Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1990)

MEMORANDUM^** 

Rafael Salceda-Olivera appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines) following his conviction on a guilty plea, for conspiracy to possess a controlled substance with intent to distribute. Salceda-Olivera claims the district court erred by rejecting the government's recommendation that he be deemed a minor participant in the offense, and sentencing him as an equal participant with his codendants. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We are bound to " 'give due deference to the district court's application of the guidelines to the facts.' " United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990) (quoting 18 U.S.C. § 3742(e)). Thus, we review for clear error a district court's finding that a defendant is not a minor participant. United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir. 1990).

A defendant's rights are adequately preserved if he is told that the government's recommendations pursuant to a plea agreement do not bind the sentencing court. See United States v. Johnson, 826 F.2d 913, 915 (9th Cir. 1987). The district court is not required to compare codefendants' roles in deciding whether one was a "minor participant." Rexford, 903 F.2d at 1282. A defendant's role in a criminal undertaking, while less significant than his codefendants', may nonetheless be central to that undertaking. Id., 903 F.2d at 1283. " 'A simple statement that the defendant was not a "minor participant" will suffice as a factual finding.' " Id., 903 F.2d at 1282 (quoting United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989)).

Salceda-Olivera found a cocaine source for a buyer who was set up by the Drug Enforcement Agency. Although the government recommended that he be sentenced as a minor participant, Salceda-Olivera understood that his sentence was to be determined by the district court. The district court found that "a person who brings buyer and seller together" ... is "not a minor participant" (RT 4/9/90 at 11), and sentenced Salceda-Olivera accordingly.

We affirm the sentence. It was not clear error for the district court to conclude that Salceda-Olivera's role as agent was central to the criminal enterprise. Thus, the district court did not clearly err by finding that he was not a minor participant. See Rexford, 903 F.2d at 1283.

AFFIRMED.