917 F2d 28 United States v. Escobar

917 F.2d 28

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
Flavio ESCOBAR, Defendant-Appellant.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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No. 89-50574.


United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 1990.
Decided Oct. 22, 1990.


Before REINHARDT and LEAVY, Circuit Judges, and KING, Senior District Court Judge*.




Appellant attacks his sentence on several grounds. We have examined all grounds and find them without merit.


All of appellant's arguments relate to what the sentencing judge did or did not say at the time of sentencing. We find that the district judge adequately ruled on appellant's objections to the presentence report and adequately explained the reasons for sentencing appellant to a term of 188 months.


At the time of sentencing, appellant made three objections to the facts of the offense as contained in the presentence report. Each of these objections was based on appellant's version of the offense. The district judge quite clearly stated that he did not find appellant's version of the events to be credible.

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Appellant complains that, despite his admission of guilt, he was refused credit for acceptance of responsibility. A plea of guilty, however, does not automatically entitle a defendant to such a credit. See U.S.S.G. Sec. 3E1.1(c) & Application Note 3. The district judge stated that he believed the appellant only admitted enough to support a guilty plea and then denied everything else; the district judge also stated that appellant's denials were not credible. Id. Sec. 3E1.1, Application Note 5 ("The sentencing judge is in a unique position to evaluate [the] defendant's acceptance of responsibility."). These conclusions are not clearly erroneous. United States v. Gonzalez, 897 F.2d 1018 (9th Cir.1990).


Appellant complains that he was refused credit as a "minimal" or "minor" participant under U.S.S.G. Sec. 3B1.2. Although the district judge theorized that, were the scope of the drug conspiracy expanded enormously, the appellant might be considered a minor participant, the judge concluded that appellant was not a minor player in connection with the instant offense. There is no basis for declaring such a conclusion erroneous. United States v. Gillock. 886 F.2d 220, 222 (9th Cir.1989) (per curiam).


Appellant argues that the court erred in not making an express determination of the applicable guideline range. The appellant's base offense level, with no credits, was computed at 36. With a criminal history category of I, this yielded a guideline range of 188-235 months. If appellant had been granted a 2-point credit for either acceptance of responsibility or for being a minor participant, the base offense level would have been 34, with a guideline range of 151-188 months. The district judge clearly expressed his opinion that the appropriate sentence for appellant was 188 months, a term of custody within both ranges. Absent any showing that the appellant's sentence was affected by this computational ambiguity, there is no basis for remand. United States v. Munster-Ramirez, 888 F.2d 1267, 1273 (9th Cir.1989), cert. denied, 110 S.Ct. 1951 (1990).


Appellant, citing 18 U.S.C. Sec. 3553(b), also contends that the district judge's sentence was improperly based upon the sentencing of other defendants in other similar but unrelated crimes. Section 3553(b), however, governs only departures from the sentencing guidelines. There is no indication in the record that the district court departed from the applicable guideline range in sentencing appellant, and therefore section 3553(b) is not relevant to this case.


Appellant also states that 18 U.S.C. Sec. 3553(b) discusses the factors which the district court may consider in imposing a sentence, and that comparison of appellant's sentence with that meted out in an unrelated case is not among those factors permitted. However, section 3553(a)(6) explicitly states that "the court, in determining the particular sentence to be imposed, shall consider ... the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Id.


Finally, appellant complains that the judge did not state the reasons for the particular sentence imposed as required by 18 U.S.C. Sec. 3553(c). We disagree. In our opinion, the district judge explained the rationale behind appellant's 188 month sentence.




The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation


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