Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

No. 90-30157.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the District of Alaska; No. CR-89-117-HRH, H. Russel Holland, Chief Judge, Presiding.

AFFIRMED.

Before WALLACE, Chief Judge, O'SCANNLAIN, Circuit Judge, and BURNS,**  District Judge.

MEMORANDUM*** 

The appellant, Miguel Gomez, challenges the district court's application of various provisions of the Sentencing Guidelines. We find Gomez's arguments unpersuasive and, accordingly, affirm his sentence.

* Gomez contends that the district court erred in aggregating the total amount of cocaine involved in all transactions charged in the indictment, rather than considering only the cocaine involved in the specific transactions of which Gomez was charged. As a result of this aggregation, the district court set Gomez's base offense level at 20 rather than at 16.

There is no doubt that a district court may consider drug quantities beyond those leading to a specific conviction when establishing a base offense level. See United States v. Turner, 898 F.2d 705, 710-11 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990); cf. United States v. Zweber, 913 F.2d 705, 710 (9th Cir. 1990). The touchstone of such aggregation is whether the additional drugs were reasonably foreseeable by the defendant. See United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3, comment (n. 1). Here, Gomez maintains that the government failed to meet its burden of showing that he could have reasonably foreseen all of the cocaine underlying the indictment.

We disagree. The record reveals that Gomez was part of a much larger drug distribution ring in Anchorage. None of the overt acts involving Gomez were of such a nature as to suggest that they were isolated, discrete events, but rather, the overt acts themselves are indicative of a larger operation. Indeed, in at least one of the overt acts expressly involving Gomez, mention is made of additional drug sales. The district court's reliance on the presentence report in determining the amount of cocaine involved in the drug distribution scheme was not clearly erroneous.

II

Gomez also maintains that the district court erred in finding that he was a minor, rather than a minimal participant in the criminal enterprise. Application Note 2 to section 3B1.2 of the Guidelines reads:

It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marijuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.

Further, Application Note 3 provides: "For purposes of Sec. 3B1.2(b), a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." Here, Gomez was prominently involved in at least two separate drug transactions. Thus, we cannot say that the district court clearly erred in finding Gomez to be a minor, rather than a minimal, participant. See United States v. Christman, 894 F.2d 339, 341 (9th Cir. 1990).

III

Gomez claims that the district court erred in failing to credit him with two points for acceptance of responsibility. We review a district court's determination on acceptance of responsibility for clear error. United States v. Ramos, No. 89-50242, slip op. 487, 512 (9th Cir. Jan. 17, 1991). In order to qualify for the two point reduction, the defendant must manifest "sincere contrition" or "sincere remorse." Id. at 513 (quotations omitted). The district court is in a unique position to make such determinations and, accordingly, the sentencing judge is entitled to great deference. See United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990).

Gomez contends that the district court made no finding regarding the sincerity of his acceptance of responsibility but, rather, simply decided that a manifestation of acceptance at sentencing was too late to qualify for the reduction. While it is true that a manifestation at sentencing does not preclude the two-point reduction, see United States v. Cepeda, 907 F.2d 11, 11 (1st Cir. 1990), timing can indeed be crucial to the district court's determination. Id. The district court did not clearly err in denying Gomez a reduction for acceptance of responsibility.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4

 **

The Honorable James M. Burns, Senior United States District Judge for the District of Oregon, sitting by designation

 ***

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 R. 36-3