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United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Jose ROSALES, Defendant-Appellant.

No. 20-50024

Decided: January 29, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Benjamin Holley, Assistant U.S. Attorney, Jill Streja, Assistant U.S. Attorney, Daniel Earl Zipp, Assistant U.S. Attorney, Office of the US Attorney, San Diego, CA, for Plaintiff-Appellee Doug Keller, Attorney, The Law Office of Doug Keller, San Diego, CA, for Defendant-Appellant


Jose Rosales appeals from the district court's judgment and challenges the 60-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.

Rosales contends that the district court erred by denying his request for a minor-role adjustment under U.S.S.G. § 3B1.2. We review the district court's interpretation of the Guidelines de novo, its factual findings for clear error, and its application of the Guidelines for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

Rosales first argues that, because the district court was required to determine whether Rosales played a minor role in the instant offense, the court erred by relying on a 2010 conviction to deny the adjustment. We disagree. The district court acknowledged that the 2010 conviction had “nothing to do with” the instant offense, but permissibly considered this criminal history as one factor that counseled against a minor-role reduction. See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016) (“[B]ecause the factors set forth in [U.S.S.G. § 3B1.2 cmt. n.3(C)] are non-exhaustive, a district court may also consider other reasons for granting or denying a minor role reduction.”). The record also does not support Rosales's assertion that the court mischaracterized the 2010 offense.

Rosales next contends that the district court erred by adopting the government's argument that Rosales had provided insufficient information to warrant the minor-role adjustment. He contends that the government's rationale was inconsistent with the court's grant of safety-valve relief, which required it to find that Rosales provided all of the information he had about the offense. He also argues that, because probation's recommendation against a minor-role reduction pre-dated his safety-valve debrief, the court erred by relying on it. These arguments fail because the record reflects that, while the court considered the recommendations of the government and probation—along with Rosales's arguments in favor of the reduction—it ultimately relied on its own analysis of the minor-role factors and the record to deny the adjustment. See United States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018) (although the district court did not “tick off” the minor-role factors, the record showed that it considered them because “[t]he factors were thoroughly enumerated in the defendant's sentencing memorandum, and defense counsel pressed its points in argument to the court”). Given the totality of the circumstances, the court did not abuse its discretion by concluding that Rosales was not entitled to a minor-role reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C); Diaz, 884 F.3d at 914.

In light of this disposition, we do not reach Rosales's argument regarding consideration of his medical issues on remand.


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