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98 F3d 1347 United States v. Quijano

98 F.3d 1347

UNITED STATES of America, Plaintiff-Appellee,
v.
Mario Santos QUIJANO, Defendant-Appellant.

No. 95-50596.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 7, 1996.*
Decided Oct. 11, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

1

MEMORANDUM**

2

Mario Santos Quijano appeals his conviction and 108-month sentence under the Sentencing Guidelines imposed following his guilty plea to importing a controlled substance and possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 952(a) and 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and remand for resentencing.

3

Quijano contends that the district court abused its discretion by denying his motion for substitution of counsel. This claim lacks merit because any challenge to antecedent constitutional error, if any, was waived by his subsequent guilty plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).

4

Quijano contends that the district court erred by failing to state its reasons for sentencing him to 108-months, the top of the guideline assuming the court gave Quijano the benefit of the "safety valve" provision. Because the guideline range is less than 24 months, no statement of reasons is required. 18 U.S.C. § 3553(c)(1); United States v. Price, 51 F.3d 175, 178 (9th Cir.1995).

5

Quijano also contends that he was eligible for a four-level minimal role adjustment under U.S.S.G. § 3B1.2, which would have lowered his guideline range to 57-71 months. The district court made no findings on whether Quijano was entitled to the adjustment. Thus, we remand for specific findings regarding the minimal role adjustment and appropriate resentencing, if necessary. See United States v. Ing, 70 F.3d 553, 557 (9th Cir.1995).

6

REVERSED and REMANDED.

*

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