United States v. Fausto Diaz-Lozano

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2018
• Docket: 17-10272
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10272

Plaintiff-Appellee, D.C. No. 2:10-cr-00391-JAM

v.

FAUSTO DIAZ-LOZANO, a.k.a. Fausto MEMORANDUM* Diaz,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

Fausto Diaz-Lozano appeals from the district court’s judgment and

challenges the 210-month sentence imposed on remand following his jury-trial

conviction for conspiracy to distribute and possess with intent to distribute at least

500 grams of methamphetamine, possession with intent to distribute at least 50

* 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). grams of methamphetamine (actual), conspiracy to manufacture at least 100

marijuana plants, and manufacture of at least 100 marijuana plants, in violation of

21 U.S.C. §§ 841(a)(1), 846. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

Diaz-Lozano contends that the district court erred in applying a two-level

aggravating role enhancement under U.S.S.G. § 3B1.1(c). Contrary to the

government’s argument, our review of the district court’s application of the

aggravating role enhancement is not precluded by the law-of-the-case doctrine

because the previous panel did not hold that application of the aggravating role

enhancement was appropriate.1 See Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438,

441 (9th Cir. 1982) (under law-of-the-case doctrine, a court is precluded from

reexamining an issue that was “decided explicitly or by necessary implication in

this court’s previous disposition”).

A district court’s application of the Guidelines to the facts of a case is

reviewed for abuse of discretion, and its underlying factual findings are reviewed

for clear error. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.

1 We grant Diaz-Lozano’s unopposed motion to take judicial notice of excerpts of his briefs in the previous appeal.

2 17-10272 2017) (en banc). The district court did not abuse its discretion in applying the two-

level aggravating role enhancement. Although Roberto Bermudez-Ornelas’s

statement implicating Diaz-Lozano as his supervisor in caring for the marijuana

plants was hearsay, the statement had “some minimal indicia of reliability”

because it was supported by extrinsic evidence. See United States v. Pimentel-

Lopez, 859 F.3d 1134, 1144 (9th Cir. 2017) (citation and quotation marks omitted).

In particular, evidence reflected that Diaz-Lozano previously discussed having a

person stay at his marijuana grow site for a while, and Diaz-Lozano claimed

ownership of the marijuana grow site where officers encountered Bermudez-

Ornelas.

AFFIRMED.

3 17-10272