United States v. Rodrigo Moura

FILED
NOT FOR PUBLICATION OCT 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30378
Plaintiff - Appellee, D.C. No. 2:10-cr-00214-RAJ-1
v.
MEMORANDUM*
RODRIGO MOURA,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted October 12, 2011**
Seattle, Washington
Before: KOZINSKI, Chief Judge, BEEZER and PAEZ, Circuit Judges.
Rodrigo Moura appeals the sentence imposed by the district court for one
count of conspiracy to commit unlawful production of identification documents, in
violation of 18 U.S.C. § 371. Specifically, Moura argues that the district court
*
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).
erred both by applying an incorrect Guidelines section and by imposing an
unwarranted aggravating role adjustment. Because we hold that the district court
erred in neither respect, we affirm.
We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. The
facts of this case are known to the parties. We need not repeat them here.
I
We review de novo the district court’s interpretation of the Sentencing
Guidelines, but have “noted an intracircuit conflict as to whether the standard of
review for application of the Guidelines to the facts is de novo or only for abuse of
discretion.” United States v. Laurienti, 611 F.3d 530, 551–52 (9th Cir. 2010)
(quoting United States v. Yip, 592 F.3d 1035, 1038 (9th Cir. 2010)). Because the
disposition of this case would be identical under either standard, we do not resolve
that question here.
We review for clear error a district court’s determination that a defendant’s
conduct merits an aggravating role adjustment. United States v. Maldonado, 215
F.3d 1046, 1050 (9th Cir. 2000).
II
Moura alleges that the district court erred by applying U.S.S.G. § 2C1.1
instead of § 2C1.2. We do not agree. In determining the most applicable offense
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Guidelines section, “[t]he Statutory Index in Appendix A provides a list of
statutory offenses and their corresponding offense guidelines to which courts
should turn for guidance.” United States v. Takahashi, 205 F.3d 1161, 1166 (9th
Cir. 2000). Moura pleaded guilty to a violation of 18 U.S.C. § 371. Appendix A
lists a number of possible Guidelines sections courts may apply to a violation of §
371. U.S.S.G. app. A. Section 2C1.1 is one such section; § 2C1.2 is not. The
Guidelines sections’ commentary likewise enumerates statutory offenses to which
courts may apply those sections. Section 2C1.1’s commentary lists § 371, whereas
§ 2C1.2’s does not. U.S.S.G. §§ 2C1.1 cmt. statutory provisions, 2C1.2 cmt.
statutory provisions. There is no indication that the Sentencing Commission
intended for district courts to apply § 2C1.2 to § 371 violations involving
conspiracy to bribe a public official.
Moura is incorrect that his offense conduct more closely resembles the
giving of illegal gratuities than bribery, and in any event his is not the atypical case
in which a district court should ignore the Guidelines’ statutory index and instead
choose the Guidelines section based on the nature of the offense conduct. United
States v. Weber, 320 F.3d 1047, 1051–52 (9th Cir. 2003). Section 2C1.2 is not
applicable in this case.
III
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Moura next argues that the district court should not have applied a two-level
aggravating role adjustment. The court, after considering the factors set forth in
the application notes to § 3B1.1, determined that Moura’s conduct comported with
that of an organizer, leader, manager or supervisor under § 3B1.1(c). Again Moura
is mistaken. “An increase of offense level for an aggravating role is appropriate if
there is sufficient evidence to support a finding that the defendant occupied one of
the four specified roles.” Maldonado, 215 F.3d at 1050. Moura admitted to
recruiting the two Department of Licensing employees into his scheme and paying
them for each successful application. The district court properly applied a §
3B1.1(c) adjustment.
AFFIRMED.
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