United States v. Salvador Delrio

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 2, 2020
• Docket: 19-50230
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50230

Plaintiff-Appellee, D.C. No. 2:18-cr-00686-PA-1 v.

SALVADOR DELRIO, MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California Percy Anderson., District Judge, Presiding

Argued and Submitted October 14, 2020 Pasadena, California

Before: GOULD and LEE, Circuit Judges, and KORMAN,** District Judge.

Salvador Delrio appeals from the district court’s preclusion of a necessity

defense at trial and the sentence resulting from his conditional guilty plea. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 1. Necessity defense: We review de novo a district judge’s preclusion of a

necessity defense. See United States v. Barnes, 895 F.3d 1194, 1195 (9th Cir. 2018).

To present a necessity defense, a defendant must first establish that a reasonable jury

could conclude: “(1) that he or she was faced with a choice of evils and chose the

lesser; (2) that he or she acted to prevent imminent harm; (3) that he reasonably

anticipated a causal relation between his conduct and the harm to be avoided; and

(4) that there were no other legal alternatives to violating the law.” United States v.

Arellano-Rivera, 244 F.3d 119, 1125-26 (9th Cir. 2001) (citing United States v.

Aguilar, 883 F.2d 662, 693 (9th Cir. 1989)). But when a “defendant’s offer of proof

is deficient with regard to any of the four elements, the district judge must grant the

motion to preclude evidence of necessity.” Id. at 1125-26 (emphasis added).

The district did not err in barring Delrio’s necessity defense because he never

faced a choice of evils. Instead, a friend invited him to participate in a drug

trafficking scheme in exchange for money. He accepted, and only later decided that

his actions could “possibly” save an unidentified third-party’s life. Indeed, nobody

told Delrio that his actions could spare that individual’s life. Moreover, Delrio could

not establish imminence of harm or a causal connection between his acts and the

avoidance of a greater evil.

2. Minor role adjustment: The district court did not err in denying Delrio’s

request for a minor-role adjustment. In evaluating a request for a minor-role

2 adjustment, a court must consider the non-exhaustive factors outlined in U.S.S.G. §

3B1.2 cmt. n.3(C). We, however, do not require the district judge to “tick off each

of the factors to show that it has considered them.” United States v. Carty, 520 F.3d

984, 992 (9th Cir. 2008). Rather, absent evidence to the contrary, we “assume the

district judge knew the law and understood his or her obligation to consider all of

the sentencing factors.” United States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018).

The district court cited and applied the correct Guidelines factors. For

example, it discussed Delrio’s limited negotiating power in juxtaposition with his

substantial autonomy. It reasonably concluded that “defendant occupied a

sufficiently high position of trust within the organization to bear sole responsibility

for delivering multiple kilograms of methamphetamine and fentanyl,” and, therefore,

had some understanding of the scope or structure of the scheme.

In refusing to grant minor role adjustment, the district court did not rely solely

on Delrio’s essential role. Instead, it gave significant weight to the level of

autonomy that Delrio exercised, the high quantity of drugs he trafficked, and his

possession of a firearm. According to Delrio, the suppliers detained a previous

courier because they did not trust him with this shipment. The district court thus did

not err in considering the suppliers’ apparent trust in Delrio. Moreover, the district

court could have considered these factors as inconsistent with a minor role

adjustment. See United States v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994) (a district

3 court appropriately “denied downward adjustments to defendants who were couriers

where some additional factors [like the amount of drugs] showed that they were not

a minor or minimal [participant]”); United States v. Rodriguez-Castro, 641 F.3d

1189 (9th Cir. 2011) (a district court did not abuse its discretion when “justifiably

skeptical that [the] amount of drugs [in question] would not be entrusted to a minor

player”).

3. Quantity of drugs: The district court did not err in determining that Delrio

knew the quantity of drugs in his possession. Under his plea bargain, Delrio

admitted that “he knew that the suitcase and duffel bag contained

methamphetamine.”

4. Procedurally and substantively unreasonable sentence: A district court

must consider the Section 3553 factors in sentencing a defendant. 18 U.S.C. §

3553(a). Delrio argues that the district court failed to adequately consider the nature

and circumstances of the offense, the need to protect the public from further crimes,

and the need to avoid unwarranted sentencing disparities.

But a district court need not “tick off” each of the factors in its explanation.

See Carty, 520 F.3d at 992. Absent contrary evidence, we accept a district court’s

statement that it reviewed and considered the submissions. See id. at 996. The

district court acknowledged having “received, read, and considered” the sentencing

memoranda and the Presentence Report.

4 We conclude that the district court did not err by imposing a sentence on the

lower end of the Guidelines-recommended range: 240-months imprisonment. We

review a district court’s decision for an abuse of discretion in light of the totality of

the circumstances. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th

Cir. 2009). Contrary to Delrio’s claims, the district court did consider the nature of

Delrio’s offense, his culpability, available defenses, criminal history, and the need

to avoid sentencing disparities.

AFFIRMED.