United States v. Yuris Bonilla-Guizar

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10425

Plaintiff-Appellee,

D.C. No.

v. 4:09-cr-02343-

FRZ-GEE-1

YURIS BONILLA-GUIZAR,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 11-10476

Plaintiff-Appellee,

D.C. No.

v. 4:09-cr-02343-

FRZ-GEE-2

CARLOS ARMANDO CALIXTRO-

BUSTAMANTE,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, Senior District Judge, Presiding

Argued and Submitted

May 13, 2013—San Francisco, California

Filed September 9, 2013

2 UNITED STATES V. BONILLA-GUIZAR

Before: M. Margaret McKeown and Paul J. Watford,

Circuit Judges, and Algenon L. Marbley, District Judge.*

Opinion by Judge Marbley

SUMMARY**

Criminal Law

The panel affirmed convictions for conspiracy to commit

hostage taking, hostage taking, and harboring an alien, but

vacated sentences and remanded for resentencing.

The panel held that the district court did not abuse its

discretion in permitting a case agent to testify as an expert

witness. The panel explained that the agent’s testimony had

some probative value, and that because any error was

harmless, the panel did not need to decide whether the district

court erred in failing to distinguish clearly between the

defendant’s expert and percipient testimony and in failing to

offer a cautionary instruction. The panel noted the long-

standing precedent that bias is for the jury to consider in

determining the weight to accord the testimony.

The panel vacated the district court’s application to

defendant Bonilla-Guizar of a two-level leadership

*

The Honorable Algenon L. Marbley, District Judge for the U.S.

District Court for the Southern District of Ohio, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BONILLA-GUIZAR 3

enhancement under U.S.S.G. § 3B1.1(c), where the record

was unclear whether the district court found Bonilla managed

another participant in the crime. The panel instructed that the

enhancement may be applied at resentencing on remand only

if the district court makes such a finding based on evidence

on the record.

The panel held that the district court committed plain

error affecting substantial rights by applying to Bonilla and

defendant Calixtro-Bustamante an enhancement under

U.S.S.G. § 2A4.1(b)(3) for use of a dangerous weapon, where

the district court predicated the enhancement upon a legal

misunderstanding that brandishing the firearm was sufficient.

COUNSEL

Francisco Leon (argued), Law Office of Francisco Leon, P.C.,

Tucson, Arizona; Rosemary Márquez (argued), Márquez Law

Firm, P.L.L.C., Tucson, Arizona, for Defendants-Appellants.

Erica McCallum (argued), Assistant United States Attorney;

George Ferko, Special Assistant United States Attorney; John

S. Leonardo, United States Attorney; Christina M. Cabanillas,

Appellate Chief, United States Attorney’s Office, Tucson,

Arizona, for Plaintiff-Appellee.

4 UNITED STATES V. BONILLA-GUIZAR

OPINION

MARBLEY, District Judge:

Defendants-Appellants, Yuris Bonilla-Guizar and Carlos

Armando Calixtro-Bustamante, appeal their respective

criminal convictions in a joint trial in the United States

District Court for the District of Arizona (“district court”) as

well as their subsequent sentences. Bonilla-Guizar

(“Bonilla”) was convicted of conspiracy to commit hostage

taking and harboring an alien. Calixtro-Bustamante

(“Calixtro”) was convicted of conspiracy to commit hostage

taking, hostage taking, and harboring an alien. Bonilla and

Calixtro both object to the following district court rulings: (1)

permitting a case agent to testify as an expert witness; and (2)

denying Defendants’ request for a limiting instruction to the

jury or other cautionary measure regarding the case agent’s

testimony. With respect to his sentence, Bonilla objects to

the district court’s application of a two-level enhancement,

under U.S.S.G. § 3B1.1(c), for his alleged leadership role in

the criminal activity. Finally, both Bonilla and Calixtro

object to the district court’s application of a two-level

sentencing enhancement, under U.S.S.G. § 2A4.1(b), for use

of a dangerous weapon.

