United States v. Vincente Guerrero-Jimenez , 110 F.3d 71 ( 1997 )

110 F.3d 71

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Vincente GUERRERO-JIMENEZ, Defendant-Appellant.

No. 96-50399.

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 1997.*
Decided March 18, 1997.

1

Before: BROWNING and KLEINFELD, Circuit Judges, and MERHIGE, District Judge.**

2

MEMORANDUM***

3

Appellant argues that our review should be de novo, but we disagree. We are required to give "due deference to the district court's application of the guidelines to the facts." Koon v. United States, 116 S.Ct. 2035, 2046 (1996). The ordinary review of Sentencing Guidelines applications for abuse of discretion applies here. United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996).

4

Appellant makes the reasonable argument that those who plan and supervise a crime are more important, so a driver like Guerrero-Jimenez should get a downward adjustment for minor or minimal role in the offense. U.S.S.G. § 3B1.2. The district judge considered the details of this particular alien smuggling scheme, and concluded that the driver getting the aliens through the highway checkpoints had "the most difficult job." This was also a reasonable view. Based on his considered judgment that appellant performed the most difficult job in making the crime possible, the district judge reasonably concluded that appellant was not a minor or minimal participant. The district court's denial of a minor or minimal role adjustment is consistent with the denials we upheld in United States v. Davis, 36 F.3d 1424, 1436 (9th Cir.1994) and United States v. Pinkney, 15 F.3d 825, 828 (9th Cir.1994). The clearly erroneous standard of review articulated in Davis and Pinkney may have been superseded by the abuse-of-discretion standard mandated by Koon, but we are nevertheless convinced that the district court did not abuse its discretion in denying the minor role adjustment.

5

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

The Honorable Robert R. Merhige, Jr., Senior United States District Judge, for the Eastern District of Virginia, sitting by designation

***

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