten counts
of transportation of illegal aliens resulting in death, the district
court applied the cross-reference to the second-degree murder
Guidelines1 and sentenced Pineda-Doval to ten concurrent life
sentences.
  1
   See U.S.S.G. § 2L1.1(c) (2005). The cross-reference provides:
      If any person was killed under circumstances that would consti-
                   UNITED STATES v. PINEDA-DOVAL                    9845
   In the first appeal, we affirmed Pineda-Doval’s convictions
but vacated his sentence. We concluded that the district court
erred by applying the cross-reference to the second-degree
murder Guidelines without making a specific finding that
Pineda-Doval acted with “malice aforethought.” Pineda-
Doval, 614 F.3d at 1039-40. We also concluded that the dis-
trict court did not apply the “clear and convincing” standard
of proof to the factual findings that were necessary to support
application of the cross-reference. Id. at 1041-42.

   On remand, the parties submitted new sentencing briefs,
and the district court considered new evidence submitted by
Pineda-Doval that clarified the common, idiomatic use of the
phrase “encomendarse a Dios.”2 The district court stated dur-
ing the sentencing hearing that the phrase did not factor into
its sentencing decision. Even so, the district court ruled that
clear and convincing evidence showed that Pineda-Doval
acted with malice aforethought. Interpreting our prior remand
as limited, the district court resentenced Pineda-Doval to ten
concurrent life sentences without analyzing the 18 U.S.C.
§ 3553(a) factors or permitting Pineda-Doval to allocute.

                           DISCUSSION

   In this appeal, Pineda-Doval primarily challenges the dis-
trict court’s malice aforethought finding. He also claims that
the district court committed several other procedural errors,

      tute murder under 18 U.S.C. § 1111 had such killing taken place
      within the special maritime and territorial jurisdiction of the
      United States, apply the appropriate murder guideline from Chap-
      ter Two, Part A, Subpart 1.
   2
     Pineda-Doval submitted a declaration by Yvette Citizen, a certified
court interpreter who has a masters degree in bilingual and multicultural
education. Ms. Citizen stated that the expression “encomendarse a Dios”
is routinely used when a positive outcome is desired by the speaker. She
concluded that the expression is “not reserved for religious situations or
situations related to imminent danger.”
9846             UNITED STATES v. PINEDA-DOVAL
that his life sentence is substantively unreasonable, and
requests that we direct our remand to a different judge. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).

   Pineda-Doval contends that the district court’s finding that
there was clear and convincing evidence that he acted with
malice aforethought is clearly erroneous. “We review the dis-
trict court’s interpretation of the Sentencing Guidelines de
novo, the district court’s application of the Sentencing Guide-
lines to the facts of a case for abuse of discretion, and the dis-
trict court’s factual findings for clear error.” United States v.
Chung, 659 F.3d 815, 834 (9th Cir. 2011) (internal quotation
marks omitted), cert. denied, 132 S. Ct. 1951 (2012). A find-
ing of fact is clearly erroneous “if it is (1) illogical, (2)
implausible, or (3) without support in inferences that may be
drawn from the facts in the record.” Red Lion Hotels
Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1087 (9th Cir.
2011) (internal quotation marks omitted).

   [1] The Guidelines for transportation of illegal aliens
resulting in death instruct the district court to apply the appro-
priate murder Guidelines only if the facts support a finding
that the defendant committed an unlawful killing with malice
aforethought. See U.S.S.G. § 2L1.1(c) (2005) (citing 18
U.S.C. § 1111); Pineda-Doval, 614 F.3d at 1036-37. The dis-
trict court is required to apply the clear and convincing stan-
dard of proof to a finding of malice aforethought because
application of the murder Guidelines will have a dispropor-
tionate impact on the sentence imposed. Pineda-Doval, 614
F.3d at 1041-42.

   [2] The relevant mental state for malice aforethought in
this case is “depraved heart” or “reckless indifference.” Id. at
1038. To act with a depraved heart or with reckless indiffer-
ence, “a defendant’s conduct must create a ‘very high degree
of risk’ of injury to other persons, he must be aware of that
risk, and he cannot have a justifiable reason for taking that
                 UNITED STATES v. PINEDA-DOVAL               9847
risk.” Id. (footnote omitted) (quoting 2 Wayne R. LaFave,
Substantive Criminal Law § 14.4 (2d ed. 2003)). Depraved
heart or reckless indifference “cases involving car accidents
have in common some form of exceptionally reckless driving,
of so dangerous a nature that the possibility of a fatal collision
would suggest itself to any reasonable observer.” Id. at 1039
(internal quotation marks omitted). Driving that is merely
reckless, but not wild, generally does not constitute malice
aforethought. Id.

