United States v. Contreras

31 F. App'x 442

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2002
• Docket: No. 01-50347; D.C. No. CR-00-03349-JEC
• Status: Published

Opinion

MEMORANDUM

**

Jose Luis Contreras appeals his 18-month sentence imposed following his guilty plea conviction for attempting to transport an undocumented alien without presentation to an immigration officer, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Contreras contends that the district court erred in denying a two level downward minor role adjustment pursuant to United States Sentencing Guidelines § 3B1.2 because his only participation in the offense was to drive the vehicle across the border. This argument is unpersuasive.

“A district court’s finding that a defendant does not qualify for a minor or minimal participant status is heavily dependant on the facts of the particular case, and we uphold such a finding unless it is clearly erroneous.” United States v. Davis, 36 F.3d 1424, 1436 (9th Cir.1994). The mere fact that Contreras’ role was “to transport the alien[ ] north does not entitle him to a minor role adjustment.” United States v. Hernandez-Franco, 189 F.3d 1151, 1160 (9th Cir.1999) (stating that the appellant has the burden to prove by the preponderance of the evidence that he is substantially less culpable than the average co-participant); see also United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir.1990) (stating that “a district court is not compelled to determine whether a defendant was or was not the least culpable participant in determining whether that defendant’s role was ‘minor’ ”). Our review of the record indicates that the district court’s determination was not clearly erroneous.

AFFIRMED.

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