United States of America v. Cuauhtemoc Juarez-Aquino

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CUAUHTEMOC JUAREZ-AQUINO,
Defendant-Appellant.
No. 17-50218
D.C. No. 3:16-cr-02815-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Cuauhtemoc Juarez-Aquino appeals from the district court’s judgment and
challenges the 80-month sentence and 3-year term of supervised release imposed
following his guilty-plea conviction for importation of methamphetamine, in
violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C.
* 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
AUG 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 17-50218
§ 1291, and we affirm in part and vacate and remand for resentencing in part.
Juarez-Aquino contends that the district court erred by denying his request
for a minor role adjustment under U.S.S.G. § 3B1.2. He argues that the district
court improperly compared him to a hypothetical “average participant,” rather than
his co-participants in the offense, and misapplied the factors contained in the
commentary to § 3B1.2. We review the district court’s interpretation of the
Guidelines de novo 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).
The record shows that the district court properly compared Juarez-Aquino to
his co-participants in the offense, both named and unnamed, see United States v.
Diaz, 884 F.3d 911, 916-17 (9th Cir. 2018), and denied the minor role adjustment
after considering each of the factors listed in the commentary to the Guideline, see
U.S.S.G. § 3B1.2 cmt. n.3(C). The district court’s decision to deny the minor role
reduction in light of Juarez-Aquino’s preparatory conduct, prior successful drug
crossings, and the large amount of methamphetamine, and to accord little weight to
Juarez-Aquino’s lack of propriety interest in the drugs and limited knowledge
about the drug organization, was not an abuse of discretion. See United States v.
Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016).
Juarez-Aquino also contends, and the government concedes, that the district

-- 2 of 3 --

3 17-50218
court erred in determining that Juarez-Aquino was subject to three-year mandatory
minimum term of supervised release. Because the district court concluded that
Juarez-Aquino was entitled to safety valve relief under 18 U.S.C. § 3553(f), the
three-year mandatory minimum term of supervised release under 21 U.S.C.
§ 960(b)(3) did not apply. See U.S.S.G. § 5C1.2 cmt. n.9. Accordingly, we vacate
the three-year term of supervised release and remand for the district court to
reconsider the length of the supervised release term.
AFFIRMED in part; VACATED and REMANDED in part.

-- 3 of 3 --