Opinion
No. 07-50517.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 2, 2008.
Jeffrey D. Moore, Esquire, Fred Sheppard, Assistant U.S., Karen P. Hewitt, U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Kathryn Thickstun Leff, Law Offices of Kathryn Thickstun Leff, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. CR-07-02131-LAB.
Before: ALARCÓN, LEAVY, and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Francisco Lugo-Cuevas appeals from the 60-month sentence imposed following his guilty-plea conviction for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Lugo-Cuevas contends that the district court clearly erred in denying a downward adjustment for mitigating role pursuant to U.S.S.G. § 3B1.2. We conclude that the district court correctly determined Lugo-Cuevas was not "substantially less culpable than the average participant" in the offense. Id. cmt. n. 3(A). We reject Lugo-Cuevas's contention that the district court failed to consider relevant information by refusing to grant a continuance so that the government attorney who recommended the downward adjustment could address the court. The record discloses that the district court did not clearly err in denying the downward adjustment. See United States v. CantreU, 433 F.3d 1269, 1283 (9th Cir. 2006); United States v. Hursh, 217 F.3d 761, 770 (9th Cir. 2000).
Lugo-Cuevas also contends that his sentence is substantively unreasonable because the district court declined to impose the sentence recommended by the parties. We conclude that the sentence is substantively reasonable under the totality of the circumstances. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).