United States of America v. Josue Couto-Aguirre

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSUE COUTO-AGUIRRE,
Defendant - Appellant.
No. 13-50590
D.C. No. 3:13-cr-02462-LAB-2
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted January 8, 2015
Pasadena, California
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAUL GARCIA-CABELLO,
Defendant - Appellant.
No. 13-50594
D.C. No. 3:13-cr-02462-LAB-1
FILED
MAR 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 8, 2015 **
Pasadena, California
Before: KOZINSKI, WARDLAW, and W. FLETCHER, Circuit Judges.
Josue Couto-Aguirre (Couto) and Saul Garcia-Cabello (Garcia) appeal the
district court’s rejection of a two-level decrease in their offense level calculations
based on their minor roles in the offense of conviction. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we vacate and remand for resentencing.
The district court clearly erred in denying a minor role adjustment because
there was no evidence in the record to support its finding that Couto and Garcia
knew that there were drugs in the tires of the truck on the first trip. United States v.
Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir. 2011); United States v. Fitch, 659
F.3d 788, 797 (9th Cir. 2011). The district judge erroneously relied on speculation
as to what Couto and Garcia must have “felt” when driving or riding in the truck.
The district court itself noted that in prior, similar cases, expert testimony on the
effect of drug-laden tires had been introduced to address the issue of knowledge.
Moreover, here Couto and Garcia crossed the border without incident, further
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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undermining the court’s views as to the obviousness that substantial quantities of
drugs were in the truck’s tires. The district judge therefore based his denial of the
minor role adjustment on unsupported, anecdotal experience, which constitutes
clear error. Rodriguez-Castro, 641 F.3d at 1192.
As the government recognized when it recommended a minor role
adjustment for both Couto and Garcia, they each may very well be entitled to such
an adjustment. We therefore vacate the sentences imposed and remand for
resentencing.
VACATED and REMANDED.
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