United States v. Hwang Gyoo Choi

FILED
NOT FOR PUBLICATION FEB 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10231
Plaintiff - Appellee, D.C. No. 1:12-cr-00036-FMTG
v.
MEMORANDUM*
HWANG GYOO CHOI,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Hwang Gyoo Choi appeals from the 41-month sentence imposed following
his guilty-plea conviction for importation of methamphetamine hydrochloride, 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).
Choi contends that the district court abused its discretion by failing to grant
him an additional one-level departure under U.S.S.G. § 5K1.1 for substantial
assistance. The district court did not abuse its discretion in deferring to the
government’s recommendation for a two-level departure, because there is no
indication in the record that the government’s refusal to move for a three-level
departure “was based on impermissible motives, constituted a breach of the plea
agreement, or was not rationally related to a legitimate governmental purpose.”
United States v. Flores, 559 F.3d 1016, 1019 (9th Cir. 2009).
Choi also contends that the district court erred by granting a two-level role
adjustment rather than a three- or four-level adjustment under U.S.S.G. § 3B1.2.
We review for clear error. See United States v. Tankersley, 537 F.3d 1100, 1110
(9th Cir. 2008). The district court did not clearly err because the record reflects
that Choi traveled from the Philippines to Guam with a substantial amount of
methamphetamine on the promise of being relieved of a large debt. See United
States v. Rodriguez-Castro, 641 F.3d 1189, 1193 (9th Cir. 2011).
Finally, Choi contends that the district court procedurally erred by failing to
address his request for a departure for coercion under U.S.S.G. § 5K2.12. Contrary
to his contention, the record reflects that the district court considered Choi’s
arguments in favor of the departure. To the extent that Choi challenges the merits
2 13-10231
of the court’s denial of a departure under section 5K2.12, we review for
substantive reasonableness, applying an abuse of discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Mohamed, 459 F.3d 979,
987 (9th Cir. 2006). The sentence at the bottom of the Guidelines is substantively
reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a)
factors. See Gall, 552 U.S. at 51.
AFFIRMED.
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