NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,

P laintiff

- Appellee ,

v. JOSE ROLANDO ROMERO

- PAYAN ,

Defendant

- Appellant

. No. 16

- 50094
D.C. No. 3 :15

- cr - 0 2703

- LAB

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Larry A. Burns , District Judge, Presiding Submitted August 9 , 2017 **
Before: SCHROEDER, TASHIMA , and M. SMITH , Circuit Judges. Jose Rolando Romero

- Payan appeals from the district court’s judgment and challenges the 46

- month custodial sentence and 5

- year term of supervised release imposed following his guilty

- plea conviction for co nspiracy to distribute heroin , in violation of 21 U.S.C. §§ 841(a)(1) and 846

. We have jurisdiction under 28 U.S.C.

* 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). 

# FILED

AUG 17 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 50094

§ 1291 , and we affirm.
Romero

- Payan contends that the district court erred by denying a minor role reduction under U.S.S.G. § 3B1.2(b)

. Contrary to Romero

- Payan’s contention, the district court did not erroneously compare Romero

- Payan to a hypothetical drug courier rather than actual participants in the organization

. See U.S.S.G. App. C Amend. 794; United States v. Quintero

- Leyva , 823 F.3d 519, 523 (9th Cir. 2016) (clarifying that proper point of comparison is other participants in the crime rather than hypothetical average participant). Instead, the district court specifically as ked
Romero

- Payan to ident ify the other known participant to whom he should be compared and then endeavored to compare him to that participant. The district
court also appropriately considered all relevant facts regarding the charged offense and the drug

- t rafficking organization as a whole. See U.S.S.G. § 3B1.2 cmt. n.3(C); United States v. Hatley , 15 F.3d 856, 859

- 60 (9th Cir. 1994).
Romero

- Payan next contends that the district court procedurally erred by failing to calculate the applicable Guide lines range for supervised release and failing to provide an adequate explanation for the term imposed

. The district court did not commit any plain error. See United States v. Valencia

- Barragan , 608 F.3d 1103, 1108 (9th Cir. 2010). Although a district c ourt’s failure to calculate the applicable Guidelines range may constitute plain error, see United States v.
Hammons , 558 F.3d 1100, 1105 (9th Cir. 2009), it is clear from the record that the3 16

- 50094

district court was aware of the applicable supervised release Guidelines range , which the presentence investigation r eport, Romero

- Payan’s own sentencing memorandum, and the government’s sentencing chart all correctly reflected

. Romero

- Payan, therefore, has not shown a reasonable probability that he would have recei ved a different sentence had the district court explicitly calculated the Guidelines range for supervised release. See United States v. Dallman , 533 F.3d 755, 761

- 62 (9th Cir. 2008). In addition, t he district court’s explanation that a five

- year term of supervised release was necessary for added deterrence , when viewed in the context of the record as a whole , was a sufficient explanation for the
sentence. See United States v. Carty , 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“[A]d equate explanation in some cases may also be inferred from the PSR or the record as a whole.”). Finally, the five

- year term of supervised release is substantive ly reasonable in light of the 18 U.S.C. § 3583(c) factors and the totality of the circumstances, including Romero

- Payan’s active effort to locate and work for a drug

- trafficking organization. See Gall v. United States , 552 U.S. 38, 51 (2007) ; United States v. Valdavinos

- Torres , 704 F.3d 679, 693 (9th Cir. 2012)

. AFFIRMED.