United States v. Jose Yeste , 399 F. App'x 309 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 13 2010
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. 09-10337
Plaintiff - Appellee, D.C. No. 4:08-cr-00288-JMR
v.
MEMORANDUM *
JOSE MIGUEL YESTE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Jose Miguel Yeste appeals from the 120-month sentence imposed following his
guilty-plea conviction for conspiracy to possess with intent to distribute cocaine and
possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii)(II). 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).
Yeste contends that the district erred by enhancing his offense level by two
levels, under U.S.S.G § 2D1.1(b)(1), based on his co-conspirators’ possession of
firearms. The district court did not clearly err by finding that his co-conspirators’
possession of firearms was reasonably foreseeable to Yeste. See United States v.
Garcia, 909 F.2d 1346, 1349-50 (9th Cir. 1990).
Yeste also contends that the district court erred by failing to grant his request
for safety valve relief. The district court did not clearly err by finding that Yeste had
failed to truthfully disclose all of the information he had concerning the offense. See
18 U.S.C. § 3553(f)(5); United States v. Miller, 151 F.3d 957, 958 (9th Cir. 1998);
United States v. Shrestha, 86 F.3d 935, 938-39 (9th Cir. 1996).
Finally, the district court did not plainly err by not awarding Yeste an additional
one-level downward adjustment for acceptance of responsibility, after the government
declined to move for the extra reduction because it would need to expend prosecutorial
resources as Yeste had rejected a plea agreement. See U.S.S.G. § 3E1.1(b); United
States v. Johnson, 581 F.3d 994, 1002-04 (9th Cir. 2009) (“[T]he allocation and
expenditure of prosecutorial resources for the purposes of defending an appeal is a
rational basis for declining to move for the third reduction point.”).
AFFIRMED.
2 09-10337