United States of America v. Flavio Gutierrez Rubio

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FLAVIO GUTIERREZ RUBIO,
Defendant - Appellant.
No. 14-50181
D.C. No. 3:13-cr-03103-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Flavio Gutierrez Rubio appeals from the district court’s judgment and
challenges the 36-month sentence 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. § 1291, and we affirm.
FILED
APR 28 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.
** 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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Gutierrez Rubio contends that the district court erred in denying his request
for a minor role adjustment under U.S.S.G. § 3B1.2(b) by failing to conduct a full
inquiry into the applicability of the adjustment, and by misapplying the Guideline.
We review the district court’s interpretation of the Guidelines de novo, its
application of the Guidelines to the facts of the case for abuse of discretion, and its
factual determination that a defendant is not a minor participant for clear error. See
United States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014), cert. denied, 135 S.
Ct. 1467 (2015). Contrary to Gutierrez Rubio’s contention, the record reflects that
the district court conducted an individualized analysis of his role in the offense,
understood and applied the correct legal standard, properly considered the totality
of the circumstances, and did not rely on improper factors in denying the
adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(A), (C); Hurtado, 760 F.3d at 1068-69.
Moreover, the district court did not clearly err by finding that Gutierrez Rubio did
not play a minor role in the offense. See Hurtado, 760 F.3d at 1069.
AFFIRMED.
14-50181 2

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