United States v. Alba Diaz-Mejia

953 F.2d 1388, 1992 U.S. App. LEXIS 6718, 1992 WL 14903

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 29, 1992
• Docket: 90-10289
• Status: Unpublished

Opinion

953 F.2d 1388

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 90-10289.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 14, 1992.*
Decided Jan. 29, 1992.

Before CHOY, SCHROEDER and T.G. NELSON, Circuit Judges.

MEMORANDUM**

Appellant requests review of the district court's determination under the Sentencing Guidelines that she did not qualify for "minimal participant" status which would have reduced her criminal offense level by four points. Instead, the district court determined that she was a "minor participant" entitled to only a two point reduction.

Because a defendant's status as a participant in a crime is a factual question, this court reviews the district court's findings under the clearly erroneous standard. United States v. Andrus, 925 F.2d 335, 337 (9th Cir.1991).

The district court determined that the appellant was not entitled under 3B1.2(a) of the Guidelines to a minimal participant reduction:

The sentencing guidelines are a little difficult, although this defendant was actively aiding in the conspiracy by acting as a lookout, so under the guidelines the best I can do is 78 months.

R.T. at 7.

The sentence ultimately imposed was, however, based on the district court's finding that she was a "minor participant" provided for in the next section of the guidelines, 3B1.2(b). As a result, she received a two-point reduction in the offense level.

The appellant requested leniency and leniency is what she received, just not as much as she would have liked. The district court weighed her factual circumstances and determined that she overcame the difficult burden required for the two-point reduction as a minor participant. See United States v. Howard, 894 F.2d 1085, 1089 (9th Cir.1990). She was considerably successful in her argument. Consequently, the district court was not clearly erroneous and, in fact, was correct.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 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