U.S. v. Rascon-Rascon

Full title: UNITED STATES of America, Plaintiff--Appellee, v. Gregorio RASCON-RASCON…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 18, 2003

63 F. App'x 331 (9th Cir. 2003)

Opinion

63 Fed.Appx. 331 (9th Cir. 2003) UNITED STATES of America, Plaintiff--Appellee, v. Gregorio RASCON-RASCON, Defendant--Appellant. No. 02-10442. D.C. No. CR-00-01670-1-JMR. United States Court of Appeals, Ninth Circuit. April 18, 2003

Submitted April 7, 2003. ^*

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

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant was convicted of possession with intent to distribute cocaine, and he appealed. The Court of Appeals, 33 Fed.Appx. 911, vacated and remanded for resentencing. On remand, the United States District Court for the District of Arizona, John M. Roll, J., resentenced defendant, and defendant appealed. The Court of Appeals held that denial of mitigating role adjustment was not clear error.

Affirmed.

Page 332.

Appeal from the United States District Court for the District of Arizona, John M. Roll, District Judge, Presiding.

Before RYMER, KLEINFELD and FISHER, Circuit Judges.

MEMORANDUM ^**

** 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.

Gregorio Rascon-Rascon appeals the sentence imposed, after this court's remand, for his conviction by guilty plea to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(ii)(II).

We review for clear error the district court's denial of a mitigating role adjustment under U.S. S.G. § 3B1.2, United States v. Hatley, 15 F.3d 856, 859-60 (9th Cir.1994), and we affirm.

This court has affirmed the denial of a mitigating role adjustment to drug courier defendants where some additional factor showed they were not minor or minimal participants. See United States v. Davis, 36 F.3d 1424, 1436-37 (9th Cir.1994). Here, Rascon admitted that he had transported drugs on three occasions, and he was arrested with 57 pounds of cocaine in his car. Given these facts, the district court did not clearly err in denying the mitigating role adjustment.

This court lacks jurisdiction to review the district court's discretionary refusal to depart based on Rascon-Rascon's family responsibilities. United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997).

Rascon-Rascon's sentence is AFFIRMED.