Unpublished Disposition, 911 F.2d 740 (9th Cir. 1990)

MEMORANDUM^** 

Sanchez appeals from the sentence imposed following his guilty pleas to two cocaine-trafficking counts. He argues that (1) the district court erred in adding two points to his criminal history category based on his probationary status; (2) the district court abused its discretion by not granting a downward adjustment for acceptance of responsibility; (3) the court abused its discretion by adjusting his offense level upward for his managerial role in the offense; (4) the court should have departed downward because of the entrapment elements of the case; and (5) the sentencing guidelines violate due process.

It is undisputed that appellant was on probation until January 7, 1989. It is also undisputed that, as early as September 1988, appellant was negotiating the sale of cocaine to an undercover FBI agent. A two-point increase in criminal history level is warranted "if the defendant committed any part of the instant offense (i.e., any relevant conduct)" while on probation. Sentencing Guidelines Sec. 4A1.1, comment. n. 4. This Commentary covers appellant's situation. Well before his probation expired, appellant was attempting to commit the crimes for which he was convicted; this conduct was certainly relevant to, and in fact constituted a part of, the offense he ultimately completed. Under section 4A1.1, the two-point increase in criminal history level constituted a reward for appellant's demonstrated willingness to engage in criminal activity before the expiration of his probationary period.

Whether a defendant has accepted responsibility for his crime is a factual determination reviewed for clear error. United States v. Gonzalez, 897 F.2d 1018 (9th Cir. 1990). To receive a downward adjustment for acceptance of responsibility, the defendant must show contrition for his crime. Id. at 1021. "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation." Sentencing Guidelines Sec. 3E1.1, comment. n. 5.

The district court stated that it "had some very serious questions with whether [defendant] really accepted responsibility in this case." RT 7/31/89 at 34. A review of the record indicates that the court's doubts were not without foundation. For example, defendant claimed that he had been driven to commit the crimes by the informant, yet taped conversations showed that defendant was the controlling party. Presentence Report at 6.

We review the district court's decision regarding the defendant's role in the offense for clear error. United States v. Carvajal, No. 89-10184, slip op. at 6048 (9th Cir. June 12, 1990). The district court found that defendant "clearly" supervised co-defendant Gomez. RT 7/31/89 at 41. The taped conversation that reveals defendant as the controlling party and defendant's admission that he recruited and directed Gomez, Presentence Report at 6, render the district court's conclusion not clearly erroneous.

The district court's discretionary decision not to depart downward from the guidelines range is not reviewable. United States v. Morales, 898 F.2d 99 (9th Cir. 1990).

The sentencing guidelines do not violate the due process clause. United States v. Brady, 895 F.2d 538 (9th Cir. 1990).

AFFIRMED.