United States v. Aya

Opinion

USCA1 Opinion

          June 14, 1995


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 94-2142



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                    ARGERMIRO AYA,



                                Defendant, Appellant.



                                 ____________________



                                     ERRATA SHEET


The opinion  of this court issued  on June 8,  1995 is amended  as

        follows:



            On  page 5, second line  from the bottom, change  the word "minor"

        to "minimal".



June 8, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

             

                                 ____________________


No. 94-2142



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                    ARGERMIRO AYA,



                                Defendant, Appellant.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                           Selya and Lynch, Circuit Judges.
                                            ______________



                                 ____________________



            Elfrick Mendez Morales on brief for appellant.
            ______________________

            Guillermo  Gil, United  States Attorney,  Jacabed  Rodriguez-Coss,
            ______________                            _______________________

        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior
                                               _______________________

        Litigation Counsel, on brief for appellee.


____________________



                                 ____________________



Per  Curiam.    Argermiro  Aya  pleaded  guilty  to
                      ___________



            possession with intent to distribute cocaine, in violation of



            21 U.S.C.   841(a)(1).   The district court sentenced  him to



            57 months imprisonment.   On appeal  from this sentence,  Aya



            raises only one issue.  He contends that the sentencing court



            erred in reducing his  offense level by only two  levels, for



            his  role in the offense as a "minor" participant, instead of



            by four levels,  in recognition  of his role  as a  "minimal"



            participant.   See   United  States   Sentencing  Commission,
                           ___



            Guidelines  Manual,    3B1.2  (November,  1993)  ("Sentencing
            __________________



            Guidelines").  We affirm.



                                    I. Background
                                       __________



                      The  following  facts  are derived  from  the  pre-



            sentence report ("PSR") to which neither party objected.  Aya



            arrived in Puerto Rico at the Luis Munoz  Marin International



            airport  on May  14, 1994  on a  flight from Panama  City, en



            route  to   Madrid,  Spain.    U.S.   Customs  officials  had



            identified  Aya  and  two  other passengers  as  fitting  the



            profile of a narcotics  trafficker.  Custom agents separately



            stopped both  Aya and another passenger,  later identified as



            Hector R. Zamora-Velez, at  the airport in Puerto Rico.   Pat



            downs and  subsequent searches  revealed that Aya  and Zamora



            were each  wearing vests with pockets  containing packages of



            cocaine.  The cocaine found on  Aya had a net weight of 4,503



            grams or 4.5 kilograms and an average purity strength of 81%.



The  cocaine found on Zamora had  a net weight of 4,339 grams



            and an average purity strength of 77%.



                      According to  the PSR, Zamora waived  his rights at



            the  time  of his  arrest  and stated  that  he and  Aya were



            travelling together.  He said that a few weeks earlier he had



            been approached in Colombia by an (unnamed) person  who asked



            him if he wanted  to earn $5,000.   That person provided  Aya



            and Zamora with passports, airline tickets and a small amount



            of cash.  The two allegedly obtained the cocaine and vests in



            Panama, where they  boarded the plane  for Spain, via  Puerto



            Rico.  Aya, in a later conversation with a probation officer,



            also stated  that he was  going to  be paid  $5,000 upon  the



            delivery  of the  drugs in  Spain.   He  claimed that  he had



            agreed  to smuggle the drugs  because he needed  the money to



            pay his father's medical bills.



                      A  two-count indictment charged Aya with possession



            with  intent to  distribute  approximately 5.1  kilograms  of



            cocaine  (Count  One)  and  importing the  same  quantity  of



            cocaine (Count  Two).   After initially pleading  not guilty,



            Aya  changed his plea  to guilty on Count  One, pursuant to a



            plea  agreement  entered  on  July 26,  1994,  in  which  the



            government  agreed to move for  dismissal of Count  Two.  The



            parties  also agreed  to  stipulate that  Aya was  personally



            responsible for  the possession with intent  to distribute of



            4.5 kilograms of cocaine.


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A  PSR  was prepared,  recommending a  base offense



            level of 30 and a reduction of three levels for acceptance of



            responsibility and two  levels for Aya's role  in the offense



            as a  "courier". See  U.S.S.G.    3B1.2(b)  (providing for  a
                             ___



            decrease  of  two levels  where  the  defendant is  a  "minor



            participant").   The total offense level of 25 and a criminal



            history category of I yielded a guideline sentencing range of



            57 to 71 months.  There were no objections to the PSR.



                      At  the  sentencing  hearing,  the  district  court



            denied defendant's request for a four-level reduction for his



            role  as a "minimal" participant in the offense.  The reasons



            given,  if any,  are  not included  as  part of  the  record.



