United States v. Arturo Delgado-Vega

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50224

Plaintiff-Appellee, D.C. No. 3:16-cr-02609-BEN-1

v. MEMORANDUM* ARTURO DELGADO-VEGA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Arturo Delgado-Vega appeals from the district court’s judgment and

challenges the 110-month sentence imposed on remand following his guilty-plea

conviction for possession of methamphetamine with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291,

* 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 we affirm.

Delgado-Vega contends that the district judge exhibited impermissible bias

against him and his counsel during the resentencing proceedings, resulting in the

erroneous denial of a minor role adjustment and a substantively unreasonable

sentence. We disagree. The record shows that, over the course of two hearings,

the judge engaged in a lengthy discussion with both counsel about the minor role

adjustment and other Guidelines disputes, and fully explained its calculations and

the sentence selected. Any expressions of pique do not reflect “deep-seated

favoritism or antagonism that would make fair judgment impossible.” Liteky v.

United States, 510 U.S. 540, 555 (1994).

Moreover, contrary to Delgado-Vega’s claims, the district court did not

suggest that a courier like Delgado-Vega could never receive a minor-role

reduction; it properly focused on Delgado-Vega’s role in the particular

organization for which he worked and the factors that inform whether a minor role

reduction should be granted, see U.S.S.G. § 3B1.2 cmt. n.3(C). The court did not

abuse its discretion in concluding that Delgado-Vega was not “substantially less

culpable than the average participant” in the drug trafficking offense. U.S.S.G.

§ 3B1.2 cmt. n.3(A); see United States v. Diaz, 884 F.3d 911, 914 (9th Cir. 2018)

(stating standard of review).

Lastly, the district court did not abuse its discretion in imposing the 110-

2 19-50224 month sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The court

explained that, without a minor role reduction, the Guidelines range was “too

high,” but with a minor role reduction, it was “spot on.” Thus, it exercised its

discretion to vary downward to a sentence in the middle of the latter range, reduced

further by 10 months to reflect Delgado-Vega’s post-sentencing rehabilitation.

The resulting 110-month sentence is substantively reasonable in light of the 18

U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including

Delgado-Vega’s criminal history and the seriousness of the offense. See Gall, 552

U.S. at 51.

Delgado-Vega’s unopposed motion to submit a late reply brief is granted.

The Clerk will file the reply brief at Docket Entry No. 21.

Delgado-Vega’s motion to seal is granted. The Clerk will file under seal the

motion and supplemental excerpts of record at Docket Entry No. 24.

AFFIRMED.

3 19-50224