Unpublished Disposition, 920 F.2d 937 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Alfonso CASTORENA-IBARRA, Defendant-Appellant.

No. 89-50712.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 1, 1990.Decided Dec. 10, 1990.

Before ALARCON and WILLIAM A. NORRIS, Circuit Judges, and MARSH, District Judge^* .

MEMORANDUM^** 

Appellant Alfonso Castorena-Ibarra appeals his conviction, following a jury trial, for knowing possession of counterfeit alien registration cards in violation of 18 U.S.C. § 1546. Defendant argues that the district court erred in denying his motion to suppress statements and challenges the sufficiency of the evidence supporting the jury's verdict. He also challenges the district court's application of Sentencing Guidelines Sec. 2L2.1 and 3C1.1 to increase his offense level by three points and two points, respectively.

DISCUSSION

1. Motion to Suppress Statements

We review de novo a district court's determination that a criminal suspects statements to law enforcement officers were voluntary. Derrick v. Peterson, No. 89-35374, slip op. at 9663 (9th Cir. filed Aug. 28, 1990): United States v. Leon Guerrero, 847 F.2d 1363, 1365 (9th Cir. 1988).

In evaluating the voluntariness of a confession, we must determine whether, under the totality of the circumstances, the government obtained that statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne. Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 523, 93 L. Ed. 2d. 473 (1986); Derrick, slip op. at 9663.

The district court's finding that Mr. Ibarra's statements were made voluntarily and that no coercion was present during his interview with INS agents is fully supported by the record.

2. Sufficiency of the Evidence

This court reviews a challenge based upon the sufficiency of the evidence to determine whether, viewing the evidence in the light most favorable to the government, a rational trier of fact could conclude that the evidence was adequate to prove guilt beyond a reasonable doubt. United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990).

The evidence introduced against Mr. Ibarra at trial was clearly sufficient to support a jury verdict. The confession to INS officers following his arrest was corroborated by evidence that Mr. Ibarra was holding a notebook containing 74 false registration cards immediately prior his arrest; that all of the cards recovered from the notebook had one of two serial numbers on them which matched numbers on cards seized from Mr. Ibarra's apartment; and that evidence seized from the apartment included a laminator, sheets of clear plastic and typewriters which are equipment typical of clandestine manufacture. Finally, the search warrant was based upon several controlled buys of false green cards from Ibarra's apartment.

Based upon the facts outlined above, a reasonable jury could have concluded that Ibarra actually possessed the notebook containing 74 false registration cars and that he knew of its illegal contents.

3. Enhancement "For Profit"

This court reviews de novo the way in which the district court interprets the Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). However, we are to "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). We review the district court's findings of fact for clear error. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir. 1990).

Section 2L2.1(a) of the Guideline in effect at the time Ibarra was sentenced provided for a base offense level of six.¹  Pursuant to 2L2.1(b) (1), the base offense level should be increased by three points where the offense was committed "for profit."

As demonstrated by the discussion relating to the sufficiency of the evidence, the record supports the district judge's conclusion that appellant's activity was for financial gain. Accordingly, the three point enhancement under 2L2.1(b) (1) was appropriate.

4. Obstruction

Appellant concedes that his objection to the two-point enhancement for obstruction of justice under section 3C1.1 has been foreclosed by this court's recent decision in United States v. Barbosa, 906 F.2d 1366 (9th Cir. 1990).