United States of America v. Jose Olivera Zapien

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE OLIVERA ZAPIEN,
Defendant - Appellant.
No. 13-10260
D.C. No. 2:09-cr-00358-WBS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Jose Olivera Zapien appeals from the district court’s judgment and
challenges the 121-month sentence imposed following his guilty-plea conviction
for possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
FEB 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Zapien contends that the district court erred at sentencing by relying on a
clearly erroneous fact, namely, that his codefendants were involved only with
marijuana and not with methamphetamine. We review for plain error. See United
States v. Burgum, 633 F.3d 810, 812 (9th Cir. 2011). Zapien’s argument fails
because he has not established a reasonable probability that his sentence would
have been different absent the error. See United States v. Dallman, 533 F.3d 755,
762 (9th Cir. 2008).
Zapien also contends that his sentence is substantively unreasonable in light
of the disparities between his sentence and those of his codefendants. The district
court did not abuse its discretion in imposing the sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007). The low-end Guidelines sentence is substantively
reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a)
sentencing factors. See id.
AFFIRMED.
13-10260 2

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