United States v. Edgar Inda-Lares , 421 F. App'x 691 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50156
Plaintiff - Appellee, D.C. No. 3:09-cr-04109-LAB
v.
MEMORANDUM *
EDGAR ALBERTO INDA-LARES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Edgar Alberto Inda-Lares appeals from the 57-month sentence imposed
following his guilty-plea conviction for conspiracy to import cocaine, in violation
of 21 U.S.C. §§ 846, 952(a), and 960. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
*
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).
Inda-Lares first contends that the district court erred in denying him a minor
role adjustment under U.S.S.G. § 3B1.2(b). Contrary to Inda-Lares’ assertion, the
district court did not assert that a drug courier is never entitled to a minor role
adjustment. Rather, it concluded that an adjustment was not warranted in this case.
The court’s determination was not clearly erroneous. See United States v. Cantrell,
433 F.3d 1269, 1282-83 (9th Cir. 2006) (stating standard of review and holding
that denial of minor role adjustment was not clear error where evidence showed
that the defendant engaged in several drug pick-ups); United States v. Hursh, 217
F.3d 761, 770 (9th Cir. 2000) (denial of minor role adjustment not clear error
where the defendant was the sole driver and occupant of a car in which a
substantial amount of drugs were hidden).
Inda-Lares next contends that the government breached the plea agreement
by arguing on appeal that the district court did not err in refusing to grant him a
minor role adjustment, and that the government is estopped from taking this
position on appeal. A plain reading of the plea agreement demonstrates that on
appeal the government is free to support the sentence imposed, and is not bound to
any position regarding a minor role adjustment. See United States v. Schuman, 127
F.3d 815, 817-18 (9th Cir. 1997) (per curiam). Furthermore, the government’s
position on appeal is not inconsistent with its recommendation of the minor role
2 10-50156
adjustment below. Inda-Lares’ estoppel arguments therefore fail. See Russell v.
Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (estoppel applies where party makes an
assertion in a legal proceeding that “directly contradicts” an earlier assertion).
Finally, Inda-Lares contends that his sentence is substantively unreasonable.
In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, the
sentence is not substantively unreasonable. See Gall v. United States, 552 U.S. 38,
51 (2007).
AFFIRMED.
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