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108 F3d 340 United States v. Miranda-Ruiz

108 F.3d 340

UNITED STATES of America, Plaintiff-Appellee,
v.
Cipriano MIRANDA-RUIZ, Defendant-Appellant.

No. 96-50109.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 10, 1996.*
Decided Feb. 13, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: HALL, KOZINSKI and HAWKINS, Circuit Judges.

1

MEMORANDUM**

2

Appellant entered an unconditional guilty plea pursuant to a plea agreement that states, "In exchange for the Government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal ... the conviction." CR 28, at 11. We therefore "have no jurisdiction over [his] appeal of the denial of the motion to suppress evidence." United States v. Carrasco, 786 F.2d 1452, 1454 (9th Cir.1986).

3

Appellant did not, however, waive his right to appeal his sentence, and we proceed to review it. We, nevertheless, affirm because appellant has not met his burden of proving that he is entitled under U.S.S.G. § 3B1.2(a) & (b) to a downward adjustment based on his minimal participation in the offense. See United States v. Sanchez, 908 F.2d 1443, 1449 (9th Cir.1990). Appellant argues that he's entitled to an adjustment because did not engineer the packaging or distribution of the drugs. But drug couriers are not entitled to an adjustment under section 3B1.2(b) "where some additional factor" shows they were not a minor or minimal participant. United States v. Davis, 36 F.3d 1424, 1436 (9th Cir.1994) (emphasis in original), cert. denied, 115 S.Ct. 1147 (1995). Appellant was more than a mere courier as he recruited his co-defendant and gave the other couriers orders. The district court's determination that appellant was neither a minimal nor minor participant was therefore not clearly erroneous. See United States v. Benitez, 34 F.3d 1489, 1498 (9th Cir.1994), cert. denied, 115 S.Ct. 1268 (1995).

4

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3