                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 27 2010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. 08-50407

              Plaintiff - Appellee,              D.C. No. 8:05-cr-00107-JVS-3

  v.
                                                 MEMORANDUM *
MANUEL TORRES, Jr., AKA Seal C,
AKA Creeper,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California


                             Submitted July 12, 2010 **
                               Pasadena, California

Before: FARRIS, HALL and SILVERMAN, Circuit Judges.

       Manuel Torres, Jr. appeals his sentence of 121-months’ imprisonment

following a guilty plea to one count of conspiracy to violate 18 U.S.C. § 1962(d).

Torres challenges the use of the 2006 Sentencing Guidelines, the lack of an

        *
             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).
Amendment 706 adjustment to his sentence, and the substantive reasonableness of

his sentence. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      In reviewing Torres’ sentence we first consider “whether the district court

committed significant procedural error, then we consider the substantive

reasonableness of the sentence.” United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008) (en banc). We review the district court’s interpretation of the

Guidelines de novo, its factual findings for clear error, and its application of the

Guidelines to the facts for abuse of discretion. United States v. Alderman, 601

F.3d 949, 951 (9th Cir. 2010). Because Torres failed to raise his procedural error

arguments in the district court, we review his arguments for plain error. See United

States v. Vanderwerfhorst, 576 F.3d 929, 933 (9th Cir. 2009).

      The first procedural error Torres complains of is the use of the 2006

Sentencing Guidelines in determining his sentencing range instead of the 2003

Guidelines.1 See Carty, 520 F.3d at 993. He argues that there is no evidence to

show that his participation in the conspiracy to commit murder or his drug

offenses extended past November 1, 2004. If application of the current Guidelines

would violate the Ex Post Facto clause then “the court shall use the version in



      1
       The 2006 Guideline provisions that cover Torres’ offense conduct are
identical to the 2004 Guidelines.

                                           2
effect on the date that the offense was committed.” United States v. Rising Sun,

522 F.3d 989, 992 n.1 (9th Cir. 2008) (citing USSG §§ 1B1.11).

        The district court properly used the 2006 Guidelines. Torres admitted the

date of the conduct in his plea colloquy. See United States v. Cazares, 121 F.3d

1241, 1248 (9th Cir. 1997); United States v. Thomas, 355 F.3d 1191, 1198 (9th

Cir. 2004). Torres specifically admitted in the plea colloquy that he committed the

acts charged in Count Two of the Indictment. Count Two charged Torres with

conspiracy to commit murder and narcotics trafficking ending on November 12,

2004.

        Torres argues further that there was procedural error because similarly

situated defendants were given the 2003 Guidelines range. However, the district

court indicated that while it was not convinced as to other defendants, in regards to

Torres it had “found ample evidence that the overall conspiracy extended past

November 1, 2004.” The record supports the statement. Furthermore, the

defendants Torres compares himself to are not similarly situated. They pled to a

different Count in the indictment. The court’s finding that the Count Two

conspiracy extended until November 12, 2004 was not clearly erroneous. There

was no plain error.




                                           3
      Torres argues next that he is entitled to an Amendment 706 adjustment to his

narcotics trafficking base offense level calculation. Under Amendment 706,

Torres’ narcotics trafficking base offense level would have been reduced from 32

to 30. See Kimbrough v. United States, 522 U.S. 85, 100 (2007). The conspiracy

to commit murder base offense level of 33 is higher that the narcotics trafficking

base offense level. See USSG §§ 2A1.5. Any error in failing to adjust the

narcotics trafficking base offense level down to 30 would be harmless. The

sentencing court properly used the higher base offense level to calculate the

Guideline range. See USSG § 2E1.1(a), Comment 1.

      Torres also argues that his sentence is substantively unreasonable. We

review sentencing decisions for an abuse of discretion. Carty, 520 F.3d at 993.

Substantive reasonableness is viewed under “the totality of the circumstance[s].”

Id. The district court explicitly addressed Torres’ arguments in regards to Armenta

and Holguin at sentencing. The district court’s distinctions were not an abuse of

discretion. Furthermore, the record demonstrates that the court considered all the §

3553(a) factors and did not give the Sentencing Guidelines undue weight. Nothing

in the record suggests that the court abused its discretion.

      Torres also argues that his sentence in relation to the sentences of co-

defendants Armenta, Jiminez, and Flores is an unwarranted sentence disparity


                                           4
between similarly-situated defendants. See 18 U.S.C. § 3553(a)(6). We reject the

argument since none of the co-defendants is similarly situated. Armenta and

Jiminez pled to Count One, not Count Two. Armenta also had intellectual deficits.

Torres trafficked in substantially more narcotics than Jiminez and Flores. Torres’

sentence is not substantively unreasonable.

      The district court did not commit plain error and did not abuse its discretion

in imposing a sentence of 121-months’ imprisonment on Torres.

      AFFIRMED.




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