United States v. Erick Salazar

FILED
NOT FOR PUBLICATION FEB 21 2017

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50132

Plaintiff-Appellee, D.C. No. 3:13-cr-01442-MMA

v. MEMORANDUM*

ERICK HUMBERTO SALAZAR,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding

Submitted February 14, 2017**

Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

Erick Humberto Salazar appeals from the district court’s judgment and

challenges the 97-month sentence imposed following his jury-trial conviction for

importation of methamphetamine and conspiracy to import methamphetamine, in

*
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).
violation of 21 U.S.C. §§ 952, 960, and 963. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

Salazar contends that the district court erred by failing to analyze whether the

facts he cited at sentencing entitled him to a minor role adjustment under U.S.S.G.

§ 3B1.2. This argument is not supported by the record, which reflects that the court

considered Salazar’s arguments in favor of a minor role adjustment and concluded

that he had not carried his burden of demonstrating that he was entitled to the

adjustment. See United States v. Cantrell, 433 F.3d 1269, 1282 (9th Cir. 2006)

(defendant bears burden of proving entitlement to a minor role adjustment). This

finding was not clearly erroneous, despite counsel’s characterization of Salazar as

solely a “courier,” in light of the facts to which Salazar admitted in his proffer,

which were discussed at the sentencing hearing. See id. (whether a defendant is a

minor participant is a factual determination reviewed for clear error).1

Salazar also contends that his sentence is substantively unreasonable. The

district court did not abuse its discretion in imposing Salazar’s sentence. See Gall

v. United States, 552 U.S. 38, 51 (2007). The low-end Guidelines sentence is

1
Several months after Salazar was sentenced, the United States Sentencing
Commission amended the commentary to section 3B1.2(b). See United States v.
Quintero-Leyva, 823 F.3d 519, 521 (9th Cir. 2016). We are satisfied that the
district court did not clearly err under the revised commentary, which applies
retroactively. See id. at 523.

2 15-50132
substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and

the totality of the circumstances. See Gall, 552 U.S. at 51.

AFFIRMED.

3 15-50132