   The district court ruled that clear and convincing evidence
showed that Pineda-Doval acted with malice aforethought.
The district court found that “everybody knows” that over-
loaded vehicles are inherently dangerous, and that Pineda-
Doval knew that taking evasive action was going to result in
“extreme consequences to anyone involved should there be an
accident.” The district court stated that the fact that the pas-
sengers died in a car accident did not detract from the high
degree of risk of injury inherent in alien smuggling activities.
Also, the district court referred to Pineda-Doval’s conduct in
two prior incidents of alien smuggling where he tried to avoid
apprehension as evidence of wanton disregard for the passen-
gers in his personal effort to escape.

  We disagree with the district court’s finding. The record
does not contain clear and convincing evidence that Pineda-
Doval acted with malice aforethought.

   [3] First, there is no evidence in the record that Pineda-
Doval was aware of a very high likelihood that the overloaded
Suburban would roll over. To the contrary, in a prior incident
Pineda-Doval drove a truck around a spike strip without roll-
ing over or causing an accident. From his own experience he
had reason to believe that avoiding a spike strip would not
lead to a catastrophic accident. The district court failed to take
account of that prior incident. In light of the prior incident,
there is no clear, direct, or weighty evidence in the record that
9848             UNITED STATES v. PINEDA-DOVAL
Pineda-Doval was aware that this time his attempt to avoid
the spike strip created an extreme risk.

   [4] Second, none of the Border Patrol Agents were aware
of a very high risk of a fatal accident, either. The agents testi-
fied that they had participated in deploying spike strips many
times. The overwhelming majority of the vehicles that the
agents had attempted to stop with spike strips were high-
profile vans or SUVs carrying many passengers, like the over-
loaded Suburban driven by Pineda-Doval. The agents had
observed vehicles stopped by spike strips, as well as vehicles
that drove around them. But none of the agents had ever wit-
nessed a vehicle roll as a consequence of either driving over
or attempting to drive around a spike strip. In addition, the
agents testified that they had chosen an area where the road
was straight and the shoulders were flat in order to reduce the
possibility of an accident. Also, the agents testified that the
speed of the Suburban, which expert testimony estimated to
be about 55 miles per hour, was much slower than most vehi-
cles during a spike strip deployment.

   [5] Further, Agent Lindsay observed Pineda-Doval’s driv-
ing and the extent to which the Suburban was overloaded, and
Agent Lindsay knew of the plan to deploy a spike strip. But
Agent Lindsay testified that he considered the situation “per-
fectly routine.” He felt no need under the circumstances to
warn the other agents about the number of passengers in the
Suburban or about Pineda-Doval’s driving. There is nothing
in the record to suggest that Agent Lindsay considered
Pineda-Doval’s driving “of so dangerous a nature that the
possibility of a fatal collision would suggest itself.” Pineda-
Doval, 614 F.3d at 1039. The district court’s finding of malice
aforethought failed to take account of the testimony of reason-
able observers who were well-suited to determine whether a
fatal collision was likely.

   The district court’s finding of malice aforethought is incon-
sistent with the reasoning and result in United States v.
                 UNITED STATES v. PINEDA-DOVAL                9849
Hernandez-Rodriguez, 975 F.2d 622 (9th Cir. 1992). In
Hernandez-Rodriguez, in his attempt to smuggle four aliens
into the country, the defendant locked them into the cargo
area of his small car. Id. at 624, 628-29. After encountering
Border Patrol Agents, the defendant led them on a three-hour
high-speed chase, often going through stop signs and ignoring
traffic laws. Id. at 624. At sentencing, the district court
departed upward on the basis of an enhancement that required
the defendant to have a higher level of culpability than reck-
lessness, akin to malice aforethought. Id. at 627. We dis-
agreed, holding that “something more” than reckless driving
and frightened passengers is required to show that a defen-
dant’s conduct goes beyond recklessness and establishes mal-
ice aforethought. Id.; see Pineda-Doval, 614 F.3d at 1039.

   [6] Pineda-Doval’s swerving around the spike strip seems
no more likely to result in a fatal accident than the repeated
running of stop signs and speeding were in Hernandez-
Rodriguez. Under the circumstances here, swerving around a
spike strip was not the “something more” needed to establish
malice aforethought. Cf. H.C. Lind, Annotation, Homicide by
Automobile as Murder, 21 A.L.R.3d 116, 126, § 4[a] (1968 &
Supp. 2012) (describing cases of wild driving that establish
malice, such as speeding and driving through traffic signals
and into oncoming traffic, and driving onto sidewalks or
through cross-walks that are full of pedestrians).

   [7] The district court clearly erred by finding that there
was clear and convincing evidence that Pineda-Doval acted
with malice aforethought. The finding is not supported by any
clear, direct, or weighty facts in the record, and runs counter
to strong evidence to the contrary. After considering the gov-
ernment’s arguments and the district court’s findings, we con-
clude that the record does not contain clear and convincing
evidence that Pineda-Doval acted with malice aforethought.
We must again vacate and remand for re-sentencing.3
  3
   Because we vacate and remand on this issue, we need not address
Pineda-Doval’s claimed procedural errors. We note, however, that it
9850               UNITED STATES v. PINEDA-DOVAL
   [8] On remand, the district court may not apply the cross-
reference to the murder Guidelines. Although we limit the dis-
trict court’s discretion to apply the cross-reference, the district
court should conduct a full resentencing. The defendant
should be permitted to allocute, and the district court retains
the discretion to apply the sentencing factors and to depart
from the recalculated Guidelines range.

