Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

MEMORANDUM^** 

David Edward Owen appeals his sentence imposed by the district court judge following a guilty plea to one count of conspiracy to conceal, transport and sell stolen firearms in interstate commerce in violation of 18 U.S.C. §§ 371, 922(i) and (j). Owen argues that the sentencing judge erred in ruling that she was not required to accept as true facts to which the government and Owen stipulated in the plea agreement. Specifically, the appellant claims that the judge erred in failing to find, as the government and Owen stipulated, that he was a minimal participant under U.S.S.G. Sec. 3B1.2, and that he was therefore entitled to a downward adjustment in his sentence. Owen also argues that, independent of the stipulation, the judge erred in finding that he was not a minimal participant. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

As part of the plea agreement, the government and Owen stipulated that he was a minimal participant in the conspiracy, and the government agreed to recommend (and in fact did recommend) to the judge that his sentence be reduced accordingly. Prior to entering the plea, however, Owen was told by the judge that the court was not bound, in making its sentencing determination, to accept facts to which the parties had stipulated. Despite this unequivocal warning that the factual stipulations between the government and the appellant were not binding on the court, Owen proceeded to enter the plea.

On the basis of the probation department's presentence report and her own review of the evidence, the district court judge refused to make a downward adjustment pursuant to Sec. 3B1.2, expressly rejecting the government's recommendation that the appellant be sentenced as a minimal participant. As noted above, the appellant was aware, prior to entering the guilty plea, that the judge might not accept his stipulation with the government; nonetheless, Owen argues on appeal that, because the parties were in a better position to determine facts relevant to sentencing than either the judge or the probation officer, the court should have been required to accept the parties' stipulation that Owen was a minimal participant. That fact, Owen claims, formed the basis of the plea agreement, and hence should have been binding on the sentencing judge.

Owen's argument is flatly rebutted by the Guidelines. While Sec. 6B1.4 provides that a "plea agreement may be accompanied by a written stipulation of facts relevant to sentencing," U.S.S.G. Sec. 6B1.4(a), it also states that the "court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing." U.S.S.G. Sec. 6B1.4(d). Our cases establish that these words--authorizing the sentencing court to accept or to reject factual stipulations underlying a plea agreement--mean what they say, see United States v. Howard, 894 F.2d 1085, 1089 n. 2 (9th Cir. 1990); United States v. Zweber, 913 F.2d 705, 708 (9th Cir. 1990), and none of the circumstances noted by the appellant dictate a departure from the rule. The district court judge did not err in refusing to accept the facts to which the parties stipulated.

Nor did the judge err in finding that Owen was not a minimal participant. The record amply demonstrates that the sentencing judge reviewed the record and decided that the three co-defendants were equally culpable. The court, relying on the fact that all three of the defendants got drunk, stole the guns, loaded the weapons in the car, drove to California, rented an apartment, agreed to sell the guns, and would have benefitted equally from the sale, concluded that "this one was a troika from start to finish." Especially because we will not disturb the district court's finding that Owen was not a minimal participant unless clearly erroneous, see United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989), we hold that the sentencing judge did not err in refusing to make a downward adjustment under Sec. 3B1.2.

The decision of the district court is AFFIRMED.