Unpublished Disposition, 919 F.2d 147 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 919 F.2d 147 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Eileen E. SORENSEN, Defendant-Appellant.

No. 90-50226.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.* Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON and TROTT, Circuit Judges.


MEMORANDUM** 

Eileen Sorensen appeals her sentence under the Sentencing Guidelines ("Guidelines") following her conviction by guilty plea for unlawful use of a communication facility in violation of 21 U.S.C. § 843(b). Sorensen contends that the district court erred by refusing to make a downward adjustment in her base offense level for her minor or minimal role in the offense pursuant to Guidelines Sec. 3B1.2. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

A defendant's status as a minor participant is a factual conclusion. United States v. Howard, 894 F.2d 1085, 1088 (9th Cir. 1990). Accordingly, this court reviews for clear error the district court's determination that a defendant is not entitled to downward adjustment for her role in the offense. See id.; United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989) (per curiam).1 

The Guidelines allow the district court to adjust the offense level downward for a defendant's minimal or minor role in the criminal activity, but they note that such adjustments should be applied infrequently. U.S.S.G. Sec. 3B1.2, comment. (n.2); Gillock, 886 F.2d at 222. " [T]he defendant's role in the offense of conviction, not collateral conduct, ... is the proper basis for enhancing or reducing a sentence because of the defendant's role." United States v. Zweber, 913 F.2d 705, 708 (9th Cir. 1990). The defendant carries the burden of proving her minimal or minor role by a preponderance of the evidence. Howard, 894 F.2d at 1089-90.

Here, Sorensen pled guilty to unlawful use of a communication facility in violation of 21 U.S.C. § 843(b). With respect to the offense of conviction, Sorensen admittedly received numerous telephone calls involving the delivery of a package to her residence for her brother. She later discovered that the package contained marijuana. The district court sentenced Sorensen based on the charge of using a telephone in the commission of a drug-related offense. Her role in the overall drug distribution scheme is collateral to the offense of conviction and thus, not a mitigating factor warranting a downward adjustment under Guidelines Sec. 3B1.2. See Zweber, 913 F.2d at 908.2 

Therefore, the district court's refusal to grant Sorensen's request for a downward adjustment based on her participation in the offense was not clearly erroneous. See id.

AFFIRMED.

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 1

Sorensen argues that the district judge, as a matter of law, determined that Sorensen was ineligible for a downward adjustment because the offense of conviction was a telephone offense. Appellant's Opening Brief at 4. The record does not indicate that the district judge believed that he lacked discretion to grant a downward adjustment, rather it reflects that the district judge exercised his discretion in denying Sorensen's request

 2

Sorensen argues that she is entitled to a reduction in her base offense level in accordance with United States v. Christman, 894 F.2d 339 (9th Cir. 1990). Sorensen's reliance is misplaced. In Christman, we held that the district court's finding that the defendant was a minor participant was not clearly erroneous. Id. at 341. Christman does not grant, as a matter of law, minor participant status to a defendant who is convicted under similar circumstances