                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 26 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50605

              Plaintiff - Appellee,              D.C. No. 3:13-cr-01937-JLS-1

  v.
                                                 MEMORANDUM*
TRINA MARIE FITZGERALD,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                     Argued and Submitted November 21, 2014
                               Pasadena, California

Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.

       Trina Marie Fitzgerald (“Fitzgerald”) appeals the sentence and supervised

release conditions imposed by the district court following her guilty plea to

importing 64.45 kilograms of marijuana into the United States from Mexico in

violation of 21 U.S.C. §§ 952 and 960. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err when it denied the defendant a minor role

adjustment pursuant to United States Sentencing Guideline (“Guideline”)

§ 3B1.2(b). The district court properly refused to consider hypothetical

participants when it found that the defendant was not a minor participant for

purposes of Guideline § 3B1.2(b). See United States v. Rosas, 615 F.3d 1058,

1068 (9th Cir. 2010). The mere fact that the defendant was a courier did not entitle

her to a minor role adjustment. See United States v. Hurtado, 760 F.3d 1065, 1068

(9th Cir. 2014). The defendant imported a large quantity of drugs into the United

States and had an extensive border crossing history. See id. at 1069 (noting

quantity of drugs imported justified denial of minor role adjustment); United States

v. Rodriguez-Castro, 641 F.3d 1189, 1193 (9th Cir. 2011) (noting border crossing

history when rejecting minor role adjustment). The district court did not clearly err

by finding Fitzgerald failed to prove by a preponderance of the evidence that she

was entitled to a minor role adjustment. See United States v. Davis, 36 F.3d 1424,

1436 (9th Cir. 1994).

      The district court also properly resolved the dispute over the defendant’s

crossing history when it rejected the defendant’s innocent explanation for the

number of times she crossed the border. Because the district court stated its

“resolution of the disputed issue[],” the court complied with the requirements of


                                          2
Federal Rule of Criminal Procedure 32. United States v. Karterman, 60 F.3d 576,

583 (9th Cir. 1995).

      Finally, the district court did not improperly delegate its statutory authority

when it left the frequency of drug testing to the discretion of the United States

Probation Office. It is permissible for the court to allow “the probation officer to

determine the timing of the tests,” so long as the court “determine[s] how many

times a defendant may be placed in jeopardy of being tested.” United States v.

Stephens, 424 F.3d 876, 883 (9th Cir. 2005). Here, the district court did not make

a Stephens error because it left only the frequency of testing, not the maximum

number of tests, to the discretion of the probation officer. The maximum number

of tests, as directed by the Southern District of California’s General Order No.

547A and the sentencing order, is four. Thus, the court, not a probation officer,

properly determined the maximum number of times the “defendant may be placed

in jeopardy of being tested.” Stephens, 424 F.3d at 883.

      AFFIRMED.




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