United States of America, Plaintiff-appellee, v. Carlos Felix-orosco, Defendant-appellant, 35 F.3d 572 (9th Cir. 1994)

MEMORANDUM^** 

Carlos Felix-Orosco appeals his 60-month sentence imposed following entry of a guilty plea to conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a) (1), 846.

Pursuant to Anders v. California, 386 U.S. 738 (1967), Felix-Orosco's counsel submitted a brief identifying two possible issues for review: whether the district court erred by (1) declining to grant a downward adjustment as a minimal participant pursuant to U.S.S.G. Sec. 3B1.2; and (2) increasing his offense level pursuant to U.S.S.G. Sec. 2D1.1(b) (1) for possession of a firearm during the offense. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, see United States v. Conkins, 9 F.3d 1377, 1384 (9th Cir. 1993) and affirm Felix-Orosco's sentence.

The district court found during plea proceedings that 921 pounds of marijuana were involved in the offense of conviction, an amount that requires a statutory mandatory minimum sentence of 60 months. See 21 U.S.C. § 841(b) (1) (B) (vii). The applicable Guideline range would have been 57 to 71 months but for the statutory minimum. The court imposed the minimum 60-month sentence.

When a statute requires a greater sentence than that set by the Guidelines, the adjusted Guideline range cannot be less than the statutory minimum. U.S.S.G. Sec. 5G1.1; see also Conkins, 9 F.3d at 1387. Absent a motion by the government for a downward departure based on substantial assistance to the authorities, the district court is " 'presumptively without power to circumvent the mandatory minimum.' " United States v. De La Fuente, 8 F.3d 1333, 1340 (9th Cir. 1993) (quoting United States v. Vilchez, 967 F.2d 1351, 1355 (9th Cir. 1992)). Here, even without an upward adjustment to the base offense level for possession of a firearm, or with a downward adjustment based on minimal participation, the court would have been required to impose the statutory minimum sentence of 60 months. See U.S.S.G. Sec. 5G1.1; Conkins, 9 F.3d at 1387. Nothing in the record indicates a breach of the plea agreement or other reversible sentencing error.

Counsel's motion to withdraw is GRANTED and the sentence is AFFIRMED.