FILED

NOT FOR PUBLICATION MAY 21 2013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, Nos. 11-10263 11-10289 Plaintiff - Appellee, D.C. No. 2:09-cr-00381-EJG v.

LUCIANO MERCADO, MEMORANDUM *

Defendant - Appellant.

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SERGIO MERCADO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California Edward J. Garcia, District Judge, Presiding

Submitted May 14, 2013 **

Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.

* 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). In these consolidated appeals, Luciano Mercado (“Luciano”) appeals from

the 168-month sentence and Sergio Mercado (“Sergio”) appeals from 135-month

sentence imposed following their guilty-plea convictions for conspiracy to

distribute, and possession with intent to distribute, over 500 grams of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have

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

Luciano contends that the district court erred in calculating the Guidelines

range by improperly applying a three-level aggravating role enhancement under

U.S.S.G. § 3B1.1(b). We need not resolve this issue because the court varied

downward by five levels to a base offense level that did not reflect the role

enhancement. Thus, any error in applying the enhancement was harmless. See

United States v. Leal-Vega, 680 F.3d 1160, 1170 (9th Cir. 2012).

Luciano also contends that the district court violated Federal Rule of

Criminal Procedure 32 by failing to resolve factual disputes related to the

application of the aggravating role enhancement. The district court did not err

because it considered Luciano’s objections to the presentence report and adopted

the government’s position with respect to the factual disputes. See United States v.

Doe, 488 F.3d 1154, 1158-59 (9th Cir. 2007).

Luciano finally contends that the district court procedurally erred by failing

adequately to explain the sentence. We review for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The

2 11-10263 & 11-10289 district court considered Luciano’s arguments and adequately explained the

sentence in light of the 18 U.S.C. § 3553(a) sentencing factors.

Sergio contends that his sentence is substantively unreasonable. The

government argues that his appeal is barred by a valid appeal waiver. Reviewing

de novo, we conclude that the government forfeited its right to enforce the waiver

by failing to object to the district court’s unqualified advisement that Sergio

retained the right to appeal the court’s judgment. See United States v. Felix, 561

F.3d 1036, 1040-41 (9th Cir. 2009). However, Sergio has not shown that the

district court abused its discretion in imposing his sentence. See Gall v. United

States, 552 U.S. 38, 51 (2007). The within-Guidelines sentence is substantively

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

the circumstances, including the seriousness of the offense and the need to promote

respect for the law. See id.

AFFIRMED.

3 11-10263 & 11-10289