NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50340
Plaintiff-Appellee, D.C. No. 2:15-cr-00521-PA
v.
MEMORANDUM*
RAUL EDUARDO GARCIA-PINA,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Raul Eduardo Garcia-Pina appeals from the district court’s judgment and
challenges the 46-month sentence imposed on remand following his guilty-plea
conviction for possession with intent to distribute heroin, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). We have jurisdiction under 28 U.S.C. § 1291, and we
*
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).
affirm.
Garcia-Pina contends that the district court erred in denying his requested
mitigating role reduction under U.S.S.G § 3B1.2. Specifically, Garcia-Pina argues
that all five factors set forth in Amendment 794 (“the Amendment”) favor a
downward adjustment, see U.S.S.G § 3B1.2 cmt. n.3(C), and are not outweighed
by the additional aggravating factors relied upon by the district court.
We review the district court’s application of the Guidelines to the facts of
Garcia-Pina’s case for abuse of discretion. See United States v. Gasca-Ruiz, 852
F.3d 1167, 1170 (9th Cir. 2017) (en banc). The record demonstrates that on
remand the court properly considered the factors set forth in the Amendment, as
well as “other reasons for granting or denying a minor role reduction,” United
States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016), and acted within its
discretion in finding that Garcia-Pina was not “substantially less culpable than the
average participant in the criminal activity.” U.S.S.G § 3B1.2 cmt. n.3(A); see
also Quintero-Leyva, 823 F.3d at 523 (once the court has considered all the factors,
it may grant or deny a reduction even if some of the factors weigh toward the
opposite result). Contrary to Garcia-Pina’s contention, the district court did not
make any findings that were “illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
2 17-50340
Garcia-Pina’s motion to take judicial notice and the government’s motion to
strike portions of Garcia-Pina’s opening brief are denied. The government’s
motions to seal its response to Garcia-Pina’s motion, the answering brief, its
excerpts of record and the motions to seal them are granted. Garcia-Pina’s motion
to seal the reply brief and the motion to seal itself is granted. The Clerk shall
maintain under seal the documents at docket entry numbers 14, 15, 18, and 19.
AFFIRMED.
3 17-50340