                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 21 2013

                                                                        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. 11-50244

              Plaintiff - Appellee,              D.C. No. 8:10-cr-00026-DSF-1

  v.
                                                 MEMORANDUM *
ANDRES ORTEGA, AKA Andres
Alcaraz,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                     Argued and Submitted February 11, 2013
                              Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District
Judge.**

       Andres Ortega Alcaraz (“Alcaraz”) appeals his convictions for two counts of

possessing pseudoephedrine knowing or having reasonable cause to believe it will


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2),

and one count of conspiring to do the same, in violation of 21 U.S.C. § 846.

      1. The Miranda warning was not constitutionally deficient. The officer’s

warning “reasonably conveyed [Alcaraz’s] right to have an attorney present . . . at

all times.” Florida v. Powell, 130 S. Ct. 1195, 1205 (2010); see also Duckworth v.

Eagan, 492 U.S. 195, 203 (1989). The given warning was “sufficiently

comprehensive and comprehensible when given a commonsense reading,” Powell,

130 S. Ct. at 1205, and “nothing in the warning[] . . . suggested any limitation on

the right to the presence of appointed counsel.” California v. Prysock, 453 U.S.

355, 360-61 (1981) (per curiam). As in People of the Territory of Guam v. Snaer,

758 F.2d 1341 (9th Cir. 1985), the Miranda warning Alcaraz received “adequately

convey[ed] notice of the right to consult with an attorney before questioning,” even

though it did not explicitly inform him of that right. Id. at 1342-43. In both Snaer

and this case, the right to talk to a lawyer before questioning “[could] easily be

inferred from the warnings actually given.” United States v. Connell, 869 F.2d

1349, 1352 (9th Cir. 1989).

      2. With respect to Alcaraz’s assertion that he was entitled to a minor-role

adjustment under U.S.S.G. § 3B1.2, “[t]he relevant comparison is between

[Alcaraz’s] conduct and that of . . . all actors who participated in [the] given


                                           2
criminal scheme.” United States v. Rojas-Milan, 234 F.3d 464, 473 (9th Cir.

2000). Nothing in the record suggests that Alcaraz was “substantially less culpable

than the average participant” in the pseudoephedrine operation. U.S.S.G. § 3B1.2

comment 3(A). Alcaraz played a significant role in purchasing large quantities of

pseudoephedrine over a long period of time, with the knowledge that it would be

used to manufacture methamphetamine, and transported and compensated others to

do the same.

      Characterizing the relevant criminal scheme as a methamphetamine

manufacturing and distribution operation does not assist Alcaraz. Given the

critical importance of obtaining pseudoephedrine in such an operation, Alcaraz still

played a significant role relative to the other participants. See United States v.

Rosas, 615 F.3d 1058, 1067-68 (9th Cir. 2010).

      Finally, we cannot disapprove of Alcaraz’s sentence as substantively

unreasonable. United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc).

Although the sentence is quite long for one of Alcaraz’s criminal background and

role, the record as a whole reflects that the district court gave “rational and

meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).”

United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc). The

district court also gave specific consideration to whether to disapprove the


                                            3
Guidelines sentence for pseudoephedrine possession on policy grounds, but

concluded that it did not disapprove of the Guidelines policy. See United States v.

Henderson, 649 F.3d 955, 963-64 (9th Cir. 2011); see also Kimbrough v. United

States, 552 U.S. 85, 101-02 (2007). The district court therefore did not abuse its

discretion in imposing Alcaraz’s 204-month, within-Guidelines sentence.




AFFIRMED.




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