                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 12 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50492

               Plaintiff - Appellee,             D.C. No. 3:09-cr-01606

  v.
                                                 MEMORANDUM *
RAYMUNDO OCTAVIO RODRIGUEZ-
AGUIRRE,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                                                          **
                          Submitted September 13, 2010


Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Raymundo Octavio Rodriguez-Aguirre appeals the 70-month sentence

imposed following his guilty-plea conviction for importation of marijuana, in




          *
             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).
violation 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      Rodriguez-Aguirre contends the district court erred by denying him a minor

role adjustment under U.S.S.G. § 3B1.2(b). We conclude that the district court did

not clearly err by ruling that Rodriguez-Aguirre failed to carry his burden of

proving that he was substantially less culpable than the average participant. See

United States v. Awad, 371 F.3d 583, 591 (9th Cir. 2004); United States v. Hursh,

217 F.3d 761, 770 (9th Cir. 2000).

      Rodriguez-Aguirre contends the district court failed to consider the role of

others in the offense. The record reveals that the district court properly compared

Rodriguez-Aguirre to the average participant in the case. See U.S.S.G. § 3B1.2

cmt n.3(A); Awad, 371 F.3d at 591.

      Rodriguez-Aguirre also contends that the district court was required to point

to articulate facts showing managerial culpability. That contention lacks merit.

See Awad, 371 F.3d at 591 (“The defendant bears the burden of proving that he is

entitled to a downward adjustment based on his role in the offense.”).

      AFFIRMED.




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