United States of America, Plaintiff-appellee, v. Francisco Castillo-flores, Defendant-appellant, 119 F.3d 7 (9th Cir. 1997)

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US Court of Appeals for the Ninth Circuit - 119 F.3d 7 (9th Cir. 1997) Submitted July 14, 1997**Decided July 18, 1997

Before: HUG, Chief Judge, KOZINSKI, and LEAVY, Circuit Judges.


Francisco Castillo-Flores appeals his sentence following a guilty plea to possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) (1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Castillo-Flores contends that the district court erred by not granting him a mitigating role adjustment for being a minimal or minor participant under U.S.S.G. § 3B1.2. This contention lacks merit.

"A district court's finding that a defendant does not qualify for minor or minimal participant status is heavily dependent on the facts of the particular case, and we uphold such a finding unless it is clearly erroneous." See United States v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994). "The defendant has the burden of proving that he is entitled to a downward adjustment based on his role in the offense by a preponderance of the evidence." Id. "Moreover, this court has consistently stated that a downward adjustment under section 3B1.2 is to be used infrequently and only in exceptional circumstances." Id. Finally, "we have recognized that possession of a substantial amount of narcotics is grounds for refusing to grant [such] a sentence reduction." United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991).

Here, on November 17, 1995, Castillo-Flores made the initial contact with an undercover officer and sold the officer approximately three grams of methamphetamine. Castillo-Flores gave the officer a business card with his pager number and agreed to talk with Gabriel Valle, Castillo-Flores's boss, about the price for larger quantities of methamphetamine. On November 20, 21 and 29, 1995, Castillo-Flores participated in transactions involving one, four, and one-eighth ounces of methamphetamine, respectively. On December 1, 1995, Castillo-Flores was involved in the sale of two pounds of methamphetamine, which culminated in his arrest. At this time, Castillo-Flores attempted to flee but was apprehended in possession of a one-pound package of methamphetamine.1  Accordingly, the district court did not clearly err by determining that Castillo-Flores was not a minor participant.2  See Davis, 36 F.3d at 1436-37; see also Lui, 941 F.2d at 849 (upholding denial of adjustment where defendant possessed a substantial amount of narcotics); United States v. Flores-Payon, 942 F.2d 556, 561 (9th Cir. 1991) (upholding denial of adjustment where defendant commented on quality of drugs and participated in transaction).

We also reject Castillo-Flores's contention that the district court erred by failing to make an individualized assessment of his culpability. See Davis, 36 F.3d at 1436 ("The district court has no duty to make a finding regarding a defendant's relative culpability; it only needs to make its resolution of disputed matters clear."); United States v. Ocampo, 937 F.2d 485, 491 (9th Cir. 1991) ("A simple statement by the district court that the defendant was not a minor participant" is sufficient).



The panel unanimously finds this case suitable for decision without oral argument. See 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


Castillo-Flores argues that the district court erroneously relied on a phone conversation where Valle impersonated Castillo-Flores. The district court, however, relied on the fact that "on at least one occasion, Mr. Castillo-Flores was, in fact, the negotiator in the absence of Mr. Valle." It is apparent from the record that Castillo-Flores, without Valle, made the initial contact with the undercover officer and sold the officer a small quantity of methamphetamine


At sentencing, Castillo-Flores requested only a minor role reduction. On appeal, he argues for both a minimal and minor role reduction