United States of America v. Erick Humberto Salazar

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERICK HUMBERTO SALAZAR,
Defendant-Appellant.
No. 15-50132
D.C. No. 3:13-cr-01442-MMA
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Erick Humberto Salazar appeals from the district court’s judgment and
challenges the 97-month sentence imposed following his jury-trial conviction for
importation of methamphetamine and conspiracy to import methamphetamine, in
FILED
FEB 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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violation of 21 U.S.C. §§ 952, 960, and 963. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Salazar contends that the district court erred by failing to analyze whether the
facts he cited at sentencing entitled him to a minor role adjustment under U.S.S.G.
§ 3B1.2. This argument is not supported by the record, which reflects that the court
considered Salazar’s arguments in favor of a minor role adjustment and concluded
that he had not carried his burden of demonstrating that he was entitled to the
adjustment. See United States v. Cantrell, 433 F.3d 1269, 1282 (9th Cir. 2006)
(defendant bears burden of proving entitlement to a minor role adjustment). This
finding was not clearly erroneous, despite counsel’s characterization of Salazar as
solely a “courier,” in light of the facts to which Salazar admitted in his proffer,
which were discussed at the sentencing hearing. See id. (whether a defendant is a
minor participant is a factual determination reviewed for clear error).1
Salazar also contends that his sentence is substantively unreasonable. The
district court did not abuse its discretion in imposing Salazar’s sentence. See Gall
v. United States, 552 U.S. 38, 51 (2007). The low-end Guidelines sentence is
1 Several months after Salazar was sentenced, the United States Sentencing
Commission amended the commentary to section 3B1.2(b). See United States v.
Quintero-Leyva, 823 F.3d 519, 521 (9th Cir. 2016). We are satisfied that the
district court did not clearly err under the revised commentary, which applies
retroactively. See id. at 523.
15-50132 2

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substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and
the totality of the circumstances. See Gall, 552 U.S. at 51.
AFFIRMED.
15-50132 3

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