                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 20 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50213

                Plaintiff-Appellee,             D.C. No.
                                                8:11-cr-00148-JVS-24
 v.

SUSAN JEANETTE RODRIGUEZ, AKA                   MEMORANDUM*
Suzie Rodriguez,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                      Argued and Submitted February 5, 2020
                               Pasadena, California

Before: THOMAS, Chief Judge, and WARDLAW and NGUYEN, Circuit Judges.
Partial Concurrence and Partial Dissent by Chief Judge THOMAS

      Susan Rodriguez appeals her jury-trial convictions and sentence for

conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962, and conspiracy in violation of the Violent Crimes in

Aid of Racketeering Activity (“VICAR”) statute, 18 U.S.C. § 1959. We have



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm. 1

      1. Rodriguez argues that the district court erred in failing to grant her a

mitigating role adjustment under U.S.S.G. § 3B1.2. We “assume the district judge

knew the law” when he rendered his sentencing decision, and, based on the record,

we find that the district court properly compared the role of Rodriguez to that of

the average participant in the conspiracies. See United States v. Diaz, 884 F.3d

911, 916 (9th Cir. 2018). To the extent the district court discussed the relative

culpability of Rodriguez and the other secretary defendants, it did so to address a

corresponding argument made by the government in its sentencing submissions;

we do not construe that discussion as a comprehensive explanation of the district

court’s mitigating role calculus.

      2. Rodriguez argues that the district court penalized her for exercising her

right to a jury trial, imposing a harsher sentence than she would have received

under the package plea deal that broke down shortly before trial. But rather than

unfairly penalizing Rodriguez, the district court appropriately took account of the

evidence presented at trial in reaching its final sentencing determination. The facts

adduced at trial encompassed far more serious conduct than the factual basis for

Rodriguez’s plea agreement, which notably omitted any reference to her


      1
        We discuss Rodriguez’s challenge to her convictions in a separate opinion
filed concurrently with this disposition. Here, we address only the sentencing
phase.

                                          2
involvement in a conspiracy to murder. Because the record “affirmatively show[s]

that the court sentenced [Rodriguez] solely upon the facts of [her] case and [her]

personal history, and not as punishment for [her] refusal to plead guilty” or the

breakdown in the plea agreement, we find that the sentencing process did not

violate Rodriguez’s due process rights. United States v. Stockwell, 472 F.2d 1186,

1188 (9th Cir. 1973).

      3. Rodriguez also argues that her sentence was substantively unreasonable

and, in the alternative, that her sentence should be reversed “to maintain the

integrity of the judicial process” or “in the interest of justice.” We disagree.

Rodriguez was convicted of serious offenses—encompassing extended, integral

involvement with the Mexican Mafia and underlying conspiracies to murder,

maim, extort, and traffic in drugs—and, to the extent she presented countervailing

considerations like acceptance of responsibility and good deeds in her community,

they were accounted for in her sentence. This is not the “rare case” that leaves us

with “a definite and firm conviction that the district court committed a clear error

of judgment.” United States v. Ressam, 679 F.3d 1069, 1087–88 (9th Cir. 2012)

(en banc).

      AFFIRMED.




                                           3
                                                                                  FILED
US v. Rodriguez, 16-50213
                                                                                  AUG 20 2020
THOMAS, Chief Judge, concurring in part and dissenting in part:               MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS


       I agree that the sentence imposed was not substantively unreasonable and

that the district court did not penalize her at sentencing for exercising her right to a

jury trial.

       I respectfully dissent from the majority’s conclusion that the district court

did not err in determining whether Rodriguez qualifies for a mitigating role

adjustment under U.S.S.G. § 3B1.2. In making that determination, “the district

court should have evaluated [Rodriguez’s] role relative to all participants in the

criminal scheme for which [s]he was charged,” United States v. Rojas-Millan, 234

F.3d 464, 472 (9th Cir. 2000), which here, was the Orange County Mexican Mafia

(“OCMM”). Instead of evaluating her role relative to the average member of the

OCMM, the district court evaluated her role only “[v]is-a-vis the other secretaries”

in the OCMM, stating that it “declined to adopt a role reduction after comparing

her conduct to the conduct of the other ‘secretaries’ in the case.” The district court

erred in denying her a mitigating role reduction on this basis. See U.S.S.G. §

3B1.2, cmt. n.3(A) (stating that a mitigating role adjustment applies to defendants

who are “less culpable than the average participant in the criminal activity”).

       In addition, the district court erred by denying Rodriguez a mitigating role

adjustment without considering the factors set forth in the 2015 amendment to
§ 3B1.2. While it is true that “we assume the district judge knew the law and

understood his or her obligation to consider all of the sentencing factors,” we are

also cognizant that “the assessment of a defendant’s eligibility for a minor-role

adjustment must include consideration of the factors identified by the

Amendment.” United States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018) (emphasis

added). Here, unlike in Diaz, there is nothing in the record indicating that the

district court was aware of or considered the requisite factors. Cf. id. (finding it

clear that the district court “was well aware of the factors” because they “were

thoroughly enumerated in the defendant’s sentencing memorandum” and were

discussed at the sentencing hearing). To the contrary, the fact that Rodriguez’s

mitigating role analysis was nearly identical to the mitigating role analyses of three

other “secretaries” prepared before the 2015 amendment went into effect suggests

that the district court failed to consider the relevant factors.

       For the above reasons, I would vacate Rodriguez’s sentence and remand for

the district court to reconsider whether Rodriguez qualifies for a mitigating role

adjustment under § 3B1.2. I would otherwise affirm the sentence.
