United States v. Gustavo Mendoza-Zazueta , 693 F. App'x 710 ( 2017 )

FILED
NOT FOR PUBLICATION JUL 17 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50157
Plaintiff-Appellee, D.C. No. 3:15-cr-02133-LAB
v.
MEMORANDUM*
GUSTAVO MENDOZA-ZAZUETA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted July 11, 2017**
Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.
Gustavo Mendoza-Zazueta appeals from the district court’s judgment and
challenges the 72-month sentence imposed 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).
Mendoza-Zazueta contends that the district court erred in denying his
request for a minor role adjustment under U.S.S.G. § 3B1.2. He argues that the
court failed to compare the degree of his involvement in the criminal enterprise to
that of all of the other participants, including the “higher-ups” in the enterprise. He
also contends that the court erred by relying on authority from this court that has
allegedly been superseded by the 2015 amendment to the Guideline. 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 belies Mendoza-Zazueta’s contention that the district court
misapplied the minor role Guideline. The court conducted the requisite
comparative analysis, considering the totality of the circumstances and the
enumerated factors before concluding that Mendoza-Zazueta was not
“substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 cmt.
n.3(A), (C); Quintero-Leyva, 823 F.3d at 523. Moreover, the court did not refuse
to consider the “higher-ups” in the enterprise, but rather concluded that they were
not “average” participants to whom Mendoza-Zazueta should be compared.
Finally, Mendoza-Zazueta has not shown that the district court applied this court’s
precedent in any way that conflicts with the 2015 amendment to the Guideline.
AFFIRMED.
2 16-50157