NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-50137

                Plaintiff-Appellee,             D.C. No.
                                                3:18-cr-04570-LAB-1
 v.

MANUEL VILLARREAL IV,                           MEMORANDUM*

                Defendant-Appellant.

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

                             Submitted May 8, 2020**
                               Pasadena, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and STEIN,*** District
Judge.

      Defendant-Appellant Manuel Villarreal IV was charged with and pleaded

guilty to bringing an undocumented immigrant into the United States without


      *
             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).
      ***
            The Honorable Sidney H. Stein, United States District Judge for the
Southern District of New York, sitting by designation.
presenting him to an immigration officer at a port of entry pursuant to 8 U.S.C. §

1324(a)(2)(B)(iii). The probation officer’s pre-sentence report (“PSR”)

recommended: (1) an enhancement under U.S.S.G § 2L1.1(b)(6) because

Villarreal “intentionally or recklessly created a substantial risk of death or serious

bodily injury to another person”; and (2) an upward departure under U.S.S.G. §

4A1.3, based on Villarreal’s underrepresented criminal history. The district court

adopted the PSR’s recommendations and imposed a thirty-month custodial

sentence, the high end of the PSR’s recommended guideline range. Villarreal now

appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742, and we affirm.

      1.     The district court did not err in applying a substantial risk

enhancement under U.S.S.G § 2L1.1(b)(6) by failing to make a finding on the

record that Villareal acted intentionally or recklessly. The PSR specifically

concluded that Villarreal intentionally or recklessly created the substantial risk of

harm. Villarreal objected to the enhancement only on the basis that the

compartment he used to transport the undocumented person did not create a

substantial risk of harm to that person. He did not, however, object to, challenge,

or bring to the court’s attention the PSR’s finding that he acted intentionally or

recklessly. The district court overruled Villarreal’s sole objection, finding that

Villarreal substantially risked harm to the person that Villarreal unlawfully


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transported. Because Villarreal did not object to the PSR’s statements about

whether he acted with the requisite mens rea, the district court did not err in failing

to make a finding about that undisputed portion of the PSR. See Fed. R. Crim. P.

32(i)(3)(A); United States v. Ameline, 

, 1085 (9th Cir. 2005) (en

banc); United States v. Charlesworth, 

, 1160 (9th Cir. 2000).

      2.     The district court did not err in declining to credit mitigating evidence

from Villarreal’s childhood while considering Villareal’s criminal record from the

same time period for an upward departure. The court considered both Villarreal’s

lengthy criminal history, including his juvenile convictions, and the mitigating

evidence from his childhood. However, the court concluded that the childhood

mitigating evidence did not justify or outweigh Villarreal’s continued criminal

behavior through adulthood. The court’s sentence was not based on a clearly

erroneous factual finding, and the court properly exercised its discretion in

considering and weighing this evidence at sentencing. See United States v.

Gutierrez-Sanchez, 

, 908 (9th Cir. 2009); United States v. Carty, 

, 993 (9th Cir. 2008) (en banc).

      AFFIRMED.




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