United States v. Bernardo Carrasco-Deleon

• Court: Court of Appeals for the Third Circuit
• Decided: July 19, 2019
• Docket: 18-3324
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 18-3324 ______________

UNITED STATES OF AMERICA,

v.

BERNARDO CARRASCO-DELEON, Appellant ______________

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-17-cr-00223-002) District Judge: Hon. Christopher C. Conner ______________

Submitted Under Third Circuit L.A.R. 34.1(a) July 8, 2019 ______________

Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges.

(Filed: July 19, 2019)

______________

OPINION ∗ ______________

SHWARTZ, Circuit Judge

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Bernardo Carrasco-DeLeon appeals his drug sentence. He contends that he is

entitled to a downward adjustment under U.S.S.G. § 3B1.2(a) for being a “minimal

participant” in the criminal activity at issue. Because the District Court did not clearly err

in determining that Carrasco-DeLeon had a more than minimal role in the drug

conspiracy, we will affirm.

I

Carrasco-DeLeon agreed to accompany Ronald Nunez from Pennsylvania to

Maryland to conduct a drug transaction. In exchange for a portion of the drug proceeds,

Carrasco-DeLeon was to serve as a lookout while Nunez retrieved the drugs.

The drug supplier with whom Nunez was meeting was under investigation in

connection with a multi-state drug distribution conspiracy. As a result, surveillance

agents were present at the meeting location. They saw Nunez meet with the supplier as

Carrasco-DeLeon conducted countersurveillance from Nunez’s car. After Nunez

returned to his car “with his arm tightly up against his side,” the pair departed. App. 29.

Officers pulled the car over, and both Nunez and Carrasco-DeLeon were arrested. Law

enforcement found approximately two kilograms of heroin on the car floorboard on the

passenger side, where Carrasco-DeLeon was sitting.

Carrasco-DeLeon pleaded guilty to conspiracy to distribute and possess with intent

to distribute one kilogram or more of heroin, and possession with intent to distribute one

kilogram or more of heroin in violation of 21 U.S.C. §§ 846 and 841(a), respectively.

After his guilty plea, the Probation Office prepared a presentence report recommending

that Carrasco-DeLeon receive a two-level reduction in his offense level because it viewed

2 him as a “minor participant” in the crime under U.S.S.G. § 3B1.2(b). Carrasco-DeLeon

objected, arguing that he was a “minimal participant” under U.S.S.G. § 3B1.2(a) entitled

to a four-level reduction. Carrasco-DeLeon maintained that he was unaware of the type

and quantity of drugs involved, and he argued that the fact he was paid by Nunez rather

than directly by the drug supplier shows that his role, compared to that of his co-

conspirators, was minimal.

The District Court considered the objection and found that Carrasco-DeLeon’s

participation was less than minor, but more than minimal, given his role as the lookout

and the drug quantity involved. The Court therefore sustained in part and overruled in

part the objection, giving Carrasco-DeLeon a three-level reduction for his role in the

offense. 1 Carrasco-DeLeon appeals.

II 2

U.S.S.G. § 3B1.2 provides a four-level reduction for a “minimal participant” in

any criminal activity, a two-level reduction for a “minor participant,” and a three-level

reduction for anyone “falling [in] between.” A “minimal participant” is any defendant

who is “plainly among the least culpable of those involved in the conduct of a group,”

U.S.S.G. § 3B1.2, cmt. n.4, whereas a “minor participant” is one who “is less culpable

than most other participants in the criminal activity, but whose role could not be

1 With the three-level reduction, Carrasco-DeLeon’s total offense level was 22. With a criminal history category of I, his Guidelines sentencing range was 41-51 months. The District Court sentenced him to 41 months. 2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 3 described as minimal,” id. at cmt. n.5. “In determining whether this adjustment is

warranted, we have instructed district courts to consider ‘such factors as the nature of the

defendant’s relationship to other participants, the importance of the defendant’s actions to

the success of the venture, and the defendant’s awareness of the nature and scope of the

criminal enterprise.’” United States v. Self, 681 F.3d 190, 201 (3d Cir. 2012) (quoting

United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991)). The application of the

role adjustment under U.S.S.G. § 3B1.2 “is heavily dependent on the facts of a particular

case.” United States v. Isaza-Zapata, 148 F.3d 236, 238 (3d Cir. 1998) (citing U.S.S.G.

§ 3B1.2, Commentary).

We review a district court’s factual determinations concerning role adjustment for

clear error, United States v. Richards, 674 F.3d 215, 222 (3d Cir. 2012) (citing United

States v. Carr, 25 F.3d 1194, 1207 (3d Cir. 1994)), and exercise plenary review over the

district court’s role adjustment rulings that are “based . . . on a legal interpretation of the

Sentencing Guidelines.” 3 Isaza-Zapata, 148 F.3d at 237.

The District Court here made a factual determination that Carrasco-DeLeon’s role

in the drug conspiracy was between “minor” and “minimal.” Comparing his participation

to that of his co-conspirators, the Court acknowledged that Carrasco-DeLeon had a

3 Carrasco-DeLeon asserts that the District Court erred by failing to compare his role to that of his co-conspirators. He is incorrect. The Court made no legal errors in this regard as it fully considered Carrasco-DeLeon’s role in comparison to his co- conspirators. Carrasco-DeLeon’s remaining challenges arise from disagreements as to how the Court factually characterized his level of involvement, not its interpretations of the Guidelines. As such, clear error review is appropriate. See Richards, 674 F.3d at 223. 4 smaller role than the drug supplier, but could not conclude that “he [was] plainly among

the . . . least culpable of those involved.” App. 35. The Court found that Carrasco-

DeLeon was an active participant in the crime who played a key role in procuring the

heroin, acting as a lookout in exchange for a portion of the expected proceeds from the

transaction. The Court also emphasized the large drug quantity, purportedly worth

approximately $120,000, reasoning that it was unlikely “this drug trafficking organization

[would] allow some ‘innocent’ or unconnected individual to come in and act as a lookout

for a drug transaction involving this . . . kilo plus quantity of drugs.” App. 34; see Self,

681 F.3d at 201 (“[T]he fact that [the defendant] was trusted to handle the distribution of

wholesale quantities of drugs worth hundreds of dollars speaks to the remaining Headley

factors: [defendant’s] relationship with the other members involved in the criminal

enterprise and [defendant’s] knowledge of the nature and scope of the venture.” (internal

citation omitted)).

Because the Court did not clearly err by determining that Carrasco-DeLeon had

more than a minimal, but less than a minor role in the conspiracy, its three-level

sentencing reduction under § 3B1.2 was appropriate.

III

For the foregoing reasons, we will affirm.