United States v. Lorenzo Valdez-Garate

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2018
• Docket: 17-50252
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50252

Plaintiff-Appellee, D.C. No. 3:15-cr-00737-LAB

v. MEMORANDUM* LORENZO VALDEZ-GARATE,

Defendant-Appellant.

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

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Lorenzo Valdez-Garate appeals from the district court’s judgment and

challenges the 65-month sentence imposed upon remand 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. § 1291, and we affirm.

* 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). Valdez-Garate contends that the district court misapplied the minor role

Guideline, U.S.S.G. § 3B1.2, by failing to compare him to his co-participants in

the offense and instead comparing him to hypothetical average drug couriers. 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).

Contrary to Valdez-Garate’s contention, when analyzing the five factors

under the Guideline, the district court considered the two recruiters he identified as

well as other likely participants in the offense. See United States v. Quintero-

Leyva, 823 F.3d 519, 523 (9th Cir. 2016). Keeping those co-participants “in

mind,” the court concluded that Valdez-Garate had failed to show that he was

“substantially less culpable than the average participant in the criminal activity.”

See U.S.S.G. § 3B1.2 cmt. n.3(A). The court correctly identified and applied the

correct legal standard and, in light of the totality of the circumstances, did not

abuse its discretion by denying the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(C).

AFFIRMED.

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