                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 03 2013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,                        No.  12-50059

              Plaintiff - Appellee,              D.C. No.  3:11-cr-02290-LAB-1

  v.
                                                 MEMORANDUM *
ABILENE VELAZQUEZ-SEDANO,

              Defendant - Appellant. 



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

                            Submitted April 12, 2013 **
                               Pasadena, California

Before: RAWLINSON and BYBEE, Circuit Judges, and TIMLIN, Senior District
Judge.*** 




        *
             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). 
        ***
             The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation. 
       Appellant Abilene Velazquez-Sedano was apprehended entering the United

States from Mexico at the Calexico, California Port of Entry in a 1996 Toyota

4Runner with $800 in cash and 23.72 kilograms of cocaine in the car’s gas tank. 

Velazquez-Sedano pled guilty and was convicted of importing cocaine into the

United States.  Velazquez-Sedano now challenges on appeal the validity of her

plea, as well as the sentence imposed by the district court and the conditions of

supervised release.  We affirm the district court’s judgment.  The facts are known

to the parties. 

       First, this case’s facts as admitted by Velazquez-Sedano during her plea

colloquy support a finding of deliberate ignorance, and the magistrate judge

therefore did not plainly err in explaining the nature of the charge.  See United

States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir.  1999).  That Velazquez-

Sedano admitted knowledge of smuggling marijuana—and not cocaine—is not a

defense; a defendant need not know the type or quantity of the drug being

smuggled so long as the defendant knows it is some type of controlled substance. 

United States v. Carranza, 289 F.3d 634, 644 (9th Cir.  2002). 

       Second, the relevant point of comparison in determining whether any

downward adjustment in sentencing for a minor role is warranted is the average

participant, and thus the district court did not clearly err in stating “[t]he guideline

commentary focuses on the average participant and requires the court to find by a
preponderance of evidence defendant is substantially less culpable than the average

participant, not the shot callers, not the people with proprietary interest.”  See also

United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir.  2006); U.S. Sentencing

Guidelines Manual (USSG) § 3B1.2, & cmt.  n.3(A). 

      Third, given that Velazquez-Sedano blamed her associates in Mexico for

taking advantage of her frail emotional state to involve her in smuggling drugs, the

district court did not plainly err in limiting Velazquez-Sedano’s travel to Mexico,

without the permission of her probation officer, to twelve hours as a condition of

supervised release.  See USSG § 5D1.3(b); 18 U.S.C. 3583(c); 18 U.S.C. § 3553;

see also United States v. Watson, 582 F.3d 974, 983–84 (9th Cir.  2009) (noting

that conditions separating a defendant from negative influences in her prior life are

“reasonably related to the permissible goals of deterrence and rehabilitation[:] . . .  a

common purpose of supervised release”).  Because Velazquez-Sedano is a United

States citizen, her child is in the United States, and conditions of supervised release

provide some flexibility by virtue of the probation officer, the conditions of

supervised release therefore involve no greater restriction on her liberty than is

necessary.  18 U.S.C. 3583(d)(2); USSG § 5D1.3(b)(2); see Watson, 582 F.3d at

983–84 (noting that conditions allowing for a probation officer’s discretion are less

onerous than an outright ban).  Relatedly, the district court did not impermissibly

delegate authority to the probation officer in conjunction with the travel restriction. 
Indeed, we have observed that conditions subject to a probation officer's discretion

are less onerous.  See Watson, 582 F.3d at 983–84. 

      Fourth, the district court also did not plainly err in requiring Velazquez-

Sedano to submit to drug testing as a condition of supervised release.  Velazquez-

Sedano was convicted of drug smuggling, and, when asking the district court to

enroll her in the ARDAP drug program while incarcerated, Velazquez-Sedano

noted that “she is an example of another element of what getting involved with

drugs can do.” 

      Finally, the district court did not abuse its discretion in sentencing

Velazquez-Sedano to a 71-month term of imprisonment, which is 26 months below

the low end of the Guidelines range.  The district court reasonably focused on

Velazquez-Sedano’s knowledge that she was importing some type and quantity of

drugs, Velazquez-Sedano’s decision to use, and consequently endanger, her

daughter to shield her crime, and the ultimate type and quantity of drugs imported. 

See Carranza, 289 F.3d at 644. 

      AFFIRMED.