United States v. Jose Gomez-Regin ( 2011 )

FILED
NOT FOR PUBLICATION MAR 17 2011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. 10-30151
10-30152
Plaintiff - Appellee,
D.C. No. 1:09-cr-00089-EJL
v. D.C. No. 1:09-cr-00009-EJL
JOSE LUIS GOMEZ-REGIN, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Jose Luis Gomez-Regin appeals from the 144-month sentence imposed
following his guilty-plea conviction for conspiracy to distribute methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846, and illegal reentry, in violation
*
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).
of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Gomez-Regin contends the district court erred by applying a preponderance
of the evidence standard rather than a clear and convincing evidence standard in
determining whether he had an aggravating role in the offense, pursuant to
U.S.S.G. § 3B1.1(b). The three-level increase in offense level resulting from the
district court’s aggravating role determination is not “extremely disproportionate”
and therefore does not warrant application of the clear and convincing evidence
standard. See United States v. Johansson, 249 F.3d 848, 856 (9th Cir. 2001)
(finding a four-level increase to be not extremely disproportionate).
To the extent that Gomez-Regin contends the district court erred by applying
the adjustment for his role as a manager or supervisor, the district court did not
clearly err in light of evidence that Gomez-Regin supplied methamphetamine to
some of his co-conspirators, determined who performed particular duties, and
financed the initial purchase of methamphetamine. See United States v. Egge, 223
F.3d 1128, 1132 (9th Cir. 2000) (three-level adjustment was proper where
defendant used others to help him sell drugs).
AFFIRMED.
2 10-30151