   [9] We also note that Pineda-Doval requests that we assign
this case to a new judge. Because we limit the district court’s
discretion to apply the cross-reference, we deny Pineda-
Doval’s request. The district judge exhibited no personal bias
against Pineda-Doval. And with no further inquiry required
into the cross-reference, the circumstances here are not
unusual enough to warrant reassignment. Ellis v. U.S. Dist.
Court (In re Ellis), 356 F.3d 1198, 1211 (9th Cir. 2004) (en
banc).

                           CONCLUSION

   Because the district court clearly erred when finding that
Pineda-Doval acted with malice aforethought, we VACATE
the ten concurrent life sentences and REMAND for a new
sentencing proceeding, in which the district court will not
apply the U.S.S.G. § 2L1.1(c) (2005) cross-reference.




appears the judge was mistaken when he stated that Pineda-Doval would
be eligible for parole despite being sentenced to ten concurrent life sen-
tences. Prisoners serving life sentences are not eligible for “good conduct”
parole, 18 U.S.C. § 3624(b)(1), and “compassionate release” parole is
available only in extraordinary circumstances that are unforeseeable, 28
C.F.R. § 571.60.
                UNITED STATES v. PINEDA-DOVAL                  9851
GRABER, Circuit Judge, dissenting:

  I respectfully dissent.

   “Findings of fact, whether based on oral or other evidence,
must not be set aside unless clearly erroneous, and the review-
ing court must give due regard to the trial court’s opportunity
to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6).

    [A] finding is “clearly erroneous” when although
    there is evidence to support it, the reviewing court on
    the entire evidence is left with the definite and firm
    conviction that a mistake has been committed. . . . If
    the district court’s account of the evidence is plausi-
    ble in light of the record viewed in its entirety, the
    court of appeals may not reverse it even though con-
    vinced that had it been sitting as the trier of fact, it
    would have weighed the evidence differently. Where
    there are two permissible views of the evidence, the
    factfinder’s choice between them cannot be clearly
    erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74
(1985) (internal quotation marks and citations omitted)
(emphasis added); see also United States v. Hinkson, 585 F.3d
1247, 1261 (9th Cir. 2009) (en banc) (“[T]he Supreme
Court’s precedent convinces us that any ‘definite and firm
conviction’ of the reviewing court must still include some
measure of deference to the trial court’s factual determina-
tions.”).

   That general rule applies with particular force to the weigh-
ing of witnesses’ credibility. “When findings are based on
determinations regarding the credibility of witnesses, Rule
52(a) demands even greater deference to the trial court’s find-
ings; for only the trial judge can be aware of the variations in
demeanor and tone of voice that bear so heavily on the listen-
er’s understanding of and belief in what is said.” Anderson,
9852            UNITED STATES v. PINEDA-DOVAL
470 U.S. at 575; see also Allen v. Iranon, 283 F.3d 1070,
1078 n.8 (9th Cir. 2002).

  On remand, the district court judge described Pineda-
Doval’s demeanor as follows:

    [W]atching [Pineda-Doval] in the course of these
    proceedings, both past and in the present, he demon-
    strates everything but remorse in this case[ ]. It’s just
    ho-hum. So somebody—I crashed and people died.
    So what? He has a very smug look on his face most
    of the time. And it belies his statements.

In my view, the district court’s finding with respect to malice
aforethought, which rested in part on demeanor, is entitled to
deference.

   The last time we heard this case, we remanded “for the dis-
trict court to expressly find whether there is clear and con-
vincing evidence that Pineda-Doval acted with malice
aforethought when he undertook the charged conduct and to
resentence the Defendant in light of its finding.” United States
v. Pineda-Doval, 614 F.3d 1019, 1042 (9th Cir. 2010). That
is, we recognized the possibility that the facts of this case
might rise to the level of malice aforethought, presumably
contingent on Pineda-Doval’s state of mind at the time he
attempted to evade the spike strip.

   Our remand instructions required the district court to assess
those factors as trial courts generally do—through the taking
of testimony and the weighing of credibility. The district court
did exactly what we directed. In the particular context of this
case, the majority’s conclusion that the district court clearly
erred amounts to a belated determination that Pineda-Doval’s
actions could not, as a matter of law, have constituted malice
aforethought. Were that true, we would not have instructed
the district court to make findings when we remanded in
               UNITED STATES v. PINEDA-DOVAL            9853
Pineda-Doval’s first appeal; we would instead have done what
the majority does now.

   In my view, Pineda-Doval’s actions were so very reckless
that a reasonable factfinder could find that they constituted
malice aforethought. Reviewing for clear error, I would
affirm.
