United States v. Villalba-Lopez

101 F. App'x 251

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2004
• Docket: No. 03-30348; D.C. No. CR-02-02100-RHW
• Status: Published

Opinion

MEMORANDUM

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Adrian Villalba-Lopez appeals his 145 month sentence following a guilty-plea conviction for two counts of distribution of methamphetamine, and aiding and abetting the distribution of methamphetamine, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, and remand in part.

Villalba-Lopez contends that the district court erred in determining that he did not qualify for a downward adjustment under U.S.S.G. § 3B1.2 for his alleged “minor or minimal role” in the drug sales. We review a district court’s finding for clear error and find none. See United States v. Davis, 36 F.3d 1424, 1436-37 (9th Cir.1994) (district court did not clearly err in denying a downward adjustment based on minor participant status where the defendant knew he was carrying drugs and was prepared to accept money from buyer); see also United States v. Flores-Payon, 942 F.2d 556, 561 (9th Cir.1991) (district court did not clearly err in finding defendant was not entitled to a minor participant adjustment where presentence report indicated that defendant participated in drug transaction, attended negotiations and brought the drugs to the scene).

We take notice, sua sponte, of the fact that the judgment incorrectly states one of the offenses of conviction. We REMAND to the district court with directions to correct the judgment to exclude the reference to 21 U.S.C. § 846. See 28 U.S.C. § 2106; Fed.R.Crim.P. 36.

AFFIRMED in part, and REMANDED in part.

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.