                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 28 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30378

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00214-RAJ-1

  v.
                                                 MEMORANDUM*
RODRIGO MOURA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Richard A. Jones, District Judge, Presiding

                           Submitted October 12, 2011**
                               Seattle, Washington

Before: KOZINSKI, Chief Judge, BEEZER and PAEZ, Circuit Judges.

       Rodrigo Moura appeals the sentence imposed by the district court for one

count of conspiracy to commit unlawful production of identification documents, in

violation of 18 U.S.C. § 371. Specifically, Moura argues that the district court


        *
             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).
erred both by applying an incorrect Guidelines section and by imposing an

unwarranted aggravating role adjustment. Because we hold that the district court

erred in neither respect, we affirm.

      We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. The

facts of this case are known to the parties. We need not repeat them here.

                                            I

      We review de novo the district court’s interpretation of the Sentencing

Guidelines, but have “noted an intracircuit conflict as to whether the standard of

review for application of the Guidelines to the facts is de novo or only for abuse of

discretion.” United States v. Laurienti, 611 F.3d 530, 551–52 (9th Cir. 2010)

(quoting United States v. Yip, 592 F.3d 1035, 1038 (9th Cir. 2010)). Because the

disposition of this case would be identical under either standard, we do not resolve

that question here.

      We review for clear error a district court’s determination that a defendant’s

conduct merits an aggravating role adjustment. United States v. Maldonado, 215

F.3d 1046, 1050 (9th Cir. 2000).

                                           II

      Moura alleges that the district court erred by applying U.S.S.G. § 2C1.1

instead of § 2C1.2. We do not agree. In determining the most applicable offense


                                       Page 2 of 4
Guidelines section, “[t]he Statutory Index in Appendix A provides a list of

statutory offenses and their corresponding offense guidelines to which courts

should turn for guidance.” United States v. Takahashi, 205 F.3d 1161, 1166 (9th

Cir. 2000). Moura pleaded guilty to a violation of 18 U.S.C. § 371. Appendix A

lists a number of possible Guidelines sections courts may apply to a violation of §

371. U.S.S.G. app. A. Section 2C1.1 is one such section; § 2C1.2 is not. The

Guidelines sections’ commentary likewise enumerates statutory offenses to which

courts may apply those sections. Section 2C1.1’s commentary lists § 371, whereas

§ 2C1.2’s does not. U.S.S.G. §§ 2C1.1 cmt. statutory provisions, 2C1.2 cmt.

statutory provisions. There is no indication that the Sentencing Commission

intended for district courts to apply § 2C1.2 to § 371 violations involving

conspiracy to bribe a public official.

      Moura is incorrect that his offense conduct more closely resembles the

giving of illegal gratuities than bribery, and in any event his is not the atypical case

in which a district court should ignore the Guidelines’ statutory index and instead

choose the Guidelines section based on the nature of the offense conduct. United

States v. Weber, 320 F.3d 1047, 1051–52 (9th Cir. 2003). Section 2C1.2 is not

applicable in this case.

                                          III


                                     Page 3 of 4
      Moura next argues that the district court should not have applied a two-level

aggravating role adjustment. The court, after considering the factors set forth in

the application notes to § 3B1.1, determined that Moura’s conduct comported with

that of an organizer, leader, manager or supervisor under § 3B1.1(c). Again Moura

is mistaken. “An increase of offense level for an aggravating role is appropriate if

there is sufficient evidence to support a finding that the defendant occupied one of

the four specified roles.” Maldonado, 215 F.3d at 1050. Moura admitted to

recruiting the two Department of Licensing employees into his scheme and paying

them for each successful application. The district court properly applied a §

3B1.1(c) adjustment.

      AFFIRMED.




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