United States v. Garcia

MEMORANDUM ** Garcia appeals his sentencing following conviction for conspiracy and distribution of methamphetamine. He claims that the judge abused his discretion when he refused to grant a downward departure on account of Garcia’s advanced age. This departure is entirely discretionary and we cannot review it here. United States v. Smith, 330 F.3d 1209, 1212 (9th Cir.2003). Garcia also claims he was entitled to a downward adjustment on account of his limited role in the drug deal. We may overturn the court’s denial of a sentencing reduction for defendant’s limited role in the crime only “where the refusal was a clearly erroneous decision.” United States *651 v. Awad, 871 F.3d 583, 591 (9th Cir.2004). To qualify for a departure for either a minor or minimal role, a defendant must be “substantially less culpable than the average participant.” United States Sentencing Guidelines Manual. § 3B1.2 cmt. n. 3(A) (2004). A “minimal participant” is a defendant who “plays a minimal role in concerted activity” and is less culpable because he lacks “knowledge or understanding of the scope and structure” of the criminal enterprise. Id. cmt. n. 4. A “minor participant” is one who is “less culpable than most other participants, but whose role could not be described as minimal.” Id. cmt. n. 5. Garcia was entrusted with a substantial supply of drugs and a large sum of money. He carried out a major sale, carrying out delivery and collecting payment. The judge did not clearly err in finding that Garcia’s involvement did not justify a departure. The judgement of the district court is AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.