USA V. LEONARDO NICOLAS-BLAS, No. 11-50412 (9th Cir. 2013)

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FILED MAY 20 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 11-50412 D.C. No. 2:11-cr-00136-ODW v. MEMORANDUM * LEONARDO NICOLAS-BLAS, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding Submitted May 14, 2013 ** Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges. Leonardo Nicolas-Blas appeals from the district court s judgment and challenges the 46-month sentence imposed following his guilty-plea conviction for conspiracy to harbor and conceal illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). We have jurisdiction under 28 U.S.C. § 1291, and we * 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). affirm. Nicolas-Blas contends that the district court erred by denying his request for a role adjustment pursuant to U.S.S.G. § 3B1.2. The record reflects that the court properly considered Nicolas-Blas s conduct as compared to the other participants in the conspiracy in assessing whether to grant the adjustment. Because NicolasBlas failed to prove that he was substantially less culpable than the average participant, the district court did not clearly err by denying the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(A); United States v. Cantrell, 433 F.3d 1269, 1282-83 (9th Cir. 2006). Nicolas-Blas next contends that the district court violated Federal Rule of Criminal Procedure 32(i)(3)(B) by failing to address his argument that his criminal history category was overstated. Nicolas-Blas s contention is without merit because his legal challenge did not trigger the district court s obligations under Rule 32, which only applies to factual challenges to the presentence report. See United States v. Petri, No. 11-30337, 2013 WL 1490604, at *7 (9th Cir. Apr. 12, 2013). AFFIRMED. 2 11-50412

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