                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 14 2011

                                                                        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. 10-50156

               Plaintiff - Appellee,             D.C. No. 3:09-cr-04109-LAB

  v.
                                                 MEMORANDUM *
EDGAR ALBERTO INDA-LARES,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                              Submitted March 8, 2011 **

Before:        FARRIS, LEAVY, and BYBEE, Circuit Judges.

       Edgar Alberto Inda-Lares appeals from the 57-month sentence imposed

following his guilty-plea conviction for conspiracy to import cocaine, in violation

of 21 U.S.C. §§ 846, 952(a), and 960. We have jurisdiction under 28 U.S.C.

§ 1291, and 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).
      Inda-Lares first contends that the district court erred in denying him a minor

role adjustment under U.S.S.G. § 3B1.2(b). Contrary to Inda-Lares’ assertion, the

district court did not assert that a drug courier is never entitled to a minor role

adjustment. Rather, it concluded that an adjustment was not warranted in this case.

The court’s determination was not clearly erroneous. See United States v. Cantrell,

433 F.3d 1269, 1282-83 (9th Cir. 2006) (stating standard of review and holding

that denial of minor role adjustment was not clear error where evidence showed

that the defendant engaged in several drug pick-ups); United States v. Hursh, 217

F.3d 761, 770 (9th Cir. 2000) (denial of minor role adjustment not clear error

where the defendant was the sole driver and occupant of a car in which a

substantial amount of drugs were hidden).

      Inda-Lares next contends that the government breached the plea agreement

by arguing on appeal that the district court did not err in refusing to grant him a

minor role adjustment, and that the government is estopped from taking this

position on appeal. A plain reading of the plea agreement demonstrates that on

appeal the government is free to support the sentence imposed, and is not bound to

any position regarding a minor role adjustment. See United States v. Schuman, 127

F.3d 815, 817-18 (9th Cir. 1997) (per curiam). Furthermore, the government’s

position on appeal is not inconsistent with its recommendation of the minor role


                                            2                                     10-50156
adjustment below. Inda-Lares’ estoppel arguments therefore fail. See Russell v.

Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (estoppel applies where party makes an

assertion in a legal proceeding that “directly contradicts” an earlier assertion).

      Finally, Inda-Lares contends that his sentence is substantively unreasonable.

In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, the

sentence is not substantively unreasonable. See Gall v. United States, 552 U.S. 38,

51 (2007).

      AFFIRMED.




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