United States of America v. Martina Ponce

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTINA PONCE,
Defendant - Appellant.
No. 12-50002
D.C. No. 3:09-cr-04424-JAH-3
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted February 8, 2013
Pasadena, California
Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.
Martina Ponce appeals her jury conviction and sentence for one count of
conspiracy, 18 U.S.C. § 371, three counts of bringing aliens to the United States for
financial gain, 8 U.S.C. § 1324(a)(2)(B)(ii), three counts of bringing aliens to the
United States without presentation to a proper authority, 8 U.S.C. § 1324(a)(2)(B)(iii),
FILED
FEB 15 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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and two counts of transportation of illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(ii). We
have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Counts two through seven of the indictment charged Ponce with bringing
three aliens to the United States, Martinez-Rosas, Lopez-Hernandez, and Cisneros-Del
Carmen. Counts eight and nine charged Ponce with transportation within the United
States of only Martinez-Rosas and Cisneros-Del Carmen, respectively. However, the
jury instructions for counts eight and nine identified Lopez-Hernandez and Martinez-
Rosas, respectively, as the transported aliens. The Government concedes that this was
error. But, because Ponce did not object to the instructions, we review for plain error,
and Ponce has the burden to establish prejudice. United States v. Olano, 507 U.S.
725, 732-35 (1993). Ponce has not done so. As to Martinez-Rosas, the district court’s
error in referencing the wrong count was plainly harmless. And, although Lopez-
Hernandez was not named in count eight or nine, Ponce was well aware from the
balance of the indictment and the evidence at trial that she was accused of smuggling
Lopez-Hernandez into the country and subsequently transporting him. The evidence
was overwhelming that she did so.

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2. The district court did not err by admitting the foot guide’s deposition
testimony. The Government met its burden “to provide evidence at trial
demonstrating the witness’s unavailability,” United States v. Matus-Zayas, 655 F.3d
1092, 1102 (9th Cir. 2011), as Ponce’s trial counsel conceded.
3. Substantial evidence supported the convictions on counts two through seven.
Ponce’s co-conspirators were waiting near the border as the aliens were crossing, and
the foot guide stayed with the aliens throughout the incident. See United States v.
Reyes-Bosque, 596 F.3d 1017, 1035-36 (9th Cir. 2010). Ponce’s co-conspirators
testified that she had organized and directed the smuggling operation.
4. The district court did not err by finding that Ponce had smuggled,
transported, or harbored more than 100 aliens and applying a sentencing enhancement
under § 2L1.1(b)(2)(C) of the Sentencing Guidelines. Ample evidence, including
Ponce’s own statements, supported the finding.
AFFIRMED.

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