                                                                            FILED
                            NOT FOR PUBLICATION                               JUN 14 2010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. 09-50119

               Plaintiff - Appellee,             D.C. No. 3:08-cr-02629-LAB

  v.
                                                 MEMORANDUM *
HECTOR FRANCISCO VIZCAINO-
MORENO,

               Defendant - Appellant.



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

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Hector Francisco Vizcaino-Moreno appeals from the 57-month sentence

imposed following his guilty-plea conviction for importation of cocaine, in




          *
             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).
violation of 21 U.S.C. §§ 952 and 960, and aiding and abetting, in violation of 18

U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Vizcaino-Moreno contends that the district court erred at sentencing by:

1) refusing to consider granting a minor role adjustment under the Sentencing

Guidelines; 2) improperly comparing Vizcaino-Moreno’s conduct to that of a

hypothetical average participant in a drug offense scheme; and 3) unduly deferring

to the “substantially less culpable” standard of the advisory Guidelines. The record

reflects that the district court considered whether to grant a minor role adjustment

and properly applied the applicable standard. See United States v. Cantrell, 433

F.3d 1269, 1282-83 (9th Cir. 2006); see also United States v. Rojas-Millan, 234

F.3d 464, 473-74 (9th Cir. 2000).

      Vizcaino-Moreno also contends that the district court relied on clearly

erroneous facts when it denied the adjustment. This contention fails because the

record reflects that the district court did not rely on any facts unsupported by the

record. See Cantrell, 433 F.3d at 1284 (“So long as the district court’s view of the

evidence is plausible in light of the record viewed in its entirety, it cannot be

clearly erroneous.”)(internal quotations omitted).

      Finally, Vizcaino-Moreno contends that the sentence is substantively

unreasonable in light of his minimal involvement in the offense and the factors


                                            2                                       09-50119
under 18 U.S.C. § 3553(a). In light of the totality of the circumstances, the below-

Guidelines sentence is substantively reasonable. See Gall v. United States, 552

U.S. 38, 51 (2007).

      AFFIRMED.




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