                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 14 2010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. 09-30402

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00049-RRB-1

  v.
                                                 MEMORANDUM *
EULOGIO F. SELUDO, AKA Louie,

              Defendant - Appellant.




                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                           Submitted December 9, 2010 **
                               Seattle, Washington

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and MOSKOWITZ,
District Judge.***




        *
             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).
        ***
            The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
      After a jury trial, Eulogio Seludo was convicted of drug conspiracy (one

count), distribution of methamphetamine (five counts), attempt to possess and

distribute methamphetamine (one count), and possession with intent to distribute

methamphetamine (one count) under 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(c).

Seludo appeals his conviction on three of the counts of distribution of

methamphetamine, and he appeals his sentence.

      Because the parties are familiar with the general facts of the case, we do not

repeat them here. Substantial evidence supports the jury’s guilty verdict on the

three challenged counts. The jury was entitled to credit the testimony of the

confidential informant who positively identified Seludo as a participant in the three

drug sales at issue. See U.S. v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989). A

reasonable inference of guilt is also supported by the modus operandi: the three

challenged transactions took place at the same location and from the same truck

registered to Seludo. The same pattern was followed in the other sales for which

Seludo was convicted, including the sale at which he was approached by police and

then admitted to selling methamphetamine. After viewing this evidence in the

light most favorable to the prosecution, a rational juror could have found Seludo

guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1972).




                                          2
      It was not clear error for the district court to deny Seludo a minor role

reduction under U.S.S.G. § 3B1.2. See United States v. Cantrell, 433 F.3d 1269,

1282 (9th Cir. 2006). A minor role reduction is appropriate only if a defendant is

“substantially” less culpable than his co-participants. Id. at 1283. The district

judge denied the reduction because he found that while Seludo’s co-conspirator,

Lastimosa, “may have been more involved” than Seludo was, Seludo nonetheless

had a “significant” role in the conspiracy. Given the evidence that Seludo handled

the drugs and money when he drove Lastimosa to drug sales, received shipments of

methamphetamine from Lastimosa at his residence, and arranged and conducted

sales independently when Lastimosa was out of town, we cannot say that the

district judge’s finding was clearly erroneous. See, e.g., United States v. Rosas,

615 F.3d 1058, 1068 (9th Cir. 2010) (denying minor role reduction to a defendant

who acted as a courier and seller as opposed to a “mere courier”); United States v.

Williams, 185 F.3d 945, 946 (9th Cir. 1999) (denying minor role reduction to a

defendant who arranged and conducted sales independently of his co-conspirator).

      The district court did not abuse its discretion in sentencing Seludo. See

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2006). The district judge

appropriately used the Sentencing Guidelines as a starting point, allowed both

parties to argue for appropriate sentences, and considered the factors required by


                                           3
18 U.S.C. § 3553(a); see Carty, 520 F.3d at 991. His explanation indicated that he

considered the particular factors argued by Seludo, including Seludo’s age, health,

and likelihood of rehabilitation, in choosing a sentence at the bottom of the

Guideline range. This explanation was sufficient. See Carty, 520 F.3d at 995. We

recognize that Seludo would have preferred that the judge weigh the § 3553(a)

factors–including the Guideline recommendations–differently, but we see nothing

so atypical about this case to indicate that the judge abused his discretion in

weighing them as he did. See id. at 994 (noting that a within-Guidelines sentence

“will usually be reasonable”) (quoting United States v. Rita, 551 U.S. 338, 351

(2007)); United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009)

(“The weight to be given the [§ 3553(a)] factors in a particular case is for the

discretion of the district court.”). The district court’s sentence was both

procedurally sound and substantively reasonable.

      AFFIRMED.




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