United States v. Barrios

287 F. App'x 618

Opinion

MEMORANDUM

**

David Barrios appeals from the 57-month sentence imposed upon remand following his guilty-plea conviction for importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Barrios contends that the district court erred by denying him a minor role adjustment under U.S.S.G. § 3B1.2(b), because he was substantially less culpable than his co-participants and he lacked the mental capacity to be anything other than a minor participant. We conclude that the district court did not err. See United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991) (holding that substantial amounts of narcotics is grounds for refusing to grant a sentence reduction); see also United States v. Howard, 894 F.2d 1085, 1088-89 (9th Cir.1990).

Barrios also contends that the government breached the plea agreement by arguing on appeal that the district court did not err in refusing to grant him a minor role adjustment and that the government is estopped from taking this position on appeal. We conclude that a plain reading of the plea agreement demonstrates that the government is not bound to any position regarding a minor role adjustment on appeal. See United States v. Schuman, 127 F.3d 815, 817-18 (9th Cir.1997) (per curiam) (concluding no breach of the plea agreement where agreement did not specify that the government would move for a downward adjustment).

Barrios’s remaining contentions lack merit.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.