Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding D.C. No.3:10-cr-00549
The opinion of the court was delivered by: Clifton, Circuit Judge
Argued and Submitted May 4, 2011-Pasadena, California
Before: Barry G. Silverman, Richard C. Tallman, and Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton;
Concurrence by Judge Silverman
Juan Felipe Rodriguez-Castro ("Rodriguez") pled guilty to importing 33.46 kilograms of cocaine in violation of 21 U.S.C. §§ 952 and 960. Rodriguez was sentenced to 57 months imprisonment. Rodriguez appeals this sentence, contending that the district court erred in declining to decrease the base offense level, as recommended by the plea agreement he had entered into with the government. The district court found that Rodriguez failed to demonstrate he was a "minor participant" in the offense. Accordingly, the court determined that Rodriguez was not entitled to a minor-role adjustment to the offense level. We conclude that the district court did not clearly err in its factual determination or abuse its discretion in declining to award the minor-role adjustment. We also conclude that the sentence imposed was substantively reasonable. We thus affirm the sentence imposed upon Rodriguez by the district court.
Rodriguez was arrested for entering the United States from Mexico with a large amount of cocaine, 33.46 kilograms, hidden within the gas tank of his vehicle. Rodriguez later admitted that he knew an unlawful drug was concealed in the vehicle but claimed that he did not know that it was cocaine. He said that several weeks prior to his arrest, he was asked by a co-worker to accept a vehicle, register the vehicle in his name, and cross the border with drugs hidden inside, in exchange for between $3,500 and $4,000. Rodriguez agreed to the offer. In order to develop a record at the Port of Entry, Rodriguez crossed into the United States with the vehicle at least two or three times prior to the crossing during which he was arrested.
After his arrest, Rodriguez entered into a plea agreement with the government. The agreement noted that the sentence was within the sole discretion of the sentencing judge, but also provided that the parties would jointly make recommendations as to the calculations to be made under the now-advisory United States Sentencing Guidelines. In particular, the parties recommended that Rodriguez be granted a two-level downward adjustment in the offense level, pursuant to U.S.S.G. § 3B1.2(b), on the ground that Rodriguez played a minor role in the offense, as he was merely a courier.*fn1 The agreement stated that "Defendant must adequately set forth a factual basis to support a minor role." Had Rodriguez received this minor-role adjustment, Rodriguez's base offense level would have also been decreased three levels pursuant to U.S.S.G. § 2D1.1(a)(5)(ii).*fn2 Assuming a minor-role adjustment, the plea agreement recommended a sentence of between 41 and 51 months.
The Presentencing Report recommended that Rodriguez not be given a minor-role adjustment, and in calculating the Guidelines sentencing range, the district court declined to award such a minor-role adjustment to Rodriguez. Judge Burns determined that Rodriguez failed to prove he had played only a minor role in the offense, emphasizing Rodriguez's role in preparing for the offense. Judge Burns also ...