Unpublished Disposition, 904 F.2d 42 (9th Cir. 1990)

MEMORANDUM^** 

Felipe Santiago Moran-Pallan appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines), following his guilty plea for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a) (1). Moran-Pallan contends that the district court erred by refusing to depart downward from the Guidelines. We dismiss the appeal.

Moran-Pallan asserts that the sentence imposed was in violation of the law, 18 U.S.C. § 3742(a) (1), because the Sentencing Commission did not adequately take into consideration the particular circumstances surrounding his crime in formulating the Guidelines. Moran-Pallan argues that a downward departure is required because he was merely a border "mule" hired to transport a vehicle across the Mexico-United States border, he had no financial stake in the drug smuggling operation outside of his fixed $200.00 payment and he should not be held accountable for the amount of cocaine which was discovered in the vehicle.

" [A] district court's discretionary decision not to depart downward from the Guidelines is not subject to review on appeal." United States v. Morales, No. 89-10168, slip op. 2423, 2430 (9th Cir. March 5, 1990).

Moran-Pallan, a first time offender, was convicted of possessing with intent to distribute 248 kilograms of cocaine. Thus, Moran-Pallan's base offense level for the conduct to which he pled guilty is level 36. U.S.S.G. Sec. 2D1.1(a)3. The district court recognized Moran-Pallan's limited involvement in the crime by granting him a four point downward adjustment for his minimal role in the offense and also granted a two point downward adjustment for his acceptance of responsibility. Thus, his adjusted offense level was 30.

For an adjusted offense level of 30 and a criminal history of I the sentencing range is 97-121 months incarceration. U.S.S.C. Ch. 5 Part A. The 109-month sentence imposed on Moran-Pallan is in the middle of this range. The Guidelines and the district court considered Moran-Pallan's circumstances. Therefore, Moran-Pallan's request for a downward departure is not subject to our review. See Morales, No. 89-10168, slip op. at 2430.

DISMISSED.