United States v. Susana Gutierrez-Rivera

FILED
NOT FOR PUBLICATION FEB 13 2013
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. 12-10280
Plaintiff - Appellee, D.C. No. 4:11-cr-01470-CKJ
v.
MEMORANDUM *
SUSANA MARIBEL GUTIERREZ-
RIVERA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted February 11, 2011 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Susana Maribel Gutierrez-Rivera appeals from the district court’s judgment
and challenges the 40-month sentence imposed following her guilty-plea
conviction for conspiracy to unlawfully export machine guns and unregistered
*
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).
firearms, in violation of 18 U.S.C. §§ 371, 554(a), 922(o), and 924(a)(2); and 26
U.S.C. §§ 5841, 5861(d), and 5871. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Gutierrez-Rivera contends that the district court erred in denying her request
for a minor role adjustment under U.S.S.G. § 3B 1.2(b). We review for clear error.
See United States v. Cantrell, 433 F.3d 1269, 1282 (9th Cir. 2006). Because
Gutierrez-Rivera failed to prove that she was “substantially less culpable than the
average participant” in the conspiracy, the court did not clearly err in denying the
adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(A); United States v. Rodriguez-Castro,
641 F.3d 1189, 1193 (9th Cir. 2011); cert. denied, 132 S. Ct. 1061 (2012).
Gutierrez-Rivera also contends that her sentence is substantively
unreasonable in light of her lack of prior criminal history and history of
employment. The district court did not abuse its discretion in imposing Gutierrez-
Rivera’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The below-
Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the totality of the circumstances, including the seriousness
of the offense. See id.AFFIRMED.
2 12-10280