USA V. EDUARDO ARMSTRONG, No. 18-50057 (9th Cir. 2018)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION DEC 3 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 18-50057 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. ReyesOseguera, 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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
