                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAR 14 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 11-50217

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02447-WQH-3

  v.
                                                 MEMORANDUM *
LUIS CIBRIAN-QUINTERO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                      Argued and Submitted October 12, 2012
                               Pasadena, California

Before: WARDLAW and NGUYEN, Circuit Judges, and SIMON, District Judge.**


       Luis Cibrian-Quintero (“Cibrian”), a citizen of Mexico, appeals from the 84-

month sentence imposed by the United States District Court for the Southern




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael H. Simon, District Judge for the U.S. District
Court for the District of Oregon, sitting by designation.
District of California for importing marijuana into the United States in violation of

21 U.S.C. §§ 952 and 960. Cibrian contends that the district court erred in

attributing to him the total amount of marijuana that he and his companions carried

rather than only the amount that he personally carried, improperly increasing his

base offense level under the United States Sentencing Guidelines (“U.S.S.G.”).

We affirm the district court.1

      We review the district court’s interpretation of the Guidelines de novo and

its application of the Guidelines to the facts of the case for abuse of discretion.

United States v. Dallman, 533 F.3d 755, 760 (9th Cir. 2008) (citing United States

v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006)). A district court’s determination

as to whether a defendant is responsible for the drugs imported by his codefendants

is a factual finding, which we review for clear error. See United States v.

Palafox-Mazon, 198 F.3d 1182, 1186 (9th Cir. 2000) (citing United States v.

Asagba, 77 F.3d 324, 325 (9th Cir. 1996)).

      Under U.S.S.G. § 1B1.3(a)(1), the offense level for a convicted defendant is

based on all conduct for which the defendant is directly responsible as well as, “in



      1
         The Government argues that Cibrian’s appeal is “moot” because the charge
to which he pleaded specifies the quantity of marijuana that he and his
codefendants imported. We do not reach this argument because we affirm the
district court on other grounds.

                                           2
the case of a jointly undertaken criminal activity . . . , all reasonably foreseeable

acts and omissions of others in furtherance of the jointly undertaken criminal

activity.” If defendants traffic drugs as a joint criminal activity, each defendant is

responsible for the entire quantity of drugs transported. Palafox-Mazon, 198 F.3d

at 1186. “In cases involving a group of marijuana backpackers where the facts

escape easy categorization, a sentencing judge may determine whether the offense

is more appropriately viewed as one jointly undertaken or not.” Id. at 1188

(internal quotation marks omitted).

       The district court did not clearly err in finding that Cibrian and his

companions participated in a joint undertaking and consequently calculating

Cibrian’s Guidelines range based on the aggregate amount of marijuana. The facts

of this case are largely analogous to those in Dallman. There, each of the three

defendants carried two backpacks tied together in a similar manner and “likely

aided each other” in climbing over a barbed wire fence into the United States from

Canada. 533 F.3d at 759, 760. That degree of cooperation was sufficient for the

district court to attribute the whole quantity of marijuana to each defendant. Id. at

760.

       Here, Cibrian and his codefendants wore matching uniforms and cloth

booties over their shoes, much like the defendants who wore similarly tied-together


                                            3
backpacks in Dallman. Further, although one smuggler took a separate path to

reach the staging area, Cibrian, who carried a cell phone, stayed with the other

defendant, who did not. Because the defendants were told to wait at the staging

area for a phone call, this was “cooperative and coordinated conduct,” Dallman,

533 F.3d at 760, much like the assistance the defendants in Dallman provided each

other in climbing over the barbed wire fence.

      Unlike in Palafox-Mazon, nothing in the record here undermines the

inference that defendants cooperated in transporting the marijuana.2 There is no

evidence that they were “independently and individually recruited . . . on different

days,” were guided by some party unfamiliar to them, or did not know their route

or destination. Palafox-Mazon, 198 F.3d at 1184. Although Cibrian argues that

they were “separated,” “arrived at the [staging area] at different times,” and were

“arrested separately,” the Pre-Sentence Report clarifies that of the three defendants,

only one left the group; Cibrian and another defendant stayed together, arrived

together, and were arrested together “shortly” after the third defendant.



      2
         Cibrian argues that, unlike Dallman, he did not plead guilty to a conspiracy
charge. As the court noted in Palafox-Mazon, however, while conviction of a
conspiracy charge can bolster a finding of jointly undertaken criminal activity,
dismissal of conspiracy charges have “no direct bearing on the correctness of the
district court’s decision.” 198 F.3d at 1189 n.3. In addition, Cibrian’s
codefendants both pleaded guilty to conspiracy charges.

                                          4
      Cibrian and his companions thus demonstrated a sufficient degree of

cooperation in importing marijuana into the United States to support the district

court’s finding that they participated in a “jointly undertaken criminal activity”

under U.S.S.G. § 1B1.3(a)(1). The district court’s judgment is therefore

AFFIRMED.




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