United States v. Victor Cervantes , 696 F. App'x 266 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50143
Plaintiff-Appellee, D.C. No. 3:15-cr-02631-BEN
v.
MEMORANDUM *
VICTOR MANUEL CERVANTES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Victor Manuel Cervantes appeals from the district court’s judgment and
challenges the 70-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).
Cervantes contends that the district court erred by denying a minor role
reduction under U.S.S.G. § 3B1.2(b). He contends that the district court erred by
(1) failing to consider all factors enumerated in Amendment 794, which amended
the commentary to the minor role Guideline; (2) misapplying the enumerated
factors; and (3) discrediting Cervantes’s statements regarding his role in the
underlying offense.
Before Cervantes was sentenced, the United States Sentencing Commission
issued Amendment 794, and Cervantes briefed and argued the amendment to the
district court. It is apparent from the record that the district court considered
Amendment 794, and the district court was not required to expressly “tick off”
each of the enumerated factors to demonstrate its consideration of them. See
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (discussing
requirement with respect to 18 U.S.C. § 3553(a) sentencing factors).
Nor did the district court err in its application of the factors. The record
belies Cervantes’s argument that the district court denied the minor role reduction
because Cervantes played an essential role in the offense or in reliance on any
single factor. See U.S.S.G. § 3B1.2 cmt. n.3(C) (2015). Rather, the district court
properly considered whether Cervantes demonstrated that he was substantially less
culpable than the average participant. See id. Furthermore, Amendment 794’s list
of factors is not exhaustive. See United States v. Quintero-Leyva, 823 F.3d 519,
2 16-50143
523 (9th Cir. 2016). Therefore, the district court did not err by considering
additional factors, such as the amount of money Cervantes would receive, that he
was the sole occupant and driver of the car, and that the car was registered in his
name. See United States v. Hurtado, 760 F.3d 1065, 1067-69 (9th Cir. 2014),
overruled on other grounds by United States v. Gasca-Ruiz, 852 F.3d 1167, 1173-
74 (9th Cir. 2017) (en banc).
Finally, the district court’s determination that Cervantes’s post-arrest
statements were entitled to little weight was not clearly erroneous. See United
States v. Ocampo, 937 F.2d 485, 491 (9th Cir. 1991) (recognizing district court is
entitled to disbelieve defendant’s “self-serving descriptions of his own
involvement”).
AFFIRMED.
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