United States v. Maritza Burgueno-Gonzalez

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2018
• Docket: 17-50356
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50356

Plaintiff-Appellee, D.C. No. 3:17-cr-00245-LAB

v.

MARITZA BURGUENO-GONZALEZ, MEMORANDUM*

Defendant-Appellant.

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

Submitted December 17, 2018**

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

Maritza Burgueno-Gonzalez appeals from the district court’s judgment and

challenges the 84-month sentence imposed following her jury-trial conviction for

importation of methamphetamine, in violation of 21 U.S.C. §§ 952, 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). Burgueno-Gonzalez first contends that the district court failed to consider

the need to avoid unwarranted sentencing disparities when it refused to compare

Burgueno-Gonzalez’s sentence to the sentences previously imposed on other

individuals who were involved in the overall drug trafficking organization. The

district court did not err because it did consider those other individuals and found

that they were not similarly situated to Burgueno-Gonzalez. See United States v.

Carter, 560 F.3d 1107, 1121 (9th Cir. 2009) (no unwarranted sentencing disparity

if defendants are not similarly situated).

Burgueno-Gonzalez also contends that the district court erroneously denied

her a minor-role reduction under U.S.S.G. § 3B1.2. We review the district court’s

interpretation of the Guidelines de novo, and its factual findings for clear error.

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

Contrary to Burgueno-Gonzalez’s argument, the district court properly concluded

that importers who had worked for the same drug organization in the past were not

“co-participants” in Burgueno-Gonzalez’s offense for purposes of assessing her

relative culpability. See U.S.S.G. § 3B1.1 cmt. n.1 (defining “participant” under

the minor role Guideline as “a person who is criminally responsible for the

commission of the offense”); United States v. Rojas-Millan, 234 F.3d 464, 473 (9th

Cir. 2000) (“the relevant comparison is between the defendant’s conduct and that

of the other participants in the same offense” (internal quotations and alteration

2 17-50356 omitted)). The court also did not clearly err in assuming that Burgueno-Gonzalez,

despite facing some coercion, was also paid for the importation activity. See

United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). In any

event, the record reflects that the court’s presumption about payment did not affect

its decision to deny a minor role reduction or the sentence selected. See United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

AFFIRMED.

3 17-50356