On appeal, we consider whether the district court erred in

allowing Case Agent Jeffrey Ellis (“Agent Ellis”) to testify as

an expert and, if it did not, whether the district court

nevertheless erred in failing to provide a cautionary

instruction to the jury regarding his testimony. Defendants

contend they were denied a fair trial because Agent Ellis

mixed factual testimony with expert testimony, and was

biased for the Government. On those grounds, Defendants

UNITED STATES V. BONILLA-GUIZAR 5

seek a reversal of their convictions and remand for a new

trial.

We also consider alleged sentencing errors. Bonilla

argues that the district court erroneously applied the two-level

leadership enhancement to his sentence because the court had

not found that Bonilla supervised another participant in the

crime. In addition, Defendants both contend the district court

was wrong to apply a further two-level enhancement for use

of a dangerous weapon because the Government did not

prove that Appellants possessed actual firearms or “used” any

weapon beyond merely “brandishing” one. Hence, if we

affirm Defendants’ convictions, they alternatively seek to

vacate and to remand their sentences.

For the reasons set forth herein, we AFFIRM Defendants’

convictions. We VACATE, however, the district court’s

application of a two-level leadership enhancement to Bonilla

and the application of a two-level enhancement to Bonilla and

Calixtro for use of a dangerous weapon.

I. BACKGROUND

In mid-September, 2009, Julio Cesar Lopez-Trujillo

(“Lopez”) arranged to enter the United States illegally, from

Mexico, with assistance from alien smugglers. Lopez crossed

into the United States with five other aliens and two guides.

Upon crossing into Arizona, the guides instructed the aliens

to enter a truck waiting on the side of the road. Another

guide, called “El Flaco,” drove the truck while

communicating via handheld transceiver with someone

named “Yuri,” later identified as Bonilla. Bonilla told El

Flaco to drive to a particular restaurant and remain there.

Bonilla himself then arrived at the restaurant driving a small

6 UNITED STATES V. BONILLA-GUIZAR

car, and instructed El Flaco to follow him in the truck. The

group eventually arrived at a group of trailers near Tucson,

Arizona. Lopez and the other aliens were then moved into a

trailer.

Two hours after Lopez arrived at the trailer, Bonilla

informed Lopez that he would have to pay $2,300 for the

assistance entering the U.S., rather than the $1,500 which

Lopez had been quoted in Mexico. Bonilla ordered Lopez to

call his wife to ask for the money. On September 22, 2009,

Lopez called his wife to tell her he would not be released

unless she sent his captors $2,300. Two days later, Calixtro

spoke to Lopez’s wife on the phone, and gave her instructions

for sending the money.

Lopez testified that Bonilla and Calixtro were armed

during the time he was held hostage. In particular, Lopez

described one gun Defendants possessed which was black and

gray, approximately eight inches in length, and had a laser

sight and a magazine “loaded from underneath.” Lopez also

testified that both Defendants pointed that weapon at his

head.

At approximately 7:40 p.m. on September 24, 2009,

federal agents freed Lopez and four other hostages. Federal

agents stated that, during the operation, they recovered two

firearms, including one very similar to the gun Lopez

described. The Government was unable to produce either of

those firearms at trial because, according to the Government,

they were accidentally destroyed while in the laboratory.

At trial, the Government called Immigration and Customs

Enforcement (“ICE”) Special Agent Jeffrey Ellis (“Agent

Ellis”) to testify as an expert witness on alien smuggling and

UNITED STATES V. BONILLA-GUIZAR 7

alien smuggling operations. Agent Ellis had worked fifteen

years for ICE and its predecessor, the Immigration and

Naturalization Service. For much of that time, he

investigated human smuggling. Agent Ellis was also the

original ICE case agent investigating Bonilla and Calixtro.

