United States v. Fernando Zatarain-Pena , 606 F. App'x 387 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50163
Plaintiff - Appellee, D.C. No. 3:14-cr-00007-WQH
v.
MEMORANDUM*
FERNANDO ZATARAIN-PENA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Fernando Zatarain-Pena appeals from the district court’s judgment and
challenges the 44-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine and cocaine, 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 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).
Zatarain contends that the district court applied the wrong legal standard
when determining whether he was entitled to a minor role adjustment under
U.S.S.G. § 3B1.2(b). We review the district court’s interpretation of the
Sentencing Guidelines de novo and its factual finding that a defendant was not a
minor participant for clear error. See United States v. Hurtado, 760 F.3d 1065,
1068 (9th Cir. 2014), cert. denied, 135 S. Ct. 1467 (2015). The district court
applied the correct standard by determining whether Zatarain was substantially less
culpable than other participants in the criminal scheme in light of the totality of the
circumstances and the particular facts of Zatarain’s case. See U.S.S.G. § 3B1.2
cmt. n.3(C); Hurtado, 760 F.3d at 1069. The district court was not required to
make an explicit finding regarding Zatarain’s level of knowledge of the criminal
scheme. See U.S.S.G. § 3B1.2 cmt. n.4. It properly considered the quantity of
drugs, the fact the truck was registered in Zatarain’s name, Zatarain’s efforts to
establish a crossing history, Zatarain’s claim of duress, and the fact that Zatarain
had crossed with drugs on one previous occasion. See Hurtado, 760 F.3d at 1069.
Furthermore, on these facts, the district court did not clearly err in its factual
finding that Zatarain was not a minor participant. See id.
AFFIRMED.
2 14-50163