United States of America v. Trina Marie Fitzgerald

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRINA MARIE FITZGERALD,
Defendant - Appellant.
No. 13-50605
D.C. No. 3:13-cr-01937-JLS-1
MEMORANDUM*
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.
FILED
DEC 26 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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
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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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