United States v. Vincent Cabrera, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2021
• Docket: 19-10111
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10111

Plaintiff-Appellee, D.C. No. 1:18-cr-00006-1

v. MEMORANDUM* VINCENT DAVID CABRERA, Jr., AKA Bong,

Defendant-Appellant.

Appeal from the United States District Court for the Northern Mariana Islands Ramona V. Manglona, Chief District Judge, Presiding

Submitted February 4, 2021** Honolulu, Hawaii

Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.

Vincent David Cabrera, Jr. appeals the sentence imposed following his

guilty plea to conspiracy to manufacture methamphetamine, in violation of 21

U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). 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). We review a district court’s factual findings for clear error, United States v.

Doe, 778 F.3d 814, 821 (9th Cir. 2015), and the district court’s application of the

Sentencing Guidelines to the facts for an abuse of discretion, United States v.

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

1. The district court did not clearly err by finding that Cabrera maintained a

premise for the purpose of manufacturing methamphetamine, thereby warranting

an enhancement under U.S.S.G. § 2D1.1(b)(12). Cabrera argues that the district

court failed to adequately address his objection to the application of this

enhancement, particularly that manufacturing was not a primary purpose of the

hotel room. But the district court explicitly “overrule[d] the defense’s objection”

by concluding that “defendant maintained a premise for the purpose of

manufacturing or distributing methamphetamine.” See United States v. Job, 871

F.3d 852, 870 (9th Cir. 2017). This finding was not clear error because the

government offered evidence at sentencing that Cabrera maintained the hotel room

for the primary purpose of manufacturing. See id.1

2. The district court did not abuse its discretion in applying the enhancement

for substantial risk of harm to human life under U.S.S.G. § 2D1.1(b)(14)(c) to

Cabrera’s offense. See Gasca-Ruiz, 852 F.3d at 1170. Particularly, the district

1 Because evidence of Cabrera’s use of the hotel room is sufficient to affirm the district court’s finding that Cabrera maintained a premise for the purpose of manufacturing, we need not discuss whether Cabrera maintained Repeki’s house for the purpose of manufacturing.

2 court did not “rest application of the enhancement on facts that are necessarily

common to most or every manufacture.” See United States v. Staten, 466 F.3d

708, 716 (9th Cir. 2006). Rather, the district court properly considered and applied

the relevant factors in U.S.S.G. § 2D1.1, cmt. n. 18(B)(i). See Staten, 466 F.3d at

715–17. And the district court did not err in finding the enhancement applied

because the government presented evidence at sentencing that Cabrera’s offense

created a substantial risk of harm to human life.

3. The district court did not clearly err in finding that Cabrera was an

organizer or leader under U.S.S.G. § 3B1.1(a).2 For the enhancement under §

3B1.1(a) to apply, Cabrera must have exercised control or organizational authority

over others. See United States v. Ingham, 486 F.3d 1068, 1074–76 (9th Cir. 2007)

(citing United States v. Avila, 95 F.3d 887, 889–90 (9th Cir. 1996)). Here, the

district court found that Cabrera had a “leadership role as an organizer” of

manufacturing—noting that Cabrera brought the “shake and bake” process to

Saipan, where others relied on Cabrera to teach the process; Cabrera directed

others to buy pseudoephedrine; and Cabrera identified ways to bring in other

materials, such as by shipping packages in someone else’s name. The district

2 Because the parties stipulated that there were five or more participants as required by U.S.S.G. § 3B1.1(a), the issue is whether Cabrera was an organizer or leader.

3 court’s finding was not clear error because it was also supported by the evidence

the government presented at sentencing.

AFFIRMED.