As part of the investigation, Agent Ellis prepared the search

warrant for the trailers where Lopez was found and worked

on the case for approximately four months. On cross-

examination, Agent Ellis admitted his bias for the

Government in this case. The district court, nevertheless,

qualified Agent Ellis as an expert witness and elected not to

give the jury any cautionary instruction with regard to his

testimony. Defendants’ trial counsel made evidentiary

objections to both rulings.

The jury found Bonilla guilty of conspiracy to commit

hostage taking and harboring an alien for private financial

gain. At his sentencing, the district court applied a base

offense level enhancement of two for his role as “a manager

of some sort” in a criminal enterprise. The district court

applied a second two-level enhancement for Bonilla’s use of

a firearm in the commission of a crime. Those enhancements

raised Bonilla’s base offense level under the sentencing

guidelines from 32 to 36. The district court, relying on that

calculation, sentenced Bonilla to a 188-month term of

imprisonment.

The jury found Calixtro guilty on three charges:

conspiracy to commit hostage taking; hostage taking; and

harboring an alien for private financial gain. At Calixtro’s

sentencing, the district court applied a base offense level

enhancement of two for Calixtro’s use of a firearm in the

commission of a crime. The enhancement raised the base

offense level from 32 to 34. The district court, relying on that

8 UNITED STATES V. BONILLA-GUIZAR

calculation, also sentenced Calixtro to a 188-month term of

imprisonment.

Bonilla and Calixtro appeal both their convictions and the

sentencing enhancements.

II. JURISDICTION

This Court has jurisdiction over final decisions of the

district court pursuant to 28 U.S.C. § 1291.

III. ANALYSIS

A. District Court’s Admission of Agent Ellis’s Expert

Testimony

1. Standard of Review

A district court’s decision to admit testimony of an expert

witness is reviewed for abuse of discretion. United States v.

Mejia-Luna, 562 F.3d 1215, 1218–19 (9th Cir. 2009).

2. Discussion

Defendants argue that the district court abused its

discretion in permitting Agent Ellis, the original agent in the

investigation of Bonilla and Calixtro, to testify as an expert

witness. They contend that his expert testimony was of no

probative value, or of such limited probative value as to be

outweighed by the prejudicial effect. At the very least,

Defendants argue, the district court should have taken

“cautionary measures” to limit the potential prejudicial effect

of Agent Ellis’s testimony.

UNITED STATES V. BONILLA-GUIZAR 9

Defendants first argue that Agent Ellis’s testimony lacked

probative value because the facts of this case were readily

comprehensible to jurors and the Government failed to

articulate how the testimony was relevant. Although

Defendants may not accept the Government’s theory of

relevancy, the Government did present one. The Government

suggested alien smuggling organizations are web-like, rather

than hierarchical, and involve a “loose confederation of co-

conspirators.” The facts of this case support that contention.

One person in Mexico solicited Lopez. A different set of

guides led him through the desert. Yet another man drove the

truck to the stash house. Finally, Defendants held Lopez at

the stash house and were in contact with a “boss.”

While the scenario of a hostage taking may be familiar to

a layperson, the modus operandi of alien smugglers is less

familiar. As the district court found:

Mr. Ellis is not an expert that is speaking on

scientific matters that might require having

read treatises or made studies and so forth.

He’s testifying about the overall structure and

operation of an alien smuggling organization

. . . It’s information that is being imparted to

a jury who presumably knows nothing about

alien smuggling and alien smuggling

organizations.

The district court, following Ninth Circuit precedent, agreed

with the Government that the structure of an alien smuggling

organization was relevant to the charge of conspiracy.

Indeed, this Court has repeatedly upheld the admission of

expert testimony “regarding the structure and methods of

alien smuggling operations.” Mejia-Luna, 562 F.3d at

10 UNITED STATES V. BONILLA-GUIZAR

1218–19. Thus, Agent Ellis’s testimony as an expert witness

had some probative value.

Defendants next argue that, even if Agent Ellis’s

testimony had some probative value, such value was

outweighed by its prejudicial effect. In particular, Defendants

allege that Agent Ellis’s testimony was unfairly prejudicial

because “qualifying the case agent as the expert witness . . .

unduly bolster[ed] the credibility of the government’s case.”

