United States of America v. Fred Navarette

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRED NAVARETTE,
Defendant-Appellant.
No. 22-50205
D.C. No.
3:21-cr-02426-GPC-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted January 9, 2024**
Pasadena, California
Before: RAWLINSON, MELLOY,*** and H.A. THOMAS, Circuit Judges.
Fred Navarette (Navarette) pled guilty to one count of importation of
* 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).
*** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
FILED
JAN 30 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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methamphetamine in violation of 21 U.S.C. §§ 952 and 960. He now appeals his
sentence of one hundred twenty-four months of imprisonment. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
“When reviewing sentencing decisions, we review the district court’s
identification of the relevant legal standard de novo, its factual findings for clear
error, and its application of the legal standard to the facts for abuse of
discretion. . . .” United States v. Vinge, 85 F.4th 1285, 1288 (9th Cir. 2023)
(citations omitted). “Plain error review, however, applies to unpreserved claims of
procedural error.” United States v. Torres-Giles, 80 F.4th 934, 938 (9th Cir. 2023)
(citations omitted). “To establish plain error, a defendant must show (1) error, (2)
that is plain, (3) that affected substantial rights, and (4) that seriously affected the
fairness, integrity or public reputation of the judicial proceedings.” Id. (citation
and internal quotation marks omitted).
Navarette asserts that the district court plainly erred in its calculation of the
applicable sentencing guideline range after mistakenly applying a minor role
reduction. When assessing whether an incorrect calculation “affects substantial
rights,” we consider whether the defendant has demonstrated “a reasonable
probability that he would have received a different sentence if the district court had
not erred.” United States v. Depue, 912 F.3d 1227, 1234-35 (9th Cir. 2019) (en

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banc) (citation and alteration omitted). If the record does not reflect that the
correct calculation “would have generated a lower Guidelines range,” there is no
“reasonable probability of a different outcome.” Id. at 1235 (citation omitted).
Navarette has not demonstrated that the district court’s mistaken application
of a minor role reduction affected his substantial rights or caused him prejudice.
See id.; see also United States v. Hamalek, 5 F.4th 1081, 1091 (9th Cir. 2021).
Navarette received a one hundred twenty-four-month sentence that was 1)
substantially lower than the statutory maximum of two hundred forty months, 2)
twenty months lower than the district court’s original sentence of one hundred
forty-four months without application of a minor role reduction, and 3) thirty-five
months lower than the one hundred fifty-nine months at the low end of the range
calculated after the mistaken application of a minor role reduction. Further, the
record reflects that Navarette’s counsel expressly affirmed the district court’s
mistaken belief that a minor role reduction had been applied at the initial
sentencing hearing. Thus, the district court did not plainly err by imposing a
sentence of one hundred twenty-four months after applying a minor role reduction.
See id.; see also Depue, 912 F.3d at 1235.
AFFIRMED.

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