United States v. Priscilla Finau ( 2011 )

FILED
NOT FOR PUBLICATION JUN 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30232
Plaintiff - Appellee, D.C. No. 3:09-cr-00022-TMB
v.
MEMORANDUM *
PRISCILLA MARILYN FINAU,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Priscilla Marilyn Finau appeals from the 51-month sentence imposed
following her guilty-plea conviction for drug conspiracy, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A) & (B). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Finau contends that the district court erred in denying her a minor role
adjustment under U.S.S.G. § 3B1.2. On appeal, Finau argues for the first time that
her role should have been compared to hypothetical other “likely participants” in
the conspiracy, rather than just to the role of her co-defendant. Even if this
argument were not waived, Finau’s speculation about other possible participants,
without providing any evidentiary support, fails to meet her burden of proving that
she is entitled to a minor role adjustment. See United States v. Rosas, 615 F.3d
1058, 1068-69 (9th Cir. 2010).
Finau also contends that her sentence is substantively unreasonable. In light
of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, the
sentence, six months below the bottom of the Guidelines range, is not substantively
unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 10-30232