This court has previously considered the challenges that

are created when a case agent testifies as both an expert and

percipient witness. See United States v. Freeman, 498 F.3d

893, 902–04 (9th Cir. 2007); see also United States v.

Dukagjini, 326 F.3d 45 (2d Cir. 2003). In Freeman, we held

that a case agent is not categorically barred from testifying as

both an expert and percipient witness, “provided that the

district court engages in vigilant gatekeeping” and that

“jurors are aware of the witness’s dual roles” and the bounds

of each type of testimony. 498 F.3d at 904. We considered

a similar situation in United States v. Anchrum, 590 F.3d 795,

803–04 (9th Cir. 2009), and affirmed a guilty verdict where

a case agent testified in both roles because “the district court

divided [the case agent’s] testimony into two separate

phases,” which “avoided blurring the distinction between [the

case agent’s] distinct role as a lay witness and his role as an

expert witness.”

Defendants concede that the direct examination solely

addressed Agent Ellis’s expert opinion. Agent Ellis’s role as

a case agent was first raised by Defendants’ counsel on cross-

examination to challenge Agent Ellis’s impartiality. On

cross-examination and redirect-examination, Agent Ellis

answered, as a percipient witness, several questions about the

UNITED STATES V. BONILLA-GUIZAR 11

investigatory process, primarily focused on the description in

the warrant application of the location to be searched.

Agent Ellis’s expert testimony placed Defendants in a

difficult position. Defendants could reasonably fear that

Agent Ellis’s involvement in the investigation could bias his

expert testimony and that he could “stray from applying

reliable methodology and convey to the jury the witness’s

‘sweeping conclusions’ about appellants’ activities, deviating

from the strictures of Rules 403 and 702.’” Freeman,

498 F.3d at 903 (citations omitted). At the same time,

exposing an expert witness’s role as case agent generally

creates concerns that his expert status will reinforce the

credibility of his percipient testimony.

The defense requested a cautionary instruction, but the

court declined to give one. Defendants argue that the district

court failed to take appropriate measures to “guard against the

risk of confusion inherent when a law enforcement agent

testifies as both a fact witness and as an expert witness.” We

agree that extra precautions are necessary when a case agent

testifies as an expert and a fact witness. See Freeman,

498 F.3d at 904. The government suggests that Agent Ellis’s

lay testimony was so minimal that he should not be

considered a fact witness. Nonetheless, Agent Ellis did

testify about the facts of this specific case based on his own

experience as a case agent, thereby exceeding the bounds of

his expert role. We need not decide whether the district court

erred in failing to distinguish clearly between Ellis’s expert

and percipient testimony and in failing to offer a cautionary

instruction to the jury, however, because any potential error

in this case was harmless.

12 UNITED STATES V. BONILLA-GUIZAR

For the purposes of harmless error analysis, we proceed

under the presumption that a trial error occurred. A

non-constitutional trial error requires reversal unless “it is

more probable than not that the error did not materially affect

the verdict.” See United States v. Seschillie, 310 F.3d 1208,

1214 (9th Cir. 2002). Agent Ellis’s lay testimony was elicited

primarily by defense counsel. His testimony established that

the government had no listening devices or cameras in the

trailer prior to the arrest and that Agent Ellis therefore relied

on what he was told by Lopez and his wife in preparing the

warrant application. Defense counsel also elicited testimony

regarding the size and layout of the property described in the

warrant and the accuracy of the location data provided by the

cellular phone carrier. On redirect examination, the

government briefly reviewed Agent Ellis’s request in the

affidavit to search all of the trailers on the property because

of the range of accuracy of the locational data.

None of this fact testimony from Agent Ellis established

any elements of the crime or was material to the conviction.

