United States v. Jose Lopez-Diaz , 693 F. App'x 568 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50263
Plaintiff-Appellee, D.C. No. 3:13-cr-02734-LAB
v.
MEMORANDUM*
JOSE ISRAEL LOPEZ-DIAZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Jose Israel Lopez-Diaz appeals from the district court’s judgment and
challenges the 57-month sentence imposed upon remand following his 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).
In 2014, Lopez-Diaz appealed the district court’s denial of a minor role
adjustment under U.S.S.G. § 3B1.2. This court vacated Lopez-Diaz’s sentence and
remanded for resentencing in light of the 2015 amendment to the minor role
Guideline. On remand, the district court considered the five factors enumerated in
the amendment and again denied a minor role adjustment. Lopez-Diaz now
appeals, arguing that the court incorrectly interpreted and inadequately considered
the five factors. We review the district court’s interpretation of the Guidelines de
novo. See United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016).
The record reflects that the court fully considered and properly applied to
Lopez-Diaz’s case each of the five factors. The court also conducted the required
comparative analysis between Lopez-Diaz and his co-participants, and evaluated
whether Lopez-Diaz was “substantially less culpable than the average participant”
in light of the totality of the circumstances. See U.S.S.G. § 3B1.2 cmt. n.3(A), (C);
Quintero-Leyva, 823 F.3d at 523. The court did not err in evaluating Lopez-Diaz’s
entitlement to a minor role reduction under the amended Guideline.
Lopez-Diaz also argues that the 57-month sentence is substantively
unreasonable. The district court did not abuse its discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). The below-Guidelines1 sentence is substantively
1
Although the district court calculated the Guidelines range as 57-71 months, the
correctly calculated range was 70-87 months. Lopez-Diaz did not object to this
miscalculation in the district court, nor does he raise it on appeal. Because the
2 16-50263
reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the
circumstances. See Gall, 552 U.S. at 51.
AFFIRMED.
error favored Lopez-Diaz, we see no reason to remand. See United States v.
Dallman, 533 F.3d 755, 761-62 (9th Cir. 2008) (describing plain error standard).
3 16-50263