Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Richard Max TAFOYA, Defendant-Appellant.

No. 90-50200.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 13, 1990.* Dec. 20, 1990.

Before GOODWIN, Chief Judge, and WALLACE and NELSON, Circuit Judges.


Appellant Tafoya appeals his 30-month sentence for use of a communication facility to facilitate the commission of a controlled substance offense in violation of 21 U.S.C. § 843(b).

We review a district court's determination that a defendant is not a minimal or minor participant in a crime under a clearly erroneous standard. United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989).

Though appellant did not timely file written objections to the presentence report, we will consider those objections, made orally at sentencing, on the merits. Appellant argues that the district court erred in refusing to adjust downward his offense level for a minimal or minor role in the offense.1  He argues that the district court incorrectly pointed to the government's acceptance of his guilty plea to a lesser offense as compensation for his smaller role in the conspiracy, and that the court then erroneously refused to "double count" his lessened culpability by granting him a role-in-the-offense reduction as well.

While he may have a reasonable point here, we need not address this contention because the district court also explicitly found that he was not a minor or minimal participant in the offense to which he pleaded guilty.2  The offense was using a telephone to facilitate the manufacture and possession of methamphetamine. Tafoya made the phone call, requesting another conspirator to bring money that Tafoya paid for chemicals used in the manufacture of methamphetamine. Since he placed the call himself, it is rather difficult to see how he can have a minor role in the offense. While he might have had a minor role in the larger conspiracy, as the caller he certainly did not have a minor role in the offense to which he pleaded guilty.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4


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


United States Sentencing Guidelines Sec. 3B1.2 requires a court to decrease the offense level by four if the defendant was a "minimal participant" in the criminal activity and by two if he was a "minor participant."


The district court noted: "For a telephone violation, all you need is two people talking on the phone. I mean, that's basically all that's needed in the offense. It's difficult to say that, in general, it's minor or minimal participant ..."