USA V. ANTONIO GASTELUM-JUAREZ, No. 17-50097 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION DEC 22 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 17-50097 D.C. No. 3:14-cr-00532-BEN v. MEMORANDUM* ANTONIO GASTELUM-JUAREZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted December 18, 2017** Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges. Antonio Gastelum-Juarez appeals from the district court’s judgment and challenges the 70-month sentence imposed upon remand following his guilty-plea conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and 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). Gastelum-Juarez contends that the district court erred by denying his request for a minor role reduction under U.S.S.G. § 3B1.2. We review the district court’s interpretation of the Guidelines de novo, and its application of the Guidelines to the facts of the case for abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). Contrary to Gastelum-Juarez’s claim, the district court considered the five factors under the amended Guideline. See U.S.S.G. § 3B1.2 cmt. n.3(C); United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (the district court need not “tick off” the factors to show that it has considered them). In light of the totality of the circumstances, including Gastelum-Juarez’s actions leading up to the offense, the quantity of methamphetamine at issue, and his significant compensation, the district court did not abuse its discretion in denying the reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C); Gasca-Ruiz, 852 F.3d 1170. That Gastelum-Juarez may have been less culpable than the organizer of the smuggling enterprise did not show that he was entitled to the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(A) (adjustment applies to a defendant who is substantially less culpable than the “average” participant in the offense). We grant Gastelum-Juarez’s request to take judicial notice. AFFIRMED. 2 17-50097
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