                                                                              FILED
                              NOT FOR PUBLICATION                              OCT 13 2010

                                                                           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. 09-10337

               Plaintiff - Appellee,               D.C. No. 4:08-cr-00288-JMR

  v.
                                                   MEMORANDUM *
JOSE MIGUEL YESTE,

               Defendant - Appellant.


                      Appeal from the United States District Court
                               for the District of Arizona
                         John M. Roll, Chief Judge, Presiding

                            Submitted September 13, 2010**

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Jose Miguel Yeste appeals from the 120-month sentence imposed following his

guilty-plea conviction for conspiracy to possess with intent to distribute cocaine and

possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(ii)(II). 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).
       Yeste contends that the district erred by enhancing his offense level by two

levels, under U.S.S.G § 2D1.1(b)(1), based on his co-conspirators’ possession of

firearms. The district court did not clearly err by finding that his co-conspirators’

possession of firearms was reasonably foreseeable to Yeste. See United States v.

Garcia, 909 F.2d 1346, 1349-50 (9th Cir. 1990).

       Yeste also contends that the district court erred by failing to grant his request

for safety valve relief. The district court did not clearly err by finding that Yeste had

failed to truthfully disclose all of the information he had concerning the offense. See

18 U.S.C. § 3553(f)(5); United States v. Miller, 151 F.3d 957, 958 (9th Cir. 1998);

United States v. Shrestha, 86 F.3d 935, 938-39 (9th Cir. 1996).

       Finally, the district court did not plainly err by not awarding Yeste an additional

one-level downward adjustment for acceptance of responsibility, after the government

declined to move for the extra reduction because it would need to expend prosecutorial

resources as Yeste had rejected a plea agreement. See U.S.S.G. § 3E1.1(b); United

States v. Johnson, 581 F.3d 994, 1002-04 (9th Cir. 2009) (“[T]he allocation and

expenditure of prosecutorial resources for the purposes of defending an appeal is a

rational basis for declining to move for the third reduction point.”).

       AFFIRMED.




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