USA V. DAMIEN MINGARELLI, No. 12-30077 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 22 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-30077 D.C. No. 3:10-cr-00108-RRB v. MEMORANDUM * DAMIEN M. MINGARELLI, Defendant - Appellant. Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, Chief Judge, Presiding Submitted March 12, 2013 ** Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges. Damien M. Mingarelli appeals from the district court s judgment and challenges the 80-month sentence imposed following his guilty-plea conviction for conspiracy to launder proceeds of unlawful distribution of controlled substances, in * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). violation of 18 U.S.C. § 1956(h). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Mingarelli contends that the district court procedurally erred by failing to appreciate its discretion to vary downward from the Guidelines on policy grounds under Kimbrough v. United States, 552 U.S. 85 (2007). We review for plain error, see United States v. Ayala-Nicanor, 659 F.3d 744, 746-47 (9th Cir. 2011), cert. denied, 132 S. Ct. 1941 (2012), and find none. The record reflects that the district court recognized, but chose not to exercise, its Kimbrough discretion to vary from the Guidelines based on a reasonable policy disagreement with the Guidelines treatment of Oxycodone. See id. at 752. Mingarelli also contends that the district court clearly erred when it applied a four-level aggravating role enhancement under U.S.S.G. § 3B1.1(a). The record reflects that the district court did not clearly err when it determined that Mingarelli was an organizer or leader of a criminal activity that involved at least five participants. See United States v. Garcia, 497 F.3d 964, 970 (9th Cir. 2007) (a section 3B1.1(a) enhancement does not require control over all of the five or more participants ); United States v. Maldonado, 215 F.3d 1046, 1051 (9th Cir. 2000) (district court may rely on evidence in presentence report when determining applicability of section 3B1.1(a)). AFFIRMED. 2 12-30077

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