Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the Southern District of California, Rudi M. Brewster and Leland C. Nielsen, JJ., of conspiracy to bring in, transport, and harbor illegal aliens and bringing in illegal aliens for profit, and he appealed. The Court of Appeals held that: (1) pistol found in defendant's house was admissible, and (2) district court failed to make required findings at sentencing.
Affirmed in part, reversed in part, and remanded.
Appeal from the United States District Court for the Southern District of California Rudi M. Brewster and Leland C. Nielsen, District Judges, Presiding.
Before KLEINFELD, McKEOWN and FISHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Antonio Guzman-Orozco appeals his conviction and 70-month sentence imposed after being found guilty of: conspiracy to bring in, transport, and harbor illegal aliens, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(I), (ii), (iii), and (v)(I); and 15 counts of bringing in illegal aliens for profit, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm, in part, and reverse and remand, in part.
Guzman-Orozco first contends the district court erred by admitting evidence of the pistol found in his house. We review the district court's evidentiary rulings for an abuse of discretion. See United States v. Bensimon, 172 F.3d 1121, 1130 (9th Cir.1999). Guzman-Orozco's contention is without merit because the pistol was probative of his intent and knowledge regarding the criminal enterprise. Cf. United States v. Cannon, 472 F.2d 144, 145 (9th Cir.1972) (per curiam) (holding defendant's possession of a pistol could be used to infer his possession of narcotics was with intent to sell).
Guzman-Orozco next contends the district court erred at sentencing by not finding the number of aliens smuggled and whether they were subjected to dangerous and inhumane treatment. We review de novo the district court's compliance with Fed.R.Crim.P. 32. See United States v. Herrera-Rojas, 243 F.3d 1139, 1142-43 (9th Cir.2001). Based upon a review of the record we conclude, as the government concedes, the district court did not make the required findings or determinations under Rule 32. See id. at 1143-44.
AFFIRMED, in part; REVERSED and REMANDED, in part, for resentencing.