USA v. Raymundo Rodriguez-Aguirre, No. 09-50492 (9th Cir. 2010)

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FILED OCT 12 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50492 D.C. No. 3:09-cr-01606 v. MEMORANDUM * RAYMUNDO OCTAVIO RODRIGUEZAGUIRRE, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted September 13, 2010 Before: ** SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Raymundo Octavio Rodriguez-Aguirre appeals the 70-month sentence imposed following his guilty-plea conviction for importation of marijuana, in * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). violation 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Rodriguez-Aguirre contends the district court erred by denying him a minor role adjustment under U.S.S.G. § 3B1.2(b). We conclude that the district court did not clearly err by ruling that Rodriguez-Aguirre failed to carry his burden of proving that he was substantially less culpable than the average participant. See United States v. Awad, 371 F.3d 583, 591 (9th Cir. 2004); United States v. Hursh, 217 F.3d 761, 770 (9th Cir. 2000). Rodriguez-Aguirre contends the district court failed to consider the role of others in the offense. The record reveals that the district court properly compared Rodriguez-Aguirre to the average participant in the case. See U.S.S.G. § 3B1.2 cmt n.3(A); Awad, 371 F.3d at 591. Rodriguez-Aguirre also contends that the district court was required to point to articulate facts showing managerial culpability. That contention lacks merit. See Awad, 371 F.3d at 591 ( The defendant bears the burden of proving that he is entitled to a downward adjustment based on his role in the offense. ). AFFIRMED. 2 09-50492

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