United States v. Roberto Marquez ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50257
Plaintiff-Appellee, D.C. No. 3:20-cr-02044-H-1
v.
MEMORANDUM*
ROBERTO CARLOS MARQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted July 12, 2022**
Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.
Roberto Carlos Marquez appeals from the district court’s judgment and
challenges the 87-month sentence imposed following his jury-trial 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).
Marquez contends that the district court erred by denying his request for a
minor role adjustment under U.S.S.G. § 3B1.2 because it failed to compare his
culpability to that of other likely participants in the drug-smuggling operation. We
review the district court’s interpretation of the Guidelines de novo, its factual
findings for clear error, and its application of the Guidelines to the facts for abuse
of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.
2017) (en banc).
Marquez’s cursory request for a minor role adjustment before the district
court failed to present any arguments regarding his relative culpability, and
throughout the proceedings he provided little and inconsistent information about
the offense. On this record, we conclude that the district court did not err in
denying a minor role adjustment because Marquez failed to meet his burden to
demonstrate that he was “substantially less culpable than the average participant in
the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A); see also United States v.
Diaz, 884 F.3d 911, 914 (9th Cir. 2018) (defendant bears the burden of establishing
entitlement to minor role adjustment); id. at 916 (relative culpability is determined
by comparing defendant’s involvement to that of “all likely participants in the
criminal scheme for whom there is sufficient evidence of their existence and
participation”).
AFFIRMED.
2 21-50257