Nor could the jury have been swayed to grant more weight to

Ellis’s expert testimony here by the few facts he recited about

the search warrant application. In light of the overwhelming

evidence of guilt, we can say with at least a “fair assurance”

that any error did not affect the verdict and was therefore

harmless. United States v. Morales, 108 F.3d 1031, 1040 (9th

Cir. 1997) (en banc).

Defendants also argue that the district court should not

have admitted Agent Ellis’s testimony on account of bias.

But it is axiomatic that a witness’s “possible bias” goes “to

the weight of her testimony, not its admissibility.” United

States v. Moore, 580 F.2d 360, 364 (9th Cir. 1978). Indeed,

the Supreme Court has observed:

UNITED STATES V. BONILLA-GUIZAR 13

A more particular attack on the witness’

credibility is effected by means of cross-

examination directed toward revealing

possible biases, prejudices, or ulterior motives

of the witness as they may relate directly to

issues or personalities in the case at hand.

The partiality of a witness is subject to

exploration at trial, and is ‘always relevant as

discrediting the witness and affecting the

weight of his testimony.’

Davis v. Alaska, 415 U.S. 308, 316 (1974) (internal citations

omitted). Here, Defendants’ trial counsel attempted to

impeach the credibility of Agent Ellis by exposing his bias on

cross-examination. The jury was able to factor the bias into

its consideration of Agent Ellis’s credibility.

Any time a party attempts to impeach a witness’s

credibility, there is an inherent risk that a jury will not find

the credibility of the witness impaired, or even that a failed

impeachment may bolster a witness’s credibility. The fact

that Agent Ellis’s potential bias happened to result from his

employment by the Government is also not grounds for

categorically barring his testimony; it is simply another factor

the jury may consider in weighing Agent Ellis’s credibility.

Hingson v. Pacific Southwest Airlines, 743 F.2d 1408,

1412–13 (9th Cir. 1984). Nor does the analysis change

because Agent Ellis admitted to having some bias for the

Government. Although the admission may have had the

effect of enhancing his credibility, that is a risk Defendants’

trial counsel took when attempting to impeach Agent Ellis.

Agent Ellis also testified he had done his best to separate his

role in the case from the opinions he rendered as an expert.

Given the long-standing precedent that bias is for the jury to

14 UNITED STATES V. BONILLA-GUIZAR

consider in determining the weight to accord testimony, we

hold the district court did not abuse its discretion in admitting

Agent Ellis’s testimony.

Defendants’ convictions are, therefore, AFFIRMED.

B. Defendant Bonilla’s § 3B1.1 Enhancement

1. Standard of Review

The factual findings made by the district court in the

sentencing phase are reviewed for clear error. United States

v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). The

district court’s application of the Sentencing Guidelines to the

facts of the case is reviewed for abuse of discretion. Id.

2. Discussion

Section 3B1.1(c) of the Sentencing Guidelines provides

that:

If the defendant was an organizer, leader,

manager, or supervisor in any criminal

activity other than described in (a) or (b),

increase by 2 levels.

The commentary goes on to note that:

To qualify for an adjustment under this

section, the defendant must have been the

organizer, leader, manager or supervisor of

one or more other participants. An upward

departure may be warranted, however, in the

case of a defendant who did not organize,

UNITED STATES V. BONILLA-GUIZAR 15

lead, manage or supervise another participant,

but who nevertheless exercised management

responsibility over the property, assets, or

activities of a criminal organization.

U.S.S.G. § 3B1.1, cmt. n. 2. In this circuit, however, “some

degree of control or organizational authority over others is

required in order for section 3B1.1 to apply.” United States

v. Mares-Molina, 913 F.2d 770, 773 (9th Cir. 1990)

(emphasis added). “Participant,” in § 3B1.1, is defined as “a

person who is criminally responsible for the commission of

the offense, but need not have been convicted.” U.S.S.G.

§ 3B1.1, at cmt. n. 1.

The district court found Bonilla “was basically a house

sitter, stash house sitter, that takes control in this case

apparently by use of a firearm of people who are there . . .

