Opinion
Argued and Submitted February 8, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
U.S. Attorneys Office, USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Adam M. Ruben, Esq., Jami L. Ferrara, Esq., Law Offices of Jami L. Ferrara, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. CR-04-00136-WQH.
Before: BEEZER, T.G. NELSON, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Defendant Ramon Perez-Diaz appeals his jury conviction for importation of, and possession with intent to distribute, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 952, and 960, and his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Perez-Diaz's conviction, vacate his sentence, and remand for re-sentencing.
The district court properly admitted the methamphetamine. Perez-Diaz failed to demonstrate that the search at the border in which the Inspector discovered the methamphetamine resulted in any damage to, or destruction of, his truck. In addition, the district court was well within its discretion in refusing to give the proposed "theory of defense" jury instruction in its entirety. The second sentence of the instruction proposed by the defense was argumentative and assumed the existence of Julio and his alleged role, issues about
United States v. Flores-Montano, 541 U.S. 149, 155-56, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004); see United States v. Bennett, 363 F.3d 947, 951 (9th Cir.), cert. denied, 543 U.S. 950, 125 S.Ct. 363, 160 L.Ed.2d 268 (2004); United States v. Camacho, 368 F.3d 1182, 1183 (9th Cir.2004) (reviewing de novo the district court's denial of a motion to suppress evidence).
See United States v. Shipsey, 363 F.3d 962, 966 n. 3 (9th Cir.2004) (reviewing the district court's formulation of jury instructions for abuse of discretion).
Page 718.
which questions of fact existed. The first sentence of the proposed instruction, which the judge adopted, adequately covered Perez-Diaz's theory of defense--that he unknowingly transported methamphetamine in his truck.
United States v. Parker, 991 F.2d 1493, 1497 (9th Cir.1993); United States v. Hall, 552 F.2d 273, 275 (9th Cir.1977).
See Parker, 991 F.2d at 1497; Hall, 552 F.2d at 275-76.
Regarding Perez-Diaz's sentencing, the district court correctly denied his application for a "safety valve" reduction pursuant to USSG § 5C1.2 and 18 U.S.C. § 3553(f). Perez-Diaz did not satisfy his burden to show entitlement to a safety valve reduction. The district court also did not err by denying Perez-Diaz's application for a minor role adjustment under USSG § 3B1.2 because Perez-Diaz failed to show that he was "substantially" less culpable than Julio.
See USSG § 5C1.2; 18 U.S.C. § 3553(f); United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir.1996).
See United States v. Johnson, 297 F.3d 845, 874 (9th Cir.2002).
Perez-Diaz preserved his claim that his sentence violated United States v. Booker by challenging the jury verdict form. Accordingly, we vacate Perez-Diaz's sentence and remand for re-sentencing consistent with Booker.
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
See United States v. Kortgaard, 425 F.3d 602, 611 (9th Cir.2005).
Conviction AFFIRMED; Sentence VACATED AND REMANDED.