UNITED STATES v. VALDEZ GARATE (2018)

MEMORANDUM **

Lorenzo Valdez-Garate appeals from the district court’s judgment and challenges the 65-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.

Valdez-Garate contends that the district court misapplied the minor role Guideline, U.S.S.G. § 3B1.2, by failing to compare him to his co-participants in the offense and instead comparing him to hypothetical average drug couriers. 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).

Contrary to Valdez-Garate’s contention, when analyzing the five factors under the Guideline, the district court considered the two recruiters he identified as well as other likely participants in the offense. See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). Keeping those co-participants “in mind,” the court concluded that Valdez-Garate had failed to show that he was “substantially less culpable than the average participant in the criminal activity.” See U.S.S.G. § 3B1.2 cmt. n.3(A). The court correctly identified and applied the correct legal standard and, in light of the totality of the circumstances, did not abuse its discretion by denying the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(C).

AFFIRMED.