United States v. Adan Pineda-Doval, 2012 U.S. App. LEXIS 18127

Pineda-Doval appeals ten concurrent life sentences for ten counts of transportation of illegal aliens resulting in their deaths.
On prior appeal, convictions were affirmed but sentencing was remanded due to malice aforethought cross-reference and proof standard errors.
On remand, district court reimposed ten concurrent life sentences without full §3553(a) analysis or allocution.
Facts: Suburban carried twenty undocumented immigrants; spike strip encounter; vehicle rollover; ten passengers died; phrase 'encomendarse a Dios' used during pursuit.
The district court found malice aforethought by clear and convincing evidence; the panel disagrees and vacates for remand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether malice aforethought was shown by clear and convincing evidence	Pineda-Doval argues no clear and convincing evidence of malice.	Pineda-Doval contends the district court properly found malice aforethought.	Malice aforethought not established; vacate and remand.
Whether the cross-reference to the murder guidelines could be applied on remand	Cross-reference should not apply without proper factual findings on malice.	Cross-reference may be considered under remand guidance.	Cross-reference not to be applied on remand; full resentencing required.
Whether the district court properly conducted resentencing and allowed allocution	Defendant entitled to allocute and consideration of §3553(a) factors on remand.	District court previously erred in not applying full factors but should be allowed full discretion on remand.	Remand for full resentencing with allocution and factor consideration.
Whether the case should be reassigned to a new judge	Suggests reassignment due to perceived bias during prior proceedings.	No due process or bias shown; reassignment unnecessary.	No reassignment; authority limited by remand scope.

United States v. Chung, 659 F.3d 815 (9th Cir. 2011) (guidelines interpretation and standard of review)
United States v. Hernandez-Rodriguez, 975 F.2d 622 (9th Cir. 1992) (malice aforethought requires something more than reckless driving)
Hemandez-Rodriguez, N/A (9th Cir. 1992) (reference to malice standard in smuggling cases (see discussion)})
Anderson v. City of Bessemer City, 470 U.S. 564 (U.S. Supreme Court 1985) (deference to trial court on witness credibility)
United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc; deference in weighing evidence and credibility)
Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010) (remand for malice aforethought findings and resentencing)