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Split court orders third sentencing in human smuggling case

WASHINGTON – A divided federal appeals court panel Monday ordered a third sentencing for the man who was driving a vehicle full of illegal immigrants that crashed during a 2006 chase, killing 10 people inside.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said U.S. District Judge Stephen M. McNamee improperly applied sentencing guidelines when he sentenced Adan Pineda-Doval to 10 concurrent life sentences for the fatal crash.

This is the second time the appellate court has sent the case back to McNamee, who reimposed his original sentence of 10 life sentences after the case was remanded to him in 2010.

An attorney for Pineda-Doval believes the third time may be the charm for his client.

"There's no way that the same sentence, or a sentence anywhere close, will be imposed," said Daniel Kaplan, the attorney. "I'm certainly gratified to see the decision the court came to."

A spokeswoman for the U.S. Attorney's Office for Arizona said Monday that the office cannot comment on pending cases.

The case began in August 2006 after a Border Patrol officer spotted Pineda-Doval driving an overloaded Chevrolet Suburban on U.S. Route 95 near the Yuma Proving Grounds, about 45 miles from the border, according to court documents.

The officer notified Border Patrol personnel down the road who set a spike strip across the highway in an effort to stop the Suburban. Pineda-Doval swerved suddenly to avoid the strip, which caused the Suburban to roll over and kill 10 of the 20 immigrants who were crammed inside.

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The appeals court upheld Pineda-Doval's convictions, but said that McNamee did not have the "clear and convincing" evidence to show that Pineda-Doval acted with "malice aforethought," which is necessary for the severity of the sentence handed down.

McNamee's finding – twice now – that Pineda-Doval acted with malice "is not supported by any clear, direct, or weighty facts in the record, and runs counter to strong evidence to the contrary," the appeals court said.

It noted testimony from Border Patrol agents that they thought they were dealing in a "perfectly routine" stop and that none of the agents had ever seen a vehicle roll over by driving over, or swerving to avoid, a spike strip.

In a dissent, however, Circuit Judge Susan P. Graber disagreed, saying "Pineda-Doval's actions were so very reckless that a reasonable factfinder could find that they constituted malice aforethought." She said McNamee's findings were entitled to deference.

Despite its finding, the court rejected Pineda-Doval's request that the case be sent to a different judge for sentencing this time. It said McNamee "exhibited no personal bias against Pineda-Doval" and that the case was not "unusual enough to warrant reassignment."

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