Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)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.Marco Antonio LOPEZ-FELIX, Defendant-Appellant.

No. 90-50331.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.* Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.


Marco Antonio Lopez-Felix appeals his sentence imposed under the United States Sentencing Guidelines following his conviction by guilty plea for possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a) (1). Lopez-Felix contends that the district court failed to consider whether his offense level under the Guidelines should be reduced pursuant to Guidelines section 3B1.2 because of his minor or minimal role in the offense. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

We review de novo the district court's application of the Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). In rejecting a defendant's argument for a downward adjustment in offense level based on a purportedly minor or minimal role in the charged offense, a district court need not make explicit findings on the defendant's role if, during sentencing, the defendant does not request such findings. United States v. Rigby, 896 F.2d 392, 394-95 (9th Cir. 1990). Instead, where the presentence report has not adopted the defendant's position, the district court may reject the defendant's argument simply by adopting the report. Id.

The present case is indistinguishable from Rigby. As in Rigby, the only evidence that the defendant here played a minor or minimal role in the offense is Lopez-Felix's self-serving statements that he was hired by others to deliver a car in which, unbeknown to Lopez-Felix, contraband was hidden. See Rigby, 896 F.2d at 394. Furthermore, at sentencing neither Lopez-Felix nor his attorney requested that the district court make specific findings as to Lopez-Felix's role in the offense, just as Rigby and his attorney did not request a "more definitive ruling" from the district court. See id. Moreover, Lopez-Felix addressed the court and indicated that he had read the report and discussed it with his attorney. Like the defendant in Rigby, Lopez-Felix "did not mention any other participants in the criminal activity or characterize himself as a mule or courier." Id.

Under the present circumstances, which are analogous to those in Rigby, the district court did not err in its means of rejecting Lopez-Felix's argument for a downward adjustment. The district court could reject this argument simply by adopting the presentence report prepared in this case because the report indicated that the defendant should not receive a downward adjustment for his role in the offense. See Rigby, 896 F.2d at 394-95. The court did so, making one modification not relevant here. Accordingly, the judgment is



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3