United States v. Mauricio Pena-Manzanarez

FILED
NOT FOR PUBLICATION MAR 14 2011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. 10-10061
Plaintiff - Appellee, D.C. No. 4:09-cr-01929-DCB-
DTF
v.
MAURICIO ALFREDO PENA- MEMORANDUM *
MANZANAREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Mauricio Alfredo Pena-Manzanarez appeals from his guilty-plea conviction
and 65-month sentence for importation of cocaine, in violation of 21 U.S.C. §§
952(a), 960(a)(1) and (b)(1)(B)(ii), and possession with intent to distribute cocaine,
*
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).
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Pena-Manzanarez contends that the district court erred by denying his
request for a minor role adjustment, pursuant to U.S.S.G. § 3B1.2. The district
court did not clearly err when it denied the request. See United States v. Cantrell,
433 F.3d 1269, 1282 (9th Cir. 2006) (describing standard); see also United States
v. Lui, 941 F.2d 844, 849 (9th Cir. 1991).
Pena-Manzanarez further contends that the district court erred by refusing to
grant an additional one-point downward adjustment for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1(b), despite the government’s decision
not to move for the extra point. The district court did not clearly err. The
government’s decision not to move for the third point was rational and not
arbitrary, as the defendant did not waive his right to appeal. See United States v.
Johnson, 581 F.3d 994, 1002 (9th Cir. 2009), see also United States v. Medina-
Beltran, 542 F.3d 729, 731 (9th Cir. 2008) (per curiam).
AFFIRMED.
2 10-10061