NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50383
Plaintiff-Appellee, D.C. No. 3:16-cr-00987-LAB
v.
MEMORANDUM*
FERNANDO TELLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Fernando Tello appeals from the district court’s judgment and challenges the
72-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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Tello contends that the district court erred by denying him a minor role
reduction under U.S.S.G. § 3B1.2(b). We review a district court’s interpretation of
the Guidelines de novo and its application of the Guidelines to the facts of the case
for abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th
Cir. 2017) (en banc). The record reflects that, at Tello’s request, the district court
considered his culpability relative to three other participants in the offense. Tello
did not ask the court to consider the culpability of additional possible participants,
and in the absence of such a request or any evidence of the existence of additional
participants, the court was not required to do so. See United States v. Rojas-
Millan, 234 F.3d 464, 473-74 (9th Cir. 2000) (district court should consider the
involvement of “other likely actors” if it finds “sufficient evidence of their
existence and participation in the overall scheme”).
Moreover, the court did not refuse to consider the individual identified as
“El Campo,” but rather concluded that this individual was not an “average
participant” to whom Tello should be compared. See United States v. Hurtado,
760 F.3d 1065, 1069 (9th Cir. 2014) (“The requisite comparison is to average
participants, not above-average participants.”), overruled on other grounds by
Gasca-Ruiz, 852 F.3d at 1174.
Finally, the district court did not abuse its discretion when it considered the
factors enumerated in the amended commentary to section 3B1.2 and concluded
2 16-50383
that, in light of the facts of this case, Tello failed to meet the standard for a minor
role reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C).
AFFIRMED.
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