United States of America v. Oscar Andres Macias-Sandoval

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR ANDRES MACIAS-SANDOVAL,
Defendant-Appellant.
No. 17-50089
D.C. No. 3:14-cr-02306-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.
Oscar Andres Macias-Sandoval appeals from the district court’s judgment
and challenges the 72-month sentence imposed upon remand 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.
* 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

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2 17-50089
Macias-Sandoval contends the district court misapplied the minor role
Guideline, U.S.S.G. § 3B1.2, by failing to compare his culpability to that of the
other participants in his criminal scheme. 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 does not support Macias-Sandoval’s
claim that the court improperly compared him to the hypothetical average courier.
Rather, the court acknowledged its obligation to compare Macias-Sandoval to
known and likely co-participants in the offense and conducted that comparison.
See United States v. Diaz, 884 F.3d 911, 916-17 (9th Cir. 2018). Having done so,
the court concluded, based on the facts of this particular case, that Macias-
Sandoval was not “substantially less culpable than the average participant in the
criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A). The court applied the correct
legal standard and, in light of the totality of the circumstances, did not abuse its
discretion in denying the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(C).
AFFIRMED.

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