United States v. Cuauhtemoc Juarez-Aquino

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2018
• Docket: 17-50218
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50218

Plaintiff-Appellee, D.C. No. 3:16-cr-02815-LAB

v. MEMORANDUM* CUAUHTEMOC JUAREZ-AQUINO,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Cuauhtemoc Juarez-Aquino appeals from the district court’s judgment and

challenges the 80-month sentence and 3-year term of supervised release imposed

following his guilty-plea conviction for importation of methamphetamine, in

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

* 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). § 1291, and we affirm in part and vacate and remand for resentencing in part.

Juarez-Aquino contends that the district court erred by denying his request

for a minor role adjustment under U.S.S.G. § 3B1.2. He argues that the district

court improperly compared him to a hypothetical “average participant,” rather than

his co-participants in the offense, and misapplied the factors contained in the

commentary to § 3B1.2. We review the district court’s interpretation of the

Guidelines de novo and its application of the Guidelines to the facts for abuse of

discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)

(en banc).

The record shows that the district court properly compared Juarez-Aquino to

his co-participants in the offense, both named and unnamed, see United States v.

Diaz, 884 F.3d 911, 916-17 (9th Cir. 2018), and denied the minor role adjustment

after considering each of the factors listed in the commentary to the Guideline, see

U.S.S.G. § 3B1.2 cmt. n.3(C). The district court’s decision to deny the minor role

reduction in light of Juarez-Aquino’s preparatory conduct, prior successful drug

crossings, and the large amount of methamphetamine, and to accord little weight to

Juarez-Aquino’s lack of propriety interest in the drugs and limited knowledge

about the drug organization, was not an abuse of discretion. See United States v.

Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016).

Juarez-Aquino also contends, and the government concedes, that the district

2 17-50218 court erred in determining that Juarez-Aquino was subject to three-year mandatory

minimum term of supervised release. Because the district court concluded that

Juarez-Aquino was entitled to safety valve relief under 18 U.S.C. § 3553(f), the

three-year mandatory minimum term of supervised release under 21 U.S.C.

§ 960(b)(3) did not apply. See U.S.S.G. § 5C1.2 cmt. n.9. Accordingly, we vacate

the three-year term of supervised release and remand for the district court to

reconsider the length of the supervised release term.

AFFIRMED in part; VACATED and REMANDED in part.

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