United States of America v. Luis Angel Gaxiola-Toscano

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS ANGEL GAXIOLA-TOSCANO,
Defendant-Appellant.
No. 17-50312
D.C. No. 3:17-cr-00532-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Luis Angel Gaxiola-Toscano appeals from the district court’s judgment and
challenges the 78-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine and heroin, 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 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).
FILED
AUG 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-50312
Gaxiola-Toscano contends that the district court erred in denying his request
for a minor role adjustment under U.S.S.G. § 3B1.2. He argues that the district
court improperly failed to compare him to people above him in the drug
organization hierarchy, even though they were active participants in the offense.
We review the district court’s interpretation of the Guidelines de novo. See United
States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016). The record belies
Gaxiola-Toscano’s contention that the district court misapplied the minor role
Guideline. The court conducted the requisite comparative analysis when it
considered Gaxiola-Toscano’s culpability relative to that of other participants in
the criminal enterprise. See id. at 523. The court did not refuse to consider the
people above him in the enterprise, such as the individual identified as “Arturo,”
but rather concluded that they were not “average” participants to whom Gaxiola-
Toscano should be compared. See United States v. Hurtado, 760 F.3d 1065, 1069
(9th Cir. 2014) (“The requisite comparison is to average participants, not above-
average participants.”), overruled on other grounds by United States v. Gasca-
Ruiz, 852 F.3d 1167, 1174 (9th Cir. 2017) (en banc).
AFFIRMED.

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