United States v. Oscar Romero

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2020
• Docket: 20-10093
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10093

Plaintiff-Appellee, D.C. No. 3:19-cr-00086-WHO-1

v. MEMORANDUM* OSCAR ARMANDO ROMERO,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William H. Orrick, III, District Judge, Presiding

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Oscar Armando Romero appeals from the district court’s judgment and

challenges the 24-month sentence imposed following his guilty-plea conviction for

possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B). 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). Romero contends that the district court erred when it imposed a two-level

adjustment under U.S.S.G. § 3B1.2(b) for being a minor participant, instead of a

four-level adjustment for being a minimal participant under U.S.S.G. § 3B1.2(a).

We review the district court’s interpretation of the Guidelines de novo, its factual

findings for clear error, 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 district court applied the correct legal standard in denying the minimal

role reduction. The standard was discussed in the parties’ sentencing memoranda

and again at sentencing, and the district court showed its knowledge of the

applicable standards when it determined that a minor role adjustment, rather than a

minimal role adjustment, was warranted. Moreover, the district court did not abuse

its discretion in determining that, while Romero played a minor role in the offense,

he was not “plainly among the least culpable of those involved in the conduct of

[the] group.” U.S.S.G. § 3B1.2 cmt. n.4. As the district court observed, the large

quantity of drugs Romero was tasked with delivering and his language during a

call with the confidential informant suggested that he was not a minimal

participant. Contrary to Romero’s argument, the district court did not deny the

minimal role reduction solely on the basis of drug quantity, and its consideration of

that factor was not erroneous. See U.S.S.G. § 3B1.2 cmt. n.3(C) (list of factors

2 20-10093 district court must consider to determine mitigating role adjustment is “non-

exhaustive” and final determination “is heavily dependent upon the facts of the

particular case”); United States v. Rodriguez-Castro, 641 F.3d 1189, 1193 (9th Cir.

2011) (district court was “justifiably skeptical that this amount of drugs would be

entrusted to a minor player”).

AFFIRMED.

3 20-10093