United States v. Eduardo Armstrong

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2018
• Docket: 18-50057
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50057

Plaintiff-Appellee, D.C. No. 3:17-cr-02671-LAB

v. MEMORANDUM* EDUARDO ARMSTRONG,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Eduardo Armstrong appeals from the district court’s judgment and

challenges the 41-month sentence imposed following his guilty-plea conviction for

transportation of certain aliens for financial gain and aiding and abetting, in

violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (v)(II), and (a)(1)(B)(i). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291, and we affirm.

Armstrong contends that the district court erred by applying a two-level

enhancement under U.S.S.G. § 3C1.2 for recklessly creating a substantial risk of

death or serious bodily injury to another person in the course of fleeing from a law

enforcement officer. We review the district court’s factual findings for clear error

and its application of the Sentencing Guidelines to the facts for abuse of discretion.

See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

Assuming without deciding that Armstrong is correct that the enhancement

can only be imposed when a defendant knew he was fleeing from law enforcement,

the district court did not clearly err by finding that Armstrong had such knowledge.

The agent’s testimony regarding his surveillance and pursuit of Armstrong, as well

as other record evidence regarding the overall circumstances of the chase, support

the district court’s finding. See United States v. Spangle, 626 F.3d 488, 497 (9th

Cir. 2010) (“In order to reverse a district court’s factual findings as clearly

erroneous, we must determine that the . . . findings were illogical, implausible, or

without support in the record.”). Nor did the district court abuse its discretion by

applying the enhancement because Armstrong’s conduct—driving in excess of 105

miles per hour across traffic on a highway while transporting three illegal aliens in

his vehicle—“reasonably could be viewed as presenting a substantial risk of harm

to the [passengers,] officers and others on the interstate.” United States v.

2 18-50057 Peterson, 902 F.3d 1016, 1023 (9th Cir. 2018); see also United States v. Reyes-

Oseguera, 106 F.3d 1481, 1483-84 (9th Cir. 1997) (affirming application of

enhancement under circumstances that “recklessly created a substantial risk to the

motoring public . . . of collisions and injury”).

We decline to consider issues raised for the first time in Armstrong’s reply

brief. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).

AFFIRMED.

3 18-50057