United States v. Mario Esparza-cruz , 377 F. App'x 597 ( 2010 )

FILED
NOT FOR PUBLICATION APR 21 2010
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. 09-50150
Plaintiff - Appellee, D.C. No. 3:08-CR-03513-LAB
v.
MEMORANDUM *
MARIO ESPARZA-CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Mario Esparza-Cruz appeals from the 75-month sentence imposed following
his guilty-plea conviction for importation of methamphetamine, in violation of
*
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).
21 U.S.C. §§ 952, 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
Esparza-Cruz contends that the district court erred by declining to apply a
minor role adjustment pursuant to U.S.S.G. § 3B1.2 because the district court was
improperly influenced by its disagreement with prosecutorial charging policies.
Eaparza-Cruz also contends that he did not have the control over the drug
smuggling operation required to preclude application of the role adjustment. The
district court did not err as the record reflects that the district court’s denial was not
based upon improper considerations. Among other things, the district court relied
upon the fact that Esparza-Cruz was arrested with over two kilograms of
methamphetamine. See United States v. Hursh, 217 F.3d 761, 770 (9th Cir. 2000);
see also United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991).
We reject Esparza-Cruz’s contention, raised for the first time in his reply
brief, that the government is judicially estopped from arguing on appeal that a
minor role adjustment was unwarranted when it had advocated for it during
sentencing. See United States v. Bussell, 504 F.3d 956, 963 (9th Cir. 2007).
AFFIRMED.
2 09-50150