                                                                            FILED
                            NOT FOR PUBLICATION                             APR 24 2017

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-50145

               Plaintiff-Appellee,               D.C. No. 3:15-cr-02824-H

 v.
                                                 MEMORANDUM*
ERVIN RONALDO MALDONADO-
GOMEZ,

               Defendant-Appellant.


                     Appeal from the United States District Court
                       for the Southern District of California
                      Marilyn L. Huff, District Judge, Presiding

                             Submitted April 11, 2017**

Before:       GOULD, CLIFTON, and HURWITZ, Circuit Judges.

          Ervin Ronaldo Maldonado-Gomez appeals from the district court’s

judgment and challenges the 48-month sentence imposed following his guilty-plea




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952,

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

      Maldonado-Gomez first contends that the district court failed to calculate the

Guildeline range correctly because it bypassed the issue of whether he was entitled

to a minor role adjustment, and instead considered the minor role factors in its

variance analysis. The record belies this argument. The court denied a minor role

adjustment based on the facts of Maldonado-Gomez’s case. The court’s

subsequent consideration of some of the facts asserted in support of the minor role

adjustment to grant downward departures totally six levels was not improper. See,

e.g., United States v. Ramos-Medina, 706 F.3d 932, 941 (9th Cir. 2013) (“[A] court

may consider acceptance of responsibility separately in imposing a sentence, even

if the court determined that the defendant did not qualify for a formal adjustment

on those grounds under the Guidelines.”).

      Maldonado-Gomez next contends that the court’s minor role analysis was

flawed because the court did not compare him to his co-participants in the offense

and did not consider the five factors enumerated in the commentary to the minor

role Guideline. However, the record demonstrates that the district court properly

compared Maldonado-Gomez to his co-participants in the offense and considered

the factors enumerated in the Guideline and the totality of the circumstances, to


                                          2                                   16-50145
determine whether Maldonado-Gomez was “substantially less culpable than the

average participant.” See U.S.S.G. § 3B1.2 cmt. n.3(A), (C); United States v.

Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016); see also Carty, 520 F.3d at 992

(district judges are presumed to know the law and need not “tick off” all of the

sentencing factors). Moreover, in light of the circumstances of the offense, the

district court did not clearly err in concluding that Maldonado-Gomez was not a

minor participant. See Quintero-Leyva, 823 F.3d at 523.

      AFFIRMED.




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