United States of America v. VINCENT DAVID CABRERA, Jr., AKA Bong

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VINCENT DAVID CABRERA, Jr., AKA
Bong,
Defendant-Appellant.
No. 19-10111
D.C. No. 1:18-cr-00006-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding
Submitted February 4, 2021**
Honolulu, Hawaii
Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.
Vincent David Cabrera, Jr. appeals the sentence imposed following his
guilty plea to conspiracy to manufacture methamphetamine, in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). 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
FEB 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
We review a district court’s factual findings for clear error, United States v.
Doe, 778 F.3d 814, 821 (9th Cir. 2015), and the district court’s application of the
Sentencing Guidelines to the facts for an abuse of discretion, United States v.
Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).
1. The district court did not clearly err by finding that Cabrera maintained a
premise for the purpose of manufacturing methamphetamine, thereby warranting
an enhancement under U.S.S.G. § 2D1.1(b)(12). Cabrera argues that the district
court failed to adequately address his objection to the application of this
enhancement, particularly that manufacturing was not a primary purpose of the
hotel room. But the district court explicitly “overrule[d] the defense’s objection”
by concluding that “defendant maintained a premise for the purpose of
manufacturing or distributing methamphetamine.” See United States v. Job, 871
F.3d 852, 870 (9th Cir. 2017). This finding was not clear error because the
government offered evidence at sentencing that Cabrera maintained the hotel room
for the primary purpose of manufacturing. See id.1
2. The district court did not abuse its discretion in applying the enhancement
for substantial risk of harm to human life under U.S.S.G. § 2D1.1(b)(14)(c) to
Cabrera’s offense. See Gasca-Ruiz, 852 F.3d at 1170. Particularly, the district
1 Because evidence of Cabrera’s use of the hotel room is sufficient to affirm the
district court’s finding that Cabrera maintained a premise for the purpose of
manufacturing, we need not discuss whether Cabrera maintained Repeki’s house
for the purpose of manufacturing.

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3
court did not “rest application of the enhancement on facts that are necessarily
common to most or every manufacture.” See United States v. Staten, 466 F.3d
708, 716 (9th Cir. 2006). Rather, the district court properly considered and applied
the relevant factors in U.S.S.G. § 2D1.1, cmt. n. 18(B)(i). See Staten, 466 F.3d at
715–17. And the district court did not err in finding the enhancement applied
because the government presented evidence at sentencing that Cabrera’s offense
created a substantial risk of harm to human life.
3. The district court did not clearly err in finding that Cabrera was an
organizer or leader under U.S.S.G. § 3B1.1(a).2 For the enhancement under §
3B1.1(a) to apply, Cabrera must have exercised control or organizational authority
over others. See United States v. Ingham, 486 F.3d 1068, 1074–76 (9th Cir. 2007)
(citing United States v. Avila, 95 F.3d 887, 889–90 (9th Cir. 1996)). Here, the
district court found that Cabrera had a “leadership role as an organizer” of
manufacturing—noting that Cabrera brought the “shake and bake” process to
Saipan, where others relied on Cabrera to teach the process; Cabrera directed
others to buy pseudoephedrine; and Cabrera identified ways to bring in other
materials, such as by shipping packages in someone else’s name. The district
2 Because the parties stipulated that there were five or more participants as
required by U.S.S.G. § 3B1.1(a), the issue is whether Cabrera was an organizer or
leader.

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4
court’s finding was not clear error because it was also supported by the evidence
the government presented at sentencing.
AFFIRMED.

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