United States v. Gutierrez

7 F. App'x 676

Opinion

MEMORANDUM²

Genaro Gutierrez appeals his sentence imposed after his conviction by guilty plea for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He contends that the district court erred by making only a three-level downward adjustment and refusing to make a four-level downward adjustment under U.S.S.G. § 3B1.2(a) for his role in the criminal activity. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Gutierrez contends that the Sentencing Guidelines required the district court to find that he was a minimal participant in the criminal activity because the evidence showed that he was recruited to accompany a cocaine supplier and make only one delivery of approximately four ounces of drugs to a purchaser. U.S.S.G. § 3B1.2, comment, (nn.1-2). We reject the government’s contention that we should review only for plain error; Gutierrez did not fail to request a four-level adjustment before the district court. There was no clear error because although Gutierrez was a courier, four ounces of cocaine to be purchased for $2,000 need not be considered a small amount of drugs. United States v. Hursh, 217 F.3d 761, 770 (9th Cir.2000); United States v. Davis, 36 F.3d 1424, 1436-37 (9th Cir.1994). Accordingly, we affirm the district court’s judgment.

AFFIRMED.

2 . 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.