United States v. Bonilla-Guizar

A district court does not abuse its discretion in permitting a Immigration and Customs Enforcement case agent to testify as an expert witness where the testimony has some probative value. Brandishing a firearm is insufficient to warrant the application of a sentencing enhancement under U.S.S.G. § 2A4.1(b)(3) for use of a dangerous weapon.

Yuris Bonilla-Guizar (“Bonilla”) and Carlos Armando Calixtro-Bustamante (“Calixtro”), appealed their separate criminal convictions and sentences in a joint trial. Each was convicted of harboring an alien and conspiracy to commit hostage taking. On appeal, the defendants both objected to two district court rulings: (1) permitting a Immigration and Customs Enforcement (“ICE”) case agent to testify as an expert witness, especially without a limiting instruction; and (2) the application of a two-level sentencing enhancement, under U.S.S.G. § 2A4.1(b), for the use of a dangerous weapon. In September 2009, five aliens arranged to cross the border from Mexico into the United States, illegally, with help from smugglers. After crossing, the aliens were driven to a trailer in Arizona. Bonilla then told one alien, named Julio Cesar Lopez-Trujillo (“Lopez”), that he would have to pay $2,300, $800 more than the price Lopez was quoted in Mexico. Lopez called his wife to ask for the money. Calixtro spoke to Lopez’s wife, giving her instructions. According to Lopez, Bonilla and Calixtro were armed. On September 24, 2009, federal agents freed the aliens from the trailer, allegedly recovering two firearms. The government then accidentally destroyed the guns before trial. During the trial, the Government called the ICE special agent who had worked the case to the witness stand to testify as an expert. The Ninth Circuit held that the district court did not abuse its discretion in permitting a case agent to testify as an expert witness, because the testimony had some probative value, and any error was harmless. The panel further held that the district court committed plain error affecting substantial rights by applying the enhancement to defendants’ sentences for use of a dangerous weapon. The panel established that brandishing a firearm is insufficient to warrant such an application under U.S.S.G. § 2A4.1(b)(3).