United States v. Eulogio Seludo ( 2010 )

FILED
NOT FOR PUBLICATION DEC 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30402
Plaintiff - Appellee, D.C. No. 3:09-cr-00049-RRB-1
v.
MEMORANDUM *
EULOGIO F. SELUDO, AKA Louie,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Submitted December 9, 2010 **
Seattle, Washington
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and MOSKOWITZ,
District Judge.***
*
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).
***
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
After a jury trial, Eulogio Seludo was convicted of drug conspiracy (one
count), distribution of methamphetamine (five counts), attempt to possess and
distribute methamphetamine (one count), and possession with intent to distribute
methamphetamine (one count) under 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(c).
Seludo appeals his conviction on three of the counts of distribution of
methamphetamine, and he appeals his sentence.
Because the parties are familiar with the general facts of the case, we do not
repeat them here. Substantial evidence supports the jury’s guilty verdict on the
three challenged counts. The jury was entitled to credit the testimony of the
confidential informant who positively identified Seludo as a participant in the three
drug sales at issue. See U.S. v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989). A
reasonable inference of guilt is also supported by the modus operandi: the three
challenged transactions took place at the same location and from the same truck
registered to Seludo. The same pattern was followed in the other sales for which
Seludo was convicted, including the sale at which he was approached by police and
then admitted to selling methamphetamine. After viewing this evidence in the
light most favorable to the prosecution, a rational juror could have found Seludo
guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1972).
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It was not clear error for the district court to deny Seludo a minor role
reduction under U.S.S.G. § 3B1.2. See United States v. Cantrell, 433 F.3d 1269,
1282 (9th Cir. 2006). A minor role reduction is appropriate only if a defendant is
“substantially” less culpable than his co-participants. Id. at 1283. The district
judge denied the reduction because he found that while Seludo’s co-conspirator,
Lastimosa, “may have been more involved” than Seludo was, Seludo nonetheless
had a “significant” role in the conspiracy. Given the evidence that Seludo handled
the drugs and money when he drove Lastimosa to drug sales, received shipments of
methamphetamine from Lastimosa at his residence, and arranged and conducted
sales independently when Lastimosa was out of town, we cannot say that the
district judge’s finding was clearly erroneous. See, e.g., United States v. Rosas,
615 F.3d 1058, 1068 (9th Cir. 2010) (denying minor role reduction to a defendant
who acted as a courier and seller as opposed to a “mere courier”); United States v.
Williams, 185 F.3d 945, 946 (9th Cir. 1999) (denying minor role reduction to a
defendant who arranged and conducted sales independently of his co-conspirator).
The district court did not abuse its discretion in sentencing Seludo. See
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2006). The district judge
appropriately used the Sentencing Guidelines as a starting point, allowed both
parties to argue for appropriate sentences, and considered the factors required by
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18 U.S.C. § 3553(a); see Carty, 520 F.3d at 991. His explanation indicated that he
considered the particular factors argued by Seludo, including Seludo’s age, health,
and likelihood of rehabilitation, in choosing a sentence at the bottom of the
Guideline range. This explanation was sufficient. See Carty, 520 F.3d at 995. We
recognize that Seludo would have preferred that the judge weigh the § 3553(a)
factors–including the Guideline recommendations–differently, but we see nothing
so atypical about this case to indicate that the judge abused his discretion in
weighing them as he did. See id. at 994 (noting that a within-Guidelines sentence
“will usually be reasonable”) (quoting United States v. Rita, 551 U.S. 338, 351
(2007)); United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009)
(“The weight to be given the [§ 3553(a)] factors in a particular case is for the
discretion of the district court.”). The district court’s sentence was both
procedurally sound and substantively reasonable.
AFFIRMED.
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