Unpublished Disposition, 927 F.2d 610 (9th Cir. 1991)

MEMORANDUM^** 

Fariborz Aminikhoe appeals his sentence following a guilty plea to using a telephone to facilitate a felony, in violation of 21 U.S.C. §§ 843(b) and (c).

Counsel for Aminikhoe filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which identifies three possible issues for review: (1) whether the district court abused its discretion by denying Aminikhoe's request for probation in lieu of incarceration; (2) whether the district court erred by finding that Aminikhoe was not a minor offender; and (3) whether the district court abused its discretion by failing to depart downwards from the United States Sentencing Guidelines (Guidelines) sentencing range. We have jurisdiction under 28 U.S.C. § 1291 and we grant counsel's request to withdraw and affirm the sentence.

* Request for Probation

"After conviction of an offense not punishable by death or by life imprisonment, the defendant may be placed on probation if permitted by law." Fed. R. Crim. P. 32(e). The Guidelines provide for sentences of probation "if the minimum term of imprisonment specified by the Sentencing Table is at least one but not more than six months." U.S.S.G. Sec. 5B1.1(a) (2); see also United States v. Martinez-Cortez, No. 89-50665, slip op. 1115, 1118, n. 2 (9th Cir. January 30, 1991) (upholding constitutionality of Guidelines probation provisions). However, " [i]f the minimum term of imprisonment in the applicable guideline range ... is at least one but not more than six months, the minimum term may be satisfied by ... a sentence of imprisonment." U.S.S.G. Sec. 5C1.1(c).

"An appeal on the ground that a defendant's sentence within a guideline range should have been more lenient is not authorized by [18 U.S.C. §] 3742(a)." United States v. Pelayo-Bautista, 907 F.2d 99, 102 (9th Cir. 1990).

Here, Aminikhoe received a sentence within the 6 to 12 month Guidelines sentencing range and the district court exercised its discretion in denying Aminikhoe's request for a probationary term rather than a term of incarceration. Therefore, we have no jurisdiction to review the district court's discretionary decision to impose on Aminikhoe one sentence within the Guidelines range over another sentence within the Guidelines range. See Pelayo-Bautista, 907 F.2d at 102.

II

Minor Participant Status

Whether a defendant was a minor or minimal participant in an offense is a factual determination subject to the clearly erroneous standard of review. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989).

A downward adjustment of two points for a minor role in the offense is provided for under Guidelines Sec. 3B1.2 and is intended "to cover defendants who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. Sec. 3B1.2, comment. n. 1. The party seeking to alter the base offense level bears the burden of making the necessary showing by a preponderance of the evidence. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). "A district court is not compelled to determine whether a defendant was or was not the least culpable participant in determining whether that defendant's role was 'minor'." United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir. 1990).

Here, because of his cooperation with the government, Aminikhoe was allowed to plead guilty to the crime of using a telephone to facilitate a felony rather than being charged with a cocaine offense carrying a possible sentence of ten years. The district court was aware that the government had offered a significant concession by allowing Aminikhoe to plead to the lesser charge. Additionally, the district court had a letter from Aminikhoe in which he admitted using the telephone to arrange the sale of the cocaine.

The district court was not required to grant Aminikhoe a downward adjustment for minor role in the offence simply because he might have been the least culpable of those involved. See Rexford, 903 F.2d at 1282-1283. Further, the district court's finding that Aminikhoe was not a minor participant in the charged offense is amply supported by the record and is not clearly erroneous. See Sanchez-Lopez, 879 F.2d at 557. Therefore, Aminikhoe is not entitled to the two point reduction in his base offense level as a minor participant in the offense. See id.

III

Downward Departure

" [A] district court's discretionary decision not to depart downward from the Guidelines is not subject to review on appeal." United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990).

Here, Aminikhoe's Guidelines sentencing range was determined to be 6 to 12 months. Aminikhoe received a sentence of 6 months, within the Guidelines range. Therefore, this court does not have jurisdiction to review the district court's discretionary decision not to depart downwards from the Guidelines sentencing range based on Aminikhoe's alleged "imperfect entrapment" defense. See id.

AFFIRMED.