                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 01 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.      15-10212

               Plaintiff-Appellee,               D.C. No. 1:10-cr-00249-AWI

 v.
                                                 MEMORANDUM*
DARLING ARLETTE MONTALVO,

               Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                              Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Darling Arlette Montalvo appeals from the district court’s judgment and

challenges the 24-month sentence imposed following her jury-trial conviction for

conspiracy to commit mail fraud, wire fraud, and bank fraud, in violation of 18

U.S.C. § 1349; mail fraud, in violation of 18 U.S.C. § 1341; and money laundering

          *
             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).
and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 1957. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Montalvo first contends that the district court procedurally erred by failing

to explain its refusal to grant her request for a mitigating role adjustment under

U.S.S.G. § 3B1.2. We review for plain error, see United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. Although the court

did not explain its denial of Montalvo’s request, its reasons are apparent

from the record. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en

banc) (explanation may be inferred from the presentence report or the record as a

whole). In written sentencing materials that the court reviewed, both the

government and probation argued that a minor role adjustment was not warranted

because Montalvo provided false information and documentation in connection

with the properties she purchased or assisted in purchasing. In lieu of a mitigating

role reduction, probation urged the court to account for Montalvo’s lesser role in

the larger conspiracy through a downward variance. The district court followed

this guidance, declining to grant a mitigating role adjustment but imposing a

sentence below the Guidelines range that would have applied if Montalvo had

received such a reduction. Under these circumstances, we conclude that




                                           2                                    15-10212
any error by the district court did not affect Montalvo’s substantial rights. See

United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).

      Montalvo also argues that the district court erred by denying the mitigating

role adjustment. Given Montalvo’s involvement in five fraudulent transactions

over the course of more than a year, the court did not clearly err in concluding that

Montalvo was not substantially less culpable than the average participant in the

offense. See U.S.S.G. § 3B1.2, cmt. n.3(A); United States v. Hurtado, 760 F.3d

1065, 1068 (9th Cir. 2014) (a finding that defendant is not a minor participant is a

factual determination reviewed for clear error).

      AFFIRMED.




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