                                                                                FILED
                            NOT FOR PUBLICATION                                   JAN 22 2015

                                                                             MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-10568

              Plaintiff - Appellee,               D.C. No. 2:13-cr-00143-SRB-5

  v.
                                                  MEMORANDUM*
HEILER OSIEL BARRIONUEVO-
ROBLERO, AKA Cesar Bartolon-
Gonzalez,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                      Argued and Submitted January 14, 2015
                            San Francisco, California

Before: M. SMITH, NGUYEN, and FRIEDLAND, Circuit Judges.

       Heiler Barrionuevo-Roblero was convicted of conspiracy to harbor and

transport illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(ii), (iii), and (v)(I), and harboring

illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(ii). He appeals his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentence of 42 months followed by three years of supervised release. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We vacate the

sentence and remand for resentencing.

      Assuming, without deciding, that United States v. Leal-Del Carmen, 697

F.3d 964, 969-70 (9th Cir. 2012), applies in the sentencing context, the district

court properly found that Barrionuevo-Roblero failed to show that the

government’s deportation of witnesses was done in bad faith, or prejudiced him.

See id.

      Reviewing for clear error, see United States v. Hernandez-Franco, 189 F.3d

1151, 1159-60 (9th Cir. 1999), the district court properly enhanced the offense

level by two points under U.S. Sentencing Guidelines Manual § 2L1.1(b)(6)

(2014), see id. cmt. n. 5, and properly applied a preponderance of the evidence

standard because the facts supporting the enhancement were based on the nature

and extent of the charged offenses. See United States v. Johansson, 249 F.3d 848,

855 (9th Cir. 2001). Furthermore, the district court properly refused to grant a

minor role reduction because Barrionuevo-Roblero was not “substantially less

culpable than the average participant” in the offense, see U.S. Sentencing

Guidelines Manual § 3B1.2 cmt. n.3(A) (2014).




                                          2
      However, the district court’s finding that Barrionuevo-Roblero was a

“manager or supervisor” under § 3B1.1(b) of the Sentencing Guidelines was

clearly erroneous because there was no evidence in the record that Barrionuevo-

Roblero was the “manager . . . or supervisor of one or more other participants” in

the charged offenses. See U.S. Sentencing Guidelines Manual § 3B1.1 cmt. n.2

(2014) (emphasis added); see also id. n.1 (defining “participant” as “a person who

is criminally responsible for the commission of the offense”); United States v.

Whitney, 673 F.3d 965, 975 n.6 (9th Cir. 2012). Additionally, the government

impermissibly declined to move for a third-level reduction in total offense level

pursuant to § 3E1.1(b) of the Sentencing Guidelines because it did not challenge

the reduction under § 3E1.1(a), and did not provide a reason for declining to move

for the third point that was tied to the preservation of trial resources. See U.S.

Sentencing Guidelines Manual app. C, amend. 775 (2014).

      Since we are remanding for resentencing for the reasons set forth above, we

need not reach the issue of whether the sentence was substantively unreasonable.

United States v. Forrester, 616 F.3d 929, 950 (9th Cir. 2010).

      VACATED AND REMANDED.




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