United States of America v. Jose Rosales

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE ROSALES,
Defendant-Appellant.
No. 20-50024
D.C. No. 3:19-cr-01359-L-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Jose Rosales appeals from the district court’s judgment and challenges the
60-month sentence imposed following his guilty-plea conviction for importation of
methamphetamine 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 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Rosales contends that the district court erred by denying his request for a
minor-role adjustment under U.S.S.G. § 3B1.2. We review the district court’s
interpretation of the Guidelines de novo, its factual findings for clear error, and its
application of the Guidelines for abuse of discretion. United States v. Gasca-Ruiz,
852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).
Rosales first argues that, because the district court was required to determine
whether Rosales played a minor role in the instant offense, the court erred by
relying on a 2010 conviction to deny the adjustment. We disagree. The district
court acknowledged that the 2010 conviction had “nothing to do with” the instant
offense, but permissibly considered this criminal history as one factor that
counseled against a minor-role reduction. See United States v. Quintero-Leyva,
823 F.3d 519, 523 (9th Cir. 2016) (“[B]ecause the factors set forth in [U.S.S.G.
§ 3B1.2 cmt. n.3(C)] are non-exhaustive, a district court may also consider other
reasons for granting or denying a minor role reduction.”). The record also does not
support Rosales’s assertion that the court mischaracterized the 2010 offense.
Rosales next contends that the district court erred by adopting the
government’s argument that Rosales had provided insufficient information to
warrant the minor-role adjustment. He contends that the government’s rationale
was inconsistent with the court’s grant of safety-valve relief, which required it to
find that Rosales provided all of the information he had about the offense. He also

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argues that, because probation’s recommendation against a minor-role reduction
pre-dated his safety-valve debrief, the court erred by relying on it. These
arguments fail because the record reflects that, while the court considered the
recommendations of the government and probation—along with Rosales’s
arguments in favor of the reduction—it ultimately relied on its own analysis of the
minor-role factors and the record to deny the adjustment. See United States v.
Diaz, 884 F.3d 911, 916 (9th Cir. 2018) (although the district court did not “tick
off” the minor-role factors, the record showed that it considered them because
“[t]he factors were thoroughly enumerated in the defendant’s sentencing
memorandum, and defense counsel pressed its points in argument to the court”).
Given the totality of the circumstances, the court did not abuse its discretion by
concluding that Rosales was not entitled to a minor-role reduction. See U.S.S.G.
§ 3B1.2 cmt. n.3(C); Diaz, 884 F.3d at 914.
In light of this disposition, we do not reach Rosales’s argument regarding
consideration of his medical issues on remand.
AFFIRMED.

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