            (Apparently, a  transcript of the sentencing  hearing was not



            prepared.)  The sentencing court adopted the factual findings



            and guideline application in the PSR, however, which included



            a finding  that Aya's  role was as  a courier.   Although the



            statutory  mandatory minimum  sentence  was five  years,  the



            district court agreed with  defendant and the government that



            Aya  met the criteria under 18 U.S.C.   3553(f).1  Therefore,



            the court imposed a prison sentence of 57 months. 


____________________



            1.  Section 3553(f) provides that a Guideline  sentence below

            the  statutory minimum may be imposed  for defendants with no

            more than 1 criminal history point, if certain other criteria

            are also met.



                                         -5-



II. Discussion  
                                       __________



                      Section 3B1.2 of the Sentencing Guidelines provides



            for reductions in a defendant's  offense level based upon his



            role in the offense: a decrease of 4 levels if  the defendant



            was a "minimal participant" and a decrease of 2 levels if the



            defendant  was  a "minor  participant."    Commentary to  the



            Sentencing Guidelines provides that "[t]he determination of a



            defendant's role in the offense is to be made on the basis of



            all conduct  within the  scope of  1B1.3  (Relevant Conduct),



            i.e., all  conduct included under   1B1.3(a)(1)-(4), and  not
            ____



            solely on the  basis of elements and acts cited  in the count



            of conviction." U.S.S.G.   3B1 (introductory commentary).  In



            the  commentary  to    3B1.2,  the  four-level reduction  for



            minimal participation is explained as follows:



                      It  is intended  to cover  defendants who

                      are  plainly among the  least culpable of

                      those   involved  in  the  conduct  of  a

                      group.. . . 



                      It   is   intended   that  the   downward

                      adjustment for a minimal participant will

                      be  used  infrequently.    It   would  be

                      appropriate, for example, . . . in a case

                      where  an individual  was recruited  as a

                      courier    for    a   single    smuggling

                      transaction involving a  small amount  of

                      drugs.



            A two-level reduction  for "minimal"  participation is  meant



            for  a participant  "who  is less  culpable  than most  other



            participants,  but  whose  role  could not  be  described  as



            minor." U.S.S.G.   3B1.2 (commentary).


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The defendant has the burden of proving entitlement



            to  a downward adjustment pursuant to   3B1.2.  United States
                                                            _____________



            v. Munoz, 36 F.3d  1229, 1238 (1st Cir. 1994),  cert. denied,
               _____                                        _____ ______



            __ U.S. __, 115 S. Ct. 1164 (1995).  This  court has recently



            emphasized  that  "[r]ole-in-the  offense determinations  are



            innately  fact-specific.     The   court  of   appeals  must,



            therefore, pay careful heed to the sentencing judge's views."



            United  States v. Rostoff, No.  93-1376, slip op.  at 29 (1st
            ______________    _______



            Cir. April 24, 1995)  (citation omitted).  "Absent a  mistake



            of  law, a district court's finding as to whether a defendant



            was a minor or  minimal participant will be reversed  only if



            clearly erroneous." United States v. Neal, 36 F.3d 1190, 1211
                                _____________    ____



            (1st Cir. 1994).  



                      Aya argues that his role in the offense was that of



            a  mere  courier,  a  role  that  he  argues  is  necessarily
                                                              ___________



            "minimal."    This court  has  twice  directly rejected  that



            argument.  In United States v. Lopez-Gil, 965 F.2d 1124, 1131
                          _____________    _________



            (1st Cir.  1992), we  held that "a  defendant who  is a  drug



            courier is not  entitled as  of right to  a reduction of  the



            offense  level as a minimal or minor participant."  Lopez-Gil



            was  arrested at  the same  airport in  Puerto Rico,  also en
                                                                       __



            route   to  Spain,  carrying  suitcases  containing  cocaine.
            _____



            Although the district court determined that Lopez-Gil "'acted



            as a  courier and apparently  had no proprietary  interest in



            the cocaine  as such,'" it refused  to grant him even  a two-


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level reduction  for minor involvement. Id.  at 1126 (quoting
                                                    ___



            sentencing court).    Nonetheless, this  court  affirmed  the



            sentence. Id. at 1131.
                      ___



                      Lopez-Gil cited to this Court's holding to the same
                      _________



            effect in United  States v. Paz Uribe, 891 F.2d 396, 399 (1st
                      ______________    _________



            Cir. 1989) ("[E]ven if the court had  found that Paz was only



            a courier,  he  would  not automatically  be  entitled  to  a



            reduction."), cert. denied, 495 U.S. 951 (1990).  Under these
                          _____ ______



            circumstances,  the district  court  did not  clearly err  in



            sentencing  Aya   as  a  "minor"  rather   than  a  "minimal"



            participant. 



                      Appellant's  sentence is  therefore affirmed.   See
                                                          ________    ___



            Loc. R. 27.1.


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