FILED
NOT FOR PUBLICATION JAN 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50024
Plaintiff - Appellee, D.C. No. 3:12-cr-02926-LAB
v.
MEMORANDUM*
FERMIN RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Fermin Rodriguez appeals from the district court’s judgment and challenges
the 75-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Rodriguez contends that the district court erred by applying an incorrect
standard and by relying on improper factors when it denied his request for a minor
role adjustment under U.S.S.G. 3B1.2(b). We review de novo the district court’s
interpretation of the Guidelines and for clear error its factual determination that a
defendant is not a minor participant. See United States v. Rodriguez-Castro, 641
F.3d 1189, 1192 (9th Cir. 2011). Contrary to Rodriguez’s contention, the court
properly considered the totality of the circumstances in making its determination,
including his relative culpability and knowledge or understanding of the enterprise,
and applied the correct standard of proof. See U.S.S.G. § 3B1.2 cmt. n.3(A);
United States v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006). Further, because
Rodriguez failed to demonstrate that he was substantially less culpable than the
average participant, the district court did not clearly err by denying the adjustment.
See U.S.S.G. § 3B1.2 cmt. n.3(A); Rodriguez-Castro, 641 F.3d at 1192-93.
Rodriguez next contends that the district court procedurally erred by failing
to recognize its discretion to vary downward from the Guidelines range based upon
policy grounds under Kimbrough v. United States, 552 U.S. 85 (2007). The district
court did not err because the record reflects that the district court considered
Rodriguez’s Kimbrough argument and appreciated its discretion to deviate from
2 13-50024
the Guidelines. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th
Cir. 2011).
Finally, Rodriguez contends that his sentence is substantively unreasonable.
The district court did not abuse its discretion in imposing Rodriguez’s sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). The 75-month sentence, 33
months below the bottom of the Guidelines range, is substantively reasonable in
light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the
circumstances, including the quantity of drugs involved. See id.
AFFIRMED.
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