                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 30 2015

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50163

               Plaintiff - Appellee,             D.C. No. 3:14-cr-00007-WQH

 v.
                                                 MEMORANDUM*
FERNANDO ZATARAIN-PENA,

               Defendant - Appellant.


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

                              Submitted June 22, 2015**

Before:        HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.

      Fernando Zatarain-Pena appeals from the district court’s judgment and

challenges the 44-month sentence imposed following his guilty-plea conviction for

importation of methamphetamine and cocaine, in violation of 21 U.S.C. §§ 952 and

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

          *
             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).
      Zatarain contends that the district court applied the wrong legal standard

when determining whether he was entitled to a minor role adjustment under

U.S.S.G. § 3B1.2(b). We review the district court’s interpretation of the

Sentencing Guidelines de novo and its factual finding that a defendant was not a

minor participant for clear error. See United States v. Hurtado, 760 F.3d 1065,

1068 (9th Cir. 2014), cert. denied, 135 S. Ct. 1467 (2015). The district court

applied the correct standard by determining whether Zatarain was substantially less

culpable than other participants in the criminal scheme in light of the totality of the

circumstances and the particular facts of Zatarain’s case. See U.S.S.G. § 3B1.2

cmt. n.3(C); Hurtado, 760 F.3d at 1069. The district court was not required to

make an explicit finding regarding Zatarain’s level of knowledge of the criminal

scheme. See U.S.S.G. § 3B1.2 cmt. n.4. It properly considered the quantity of

drugs, the fact the truck was registered in Zatarain’s name, Zatarain’s efforts to

establish a crossing history, Zatarain’s claim of duress, and the fact that Zatarain

had crossed with drugs on one previous occasion. See Hurtado, 760 F.3d at 1069.

Furthermore, on these facts, the district court did not clearly err in its factual

finding that Zatarain was not a minor participant. See id.

      AFFIRMED.




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