USA V. SUSANA GUTIERREZ-RIVERA, No. 12-10280 (9th Cir. 2013)

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FILED FEB 13 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-10280 D.C. No. 4:11-cr-01470-CKJ v. MEMORANDUM * SUSANA MARIBEL GUTIERREZRIVERA, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted February 11, 2011 ** Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges. Susana Maribel Gutierrez-Rivera appeals from the district court s judgment and challenges the 40-month sentence imposed following her guilty-plea conviction for conspiracy to unlawfully export machine guns and unregistered * 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). firearms, in violation of 18 U.S.C. §§ 371, 554(a), 922(o), and 924(a)(2); and 26 U.S.C. §§ 5841, 5861(d), and 5871. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Gutierrez-Rivera contends that the district court erred in denying her request for a minor role adjustment under U.S.S.G. § 3B 1.2(b). We review for clear error. See United States v. Cantrell, 433 F.3d 1269, 1282 (9th Cir. 2006). Because Gutierrez-Rivera failed to prove that she was substantially less culpable than the average participant in the conspiracy, the court did not clearly err in denying the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(A); United States v. Rodriguez-Castro, 641 F.3d 1189, 1193 (9th Cir. 2011); cert. denied, 132 S. Ct. 1061 (2012). Gutierrez-Rivera also contends that her sentence is substantively unreasonable in light of her lack of prior criminal history and history of employment. The district court did not abuse its discretion in imposing GutierrezRivera s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The belowGuidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including the seriousness of the offense. See id. AFFIRMED. 2 12-10280

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