United States v. Arpayan

101 F. App'x 709

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2004
• Docket: No. 03-50411
• Status: Published

Opinion

MEMORANDUM

**

Laura Elena Arpayan appeals the 27-month sentence imposed following her guilty-plea conviction for bringing an illegal alien into the United States without presentation, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). We have jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm.

Arpayan contends that there was insufficient evidence to support an upward adjustment for creating a substantial risk of death or serious bodily injury under U.S.S.G. § 2Ll.l(b)(5). We conclude that the district court did not abuse its discretion by imposing the sentencing enhancement in this case. See U.S.S.G. § 2Ll.l(b)(5), cmt. n. 6 (2002); United States v. Carreno, 363 F.3d 883, 890-91 (9th Cir.2004) (explaining that, in determining whether to apply § 2Ll.l(b)(5), “the district court must look at the facts in context and assess the degree of risk created by the totality of the defendant’s conduct”).

Arpayan also contends that she is entitled to a two-level downward adjustment for minor role. We disagree. Because Arpayan failed to carry her burden of proving by a preponderance of the evidence that she was “substantially less culpable than the average participant” in the offense, the district court did not clearly err by denying her request for a downward adjustment for minor role. See U.S.S.G. § 3B1.2, cmt. n. 3 (2002); United States v. Hemandez-Franco, 189 F.3d 1161, 1160 (9th Cir.1999).

AFFIRMED.

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 Circuit Rule 36-3.