NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10433
Plaintiff-Appellee, D.C. No.
2:16-cr-00046-GEB-1
v.
SERGIO ROMAN BARRIENTOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted April 14, 2020**
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,*** District Judge.
Defendant Sergio Roman Barrientos appeals his judgment and commitment
after pleading guilty to a single count of conspiracy to commit wire fraud affecting
*
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).
***
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
a financial institution. Barrientos challenges the district court’s application of a
four-level leadership enhancement and denial of a one-level downward adjustment
for acceptance of responsibility; denial of his request for an evidentiary hearing;
and compliance with Rule 32 of the Federal Rules of Criminal Procedure. We
affirm.
We review the district court’s application of the Sentencing Guidelines to
the facts for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170
(9th Cir. 2017) (en banc). A court abuses its discretion if it applies the wrong legal
standard or reaches a conclusion that is “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).
First, Barrientos’s role as an organizer or leader of criminal activity supports
a four-level role adjustment. The record establishes that Barrientos created Capital
Access, hired the co-conspirators to help execute the scheme, and had primary
control of the shell company into which the fraudulently obtained monies were
deposited. The district court did not abuse its discretion in applying the four-level
enhancement because Barrientos’s leadership role is supported by evidence in the
record.
Further, the district court did not err in determining that Barrientos was not
entitled to a credit for acceptance of responsibility. The district court found that
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the government had engaged in extensive trial preparation by the time Barrientos
provided notice of his intent to plead guilty. Further, Barrientos’s guilty plea came
less than a month before trial. Here, the district court did not abuse its discretion
when the facts in the record support its determination.
We review the district court’s decision “whether to hold an evidentiary
hearing at sentencing for abuse of discretion.” United States v. Laurienti, 731 F.3d
967, 971 (9th Cir. 2013). “[T]here is no general right to an evidentiary hearing at
sentencing.” Id. at 972. The sentencing court “may permissibly deny a hearing
where a defendant is allowed to rebut the recommendations and allegations of the
presentence report either orally or through the submission of written affidavits or
briefs.” United States v. Sarno, 73 F.3d 1470, 1502 (9th Cir. 1995).
Barrientos argues on appeal that the court’s denial of an evidentiary hearing
to present live witness testimony of his treating physician was an abuse of
discretion because the doctor’s testimony was relevant to Barrientos’s request for a
downward departure or variance based on his age and poor health.
Barrientos submitted informal objections and formal objections to the PSR.
Barrientos also filed supplemental exhibits, voluminous medical records, and a
brief in support of his requested departure. At sentencing, Barrientos’s counsel
argued his objections to the PSR. The district court did not abuse its discretion in
denying the evidentiary hearing because Barrientos had the opportunity to try to
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rebut the recommendation through written briefs prior to sentencing and presented
his objections at sentencing.
“We review de novo whether a district court complied with Rule 32 of the
Federal Rules of Criminal Procedure in making its determinations at sentencing.”
United States v. Job, 871 F.3d 852, 868 (9th Cir. 2017). “Rule 32 states that the
district court ‘must—for any disputed portion of the presentence report or other
controverted matter—rule on the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or because the court will not
consider the matter in sentencing.’” Id. at 869 (quoting Fed. R. Crim. P.
32(i)(3)(B)).
Barrientos objected to the recommendation for imposition of a four-level
increase under USSG § 3B1.1(a) arguing he did not lead, manage, or exercise any
control and was a co-equal participant in the enterprise. Here, the district court
overruled the objection both during the sentencing hearing and in a subsequent
written order explaining its reliance upon the investigative reports for resolving the
factual dispute. We find the district court complied with Fed. R. Crim. P. 32.
AFFIRMED.
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