FILED
NOT FOR PUBLICATION JUL 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50292
Plaintiff - Appellee, D.C. No. 3:14-cr-00091-BEN-1
v.
MEMORANDUM*
ROBERTO BELLO-URQUIZA, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted July 10, 2015**
Before: HUG, FARRIS, and CANBY, Circuit Judges.
Roberto Bello-Urquiza, Jr. appeals from the district court’s judgment and
challenges the 78-month sentence imposed following his guilty-plea conviction for
importation of controlled substances, in violation of 21 U.S.C. §§ 952, 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).
Bello-Urquiza contends that the district court erred by applying an incorrect
legal standard for a minor-role adjustment under U.S.S.G. § 3B1.2(b). We review
de novo the district court’s interpretation of the Sentencing Guidelines and for
clear error the district court's factual determination that a defendant is not a minor
participant. See United States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014).
Bello-Urquiza asserts that the district court failed to compare him to the other
participants in the offense. The record reflects that the court applied the proper
legal standard and that it compared Bello to the other participants in the offense,
including not only the more culpable participants, but also the less culpable
participants. See Hurtado, 760 F.3d at 1069 (recognizing that the fact that drug
operation’s organizers and leaders have above-average culpability does not mean
that the defendant is substantially less culpable than the average participant);
United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006). Furthermore, to the
extent Bello-Urquiza contends that he was entitled to a minor role reduction, the
district court did not clearly err in denying the adjustment. See Hurtado, 760 F.3d
at 1069.
Bello-Urquiza also contends that the court did not provide a sufficient
explanation for the sentence because the court’s statement that it did not engage in
“any scientific calculation” and that the sentence “just seems right” were
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inadequate. Because Bello-Urquiza did not object on these grounds below, review
is for plain error. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108
(9th Cir. 2010). The district court did not plainly err. It repeatedly stated that it
was applying the 18 U.S.C. § 3553(a) factors and discussed specific facts,
including the quantity of methamphetamine involved and Bello-Urquizo’s prior
conviction for importing cocaine. The district court’s explanation was sufficient to
permit meaningful review and showed that the court had a reasoned basis for
exercising its decisionmaking authority. Rita v. United States, 551 U.S. 338, 356
(2007); United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Bello-Urquiza argues that the district court procedurally erred at sentencing
when it made a sarcastic comment that “this is fun” after Bello-Urquiza stated that
he had not intended to cross the drugs across the border. Bello-Urquiza did not
object on these grounds in the district court, so we review for plain error. See
Valencia-Barragan, 608 F.3d at 1108. Bello-Urquiza cites no authority and
provides no argument for why this is procedural error. Although it would be
preferable for a district court not to make sarcastic comments in response to
comments it finds exasperating, this does not constitute plain procedural error.
Finally, Bello-Urquiza contends that the 78-month sentence is substantively
unreasonable. The sentence is not substantively unreasonable in light of the 18
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U.S.C. § 3553(a) factors and the totality of the circumstances. See Gall v. United
States, 552 U.S. 38, 51 (2007).
AFFIRMED.
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