United States of America, Plaintiff-appellee, v. Joel Munoz-pulido, Defendant-appellant, 8 F.3d 32 (9th Cir. 1993)

MEMORANDUM^** 

Joel Munoz-Pulido appeals his 21-month sentence imposed following his guilty plea to conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841, 846. Munoz-Pulido contends the district court erred by granting him only a one-level reduction in his offense level pursuant to U.S.S.G. § 3B1.2 for being a minor participant in the offense. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

We review de novo a district court's construction and interpretation of the Guidelines section on a defendant's role in the offense, United States v. Zweber, 913 F.2d 705, 708 (9th Cir. 1990), while reviewing for clear error the district court's factual determinations regarding whether a defendant is a minor participant, United States v. Lui, 941 F.2d 844, 848-49 (9th Cir. 1991).

U.S.S.G. § 3B1.2 provides for a two to four level downward adjustment in the base offense level when a defendant's minor or minimal role in the offense renders him less culpable than most other participants. " [A]ny participant who is less culpable than most other participants, but whose role could not be described as minimal, may receive a two-level downward adjustment in his offense level for being a minor participant in the offense." U.S.S.G. § 3B1.3(b), comment. (n. 3). There is no provision for a one-level downward adjustment. U.S.S.G. § 3B1.4 ("In any other case, no adjustment is made for role in the offense.")

Here, Munoz-Pulido was arrested for transporting marijuana by car from San Diego to Riverside, California. The district court found that a two-level reduction for being a minor participant was inappropriate because Munoz-Pulido had invited a friend to accompany him on the drive, and therefore had recruited another person into the conspiracy. The court nevertheless found that Munoz-Pulido's role was "like a little minor player" and awarded him a one-level downward adjustment.

The government concedes that the district court erred by adjusting Munoz-Pulido's level by one point. We agree. See U.S.S.G. §§ 3B1.2(b), 3B1.4. Nevertheless, given the unavailability of a one-point adjustment, it is unclear from the record before us whether the district court would find Munoz-Pulido's eligible for the two levels pursuant to section 3B1.2 or whether it would entirely forego a reduction under this section. Accordingly, we vacate and remand to the district court for resentencing. See United States v. LaPierre, No. 92-10321, slip op. 8945, 8961 (9th Cir. Aug. 19, 1993) (remand appropriate where the basis of district court's denial of a 2-level reduction for acceptance of responsibility was ambiguous).

VACATED and REMANDED.