NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50033
Plaintiff-Appellee, D.C. No. 3:17-cr-02644-BEN
v.
MEMORANDUM*
JORGE EDWIN RIVERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Jorge Edwin Rivera appeals from the district court’s judgment and
challenges the 150-month sentence and 10-year term of supervised release imposed
following his guilty-plea conviction for conspiracy to import methamphetamine
and aiding and abetting, in violation of 21 U.S.C. §§ 952, 960, and 963, and 18
*
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).
U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Rivera contends the district court misinterpreted and misapplied the minor
role Guideline, U.S.S.G. § 3B1.2, and its commentary in denying his request for a
minor role reduction. We review the district court’s interpretation of the
Guidelines de novo, and its application of the Guidelines to the facts for abuse of
discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)
(en banc).
The record reveals that the district court identified the correct legal standard
and was aware of the five factors under the amended Guideline. See U.S.S.G.
§ 3B1.2 cmt. n.3 (C). Contrary to Rivera’s claim, the district court’s decision to
accord little weight to Rivera’s lack of proprietary interest in the drugs and his
allegedly limited knowledge about the drug organization was not an abuse of
discretion in this case, given Rivera’s participation in prior smuggling activity, the
sophistication of the smuggling operation, and the amount of drugs smuggled. See
United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). Rivera’s
contention that the district court relied on clearly erroneous facts in denying the
minor role adjustment is not supported by the record.
Rivera next contends that the district court violated his right to due process
by basing the sentence on unsupported assumptions about his probable addiction to
methamphetamine, the likelihood that his daughter would become addicted to
2 18-50033
drugs, and the negative influence that he might have on his daughter. We agree
that the district court’s statements regarding Rivera’s purported drug use and
Rivera’s daughter were unsupported by the record. See United States v. Safirstein,
827 F.2d 1380, 1385 (9th Cir. 1987) (“[U]nfounded assumptions or groundless
inferences . . . may not, consistent with due process, form the basis of sentence.”).
However, Rivera’s counsel corrected the district court and the district court
accepted counsel’s statements. Additionally, there is no indication that the district
court relied on its improper conjectures in imposing Rivera’s below-Guideline
sentence. Accordingly, there was no due process violation. See United States v.
Christensen, 732 F.3d 1094, 1106 (9th Cir. 2013) (to establish a due process
violation, defendant must show that the challenged information “was demonstrably
made the basis for the sentence imposed”).
Finally, Rivera contends the district court erred by failing to calculate the
supervised release Guidelines range and by failing to explain the 10-year term of
supervised release. Reviewing for plain error, see United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), we conclude that there is none
because Rivera has not shown a reasonable probability that his sentence would
have been different absent the alleged errors, see United States v. Dallman, 533
F.3d 755, 762 (9th Cir. 2008). The presentence report accurately reflected the
undisputed Guidelines range of five years. The government nevertheless
3 18-50033
recommended a 10-year term, and Rivera’s counsel acknowledged at the
sentencing hearing that the court was likely to impose “a lengthy supervised
release period.” The court’s reasons for the 10-year term of supervised release are
apparent from the record, including Rivera’s criminal history and previous
performance on supervised release. See United States v. Carty, 520 F.3d 984, 992
(9th Cir. 2008) (en banc).
AFFIRMED.
4 18-50033