United States v. Nunez-Rosas

66 F. App'x 748

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2003
• Docket: No. 02-30341; D.C. No. CR-01-30101-HO
• Status: Published

Opinion

MEMORANDUM

**

Jose Nunez-Rosas appeals his conviction and 70-month sentence imposed following his guilty plea to distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

Nunez-Rosas contends that the district court erred by imposing a two-level enhancement to his base offense level for possession of a firearm pursuant to United States Sentencing Guidelines (“U.S.S.G”) § 2Dl.l(b)(l). Reviewing for clear error, we conclude that the district court’s finding that the co-defendant’s possession of the firearm was foreseeable was not erroneous. See United States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.1990). Consequently, the district court properly refused to grant a two-level “safety valve” reduction pursuant to U.S.S.G. § 2Dl.l(b)(6). See U.S.S.G. § 5C1.2 (a)(2).

■ Nunez-Rosas also contends that the district court erred by denying him a two-level reduction for his minor role in the offense pursuant to U.S.S.G. § 3B1.2. After reviewing the record, we conclude that the district court’s finding that NunezRosas failed to prove by a preponderance of the evidence that he qualified for a minor role adjustment was not clearly erroneous. See United States v. Ladum, 141 F.3d 1328, 1348 (9th Cir.1998).

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.