United States v. David Perez-Montero

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 08 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 10-50413 Plaintiff - Appellee, D.C. No. 3:10-cr-00380-LAB-1 v. MEMORANDUM* DAVID PEREZ-MONTERO, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted May 4, 2011** Pasadena, California Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges. David Perez-Montero (“Perez”) appeals the sentence imposed after he pled guilty to importing 6.85 kilograms of methamphetamine in violation of 21 U.S.C. §§ 952, 960, and 963. 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). Judge Burns’ expressed dissatisfaction with the government’s practice of offering minor-role adjustments during plea negotiations was not the basis for the sentence imposed. Instead, Judge Burns based his sentencing determination on the substantial amount of drugs involved and on Perez’s role in the preparation for the offense. The district court did not clearly err in finding that Perez failed to prove he played only a minor role in the offense, and it did not abuse its discretion in declining to award the minor-role adjustment. See United States v. Rodriguez- Castro, — F.3d —, 2011 WL 2150997 (9th Cir. June 2, 2011); United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006). Because the government’s argument in support of the sentence imposed is not inconsistent with its argument to the district court, estoppel does not apply. See Rodriguez-Castro, 2011 WL 2150997 at *3. AFFIRMED. 2