United States v. Verdugo-Beltran

MEMORANDUM ** Jose Guillermo Verdugo-Beltran appeals from the district court’s judgment and challenges the 70-month 'sentence imposed following his guilty-plea conviction for importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Verdugo-Beltran contends that the district court applied an incorrect legal standard in denying his request for a minor-role adjustment under U.S.S.G. § 3B1.2 and improperly concluded that he was not entitled to the adjustment. We review the district court’s interpretation of the Guidelines de novo and its factual finding that a defendant is not a minor participant for clear error. See United States v. Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir.2011). The record reflects that the district court properly considered Verdugo-Bel-tran’s culpability relative to that of the average participant and properly refused to consider hypothetical participants. See U.S.S.G. § 3B1.2 cmt. n. 3(A); United States v. Rosas, 615 F.3d 1058, 1068 (9th Cir.2010). Further, in light of the totality of the circumstances, including the amount of cocaine imported, the district court did not clearly err in determining that Verdu-go-Beltran failed to prove that he was entitled to the adjustment. See U.S.S.G. § 3B1.2 cmt. n. 3(C); United States v. Hurtado, 760 F.3d 1065, 1068-69 (9th Cir.2014), ce rt. denied — U.S. —, 135 S.Ct. 1467 , — L.Ed.2d —, 2015 WL 732229 (U.S. Feb. 23, 2015). Verdugo-Beltran next contends that his 70-month, below-Guideline sentence is substantively unreasonable. The district court did not abuse its discretion in imposing Verdugo-Beltran’s sentence. See Gall v. United States, 552 U.S. 38, 51 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007). The sentence is substantively reasonable in light of the 18 U.S.C. § 3553 (a) sentencing factors and the totality of the circumstances. See Gall, 552 U.S. at 51 , 128 S.Ct. 586 . AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.