And to some degree I think you can probably find that he was

a manager of some sort of the people in the house.” The

district court then added that it found “without much effort

[Bonilla] was in fact some sort of – certainly he was

managing the house there where he was and also supervising

whatever went on in that house.”

On appeal, Bonilla argues that the district court

misinterpreted the definition of “participant” to encompass a

“hostage or victim of the crime.” From the record, it is

unclear whether the district court made such a

misinterpretation. The vague findings that Bonilla “was a

manager of some sort of the people in the house” and

“whatever went on in that house” could equally have referred

to other participants or the hostages themselves. Although we

review the district court’s decision in this matter for clear

error, from the record, we do not know whether the district

16 UNITED STATES V. BONILLA-GUIZAR

court found Bonilla managed another participant in the crime.

If the district court found Bonilla did not manage or supervise

another participant in the crime, the application of the

enhancement would be clear error, in light of Mares-Molina.

We cannot affirm a decision that is ambiguous and, thus,

unclear. It is, therefore, necessary to vacate Bonilla’s

sentence and remand him to the district court for

resentencing. Upon resentencing, the district court may apply

the § 3B1.1 management enhancement only if it finds, based

on evidence in the record, that Bonilla managed at least one

other participant in the crime. For these reasons, the sentence

of Bonilla is VACATED and he is remanded to the district

court for resentencing.

C. Defendants’ U.S.S.G. § 2A4.1(b)(3) Firearm

Enhancements

1. Standard of Review

Where a defendant has failed to raise an objection to a

sentencing error in the district court, the decision is reviewed

for plain error. United States v. Ameline, 409 F.3d 1073,

1078 (9th Cir. 2005). Defendant Calixtro did not object to

the dangerous weapon enhancement. Defendant Bonilla

objected on due process grounds, which are not raised on this

appeal.

Plain error is: “(1) error, (2) that is plain, and (3) that

affects substantial rights.” United States v. Cotton, 535 U.S.

625, 631 (2002). Once those three conditions are satisfied,

“an appellate court may exercise its discretion to notice a

forfeited error that (4) ‘seriously affects the fairness,

integrity, or public reputation of judicial proceedings.’”

Ameline, 409 F.3d at 1078 (citation omitted). A defendant

UNITED STATES V. BONILLA-GUIZAR 17

bears the burden to show her substantial rights were affected

and, to do so, “must establish ‘that the probability of a

different result is sufficient to undermine confidence in the

outcome of the proceeding.’” Id. (citation omitted).

2. Discussion

Under U.S.S.G. § 2A4.1(b)(3), a two-level sentence

enhancement applies to an offense of kidnapping, abduction,

or unlawful restraint “[i]f a dangerous weapon was used.”

The commentary clarifies that “‘[a] dangerous weapon was

used’ means that a firearm was discharged, or a ‘firearm’ or

‘dangerous weapon’ was ‘otherwise used’ [] as defined in the

commentary to § 1B1.1.” U.S.S.G. § 2A4.1, cmt. n. 2.

Section 1B1.1 goes on to define “dangerous weapon” as “an

instrument capable of inflicting death or serious bodily

injury” or “an object that is not an instrument capable of

inflicting death or serious bodily injury but (I) closely

resembles such an instrument; or (II) the defendant used the

object in a manner that created the impression that the object

was such an instrument.” U.S.S.G. § 1B1.1, cmt. n. 1(D).

“Otherwise used,” when referring to a dangerous weapon,

“means that the conduct did not amount to the discharge of a

firearm but was more than brandishing, displaying, or

possessing a firearm or other dangerous weapon.” Id. at cmt.

n. 1(I).

Although § 1B1.1 explicitly states that merely

“brandishing, displaying, or possessing” a dangerous weapon

alone does not qualify as “otherwise us[ing],” the district

court found:

18 UNITED STATES V. BONILLA-GUIZAR

[W]hether or not it was actually pointed

directly at the victim, under the guidelines

that does not appear to be necessary; only that

the weapon was possessed and that the

weapon was displayed.

