                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 20 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    18-30059

              Plaintiff-Appellee,                D.C. No.
                                                 2:16-cr-00036-TOR-9
 v.

JOSE MARTIN AGUILAR,                             MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, District Judge, Presiding

                             Submitted June 4, 2019**
                               Seattle, Washington

Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.

      Jose Martin Aguilar (Aguilar) appeals the district court’s judgment imposing

a sentence of 324 months’ custody following his conviction for conspiracy to

distribute 500 grams or more of methamphetamine.


      *
             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).
      “We review a district court’s interpretation of the United States Sentencing

Guidelines (Guidelines) de novo, its factual findings for clear error, and its

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

United States v. McCarns, 900 F.3d 1141, 1143 (9th Cir. 2018) (citation omitted).

The government bears the burden of establishing the facts in support of an

enhancement by a preponderance of the evidence. See United States v. Job, 871

F.3d 852, 868 (9th Cir. 2017), as amended.

      In reviewing the substantive reasonableness of a sentence, we afford

significant deference to the district court’s consideration of the factors set forth in

18 U.S.C. § 3553(a), including the applicable Guidelines range. See United States

v. Martinez-Lopez, 864 F.3d 1034, 1043-44 (9th Cir. 2017) (en banc). We will

reverse the sentence only if the court abused its discretion by applying an incorrect

legal rule or “if the sentence was illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.” Id. (citation and

internal quotation marks omitted). We review de novo any claimed Eighth

Amendment violation. See United States v. Pollard, 850 F.3d 1038, 1041 (9th Cir.

2017).

      Aguilar asserts that the district court improperly double-counted his

possession of a gun to support a two-point enhancement for use of violence, under


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§ 2D1.1(b)(1) of the Guidelines, and separate two-point enhancement for

possession of a dangerous weapon, under § 2D1.1(b)(2). The district court did not

err in its application of the enhancements because a sentencing court “must

generally apply all applicable Guidelines provisions, regardless whether the same

act triggers multiple provisions.” United States v. Joey, 845 F.3d 1291, 1295 (9th

Cir. 2017). The Guidelines expressly contemplate that the enhancements in §§

2D1.1(b)(1) and (b)(2) “may be applied cumulatively.” U.S.S.G. § 2D1.1 cmt.

11(B).

         Nor did the district court clearly err when it overruled Aguilar’s objection

that “no testimony” established that he imported methamphetamine into the United

States, or that he knew of the methamphetamine’s Mexican origin. The record

contains unrebutted evidence that the drugs originated from Mexico, and that

Aguilar “manag[ed] the meth that was coming from Mexico and sen[t] the money

back to Mexico,” at one point importing the drugs himself. See United States v.

Biao Huang, 687 F.3d 1197, 1206 (9th Cir. 2012) (affirming the application of a

sentencing enhancement for importing methamphetamine where evidence

demonstrated that defendant sold the drugs in partnership with a co-defendant who

knew that the drugs were from China).




                                             3
      Aguilar failed to meet his burden to show that his sentence was substantively

unreasonable. See United States v. Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012)

(en banc), as amended (noting that relief on the basis of substantive

unreasonableness is rare). The district court imposed the lowest sentence within

his Guidelines range. Before doing so, the court considered Aguilar’s limited

criminal history, and the factors enumerated in 18 U.S.C. § 3353(a) underlying the

sentence, including the use of violence in furtherance of the conspiracy, Aguilar’s

leadership role in the operation, and any potential sentencing disparity. See Gall v.

United States, 552 U.S. 38, 55-56 (2007) (referencing remarks addressing

sentencing disparity from the government as satisfying the court’s obligation to

consider this factor). Under these circumstances, the sentence imposed was

substantively reasonable. See United States v. Blinkinsop, 606 F.3d 1110, 1116

(9th Cir. 2010) (“When a district judge has considered the § 3553(a) factors and

the totality of the circumstances supports the sentence, we have held that the

sentence is substantively reasonable . . .”).

      Finally, Aguilar’s sentence, which was below the statutory maximum and at

the lowest end of the Guidelines range, does not violate the Eighth Amendment, as

it is not “grossly disproportionate” to the crime. United States v. Barajas-Avalos,

377 F.3d 1040, 1061 (9th Cir. 2004), as amended, (concluding that a low-end


                                            4
Guidelines sentence of 360 months’ imprisonment for conspiracy and attempt to

manufacture methamphetamine was not grossly disproportionate to the crime or in

violation of the Eighth Amendment, even though defendant had only one prior

misdemeanor).

      AFFIRMED.




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