United States v. Kevin Hewitt , 692 F. App'x 926 ( 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NOT FOR PUBLICATION FILED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. 15-50301
Plaintiff-Appellee, D.C. No. 3:14-cr-02361-WQH
v.
MEMORANDUM*
KEVIN JOSEPH HEWITT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Kevin Joseph Hewitt appeals from the district court’s judgment and
challenges the 32-month sentence imposed following his guilty-plea conviction for
transportation of illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II).
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).
Hewitt contends that the government engaged in prosecutorial misconduct at
sentencing by misrepresenting witnesses’ statements and by urging the court to
punish Hewitt for exercising his constitutional rights. Because Hewitt failed to
raise these allegations of misconduct in the district court, we review for plain error.
See United States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015). Even assuming,
without deciding, that the prosecutor’s statements at sentencing constituted
misconduct, Hewitt has not shown that the statements affected his substantial
rights. See id. at 1037. To the contrary, the record reflects that the district court
understood correctly that only one of the illegal aliens was able to identify Hewitt
at all and that the court considered only permissible factors when choosing the
sentence.
Hewitt also contends that the district court erred by denying his request for a
minor role adjustment under U.S.S.G. § 3B1.2. We review the district court’s
factual findings for clear error and its application of the Guidelines to the facts for
abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th
Cir. 2017) (en banc). Contrary to Hewitt’s contention, the record reflects that the
district court properly concluded that Hewitt failed to demonstrate that he was
substantially less culpable than the average participant based on information
contained in the presentence report, to which Hewitt did not object. Moreover, we
are satisfied that the district court’s stated rationale for rejecting Hewitt’s request
2 15-50301
for a reduction remains adequate under Amendment 794, which amended the
commentary to the minor role Guideline. See U.S.S.G. § 3B1.2 cmt. n.3(C)
(2015). In light of the totality of the circumstances, the district court did not abuse
its discretion in determining that Hewitt failed to prove that he was entitled to the
adjustment. See United States v. Cantrell, 433 F.3d 1269, 1282-83 (9th Cir. 2006).
AFFIRMED.
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