United States of America v. Fausto Diaz-Lozano, a.k.a. Fausto Diaz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FAUSTO DIAZ-LOZANO, a.k.a. Fausto
Diaz,
Defendant-Appellant.
No. 17-10272
D.C. No. 2:10-cr-00391-JAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Fausto Diaz-Lozano appeals from the district court’s judgment and
challenges the 210-month sentence imposed on remand following his jury-trial
conviction for conspiracy to distribute and possess with intent to distribute at least
500 grams of methamphetamine, possession with intent to distribute at least 50
* 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).
FILED
JUN 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-10272
grams of methamphetamine (actual), conspiracy to manufacture at least 100
marijuana plants, and manufacture of at least 100 marijuana plants, in violation of
21 U.S.C. §§ 841(a)(1), 846. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
Diaz-Lozano contends that the district court erred in applying a two-level
aggravating role enhancement under U.S.S.G. § 3B1.1(c). Contrary to the
government’s argument, our review of the district court’s application of the
aggravating role enhancement is not precluded by the law-of-the-case doctrine
because the previous panel did not hold that application of the aggravating role
enhancement was appropriate.1 See Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438,
441 (9th Cir. 1982) (under law-of-the-case doctrine, a court is precluded from
reexamining an issue that was “decided explicitly or by necessary implication in
this court’s previous disposition”).
A district court’s application of the Guidelines to the facts of a case is
reviewed for abuse of discretion, and its underlying factual findings are reviewed
for clear error. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.
1 We grant Diaz-Lozano’s unopposed motion to take judicial notice of
excerpts of his briefs in the previous appeal.

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3 17-10272
2017) (en banc). The district court did not abuse its discretion in applying the two-
level aggravating role enhancement. Although Roberto Bermudez-Ornelas’s
statement implicating Diaz-Lozano as his supervisor in caring for the marijuana
plants was hearsay, the statement had “some minimal indicia of reliability”
because it was supported by extrinsic evidence. See United States v. Pimentel-
Lopez, 859 F.3d 1134, 1144 (9th Cir. 2017) (citation and quotation marks omitted).
In particular, evidence reflected that Diaz-Lozano previously discussed having a
person stay at his marijuana grow site for a while, and Diaz-Lozano claimed
ownership of the marijuana grow site where officers encountered Bermudez-
Ornelas.
AFFIRMED.

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