                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 20 2012

                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50218

               Plaintiff - Appellee,             D.C. No. 2:09-cr-01137-DSF

  v.
                                                 MEMORANDUM *
LUIS ONTIVEROS-DELVAL,

               Defendant - Appellant.



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

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Luis Ontiveros-Delval appeals from the 120-month sentence and 15-year

term of supervised release imposed following his guilty-plea conviction for

conspiracy to distribute cocaine and methamphetamine, in violation of

21 U.S.C. § 846. 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).
      Ontiveros-Delval contends that the district court erred in denying a minor

role adjustment under U.S.S.G. § 3B1.2(b). The record supports the conclusion

that Ontiveros-Delval was not “substantially less culpable than the average

participant” in the conspiracy; thus, the district court did not err in denying a role

adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(A); United States v. Rodriguez-Castro,

641 F.3d 1189, 1193 (9th Cir. 2011).

      Ontiveros-Delval also contends that the district court relied at sentencing on

clearly erroneous facts both in denying the role adjustment and in selecting a

sentence under 18 U.S.C. § 3553(a). The record belies this contention.

      Ontiveros-Delval next challenges the sufficiency of the court’s explanation

of the 120-month sentence and 15-year supervised release term and its

consideration of the section 3553(a) sentencing factors. The record reflects that the

court adequately considered the parties’ submissions and the statutory sentencing

factors, and its explanation of the sentence was sufficient. See United States v.

Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).

      Ontiveros-Delval also argues that his 120-month prison sentence and 15-

year term of supervised release are substantively unreasonable, largely because

they are greater than the terms given to his co-defendants and exceed the

recommendation of the probation officer and, in the case of the supervised release


                                            2                                     11-50218
term, of the government. The 120-month sentence, 15 months below the low end

of the advisory Sentencing Guidelines range, is substantively reasonable in light of

the section 3553(a) sentencing factors and the totality of the circumstances. See

Gall v. United States, 552 U.S. 38, 51 (2007). The district court also did not abuse

its discretion by imposing a 15-year term of supervised release. See United States

v. Apodaca, 641 F.3d 1077, 1079 (9th Cir. 2011).

      We grant Ontiveros-Delval’s motion to strike and deny the government’s

request for judicial notice.

      AFFIRMED.




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