United States of America v. Gabriel Salas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GABRIEL SALAS,
Defendant-Appellant.
No. 18-50201
D.C. No. 3:18-cr-00104-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Gabriel Salas appeals from the district court’s judgment and challenges the
151-month sentence imposed following his guilty-plea conviction for importation
of methamphetamine and cocaine, 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
JAN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-50201
Salas contends that the district court misinterpreted and misapplied the
minor role Guideline, U.S.S.G. § 3B1.2, and its commentary in denying his request
for a minor role reduction. We review the district court’s interpretation of the
Guidelines de novo and its application of the Guidelines to the facts for abuse of
discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)
(en banc).
The record reveals that the district court identified the correct legal standard
and considered the five factors listed in the commentary before determining that
Salas was not “substantially less culpable than the average participant.” See
U.S.S.G. § 3B1.2 cmt. n.3(A), (C). Contrary to Salas’s contention, the district
court properly compared Salas’s culpability to known and likely co-participants in
the offense and did not err by considering Salas’s criminal history in addition to
the commentary’s non-exhaustive factors. See United States v. Quintero-Leyva,
823 F.3d 519, 523 (9th Cir. 2016) (“[B]ecause the factors set forth in the
Amendment are non-exhaustive, a district court may also consider other reasons
for granting or denying a minor role reduction.”). The district court did not abuse
its discretion by denying the minor role adjustment in light of the totality of the
circumstances, including Salas’s prior successful drug crossings and the large
amount of drugs Salas smuggled. See U.S.S.G. § 3B1.2 cmt. n.3(C); Quintero-
Leyva, 823 F.3d at 523.

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3 18-50201
Salas also contends that the sentence is substantively unreasonable. The
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). The low-end Guidelines sentence is 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.

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