NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 20 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50213

Plaintiff-Appellee, D.C. No. 8:20-cr-00160-RGK-3 v.

VICENTE IGNACIO MORALES, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted May 10, 2024 Pasadena, California

Before: WARDLAW, CHRISTEN, and BENNETT, Circuit Judges.

Vicente Ignacio Morales appeals the 120-month sentence imposed by the

district court after a jury found Morales guilty of one count of distribution of

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

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

1. The district court did not clearly err in denying Morales an offense level

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reduction for acceptance of responsibility. See United States v. Fisher, 137 F.3d

1158, 1167 (9th Cir. 1998). In certain “rare” cases, a defendant who is convicted

at trial may be eligible for an acceptance of responsibility reduction. United States

v. Dixon, 984 F.3d 814, 824 (9th Cir. 2020). “Even a defendant who contests his

factual guilt may, under some circumstances, be entitled to such an adjustment.”

United States v. Ochoa-Gaytan, 265 F.3d 837, 843 (9th Cir. 2001) (citation

omitted); see also United States v. Hernandez, 894 F.3d 1104, 1110 (9th Cir. 2018)

(explaining that a district court “may not deny the reduction because of th[e

defendant’s] choice [to go to trial] in spite of other manifestations of sincere

contrition.”) (emphasis omitted).

Morales contends that the district court denied him acceptance points solely

because he proceeded to trial. The record does not support that conclusion.

Although the district court acknowledged that Morales went to trial, it made clear

that additional factors (denoted with an “et cetera”) influenced its decision. The

district court’s adverse credibility finding supported its determination that Morales

was not genuinely contrite, as did other evidence in the record, including the

parties’ pretrial joint statement of the case. Although there is evidence that

Morales accepted responsibility for his conduct on January 8, 2020, prior to,

during, and after trial, the “district court’s view of the evidence is plausible in light

of the record viewed in its entirety” and, thus, “cannot be clearly erroneous, even if

2 the reviewing court would have weighed the evidence differently.” United States

v. Reyes, 772 F.3d 1152, 1157 (9th Cir. 2014).

2. The district court did not err in failing to apply the safety valve reduction

because the district court did apply the reduction. Although Morales may no

longer qualify for the reduction after Pulsifer v. United States, 144 S. Ct. 718

(2024), the government, which did not cross-appeal the sentence, has waived the

issue.

3. The district court did not violate Federal Rule of Criminal Procedure 32

by failing to address Morales’s objections to the presentence report (“PSR”). Rule

32’s requirements are triggered only when the defendant challenges the “factual

accuracy of . . . matters contained in the presentence report.” United States v.

Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990). Morales objected to the

PSR’s characterization of his and codefendants’ roles and the inferences that could

be drawn from the PSR’s factual statements. But Rule 32 is not triggered by

objections to the PSR’s characterizations of the record—i.e., the Probation

Officer’s “conclusions” or “opinions”—nor the inferences that may or may not be

drawn from the facts. See United States v. Petri, 731 F.3d 833, 841 (9th Cir.

2013); United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990).

4. The district court did not abuse its discretion in denying Morales a

minimal role adjustment. Morales points to the district court’s inadvertent use of

3 the word “variances” instead of “adjustments” as support for the view that the

district court misapplied the law. But the district court’s stray remark is

insufficient standing alone to overcome the presumption that the district court

knew the law, which the parties thoroughly briefed and discussed before the

district court. United States v. Diaz, 884 F.3d 911, 915 (9th Cir. 2018). Nor is the

district court required to tick off the applicable sentencing factors to show that it

considered them. Id. at 914.

The record reflects that codefendant Zarate could not have procured the

methamphetamine without Morales’s knowledge, guidance, and assistance, and

that Morales benefitted financially from the arrangement. Morales exercised his

discretion to assist Zarate, to take Zarate and the confidential informant (“CI”) to

the tire shop, to procure methamphetamine on the CI’s behalf, and to sell an

additional quantity of methamphetamine to the CI back at Zarate’s residence.

Considering the average culpability of the likely participants based on the factors

listed at comment 3(C) to U.S.S.G. § 3B1.2, a fair-minded jurist reasonably could

conclude that Morales was not “plainly among the least culpable of those

involved.” United States v. Dominguez-Caicedo, 40 F.4th 938, 960 (9th Cir. 2022)

(quoting U.S.S.G. § 3B1.2, cmt. 4).

5. The district court did not clearly err in explaining its decision not to vary

below the Guidelines sentencing range. The district court stated on the record that

4 it considered the parties’ positions and, “particularly[,] the presentence report,”

which together summarized Morales’s mitigation arguments in compelling detail.

The district court addressed Morales directly regarding his struggle with addiction,

which was one basis for Morales’s request for a downward variance, and it further

explained that it imposed a low-end sentence to avoid any “disparity in sentence,”

an additional factor to be considered under § 3553(a). On this record, we cannot

conclude that the district court obviously and clearly failed to consider Morales’s

arguments or lacked any reasoned basis for declining to vary below the guidelines.

See Rita v. United States, 551 U.S. 338, 356 (2007); see also United States v.

Perez-Perez, 512 F.3d 514, 516 (9th Cir. 2008).

6. Finding no clear error or abuse of discretion, we cannot conclude that

vacatur of Morales’s sentence is warranted on a theory of cumulative error. See

United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012), cert. denied, 568 U.S.

829 (2012).

AFFIRMED.

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