United States v. Jose Jimenez-Ortiz ( 2015 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                JUL 30 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 14-50295
    Plaintiff - Appellee,             D.C. No. 3:13-cr-03607-BEN-1
    v.
    MEMORANDUM*
    JOSE JIMENEZ-ORTIZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Roger T. Benitez, District Judge, Presiding
    Submitted July 27, 2015**
    Before:        HUG, FARRIS, and CANBY, Circuit Judges.
    Jose Jimenez-Ortiz appeals from the district court’s judgment and challenges
    the 92-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 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Jimenez-Ortiz challenges the district court’s denial of a minor role
    adjustment under U.S.S.G. § 3B1.2(b). This court reviews de novo the district
    court’s interpretation of the Sentencing Guidelines and for clear error its factual
    determination that a defendant is not a minor participant. See United States v.
    Rodriguez–Castro, 
    641 F.3d 1189
    , 1192 (9th Cir. 2011). To the extent Jimenez-
    Ortiz did not object in the district court on the specific grounds raised here, we
    review for plain error. See United States v. Valencia-Barragan, 
    608 F.3d 1103
    ,
    1108 (9th Cir. 2010).
    Jimenez-Ortiz first contends that the district court erred by failing to
    compare him to other participants in the criminal scheme. There is no evidence in
    the record that the district court improperly ignored the culpability of other known
    participants. See United States v. Rosas, 
    615 F.3d 1058
    , 1068 (9th Cir. 2010);
    United States v. Cantrell, 
    433 F.3d 1269
    , 1283 (9th Cir. 2006).
    Jimenez-Ortiz next contends that the district court erred by failing to
    consider his asserted lack of understanding and knowledge regarding the drug
    trafficking organization’s operations. The district court properly took into account
    the totality of the circumstances and did not clearly err by concluding that Jimenez-
    Ortiz failed to meet his burden of proving that he was entitled to a minor role
    adjustment. See United States v. Hurtado, 
    760 F.3d 1065
    , 1068-69 (9th Cir. 2014);
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    United States v. Rodriguez-Castro, 
    641 F.3d 1189
    , 1193 (9th Cir. 2011).
    Moreover, the district court was not required to accept Jimenez-Ortiz’s self-serving
    statements as true, especially in light of evidence undermining his credibility,
    including shifting accounts about his border crossing the week before the instant
    offense. See United States v. Ocampo, 
    937 F.2d 485
    , 491 (9th Cir. 1991); United
    States v. Lui, 
    941 F.2d 844
    , 849 (9th Cir. 1991).
    Jimenez-Ortiz also contends that the district court failed to make adequate
    findings about his role in the offense, thereby preventing this court from engaging
    in meaningful appellate review. The record reflects that the district court clearly
    denied a minor role adjustment and provided an explanation sufficient for our
    review. See United States v. Carty, 
    520 F.3d 984
    , 992 (9th Cir. 2008) (en banc);
    United States v. Rexford, 
    903 F.2d 1280
    , 1282 (9th Cir. 1990).
    Jimenez-Ortiz also argues that reversal is required because, when denying
    the minor role adjustment, the district court discounted his account of the offense
    due to the fact that he exercised his privilege against self-incrimination by refusing
    to discuss the offense with the Probation Officer. The district court did not plainly
    err. The district court’s statements about Jimenez-Ortiz’s decision not to discuss
    matters with the Probation Officer show that the court did not hold the exercise of
    a constitutional right against him, but instead explained that Jimenez-Ortiz’s
    3
    decision reduced the likelihood that there would be sufficient evidence to warrant a
    lower sentence. See United States v. Lapierre, 
    998 F.2d 1460
    , 1467-68 (9th Cir.
    1993) (recognizing that, if there is insufficient evidence to establish eligibility for
    an adjustment, denial of a reduction is appropriate even if the lack of evidence
    results from the exercise of constitutional rights).
    Finally, Jimenez-Ortiz argues that the district court improperly denied a
    minor role adjustment in order to create a Sentencing Guidelines range that would
    allow a 92-month sentence. This contention is belied by the record. The record
    reflects that the 92-month sentence was below the Guidelines range, that the court
    recognized that the sentence was a variance, and that the court determined that,
    based on the law and the facts, Jimenez-Ortiz should not receive a minor role
    adjustment.
    AFFIRMED.
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