NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50201

Plaintiff-Appellee, D.C. No. 3:18-cr-00104-LAB

v.

MEMORANDUM*

GABRIEL SALAS,

Defendant-Appellant.

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

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Gabriel Salas appeals from the district court’s judgment and challenges the

151-month sentence imposed following his guilty-plea conviction for importation

of methamphetamine and cocaine, 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 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). Salas contends that the district court misinterpreted and misapplied the

minor role Guideline, U.S.S.G. § 3B1.2, and its commentary in denying his request

for a minor role reduction. We review the district court’s interpretation of the

Guidelines de novo and its application of the Guidelines to the facts for abuse of

discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)

(en banc).

The record reveals that the district court identified the correct legal standard

and considered the five factors listed in the commentary before determining that

Salas was not “substantially less culpable than the average participant.” See

U.S.S.G. § 3B1.2 cmt. n.3(A), (C). Contrary to Salas’s contention, the district

court properly compared Salas’s culpability to known and likely co-participants in

the offense and did not err by considering Salas’s criminal history in addition to

the commentary’s non-exhaustive factors. See United States v. Quintero-Leyva,

823 F.3d 519, 523 (9th Cir. 2016) (“[B]ecause the factors set forth in the

Amendment are non-exhaustive, a district court may also consider other reasons

for granting or denying a minor role reduction.”). The district court did not abuse

its discretion by denying the minor role adjustment in light of the totality of the

circumstances, including Salas’s prior successful drug crossings and the large

amount of drugs Salas smuggled. See U.S.S.G. § 3B1.2 cmt. n.3(C); Quintero-

Leyva, 823 F.3d at 523.

2 18-50201 Salas also contends that the sentence is substantively unreasonable. The

district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,

51 (2007). The low-end Guidelines sentence is substantively reasonable in light of

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

See Gall, 552 U.S. at 51.

AFFIRMED.

3 18-50201