FILED
NOT FOR PUBLICATION AUG 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10212
Plaintiff-Appellee, D.C. No. 1:10-cr-00249-AWI
v.
MEMORANDUM*
DARLING ARLETTE MONTALVO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Darling Arlette Montalvo appeals from the district court’s judgment and
challenges the 24-month sentence imposed following her jury-trial conviction for
conspiracy to commit mail fraud, wire fraud, and bank fraud, in violation of 18
U.S.C. § 1349; mail fraud, in violation of 18 U.S.C. § 1341; and money laundering
*
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).
and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 1957. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Montalvo first contends that the district court procedurally erred by failing
to explain its refusal to grant her request for a mitigating role adjustment under
U.S.S.G. § 3B1.2. We review for plain error, see United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. Although the court
did not explain its denial of Montalvo’s request, its reasons are apparent
from the record. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc) (explanation may be inferred from the presentence report or the record as a
whole). In written sentencing materials that the court reviewed, both the
government and probation argued that a minor role adjustment was not warranted
because Montalvo provided false information and documentation in connection
with the properties she purchased or assisted in purchasing. In lieu of a mitigating
role reduction, probation urged the court to account for Montalvo’s lesser role in
the larger conspiracy through a downward variance. The district court followed
this guidance, declining to grant a mitigating role adjustment but imposing a
sentence below the Guidelines range that would have applied if Montalvo had
received such a reduction. Under these circumstances, we conclude that
2 15-10212
any error by the district court did not affect Montalvo’s substantial rights. See
United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
Montalvo also argues that the district court erred by denying the mitigating
role adjustment. Given Montalvo’s involvement in five fraudulent transactions
over the course of more than a year, the court did not clearly err in concluding that
Montalvo was not substantially less culpable than the average participant in the
offense. See U.S.S.G. § 3B1.2, cmt. n.3(A); United States v. Hurtado, 760 F.3d
1065, 1068 (9th Cir. 2014) (a finding that defendant is not a minor participant is a
factual determination reviewed for clear error).
AFFIRMED.
3 15-10212