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917 F2d 29 United States v. Meza-Espinoza

917 F.2d 29

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 90-30135.

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

Marco Antonio Meza-Espinoza appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to a one count information charging him with distributing heroin in violation of 21 U.S.C. Sec. 841(a)(1).1 Meza-Espinoza contends that the district court erred by concluding that he was not entitled to a two level reduction in his base offense level for his status as a minor participant pursuant to U.S.S.G. Sec. 3B1.2(b). We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

3

We review de novo the district court's construction and interpretation of the Guidelines. United States v. Carvajal, 905 F.2d 1292, 1294 (9th Cir.1990); United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989). We review for clear error the district court's factual determination of whether a defendant is a minor participant in a criminal activity. United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989).

4

A downward adjustment under the Guidelines for minor participation in criminal activity is to be used infrequently. United States v. Christman, 894 F.2d 339, 341 (9th Cir.1990). "A district court's finding that a defendant does not qualify for minimal or minor participant status is 'heavily dependent on the facts of the particular case,' and should be upheld unless clearly erroneous." Gillock, 886 F.2d at 222 (quoting Guidelines Sec. 3B1.2, commentary). A defendant may receive a role in offense adjustment only for his role in the offense of conviction. United States v. Zweber, No. 89-30235, slip op. 10245, 10254-55 (9th Cir. Aug. 31, 1990).

5

Here, it is undisputed that Meza-Espinoza made arrangements over the telephone to sell a quantity of heroin to an undercover officer. Meza-Espinoza then met with the officer at a predetermined location and exchanged approximately one ounce of heroin for $3200 cash supplied by the officer. Meza-Espinoza and the officer discussed the prices of heroin, and Meza-Espinoza assured the officer that he could purchase two, three or four more ounces of heroin in the future for prices to be discussed later. The district court did not err by concluding that Meza-Espinoza's interaction with the officer indicated that he was more than a minor participant in the single sale of heroin for which he was sentenced. See Gillock, 886 F.2d at 222; Sanchez-Lopez, 879 F.2d at 557. Meza-Espinoza's role in collateral conduct had no bearing on his role in the offense for which he was convicted. Zweber, No. 89-30235, slip op. at 10254-55.

6

Thus, the district court correctly applied the Guidelines and refused to grant a downward adjustment for minor participation. See Gillock, 886 F.2d at 222.

7

AFFIRMED.

*

The Panel unanimously finds this case suitable for disposition 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

1

Meza-Espinoza was originally charged in two counts of an eight count indictment. The government agreed to dismiss the indictment in return for Meza-Espinoza's guilty plea to a single-count superseding information