United States v. Jose Gomez-Regin

Opinion

FILED NOT FOR PUBLICATION MAR 17 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-30151 10-30152 Plaintiff - Appellee, D.C. No. 1:09-cr-00089-EJL v. D.C. No. 1:09-cr-00009-EJL

JOSE LUIS GOMEZ-REGIN, MEMORANDUM *

Defendant - Appellant.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Submitted February 15, 2011 **

Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

Jose Luis Gomez-Regin appeals from the 144-month sentence imposed

following his guilty-plea conviction for conspiracy to distribute methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1) and 846, and illegal reentry, in violation

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Gomez-Regin contends the district court erred by applying a preponderance

of the evidence standard rather than a clear and convincing evidence standard in

determining whether he had an aggravating role in the offense, pursuant to

U.S.S.G. § 3B1.1(b). The three-level increase in offense level resulting from the

district court’s aggravating role determination is not “extremely disproportionate”

and therefore does not warrant application of the clear and convincing evidence

standard. See United States v. Johansson, 249 F.3d 848, 856 (9th Cir. 2001)

(finding a four-level increase to be not extremely disproportionate).

To the extent that Gomez-Regin contends the district court erred by applying

the adjustment for his role as a manager or supervisor, the district court did not

clearly err in light of evidence that Gomez-Regin supplied methamphetamine to

some of his co-conspirators, determined who performed particular duties, and

financed the initial purchase of methamphetamine. See United States v. Egge, 223

F.3d 1128, 1132 (9th Cir. 2000) (three-level adjustment was proper where

defendant used others to help him sell drugs).

AFFIRMED.

2 10-30151