FILED
NOT FOR PUBLICATION MAR 22 2013
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. 12-30077
Plaintiff - Appellee, 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