United States v. Quiros-Acosta

53 F. App'x 450

Opinion

MEMORANDUM

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Julio Quiros-Acosta appeals his conviction for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841, arguing that the district court erred in applying a two-level upward adjustment to his sentence for using a minor to commit the offense pursuant to United States Sentencing Guidelines Manual § 3B1.4. We affirm.

We reject Quiros-Acosta’s contention that the upward adjustment under § 3B1.4 requires a minor’s active participation in a federal crime. United States v. CastroHernandez, 258 F.3d 1057, 1060 (9th Cir. 2001), cert. denied, 534 U.S. 1167, 122 S.Ct. 1185, 152 L.Ed.2d 126 (2002) (holding that “[i]t is sufficient that the defendant took affirmative steps to involve a minor in a manner that furthered or was intended to further the commission of the offense.”).

Quiros-Acosta admitted that he affirmatively acted to involve his three minor children in the offense to make it easier for him to get across the border, hoping that doing so would decrease his chances of being stopped by customs agents. While “mere presence” of a minor is insufficient to support the application of § 3B1.4, United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir.2002), Quiros-Acosta’s “affirmative steps” to involve his minor children in the commission of the offense brings him within § 3B1.4.

We reject Quiros-Acosta’s invitation to call for an en banc hearing on this case because there is no intra-circuit conflict and he has failed to demonstrate that Castro-Hemandez was wrongly decided.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.