That finding contradicts the plain language of § 1B1.1 and,

thus, is “(1) error, (2) that is plain” in the plain error analysis.

The Government concedes that the district court’s finding

satisfies the first two prongs of the plain error test.

According to the Government, however, that plain error

neither affects the Defendants’ substantial rights, nor the

public reputation of the judicial system.

We reject the Government’s position that Defendants’

substantial rights were not affected by the district court’s

error. The Supreme Court has held that “improperly

calculating the Guidelines range” is a “significant procedural

error.” Gall v. United States, 552 U.S. 38, 51 (2007). We

subsequently held that “[a] mistake in calculating the

recommended Guidelines sentencing range is a significant

procedural error that requires us to remand for resentencing.”

United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th

Cir. 2011) (emphasis added). If the district court mistakenly

based its application of the firearm enhancement on

brandishing alone, then it improperly calculated the

Guidelines sentencing range.

The Government correctly contends that there was

testimony from Lopez that both Bonilla and Calixtro pointed

a gun at his head – conduct that goes beyond brandishing. At

sentencing, however, the district court found that “[t]he

defense, by the destruction of that firearm, was to some

degree denied the opportunity to cross-examine” Lopez as to

UNITED STATES V. BONILLA-GUIZAR 19

whether Bonilla and Calixtro pointed a gun at him, and how

he knew that. The district court went on to say that:

if the standard that we’re looking at is it was

more than brandishing, displaying or

possessing a firearm, then we’re probably not

going to be able to get there because the

firearm was destroyed. The defendant’s

ability to cross-examine on that issue was

curtailed to a large degree.

In other words, contrary to the Government’s contention, the

district court explicitly declined to find Bonilla and Calixtro

had pointed a firearm at Lopez, or used it in any way except

by brandishing. The resulting enhancement was predicated

upon the legal misunderstanding that brandishing a firearm

alone supported an enhancement under § 2A4.1. It does not.

Had the district court not applied the enhancement it would

have calculated lower base offense levels and, though the

Guidelines are advisory, there is a high probability that lesser

sentences would have been imposed.

As a result of the district court’s sentencing errors,

Bonilla’s base offense level was raised from 32 (sentencing

range of 121–151 months) to 36 (sentencing range of

188–235 months). We have held that when a sentencing

judge incorrectly calculates the Guidelines range, potentially

resulting in the imposition of a greater sentence, the error

affects the defendant’s substantial rights and “the fairness of

the judicial proceedings.” United States v. Castillo-Marin,

684 F.3d 914, 927 (9th Cir. 2012). As this is precisely what

happened in this case, the third and fourth prongs of the plain-

error test are satisfied.

20 UNITED STATES V. BONILLA-GUIZAR

The situation of Calixtro is somewhat different. The

sentencing error raised his base offense level from 32

(sentencing range of 168–210 months) to 34 (sentencing

range of 210–262 months). The district court applied a

downward variance in sentencing Calixtro to 188 months.

Had the district court properly calculated Calixtro’s

sentencing range, it may still have applied the downward

variance, resulting in a sentence of less than 188 months. The

fact that Calixtro’s actual sentence chanced to fall within the

proper sentencing range does not alter the fact that the district

court plainly erred when calculating the range of his sentence,

thus affecting his substantial rights.

We, therefore, hold the district court plainly erred in

applying the § 2A4.1(b)(3) enhancement to Defendants’

sentences. Upon resentencing Defendants, the district court

may find convincing the evidence that Defendants pointed a

gun at their victim, but we decline the Government’s request

to do so on appeal when the district judge who heard all the

evidence explicitly did not. For these reasons, the sentences

of Bonilla and Calixtro are VACATED and remanded to the

district court for resentencing.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s admission of Agent Ellis’s expert testimony and

Defendants’ convictions. As a result of sentencing errors, we

VACATE Defendants’ sentences and REMAND them to the

district court for resentencing consistent with this Opinion.

AFFIRMED in part, VACATED in part and

REMANDED.