United States of America, Plaintiff-appellee, v. Alba Diaz-mejia, Defendant-appellant, 953 F.2d 1388 (9th Cir. 1992)

MEMORANDUM^** 

Appellant requests review of the district court's determination under the Sentencing Guidelines that she did not qualify for "minimal participant" status which would have reduced her criminal offense level by four points. Instead, the district court determined that she was a "minor participant" entitled to only a two point reduction.

Because a defendant's status as a participant in a crime is a factual question, this court reviews the district court's findings under the clearly erroneous standard. United States v. Andrus, 925 F.2d 335, 337 (9th Cir. 1991).

The district court determined that the appellant was not entitled under 3B1.2(a) of the Guidelines to a minimal participant reduction:

The sentencing guidelines are a little difficult, although this defendant was actively aiding in the conspiracy by acting as a lookout, so under the guidelines the best I can do is 78 months.

R.T. at 7.

The sentence ultimately imposed was, however, based on the district court's finding that she was a "minor participant" provided for in the next section of the guidelines, 3B1.2(b). As a result, she received a two-point reduction in the offense level.

The appellant requested leniency and leniency is what she received, just not as much as she would have liked. The district court weighed her factual circumstances and determined that she overcame the difficult burden required for the two-point reduction as a minor participant. See United States v. Howard, 894 F.2d 1085, 1089 (9th Cir. 1990). She was considerably successful in her argument. Consequently, the district court was not clearly erroneous and, in fact, was correct.

AFFIRMED.