United States v. Victor Acevedo

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2021
• Docket: 20-50007
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 20-50007 Plaintiff-Appellee, D.C. No. 3:19-cr-02180-LAB-1

v. MEMORANDUM* VICTOR ARMANDO ACEVEDO,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted March 3, 2021 Pasadena, California

Before: HIGGINSON,** HURWITZ, and COLLINS, Circuit Judges.

Memorandum joined by Judge HURWITZ and Judge COLLINS; Partial Concurrence and Partial Dissent by Judge HIGGINSON

Victor Acevedo appeals the 78-month sentence imposed after he pleaded

guilty to conspiring to import methamphetamine into the United States in violation

of 21 U.S.C. §§ 952, 960, 963 We have jurisdiction pursuant to 28 U.S.C. § 1291

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. and 18 U.S.C. § 3742(a). We remand with limited instructions to amend the

judgment, but we otherwise affirm.

1. Acevedo argues that the district court committed plain error by making a

factual mistake in rejecting Acevedo’s request to consider his young age and

immaturity as mitigating factors in determining his sentence. Although the record

does suggest that the district court mistakenly thought that Acevedo worked twice

as many hours and consequently earned twice as much as was actually the case,

Acevedo has failed to show that any such error “affected the outcome of the

district court proceedings,” much less that it “‘seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.’” United States v. Olano,

507 U.S. 725, 734, 736 (1993) (citation omitted). The district court’s overall

comments confirm that its conclusion that Acevedo should not be considered

young and immature was based on a number of factors, including that he was in his

early 20s, he was working, and he had taken on “family responsibility to help

support his mother.” The record does not support the inference that any

miscalculation as to the number of hours and total pay would have altered the

court’s assessment that Acevedo was doing “things a mature person would do.”

Moreover, even if any such correction might have caused the court to consider

Acevedo somewhat less mature, Acevedo has not shown that any marginal

difference in mitigating value based on that asserted lesser maturity would have

2 altered the court’s overall assessment of the relevant sentencing factors.

2. Acevedo argues that the district court erred by rejecting his request for a

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

identification of the correct legal standard de novo’” and its “‘application of the

Sentencing Guidelines to the facts of a given case . . . for abuse of discretion.’”

United States v. Diaz, 884 F.3d 911, 914 (9th Cir. 2018) (citations omitted). We

find no prejudicial error.

In addressing whether a role reduction was warranted, the district court

recited the correct legal standards, and specifically acknowledged that, in applying

those standards, the court was “not to hypothesize and compare [the defendant] to

other importing cases” (emphasis added). See Diaz, 884 F.3d at 915 (holding that,

in connection with a role adjustment under § 3B1.2, the “appropriate comparison

was between the defendant and other participants in the same criminal scheme”

and not a comparison to “hypothetical typical offenders”). Acevedo asserts that

the district court nonetheless violated Diaz’s holding by referencing what it had

learned about drug-importation schemes from handling “over a thousand of these

cases.” We disagree. In declining to make an adjustment for minor role, the

district court properly compared Acevedo to the “known or likely participants” in

this particular scheme, and the court merely relied on its general knowledge of

drug-importation organizations in order to draw inferences about Acevedo’s

3 relative role vis-à-vis the other participants in this conspiracy. Diaz requires that

the ultimate comparison of roles be based on the participants in the particular

scheme before the court, but that does not mean that only scheme-specific evidence

may be considered in making that scheme-specific comparison.

We also reject Acevedo’s contention that the district court erred in

concluding that one of the factors that should be considered in assessing role—viz.,

“the degree to which the defendant stood to benefit from the criminal activity”—

did not favor a minor-role adjustment here. See U.S.S.G. § 3B1.2 cmt. n.3(C)(v).

At sentencing, Acevedo argued that this factor weighed in favor of a downward

adjustment because he had “no ownership in the drugs whatsoever, no decision-

making authority, no proprietary interest in the drugs.” See id. n.3(C) (“For

example, a defendant who does not have a proprietary interest in the criminal

activity and who is simply being paid to perform certain tasks should be considered

for an adjustment under this guideline.”). He contends that the court committed

legal error, and improperly weighed this factor, by stating that the lack of a

“proprietary interest” was a “straw man factor” that was entitled to “very little

weight” in the context of drug importation cases. We again disagree. By stating

that a defendant lacking a “proprietary interest” in the “criminal activity” should be

“considered” for a downward adjustment, the Guideline commentary does not

require the district court to conclude that the absence of such a proprietary interest

4 actually supports making such an adjustment in the context of any particular type

of offense or any particular case. The fact that Diaz stated that, in the context of

that case, the lack of a proprietary interest “weigh[ed] in favor of granting the

adjustment” does not mean that district courts lack the discretion to weigh that

consideration differently in another case. 884 F.3d at 917–18. Here, the district

court permissibly concluded that, given the benefits that Acevedo would receive

from his unlawful importation (including a $4,000 payment), the importance of the

role of the actual importer who crosses the border and has to interface with

inspectors, and the other relevant factors in assessing role, the fact that Acevedo

did not personally own the drugs did not make his role “minor” vis-à-vis others

involved in the scheme.

