                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 04 2015

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

UNITED STATES OF AMERICA,                        No. 13-50590

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02462-LAB-2

  v.
                                                 MEMORANDUM*
JOSUE COUTO-AGUIRRE,

              Defendant - Appellant.


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

                      Argued and Submitted January 8, 2015
                              Pasadena, California

UNITED STATES OF AMERICA,                        No. 13-50594

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02462-LAB-1

  v.

SAUL GARCIA-CABELLO,

              Defendant - Appellant.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                            Submitted January 8, 2015**
                               Pasadena, California

Before: KOZINSKI, WARDLAW, and W. FLETCHER, Circuit Judges.

      Josue Couto-Aguirre (Couto) and Saul Garcia-Cabello (Garcia) appeal the

district court’s rejection of a two-level decrease in their offense level calculations

based on their minor roles in the offense of conviction. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we vacate and remand for resentencing.

      The district court clearly erred in denying a minor role adjustment because

there was no evidence in the record to support its finding that Couto and Garcia

knew that there were drugs in the tires of the truck on the first trip. United States v.

Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir. 2011); United States v. Fitch, 659

F.3d 788, 797 (9th Cir. 2011). The district judge erroneously relied on speculation

as to what Couto and Garcia must have “felt” when driving or riding in the truck.

The district court itself noted that in prior, similar cases, expert testimony on the

effect of drug-laden tires had been introduced to address the issue of knowledge.

Moreover, here Couto and Garcia crossed the border without incident, further

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2
undermining the court’s views as to the obviousness that substantial quantities of

drugs were in the truck’s tires. The district judge therefore based his denial of the

minor role adjustment on unsupported, anecdotal experience, which constitutes

clear error. Rodriguez-Castro, 641 F.3d at 1192.

      As the government recognized when it recommended a minor role

adjustment for both Couto and Garcia, they each may very well be entitled to such

an adjustment. We therefore vacate the sentences imposed and remand for

resentencing.

      VACATED and REMANDED.




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