United States v. Ivan Lopez-Ilustre , 599 F. App'x 750 ( 2015 )

FILED
NOT FOR PUBLICATION APR 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50097
Plaintiff - Appellee, D.C. No. 3:13-cr-03341-LAB
v.
MEMORANDUM*
IVAN DE JESUS LOPEZ-ILUSTRE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 7, 2015**
Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges.
Ivan De Jesus Lopez-Ilustre appeals from the district court’s judgment and
challenges the 72-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine, in violation of 21 U.S.C. §§ 952 & 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).
Lopez-Ilustre contends that the district court procedurally erred by failing to
award him a mitigating role adjustment under U.S.S.G. § 3B1.2. We review the
district court’s interpretation of the Sentencing Guidelines de novo, its application
of the Guidelines to the facts of the case for abuse of discretion, and its
determination that a defendant was not a minor participant for clear error. See
United States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014).
Contrary to Lopez-Ilustre’s argument, the record shows that the district court
properly applied the Sentencing Guidelines and our precedent, basing its denial of
the adjustment on the totality of the circumstances and a comparison of Lopez-
Ilustre’s culpability to that of other individuals in the smuggling operation. See
U.S.S.G. § 3B1.2 cmt. n.3(A), (C); Hurtado, 760 F.3d at 1068-69. The district
court appropriately required Lopez-Ilustre to establish his eligibility for the
mitigating role adjustment by a preponderance of the evidence. See United States
v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006). Moreover, the district court did
not clearly err in denying the mitigating role adjustment when Lopez-Ilustre
smuggled a significant quantity of a dangerous drug, was promised compensation
for his services, and used a vehicle registered in his own name to commit the
offense. See Hurtado, 760 F.3d at 1069.
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Lopez-Ilustre also argues that his sentence is substantively unreasonable
because it does not reflect his true culpability. The district court did not abuse its
discretion in imposing Lopez-Ilustre’s sentence. See United States v. Rodriguez-
Castro, 641 F.3d 1189, 1194 (9th Cir. 2011). The below-Guidelines sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality
of the circumstances. See id.AFFIRMED.
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