United States of America v. FORTINO ELENES, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FORTINO ELENES, Jr.,
Defendant - Appellant.
No. 14-50156
D.C. No. 3:13-cr-03962-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Fortino Elenes, Jr., appeals from the district court’s judgment and challenges
the 70-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.
* 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).
FILED
JAN 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 14-50156
Elenes contends that the district court applied an incorrect legal standard in
denying his request for a minor-role adjustment under U.S.S.G. § 3B1.2 and
improperly concluded that he was not entitled to the adjustment. We review de
novo the district court’s interpretation of the guidelines and for clear error the district
court’s factual determination that a defendant is not a minor participant. See United
States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014). Contrary to Elenes’s
contention, the record reflects that the court properly considered his culpability
relative to that of the average participant. See U.S.S.G. § 3B1.2 cmt. n.3(A).
Further, in light of the totality of the circumstances, the district court did not clearly
err in determining that Elenes failed to prove that he was entitled to the adjustment.
See id. § 3B1.2 cmt. n.3(C); Hurtado, 760 F.3d at 1069.
AFFIRMED.

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