U.S. v. Ayon-Perez

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Alberto AYON-PEREZ…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 15, 2007

220 F. App'x 689 (9th Cir. 2007)

Opinion

No. 06-50110.

Submitted February 8, 2007.^_

_ This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed February 15, 2007.

Richard C. Cheng, Esq., Roger W. Haines, Jr., Esq., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.

Vince J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California; William Q. Hayes, District Judge, Presiding. D.C. No. CR-03-03497-WQH.

Before KOZINSKI and TROTT, Circuit Judges, and MOLLOY,^__ District Judge.

__ The Honorable Donald W. Molloy, Chief United States District Judge for the District of Montana, sitting by designation.

MEMORANDUM ^___

___ This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Defendant raised his sentencing claims in his original appeal, but we ordered a remand pursuant to United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir. 2005) (en banc), without resolving these claims. See United States v. Ayon-Perez, 150 Fed. Appx. 711 (9th Cir. 2005) (mem.). As such, they were preserved. See United States v. Combs, 470 F.3d 1294, 1297 (9th Cir. 2006) (defendant cannot raise "new claims" after an Ameline remand).

In order to be eligible for safety valve relief, defendant must have "truthfully provided to the Government all information and evidence the defendant has concerning the offense." U.S.S.G. § 5C1.2 (emphasis added). The district court did not clearly err in finding that defendant failed to tell all he knew. United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996) (factual determinations made in assessing safety valve relief are reviewed for clear error).

Given the state of the record, which included evidence that defendant possessed a large quantity of narcotics when he was arrested, the district court did not clearly err in finding defendant ineligible for a "minor participant" adjustment pursuant to U.S.S.G. § 3B1.2(b). See United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989) (a district court's determination on a minor role adjustment is reviewed for clear error); United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991) (possession of a substantial quantity of narcotics is grounds for refusing a minor role adjustment).

AFFIRMED.