Unpublished Disposition, 904 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

Michael Baldwin appeals his sentence under the Sentencing Guidelines following a plea of guilty to two counts involving the possession of methamphetamine with intent to distribute. Baldwin was apprehended while a passenger in a pickup truck driven by his co-defendant, Michael Neely. The methamphetamine was contained in three plastic bags the arresting border agents found in a paper bag on the floorboard of the truck when Baldwin and Neely were stopped and arrested. Although Baldwin claimed that he had an ownership and possessory interest in only one of the three bags, the district court's sentence was based on the assumption that Baldwin could be held culpable with respect to the entire amount of contraband. The district court's assumption was correct. It properly applied the relevant sentencing guideline. United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3 (Nov.1989).

Next, Baldwin complains that he was only a minor participant and under the Guidelines should have received a two-level reduction on that account. The district court's assessment that Baldwin was a "major player", although unnecessary, was not clearly erroneous. Baldwin did not simply "happen" to be in the co-defendant's vehicle while the co-defendant engaged in criminal conduct. Baldwin acknowledged that he acquired a substantial amount of methamphetamine himself. Thus, the district court could properly conclude that he was not a minor participant.

Next, Baldwin argues that the criminal history category in which his record places him is misleading in that his prior offenses were not so serious as to warrant the consequences that result from being placed in category III. He contends that the district court should have reduced the classification to category II. While the district court could have engaged in such a downward departure under the Guidelines, see Guidelines Manual, Sec. 4A1.3, Policy Statement, we have no jurisdiction to review a failure to do so. A decision whether or not to make a downward departure is wholly within the discretion of the district court. United States v. Morales, No. 89-10168, slip op. 2423, 2428 (9th Cir. March 5, 1990).

Finally, Baldwin suggests that the district court may have engaged in an upward departure by placing him in category III or by committing some other error in establishing the appropriate sentencing range. Baldwin is simply incorrect. His arguments appear essentially to be only a rehash of his earlier unmeritorious points. The district court selected a sentence from within the proper range established by the Guidelines.

AFFIRMED.