                                                                            FILED
                             NOT FOR PUBLICATION                             APR 21 2010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. 09-50150

               Plaintiff - Appellee,              D.C. No. 3:08-CR-03513-LAB

  v.
                                                  MEMORANDUM *
MARIO ESPARZA-CRUZ,

               Defendant - Appellant.



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

                               Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Mario Esparza-Cruz appeals from the 75-month sentence imposed following

his guilty-plea conviction for importation of methamphetamine, in violation of




          *
             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).
21 U.S.C. §§ 952, 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

       Esparza-Cruz contends that the district court erred by declining to apply a

minor role adjustment pursuant to U.S.S.G. § 3B1.2 because the district court was

improperly influenced by its disagreement with prosecutorial charging policies.

Eaparza-Cruz also contends that he did not have the control over the drug

smuggling operation required to preclude application of the role adjustment. The

district court did not err as the record reflects that the district court’s denial was not

based upon improper considerations. Among other things, the district court relied

upon the fact that Esparza-Cruz was arrested with over two kilograms of

methamphetamine. See United States v. Hursh, 217 F.3d 761, 770 (9th Cir. 2000);

see also United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991).

       We reject Esparza-Cruz’s contention, raised for the first time in his reply

brief, that the government is judicially estopped from arguing on appeal that a

minor role adjustment was unwarranted when it had advocated for it during

sentencing. See United States v. Bussell, 504 F.3d 956, 963 (9th Cir. 2007).

       AFFIRMED.




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