FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 11-10263
11-10289
Plaintiff - Appellee,
D.C. No. 2:09-cr-00381-EJG
v.
LUCIANO MERCADO, MEMORANDUM *
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO MERCADO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
*
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).
In these consolidated appeals, Luciano Mercado (“Luciano”) appeals from
the 168-month sentence and Sergio Mercado (“Sergio”) appeals from 135-month
sentence imposed following their guilty-plea convictions for conspiracy to
distribute, and possession with intent to distribute, over 500 grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Luciano contends that the district court erred in calculating the Guidelines
range by improperly applying a three-level aggravating role enhancement under
U.S.S.G. § 3B1.1(b). We need not resolve this issue because the court varied
downward by five levels to a base offense level that did not reflect the role
enhancement. Thus, any error in applying the enhancement was harmless. See
United States v. Leal-Vega, 680 F.3d 1160, 1170 (9th Cir. 2012).
Luciano also contends that the district court violated Federal Rule of
Criminal Procedure 32 by failing to resolve factual disputes related to the
application of the aggravating role enhancement. The district court did not err
because it considered Luciano’s objections to the presentence report and adopted
the government’s position with respect to the factual disputes. See United States v.
Doe, 488 F.3d 1154, 1158-59 (9th Cir. 2007).
Luciano finally contends that the district court procedurally erred by failing
adequately to explain the sentence. We review for plain error, see United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The
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district court considered Luciano’s arguments and adequately explained the
sentence in light of the 18 U.S.C. § 3553(a) sentencing factors.
Sergio contends that his sentence is substantively unreasonable. The
government argues that his appeal is barred by a valid appeal waiver. Reviewing
de novo, we conclude that the government forfeited its right to enforce the waiver
by failing to object to the district court’s unqualified advisement that Sergio
retained the right to appeal the court’s judgment. See United States v. Felix, 561
F.3d 1036, 1040-41 (9th Cir. 2009). However, Sergio has not shown that the
district court abused its discretion in imposing his sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007). The within-Guidelines sentence is substantively
reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of
the circumstances, including the seriousness of the offense and the need to promote
respect for the law. See id.
AFFIRMED.
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