                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 27 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50024

              Plaintiff - Appellee,              D.C. No. 3:12-cr-02926-LAB

  v.
                                                 MEMORANDUM*
FERMIN RODRIGUEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted January 21, 2014**

Before:      CANBY, SILVERMAN, and PAEZ, Circuit Judges.

       Fermin Rodriguez appeals from the district court’s judgment and challenges

the 75-month sentence imposed following his guilty-plea conviction for

importation of methamphetamine, 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).
      Rodriguez contends that the district court erred by applying an incorrect

standard and by relying on improper factors when it denied his request for a minor

role adjustment under U.S.S.G. 3B1.2(b). We review de novo the district court’s

interpretation of the Guidelines and for clear error its factual determination that a

defendant is not a minor participant. See United States v. Rodriguez-Castro, 641

F.3d 1189, 1192 (9th Cir. 2011). Contrary to Rodriguez’s contention, the court

properly considered the totality of the circumstances in making its determination,

including his relative culpability and knowledge or understanding of the enterprise,

and applied the correct standard of proof. See U.S.S.G. § 3B1.2 cmt. n.3(A);

United States v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006). Further, because

Rodriguez failed to demonstrate that he was substantially less culpable than the

average participant, the district court did not clearly err by denying the adjustment.

See U.S.S.G. § 3B1.2 cmt. n.3(A); Rodriguez-Castro, 641 F.3d at 1192-93.

      Rodriguez next contends that the district court procedurally erred by failing

to recognize its discretion to vary downward from the Guidelines range based upon

policy grounds under Kimbrough v. United States, 552 U.S. 85 (2007). The district

court did not err because the record reflects that the district court considered

Rodriguez’s Kimbrough argument and appreciated its discretion to deviate from




                                           2                                       13-50024
the Guidelines. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th

Cir. 2011).

      Finally, Rodriguez contends that his sentence is substantively unreasonable.

The district court did not abuse its discretion in imposing Rodriguez’s sentence.

See Gall v. United States, 552 U.S. 38, 51 (2007). The 75-month sentence, 33

months below the bottom of the Guidelines range, is substantively reasonable in

light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the

circumstances, including the quantity of drugs involved. See id.

      AFFIRMED.




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