United States v. Iris Deras-Elias ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50373
Plaintiff-Appellee, D.C. No. 3:16-cr-01221-LAB
v.
MEMORANDUM*
IRIS LISSETTE DERAS-ELIAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Iris Lissette Deras-Elias appeals from the district court’s judgment and
challenges the 78-month sentence imposed following her guilty-plea convictions
for importation of methamphetamine and cocaine, in violation of 21 U.S.C. §§ 952and 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).
Deras-Elias contends that the district court erred by relying on conjecture
concerning the number of times she smuggled drugs to deny her request for a
minor role adjustment under U.S.S.G. § 3B1.2. We review the district court’s
factual findings for clear error and its determination that Deras-Elias was not a
minor participant for abuse of discretion. See United States v. Gasca-Ruiz, 852
F.3d 1167, 1170 (9th Cir. 2017) (en banc). Contrary to Deras-Elias’s argument,
neither the Confrontation Clause, nor the rules of evidence, are implicated by the
court’s sentencing findings. See Fed. R. Evid. 1101(d)(3) (federal rules of
evidence do not apply at sentencing); United States v. Littlesun, 444 F.3d 1196,
1199-1200 (9th Cir. 2006) (Confrontation Clause applies to trial testimony, not
sentencing). Furthermore, the court did not rely on conjecture or evidence from
other cases to conclude that Deras-Elias “must have been involved in many more
loads.” Rather, the court found that, on at least one of Deras-Elias’s 11 border
crossings in the month before her arrest, she had transported drugs. This finding
was not clearly erroneous, given the government’s representation, to which Deras-
Elias did not object, that Deras-Elias had admitted during her safety valve debrief
to at least one prior drug crossing. See United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc) (a finding is clearly erroneous only if it is illogical,
implausible, or without support in inferences from the record). In light of this
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admission and the totality of the circumstances, the court did not abuse its
discretion in denying the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(C).
AFFIRMED.
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