Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM^* 

Santiago Lopez-Zerato ("Lopez-Zerato") and Lorenzo Armando Mitoren-Virgen ("Mitoren-Virgen") (true name Claudio Armando Garcia) separately appeal the application of the Sentencing Guidelines after their jury convictions for possession of cocaine with intent to distribute and for conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1), 846 (1988). We affirm.

DISCUSSION

Lopez-Zerato was sentenced to 88 months in prison with a four-year period of supervised release. Mitoren-Virgen was sentenced to 100 months in prison followed by four years of supervised release. Neither appellant contests his base offense level. Both only challenge whether proposed reductions from the base offense level were improperly denied.

Lopez-Zerato and Mitoren-Virgen both appeal the district court's denial of their requests for a two-level reduction in their Guideline offense levels for their alleged acceptance of responsibility for their criminal conduct, pursuant to U.S.S.G. Sec. 3E1.1, at 3.23 (Nov. 1989). Section 3E1.1(a) mandates this adjustment " [i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." See also U.S.S.G. Sec. 3E1.1 comment (n. 2), at 3.23 (Nov.1989) (noting objective that "defendant ... manifest sincere contrition"). The defendant carries the burden of establishing his acceptance of responsibility under the preponderance of evidence standard. United States v. Howard, 894 F.2d 1085, 1090 & n. 4 (9th Cir. 1990). We review under the clearly erroneous standard. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990).

In a Sentencing Memorandum, Lopez-Zerato's counsel urged a section 3E1.1 reduction, noting:

It is a situation in which Mr. Lopez believed in his innocence until the jury has spoken in this particular matter. He is, therefore, at this time advising the Court of his acceptance of responsibility.

At the sentencing hearing, Lopez-Zerato told the court: "I just drove the car, but I didn't know that [cocaine] was there. That's all."

The district court found Lopez-Zerato did not meet any of the factors enumerated in U.S.S.G. Sec. 3E1.1, comment (n. 1), at 3.23 (Nov.1989). The court also noted that Lopez-Zerato denied involvement in the crime to the probation officer and that counsel's Sentencing Memorandum was conclusory and lacked any supporting "details." In light of the opportunity of the sentencing court to evaluate the defendant, the relevant factors and all the evidence presented, we conclude the court was not clearly erroneous in denying Lopez-Zerato's request for a reduction under section 3E1.1.

Mitoren-Virgen presents two related arguments challenging the district court's finding that he did not accept responsibility for purposes of section 3E1.1.

a. Sentencing Memorandum

In his Sentencing Memorandum objecting to presentence report recommendations, Mitoren-Virgen asserted that he was asked to act as an English interpreter and did not realize a drug transaction was taking place until it was too late. The district court found the trial evidence did not support Mitoren-Virgen's version of the events. Mitoren-Virgen acknowledges his asserted failure to realize a drug transaction was in progress was contradicted by trial testimony of DEA Agent Prezioso concerning Mitoren-Virgen's statements to him. The Sentencing Reform Act and the Guidelines expressly leave such credibility determinations to the district court in the first instance. See 18 U.S.C. § 3742(e) (1988); U.S.S.G. Sec. 3E1.1, comment (n. 5), at 3.24 (Nov.1989). In light of Agent Prezioso's trial testimony and the probation officer's recommendation in the presentence report, we conclude the district court was not clearly erroneous in rejecting Mitoren-Virgen's argument.

b. Jewell "Deliberate Ignorance" Argument

Mitoren-Virgen also argues his acceptance of responsibility was established since sufficient evidence was purportedly presented to support a Jewell instruction for deliberate ignorance. See United States v. Jewell, 532 F.2d 697, 702-03 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976). The district court rejected this contention, noting no Jewell plea was entered and that, nonetheless, it would be insufficient to demonstrate acceptance of responsibility. We agree with the Government that Jewell "deliberate ignorance" does not mandate an acceptance of responsibility finding. On this record, no clear error has been shown in the court's determination.

Lopez-Zerato and Mitoren-Virgen also both challenge the district court's conclusion that they did not merit offense level reductions as "minor" or "minimal" participants, pursuant to U.S.S.G. Sec. 3B1.2, at 3.6 (Nov.1989). This Guideline section takes into account whether a defendant is "substantially less culpable than the average participant" in committing the crime. Id. comment (backg'd). The defendants have the burden of proof, under the p eponderance of evidence standard, for a downward adjustment as a "minimal" or "minor participant." Howard, 894 F.2d at 1090 & n. 4. Review of section 3B1.2 findings is under the clearly erroneous standard. See United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989).

Lopez-Zerato argues the district court committed clear error in denying his request for a four-level reduction in his offense level as a "minimal participant" or, alternatively, a two-level reduction as a "minor participant." In denying the request for downward adjustment, the district court noted that this issue was untimely raised and therefore did not have the benefit of the probation officer's review. Nonetheless, the district court rejected any reduction as a "minor" or "minimal participant" because Lopez-Zerato was in the car with the three kilograms of cocaine and because the court disbelieved the trial story that Lopez-Zerato was unaware of the drug deal. Compare id. at 557-58 (no "minor" or "minimal participant" where significant quantity of drugs involved). We find no clear error in this determination.

The district court found that Mitoren-Virgen was on the "supply end" of the cocaine transaction and disbelieved, in light of the trial evidence, his contention that he was merely acting as an interpreter. For these reasons, a request for downward adjustment as a "minor" or "minimal participant" was denied.

Mitoren-Virgen contends he was entitled to a reduction in his offense level pursuant to section 3B1.2 because he was not present at the negotiation or delivery stage of the cocaine transaction. As a result of his alleged mere translator role, Mitoren-Virgen argues he could not have been at the "supply end" as the district court found.

The Government points to Agent Prezioso's trial testimony that Mitoren-Virgen was introduced as "the man you want to see with the coke" and his pre-arrest statements on his drug experience in New York. This testimony indicated that Mitoren-Virgen called for the money and directed the agent to the parked car where the cocaine was. Based on this testimony and the presentence report, the district court was not clearly erroneous in finding Mitoren-Virgen was not entitled to a section 3B1.2 downward adjustment.

Finally, Lopez-Zerato contends he was denied an opportunity to present written or oral argument concerning the acceptance of responsibility or minimal role factors, pursuant to U.S.S.G Sec. 6A1.3, at 6.2 (Nov.1989). However, we need not reach the merits of this contention. Because Lopez-Zerato did not present a section 6A1.3 request to the district court, he failed to properly preserve this issue. See, e.g., United States v. Greger, 716 F.2d 1275, 1277 (9th Cir. 1983) (noting appellate review generally unavailable except "where it would appear necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process"), cert. denied, 465 U.S. 1007 (1984). Lopez-Zerato cannot rely on Mitoren-Virgen's section 6A1.3 request before the district court, which was not challenged on appeal. Exceptional circumstances have not been presented to consider this issue on appeal as presented by Lopez-Zerato.

AFFIRMED.