3. We reject Acevedo’s argument that the district court abused its discretion

by expressing doubts about Acevedo’s professed lack of knowledge that drugs

were in the vehicle that he drove across the border, after the court had declined an

opportunity to question him about that subject. “Where a fact relevant to

sentencing is disputed, the district court must provide the parties a ‘reasonable

opportunity’ to present information to the court.” United States v. Real-

Hernandez, 90 F.3d 356, 362 (9th Cir. 1996) (quoting FED. R. CRIM. P.

32(c)(3)(A)). Here, Acevedo’s counsel only inquired if the court would “like to

question him” about the subject and never argued that the court was obligated to

5 hear the testimony or that Acevedo affirmatively wanted to present it. The court

thus did not deprive Acevedo of an opportunity to present his testimony to the

court. Cf. Oshodi v. Holder, 729 F.3d 883, 887–90 (9th Cir. 2013) (holding that

immigration judge erred by “refusing to allow” alien to testify about the abuse

recounted in his asylum application and then finding him not credible). Nor did

the court abuse its discretion in concluding that, in the context of this case, it was

not necessary to hear live testimony on this point when Acevedo had not insisted

on it. Given that, even under his own version of events, Acevedo had agreed to

transport drugs and merely claimed that he did not know that the drugs had

actually been loaded into the vehicle on the particular trip for which he was

arrested, the court could reasonably conclude that, if Acevedo was not insisting on

presenting live testimony, there was little marginal value in doing so. Further,

although the district court did not give Acevedo’s assertion “great weight,” the

court did not state that it was given no weight. We find no abuse of discretion.

4. Acevedo argues that the district court’s written judgment erroneously

imposed a standard condition of supervised release that directly conflicts with a

special condition pronounced orally at the sentencing hearing. “In cases where

there is a direct conflict between an unambiguous oral pronouncement of sentence

and the written judgment and commitment, [we have] uniformly held that the oral

pronouncement . . . must control.” United States v. Munoz-Dela Rosa, 495 F.2d

6 253, 256 (9th Cir. 1974). Here, the district court orally stated that Acevedo would

be required to “seek and maintain full-time employment, or schooling, or some

combination of schooling and employment that keeps him occupied full time.”

That condition was properly captured in Special Condition No. 5 in the written

judgment, which stated that Acevedo was to “[s]eek and maintain full time

employment and/or schooling or a combination of both.” But the judgment also

included a standard condition that directed Acevedo to “work full time” without

mentioning that schooling could satisfy that requirement in whole or in part.

Because the standard condition’s failure to mention that point conflicted with the

oral condition, we remand to the district court with limited instructions to add the

following sentence to the end of Standard Condition No. 7: “As an alternative to

employment as described in this condition, the defendant may seek and maintain

full time schooling or a combination of employment and schooling.” See United

States v. Goddard, 537 F.3d 1087, 1093 (9th Cir. 2008) (remanding with limiting

instructions to make specific ministerial changes in the wording of certain

supervised-release conditions in order to “resolve differences between the oral

sentence and the written judgment”).

5. We reject Acevedo’s argument that the district court erred by including in

the written judgment four mandatory conditions and 12 other standard conditions

that had not been pronounced orally at the sentencing hearing. Absent a

7 conflicting oral pronouncement (such as we have found with respect to Standard

Condition No. 7), the “imposition of [the] mandatory and standard conditions” set

forth in U.S.S.G. § 5D1.3 “is deemed to be implicit in an oral sentence imposing

supervised release.” United States v. Napier, 463 F.3d 1040, 1043 (9th Cir. 2006).

AFFIRMED in part and REMANDED with limited instructions to

amend Standard Condition No. 7 in the written judgment as stated.

8 FILED NOV 26 2021 United States v. Acevedo, 20-50007 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS HIGGINSON, Circuit Judge, concurring in part and dissenting in part:

I concur in all but Section 5 of the memorandum disposition, dissenting from

the proposition that discretionary supervised release conditions in the Sentencing

Guidelines may be deemed implicit in an oral pronouncement of sentence when

they appear for the first time in written judgment. See United States v. Reyes, No.

20-50016, slip op. at 21, __ F.4th ___ (9th Cir. 2021) (Higginson, J., concurring).