Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

MEMORANDUM^** 

This is an appeal from a sentence imposed under the Sentencing Guidelines following a guilty plea to possession with intent to distribute methamphetamine.

David Allen Eldred was sentenced to 27 months in custody, the minimum term recommended by the Guidelines. His codefendant was given a sentence of 33 months. We consider these issues:

(1) Did the district court apply the Guidelines incorrectly by refusing to sentence Eldred as a minor participant after finding that he was less culpable than his codefendant, Lagle?

(2) Did the court err in finding that it lacked discretion to depart downward based on the low concentration of methamphetamine in the mixture possessed by Lagle and Eldred?

(3) Did the court err in refusing downward departure for personal characteristics, including family support, remorse and employment history?

(4) Do 28 U.S.C. §§ 994(d) and (e) and U.S.S.G. ch. 5H conflict with 18 U.S.C. § 3661 by forbidding downward departure based on exceptional personal characteristics?

Eldred was the driver of a vehicle in which Lagle was a passenger. They were apprehended at a border checkpoint and consented to a search of the vehicle. A suitcase contained 97.6 grams of methamphetamine. Eldred owned a loaded pistol found in the trunk of the car. Eldred knew that the contraband was in the vehicle, that he and Lagle decided to relocate to a California destination, and that each would profit from the sale of the methamphetamine at that destination.

Judge Brewster observed that while Eldred was not equally culpable with Lagle, Eldred could not be considered as a minor participant. The judge characterized him as a willing participant. There was no error. In United States v. Rexford, 903 F.2d 1280 (9th Cir. 1990), this court held that one is not entitled to a "minor participant" reduction simply because a codefendant is more culpable.

Twice in the record the judge made it clear that he did have discretion to depart downward based on the concentration of methamphetamine, Eldred's family support, remorse and employment history. A district court's discretionary refusal to depart downward from the Sentencing Guidelines is not subject to review on appeal. United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990).

There is no conflict between the two statutes as Eldred contends. Section 3661 allows the district court broad discretion to consider information for the purpose of imposing a sentence. Section 3553(b) instructs the court to employ the Guidelines in marshaling that information to impose a sentence. Section 994 gives the role of the Sentencing Commission in creating the Guidelines.

We agree with the holding in United States v. Bruno, 897 F.2d 691 (3d Cir. 1990), that " [T]he use of information of the type encompassed in Sec. 3661 must be subject to the limitations of Sec. 3553(b)." Id. at 696; see United States v. Mondello, No. 90-50121 (9th Cir. March 7, 1991).

The judgment and sentence are AFFIRMED.