United States v. De la Cruz

32 F. App'x 471

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2002
• Docket: No. 99-50609; D.C. No. CR-98-00018-ALL-2
• Status: Published

Opinion

MEMORANDUM

**

Amada De la Cruz appeals her conviction and 87-month sentence following her guilty plea to conspiracy to distribute and to possess with intent to distribute methamphetamine, and attempted possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for De la Cruz has filed a brief stating that there are no arguable issues for review, and a motion to withdraw as counsel of record. Defendant has not filed a supplemental pro se brief.

Counsel has identified two potential issues for appeal. The first is whether the district court should have awarded a two- or three-level downward adjustment for mitigating role. Because De la Cruz did not request any such adjustment, we review for plain error, see United States v. Koenig, 952 F.2d 267, 272 (9th Cir.1991), and find none. In light of De la Cruz’s conduct in brokering the deals, the district court was not obligated to award any minor role adjustment. See United States v. Davis, 36 F.3d 1424, 1436-37 (9th Cir. 1994); United States v. Sanchez, 908 F.2d 1443, 1449-50 (9th Cir.1990) (affirming denial of minor role adjustment sought by defendants).

The second potential issue identified by counsel is whether the district court should have granted a downward departure based on aberrant behavior. Because this basis for downward departure was not raised in the district court, it was not preserved for appellate review. United States v. Shrewsberry, 980 F.2d 1296, 1298 (9th Cir. 1992) (per curiam).

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) discloses no issues for review. Counsel’s motion to withdraw is GRANTED, and the district court’s judgment is

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.