United States v. Arnulfo Moroyoqui-Rodriguez

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2019
• Docket: 17-10481
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10481

Plaintiff-Appellee, D.C. No. 4:16-cr-01919-JAS-BGM-1 v.

ARNULFO MOROYOQUI-RODRIGUEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona James Alan Soto, District Judge, Presiding

Submitted February 5, 2019** Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

Arnulfo Moroyoqui-Rodriguez appeals his conviction for conspiracy to

possess 50 kilograms or more of marijuana with intent to distribute, in violation of

21 U.S.C. § 846, and possession of 50 kilograms or more of marijuana of with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant

* 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). to 28 U.S.C. § 1291, and affirm.

1. The government submitted sufficient evidence to identify Moroyoqui-

Rodriguez as the person who committed the offenses. See United States v.

Alexander, 48 F.3d 1477, 1490 (9th Cir. 1995) (“Identification can be inferred from

all the facts and circumstances that are in evidence.”). The jury saw a video of an

interview conducted by a border agent shortly after Moroyoqui-Rodriguez’s arrest,

during which Moroyoqui-Rodriguez stated his name, his date of birth, and place of

birth; that information was identical (with the exception of a minor discrepancy in

the spelling of the name) with information recorded independently by the arresting

officer. The agent also testified at trial that Moroyoqui-Rodriguez was the person

he interviewed. During the interview, Moroyoqui-Rodriguez admitted that he was

part of a group that was smuggling marijuana into the United States. Another border

agent testified at trial that agents arrested Moroyoqui-Rodriguez after he entered the

country and seized marijuana at the scene of his arrest.

2. The district court did not err in attributing to Moroyoqui-Rodriguez the total

amount of drugs seized, even though the marijuana had been physically carried by

his co-conspirators. “In determining for purposes of sentencing the quantity of drugs

for which a conspirator will be held responsible, the district court is required to

determine the quantity of drugs the conspirator reasonably foresaw or which fell

within the scope of his particular agreement with the conspirators.” United States v.

2 Kilby, 443 F.3d 1135, 1142 (9th Cir. 2006) (internal alteration omitted). Moroyoqui-

Rodriguez admitted that he was carrying food for the group and knew that others

were carrying marijuana. Thus, there was an ample basis for the court to conclude

that the conspirators “coordinated their importation effort” and “likely aided each

other.” United States v. Dallman, 533 F.3d 755, 760 (9th Cir. 2008); cf. United

States v. Palafox-Mazon, 198 F.3d 1182, 1188 (9th Cir. 2000) (“In cases involving

a group of marijuana backpackers where the facts escape easy categorization, a

sentencing judge may determine whether the offense is more appropriately viewed

as one jointly undertaken or not.”) (internal quotations omitted).

3. The district court did not err in declining to apply a minor role adjustment

under U.S.S.G. § 3B1.2(b). An “adjustment under § 3B1.2 is available only if the

defendant was ‘substantially’ less culpable than his or her co-participants.” United

States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006) (quoting United States v.

Johnson, 297 F.3d 845, 874 & n.37 (9th Cir. 2002)). The district court reasonably

concluded that Moroyoqui-Rodriguez and the other members of the group were

“similarly situated in terms of what they’re doing and their importance to the

organization or to the criminal endeavor.”

AFFIRMED.