United States v. Arturo Delgado-Vega ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50224
Plaintiff-Appellee, D.C. No. 3:16-cr-02609-BEN-1
v.
MEMORANDUM*
ARTURO DELGADO-VEGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Arturo Delgado-Vega appeals from the district court’s judgment and
challenges the 110-month sentence imposed on remand following his guilty-plea
conviction for possession of methamphetamine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291,
*
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).
and we affirm.
Delgado-Vega contends that the district judge exhibited impermissible bias
against him and his counsel during the resentencing proceedings, resulting in the
erroneous denial of a minor role adjustment and a substantively unreasonable
sentence. We disagree. The record shows that, over the course of two hearings,
the judge engaged in a lengthy discussion with both counsel about the minor role
adjustment and other Guidelines disputes, and fully explained its calculations and
the sentence selected. Any expressions of pique do not reflect “deep-seated
favoritism or antagonism that would make fair judgment impossible.” Liteky v.
United States, 510 U.S. 540, 555 (1994).
Moreover, contrary to Delgado-Vega’s claims, the district court did not
suggest that a courier like Delgado-Vega could never receive a minor-role
reduction; it properly focused on Delgado-Vega’s role in the particular
organization for which he worked and the factors that inform whether a minor role
reduction should be granted, see U.S.S.G. § 3B1.2 cmt. n.3(C). The court did not
abuse its discretion in concluding that Delgado-Vega was not “substantially less
culpable than the average participant” in the drug trafficking offense. U.S.S.G.
§ 3B1.2 cmt. n.3(A); see United States v. Diaz, 884 F.3d 911, 914 (9th Cir. 2018)
(stating standard of review).
Lastly, the district court did not abuse its discretion in imposing the 110-
2 19-50224
month sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The court
explained that, without a minor role reduction, the Guidelines range was “too
high,” but with a minor role reduction, it was “spot on.” Thus, it exercised its
discretion to vary downward to a sentence in the middle of the latter range, reduced
further by 10 months to reflect Delgado-Vega’s post-sentencing rehabilitation.
The resulting 110-month sentence is substantively reasonable in light of the 18
U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including
Delgado-Vega’s criminal history and the seriousness of the offense. See Gall, 552
U.S. at 51.
Delgado-Vega’s unopposed motion to submit a late reply brief is granted.
The Clerk will file the reply brief at Docket Entry No. 21.
Delgado-Vega’s motion to seal is granted. The Clerk will file under seal the
motion and supplemental excerpts of record at Docket Entry No. 24.
AFFIRMED.
3 19-50224