United States of America, Plaintiff-appellee, v. Jorge Serafin Quintero Gomez, Defendant-appellant, 142 F.3d 447 (9th Cir. 1998)

MEMORANDUM^* 

Jorge Serafin Quintero Gomez appeals his jury trial conviction and the sentence imposed for possession with intent to distribute more than 100 grams of methamphetamine, in violation of 21 U.S.C. § 841(a) (1) and (b) (1) (A) (viii). We have jurisdiction pursuant to 28 U .S.C. § 1291, and we affirm.

Quintero Gomez contends that the district court erred by denying his motion for mistrial because the government improperly commented on his failure to testify. This contention lacks merit.

We review de novo whether a prosecutor's comments during closing argument violated a defendant's Fifth Amendment rights. See United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995). Here, the district court did not err in denying Quintero Gomez's motion for mistrial because the prosecutor comments were directed at the defense's failure to provide exculpatory evidence, not Quintero Gomez's failure to testify. See id.; United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991).

Quintero Gomez also contends that the district court erred by refusing to decrease his offense level based on his role in the offense under U.S.S.G. § 3B1.2. We review the district court's factual findings in the sentencing phase for clear error, see United States v. Ruelas, 106 F.3d 1416, 1419 (9th Cir.), cert. denied, --- U.S. ----, 117 S. Ct. 2470, 138 L. Ed. 2d 225 (1997), and disagree. Quintero Gomez failed to demonstrate that he was substantially less culpable than other participants. See id.; U.S.S.G. § 3B1.2, comment. (backg'd) (1995). Furthermore, Quintero Gomez's possession of over five pounds of methamphetamine is ample support for the district court's refusal to decrease his offense level. See United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991) (recognizing "that possession of a substantial amount of narcotics is grounds for refusing to grant a sentence reduction").

AFFIRMED.