OpenJurist

917 F2d 28 United States v. Duarte-Corona

917 F.2d 28

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee
v.
Efren DUARTE-CORONA, Defendant-Appellant.

No. 90-50028.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 25, 1990.

Before HUG, NELSON and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Efren Duarte-Corona appeals his sentence, imposed pursuant to the United States Sentencing Guidelines ("Guidelines"). Duarte-Corona pleaded guilty to one count of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Duarte-Corona contends that the district court erred by refusing to grant a three level downward adjustment to his base offense level for his role in the offense pursuant to Guidelines Sec. 3B1.2. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

3

A defendant's status as a minor participant is a factual conclusion. United States v. Howard, 894 F.2d 1085, 1088 (9th Cir.1990). Accordingly, this court reviews for clear error the district court's determination that a defendant is not entitled to downward adjustment for his role in the offense. See id.; United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989) (per curiam).

4

The Guidelines allow the district court to adjust downward for a defendant's minimal or minor role in the criminal activity, but they note that such adjustments should be applied infrequently. Guidelines Sec. 3B1.2, comment n. 2; Gillock, 886 F.2d at 222. When determining whether the defendant's role is "minor," the district court is not required to compare and rate the defendant's culpability relative to that of his codefendants. United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir.1990). The defendant carries the burden of proving his minimal or minor role by a preponderance of the evidence. Howard, 894 F.2d at 1089-90. A defendant who plays a significant role in planning or preparing for the offense is not entitled to a downward adjustment. United States v. Sanchez, 908 F.2d 1443, 1450 (9th Cir.1990).

5

Here, the record shows that on May 27, 1989, Duarte-Corona told two confidential informants that he was trafficking large quantities of heroin in the Southern California area and gave the informants his telephone number. On June 18, 1989, Duarte-Corona and codefendant Juan Miranda-Gonzalez met with an undercover agent and arranged to sell approximately one and one-half pounds of heroin. Duarte-Corona appeared to be the main source for the heroin, and he participated in the negotiations for approximately 25 minutes. Duarte-Corona brought samples of heroin for the undercover agent to examine during these negotiations. He was present during the heroin delivery and at the culmination of the transaction.1

6

During the sentencing hearing, the district court considered these facts and stated:

7

This was a very significant enterprise from beginning to end. You [Duarte-Corona] were not a street dealer in heroin ... these are the consequences that come for the kind of activity that you were engaged in ... this isn't just a mechanical thing that we have done here when we arrive at 78 months. I think it's a reasonable and appropriate sentence, under all the circumstances.

8

Reporter's Transcript 12/11/89 at 7.

9

Based on these facts, the district court's refusal to grant Duarte-Corona's request for a downward adjustment based on his participation in the offense was not clearly erroneous. See United States v. Sanchez, 908 F.2d 1443, 1448-50 (9th Cir.1990).

10

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Therefore, appellant's request for oral argument is denied

**

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

1

The district court adopted the presentencing report's (PSR) findings and recommendations. Duarte-Corona did not contest the PSR's factual assertions in his written objections or during the sentencing hearing