United States v. Gloria Sanchez ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50168
Plaintiff-Appellee, D.C. No. 3:16-cr-02077-BEN
v.
MEMORANDUM*
GLORIA SANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Gloria Sanchez appeals from the district court’s judgment and challenges the
87-month sentence imposed following her 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).
Sanchez contends that the district court procedurally erred by failing to
consider all of the factors relevant to the minor role reduction pursuant to U.S.S.G.
§ 3B1.2, focusing solely on Sanchez’s knowledge of the scope and structure of the
criminal activity. We review the district court’s interpretation of the Guidelines de
novo and its application of the Guidelines to the facts for abuse of discretion. See
United States v. Gasca-Ruiz, 852 F.3d 1167, 1170-71 (9th Cir. 2017) (en banc).
Although the district court did not discuss all of the factors listed in the
commentary to the minor role Guideline, the record shows that the court was aware
of and considered those factors. See United States v. Diaz, 884 F.3d 911, 916 (9th
Cir. 2018). Moreover, in light of the totality of the circumstances, including that
Sanchez had smuggled drugs across the border on two prior occasions and was also
involved in transporting vehicles for the organization, the district court did not
abuse its discretion in denying the reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C).
Sanchez next argues the district court erred by departing downward in
offense level, rather than in criminal history category, after it concluded that
Sanchez’s criminal history category overrepresented her criminal history. Any
error was harmless. See United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011).
As Sanchez concedes, the reduction in offense level resulted in the same
Guidelines range that would have applied had the district court instead reduced her
criminal history category. Sanchez’s contention, raised for the first time on appeal,
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that the court’s decision not reduce her criminal history category could prejudice
her in a future supervised release revocation proceeding is entirely speculative; if
Sanchez faces revocation in the future, she may argue for a lower criminal history
category at that time. See U.S.S.G. § 7B1.4 cmt. n.2.
Finally, Sanchez contends that the district court violated Federal Rule of
Criminal Procedure 32 and due process by considering the facts of another
defendant’s case. This claim fails. The district court described the relevant facts
of the other case and gave counsel an opportunity to comment. See United States
v. Warr, 530 F.3d 1152, 1162 (9th Cir. 2008) (describing Rule 32’s requirements).
In addition, Sanchez has not established that the information regarding the other
case “demonstrably made the basis for [her] sentence.” United States v.
Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009).
AFFIRMED.
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