United States v. Gutierrez
Opinion of the Court
MEMORANDUM
Genaro Gutierrez appeals his sentence imposed after his conviction by guilty plea for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He contends that the district court erred by making only a three-level downward adjustment and refusing to make a four-level downward adjustment under U.S.S.G. § 3B1.2(a) for his role in the criminal activity. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Gutierrez contends that the Sentencing Guidelines required the district court to find that he was a minimal participant in the criminal activity because the evidence showed that he was recruited to accompany a cocaine supplier and make only one delivery of approximately four ounces of drugs to a purchaser. U.S.S.G. § 3B1.2, comment, (nn.1-2). We reject the government’s contention that we should review only for plain error; Gutierrez did not fail to request a four-level adjustment before the district court. There was no clear error because although Gutierrez was a courier, four ounces of cocaine to be purchased for $2,000 need not be considered a small amount of drugs. United States v. Hursh, 217 F.3d 761, 770 (9th Cir. 2000); United States v. Davis, 36 F.3d 1424, 1436-37 (9th Cir. 1994). Accordingly, we affirm the district court’s judgment.
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 9th Cir. R. 36-3.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff—Appellee v. Genaro GUTIERREZ, Defendant—Appellant
- Status
- Published