United States v. Jorge Rivera

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2018
• Docket: 18-50033
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50033

Plaintiff-Appellee, D.C. No. 3:17-cr-02644-BEN

v. MEMORANDUM* JORGE EDWIN RIVERA,

Defendant-Appellant.

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

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Jorge Edwin Rivera appeals from the district court’s judgment and

challenges the 150-month sentence and 10-year term of supervised release imposed

following his guilty-plea conviction for conspiracy to import methamphetamine

and aiding and abetting, in violation of 21 U.S.C. §§ 952, 960, and 963, and 18

* 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). U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Rivera contends the district court misinterpreted and misapplied the minor

role Guideline, U.S.S.G. § 3B1.2, and its commentary in denying his request for a

minor role reduction. 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 reveals that the district court identified the correct legal standard

and was aware of the five factors under the amended Guideline. See U.S.S.G.

§ 3B1.2 cmt. n.3 (C). Contrary to Rivera’s claim, the district court’s decision to

accord little weight to Rivera’s lack of proprietary interest in the drugs and his

allegedly limited knowledge about the drug organization was not an abuse of

discretion in this case, given Rivera’s participation in prior smuggling activity, the

sophistication of the smuggling operation, and the amount of drugs smuggled. See

United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). Rivera’s

contention that the district court relied on clearly erroneous facts in denying the

minor role adjustment is not supported by the record.

Rivera next contends that the district court violated his right to due process

by basing the sentence on unsupported assumptions about his probable addiction to

methamphetamine, the likelihood that his daughter would become addicted to

2 18-50033 drugs, and the negative influence that he might have on his daughter. We agree

that the district court’s statements regarding Rivera’s purported drug use and

Rivera’s daughter were unsupported by the record. See United States v. Safirstein,

827 F.2d 1380, 1385 (9th Cir. 1987) (“[U]nfounded assumptions or groundless

inferences . . . may not, consistent with due process, form the basis of sentence.”).

However, Rivera’s counsel corrected the district court and the district court

accepted counsel’s statements. Additionally, there is no indication that the district

court relied on its improper conjectures in imposing Rivera’s below-Guideline

sentence. Accordingly, there was no due process violation. See United States v.

Christensen, 732 F.3d 1094, 1106 (9th Cir. 2013) (to establish a due process

violation, defendant must show that the challenged information “was demonstrably

made the basis for the sentence imposed”).

Finally, Rivera contends the district court erred by failing to calculate the

supervised release Guidelines range and by failing to explain the 10-year term of

supervised release. Reviewing for plain error, see United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), we conclude that there is none

because Rivera has not shown a reasonable probability that his sentence would

have been different absent the alleged errors, see United States v. Dallman, 533

F.3d 755, 762 (9th Cir. 2008). The presentence report accurately reflected the

undisputed Guidelines range of five years. The government nevertheless

3 18-50033 recommended a 10-year term, and Rivera’s counsel acknowledged at the

sentencing hearing that the court was likely to impose “a lengthy supervised

release period.” The court’s reasons for the 10-year term of supervised release are

apparent from the record, including Rivera’s criminal history and previous

performance on supervised release. See United States v. Carty, 520 F.3d 984, 992

(9th Cir. 2008) (en banc).

AFFIRMED.

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