NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUN 25 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10433

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00046-GEB-1
 v.

SERGIO ROMAN BARRIENTOS,                        MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Eastern District of California
                  Garland E. Burrell, Jr., District Judge, Presiding

                            Submitted April 14, 2020**
                             San Francisco, California

Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,*** District Judge.

      Defendant Sergio Roman Barrientos appeals his judgment and commitment

after pleading guilty to a single count of conspiracy to commit wire fraud affecting



      *
             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).
      ***
            The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
a financial institution. Barrientos challenges the district court’s application of a

four-level leadership enhancement and denial of a one-level downward adjustment

for acceptance of responsibility; denial of his request for an evidentiary hearing;

and compliance with Rule 32 of the Federal Rules of Criminal Procedure. We

affirm.

      We review the district court’s application of the Sentencing Guidelines to

the facts for abuse of discretion. United States v. Gasca-Ruiz, 

, 1170

(9th Cir. 2017) (en banc). A court abuses its discretion if it applies the wrong legal

standard or reaches a conclusion that is “illogical, implausible, or without support

in inferences that may be drawn from the facts in the record.” United States v.

Hinkson, 

, 1263 (9th Cir. 2009).

      First, Barrientos’s role as an organizer or leader of criminal activity supports

a four-level role adjustment. The record establishes that Barrientos created Capital

Access, hired the co-conspirators to help execute the scheme, and had primary

control of the shell company into which the fraudulently obtained monies were

deposited. The district court did not abuse its discretion in applying the four-level

enhancement because Barrientos’s leadership role is supported by evidence in the

record.

      Further, the district court did not err in determining that Barrientos was not

entitled to a credit for acceptance of responsibility. The district court found that


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the government had engaged in extensive trial preparation by the time Barrientos

provided notice of his intent to plead guilty. Further, Barrientos’s guilty plea came

less than a month before trial. Here, the district court did not abuse its discretion

when the facts in the record support its determination.

      We review the district court’s decision “whether to hold an evidentiary

hearing at sentencing for abuse of discretion.” United States v. Laurienti, 

, 971 (9th Cir. 2013). “[T]here is no general right to an evidentiary hearing at

sentencing.”

The sentencing court “may permissibly deny a hearing

where a defendant is allowed to rebut the recommendations and allegations of the

presentence report either orally or through the submission of written affidavits or

briefs.” United States v. Sarno, 

, 1502 (9th Cir. 1995).

      Barrientos argues on appeal that the court’s denial of an evidentiary hearing

to present live witness testimony of his treating physician was an abuse of

discretion because the doctor’s testimony was relevant to Barrientos’s request for a

downward departure or variance based on his age and poor health.

      Barrientos submitted informal objections and formal objections to the PSR.

Barrientos also filed supplemental exhibits, voluminous medical records, and a

brief in support of his requested departure. At sentencing, Barrientos’s counsel

argued his objections to the PSR. The district court did not abuse its discretion in

denying the evidentiary hearing because Barrientos had the opportunity to try to


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rebut the recommendation through written briefs prior to sentencing and presented

his objections at sentencing.

      “We review de novo whether a district court complied with Rule 32 of the

Federal Rules of Criminal Procedure in making its determinations at sentencing.”

United States v. Job, 

, 868 (9th Cir. 2017). “Rule 32 states that the

district court ‘must—for any disputed portion of the presentence report or other

controverted matter—rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing.’”

(quoting Fed. R. Crim. P.

32(i)(3)(B)).

      Barrientos objected to the recommendation for imposition of a four-level

increase under USSG § 3B1.1(a) arguing he did not lead, manage, or exercise any

control and was a co-equal participant in the enterprise. Here, the district court

overruled the objection both during the sentencing hearing and in a subsequent

written order explaining its reliance upon the investigative reports for resolving the

factual dispute. We find the district court complied with Fed. R. Crim. P. 32.

      AFFIRMED.




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