Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 1323 (9th Cir. 1987)

No. 88-3202.

United States Court of Appeals, Ninth Circuit.

Before TANG and SKOPIL, Circuit Judges, and HOWARD D. McKIBBEN,*  District Judge.

MEMORANDUM** 

Edward Current pled guilty to possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) (1982). On appeal he challenges the sentence imposed by the district court pursuant to the sentencing guidelines. We conclude that the district court committed no error in sentencing Current. We affirm.

DISCUSSION

The presentence report indicates that Current was arrested on December 17, 1987 following the execution of a search warrant of his home. Officers confiscated nearly a pound of methamphetamine and $54,075 in cash. The report also alleges that other members of his family were involved in the manufacture and distribution of methamphetamine.

The district court adopted the sentencing recommendations in the presentence report. Pursuant to that report, the court decreased the base offense level to reflect Current's acceptance of responsibility, but refused to make an adjustment based on Current's alleged minimal or minor role in the offense. The court also did not depart from the guidelines based on Current's physical condition. For Current's adjusted offense level, the sentencing guidelines provide for a sentence range of 51 to 63 months imprisonment. The district court sentenced Current to 51 months imprisonment.

1. Constitutionality of the Sentencing Guidelines

Current challenges the guidelines as unconstitutional. He relies upon Gubienio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988) (holding that the Sentencing Reform Act is unconstitutional), vacated and remanded, 109 S. Ct. 859 (1989). The Supreme Court has subsequently held, however, that the Act and the guidelines are constitutional. Mistretta v. United States, 109 S. Ct. 647, 675 (1989).

The sentencing guidelines provide that if the district court finds the defendant to be a minimal participant in the criminal activity, the offense level should be decreased. Sec. 3B1.2(a). The commentary states that the section applies to the "least culpable" defendants based on their lack of knowledge or understanding of the scope of the illegal activity. The guidelines also provide for a downward adjustment for minor participants. Sec. 3B1.2(b). " [A] minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." Commentary to Sec. 3B1.2.

Current argues that his sentence should have been adjusted downward based either on his minimal or minor participation in the crime. We disagree. The district court expressly cited guideline Sec. 3B1.2 and specifically relied on the addendum to the presentence report which concluded that because of the nature of the family operation, "Current would have knowledge and understanding of the overall scheme." The addendum also pointed to factual evidence that Current provided a " 'safe house' for a substantial quantity of methamphetamine, and money on an ongoing basis." Current has not shown the district court's findings on culpability to be clearly erroneous. See 18 U.S.C. 3742(e) (reviewing court shall accept findings made by district court unless clearly erroneous).

Current contends that the district court erred in not departing from the guidelines on the basis of his physical condition. He represents that both his hip joints have been replaced.

A district court may depart from the guidelines if it "finds that there exists an aggravating or mitigating circumstance ... not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). The guidelines state that a defendant's " [p]hysical condition is not ordinarily relevant in determining whether a sentence should be outside the guidelines.... However, an extraordinary physical impairment may be a reason to impose a sentence other than imprisonment." Sec. 5H1.4.

We conclude there was no error by the court in refusing to depart from the guidelines based on Current's physical condition. See United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989) ("A claim that the district court refused to depart from the guidelines and imposed a lawful sentence provides no grounds for relief."). Current has not shown that his disability is sufficiently extraordinary to justify a departure.

AFFIRMED.

 *

The Honorable Howard D. McKibben, United States District Judge for the District of Nevada, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3