United States of America v. Hector Francisco Vizcaino- Moreno

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR FRANCISCO VIZCAINO-
MORENO,
Defendant - Appellant.
No. 09-50119
D.C. No. 3:08-cr-02629-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted May 25, 2010**
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Hector Francisco Vizcaino-Moreno appeals from the 57-month sentence
imposed following his guilty-plea conviction for importation of cocaine, in
FILED
JUN 14 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

09-50119 2
violation of 21 U.S.C. §§ 952 and 960, and aiding and abetting, in violation of 18
U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Vizcaino-Moreno contends that the district court erred at sentencing by:
1) refusing to consider granting a minor role adjustment under the Sentencing
Guidelines; 2) improperly comparing Vizcaino-Moreno’s conduct to that of a
hypothetical average participant in a drug offense scheme; and 3) unduly deferring
to the “substantially less culpable” standard of the advisory Guidelines. The record
reflects that the district court considered whether to grant a minor role adjustment
and properly applied the applicable standard. See United States v. Cantrell, 433
F.3d 1269, 1282-83 (9th Cir. 2006); see also United States v. Rojas-Millan, 234
F.3d 464, 473-74 (9th Cir. 2000).
Vizcaino-Moreno also contends that the district court relied on clearly
erroneous facts when it denied the adjustment. This contention fails because the
record reflects that the district court did not rely on any facts unsupported by the
record. See Cantrell, 433 F.3d at 1284 (“So long as the district court’s view of the
evidence is plausible in light of the record viewed in its entirety, it cannot be
clearly erroneous.”)(internal quotations omitted).
Finally, Vizcaino-Moreno contends that the sentence is substantively
unreasonable in light of his minimal involvement in the offense and the factors

-- 2 of 3 --

09-50119 3
under 18 U.S.C. § 3553(a). In light of the totality of the circumstances, the below-
Guidelines sentence is substantively reasonable. See Gall v. United States, 552
U.S. 38, 51 (2007).
AFFIRMED.

-- 3 of 3 --