United States v. Guerra-Vasquez

44 F. App'x 111

Opinion

MEMORANDUM

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Rafael Guerra-Vasquez appeals his guilty-plea conviction and 84-month sentence for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Guerra-Vasquez contends that 21 U.S.C. § 841 is facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Alternatively, he argues that the unconstitutional provision, § 841(b), is severable, so the district court plainly erred in sentencing him to more than one year under § 841(b)(3), or, at the most, the five-year maximum of § 841(b)(1)(D). Both arguments are foreclosed by United States v. Buckland, 289 F.3d 558, 566-67 (9th Cir.) (en banc), cert, denied, — U.S.-, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002).

Next, Guerra-Vasquez contends that the district court erred in denying him a two-level minor role adjustment under U.S.S.G. § 3B1.2. We review for clear error a district court’s determination that a defendant does not qualify for a minor role adjustment. United States v. Penar-Gutierrez, 222 F.3d 1080, 1091 (9th Cir.), cert, denied, 531 U.S. 1057, 121 S.Ct. 670, 148 L.Ed.2d 570 (2000). An amount far smaller than the 678 pounds of marijuana transported by Guerra-Vasquez is enough to deny a minor role adjustment. ' United States v. Hursh, 217 F.3d 761, 770 (9th Cir.2000) (considering 59.3 pounds of marijuana substantial enough to preclude minimal role adjustment); see also United States v. Liu, 941 F.2d 844, 849 (9th Cir. 1991) (stating possession of a substantial amount of narcotics is sufficient evidence to support the denial of a mitigating role adjustment). Therefore the district court’s refusal to grant a sentence reduction 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 9th Cir. R. 36-3.