United States v. Brand

• Court: Court of Appeals for the First Circuit
• Decided: August 11, 1992
• Docket: 91-2299
• Status: Published

Opinion

USCA1 Opinion

        August 11, 1992         [NOT FOR PUBLICATION]

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No. 91-2299 

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                JUAN GUILLERMO BRAND,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Luis Rafael Rivera on brief for appellant.
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            Daniel  F. Lopez  Romo,  United States  Attorney,  and  Antonio R.
            ______________________                                  __________
        Bazan, Assistant United States Attorney, on brief for appellee.
        _____

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Per Curiam.  Appellant pled guilty  to one count of
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          possession of cocaine with intent to distribute in violation of

          21  U.S.C.    841(a)(1) and  18 U.S.C.    2,  and one  count of

          possession  of cocaine  on board  a vessel  in violation  of 21

          U.S.C.   955 and 18  U.S.C.   2.  The district  court sentenced

          him to  fifty-one  months  in  prison.   He  now  appeals  that

          sentence, arguing that  the court erred by  not granting him  a

          two-level reduction as a minor participant and by not departing

          downward for his substantial assistance to the government under

          the  United  States  Sentencing  Guidelines  (USSG).    Because

          appellant's assignments of error are without merit, we affirm.

                      1.   Under  USSG    3B1.2(b) a  defendant's offense

          level is decreased by  two levels if the defendant was a "minor

          participant"  in  the  charged  criminal  activity.    A  minor

          participant is "any participant who is less culpable  than most

          other participants, but  whose role could  not be described  as

          minimal."   USSG   3B1.2(b) (Application  Note 3).  In order to

          merit this reduction, a defendant must have been "substantially

          less culpable  than the average participant"  in committing the

          offense.  Id. (Background).
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                      Our prior  cases make  clear  that, in  determining

          whether  a  defendant  was  a  minor  participant  in  criminal

          activity, we analyze  both the relative conduct  of the persons

          involved in the criminal activity, as the Sentencing Guidelines

          suggest, and  the defendant's own conduct  measured against the

          elements of the offense with  which the defendant was  charged.

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United  States v. Gregorio, 956 F.2d  341, 344 (1st Cir. 1992);
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          see also United  States v.  Cepeda, 907 F.2d  11, 12 (1st  Cir.
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          1990).   The defendant  bears the burden of  proof in seeking a

          sentencing adjustment as a minor participant.  United States v.
                                                         _____________

          Rosado-Sierra, 938 F.2d 1, 1 (1st  Cir. 1991).  To prevail upon
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          appeal,  the  defendant must  show  that  the district  court's

          determination that defendant  was not a  minor participant  was

          "clearly erroneous."  Id. at 1-2.   Under this standard we will
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          reverse  a  lower  court  decision  if,  after  reviewing   the

          evidence,  we  have "the  definite and  firm conviction  that a

          mistake  has  been   committed."    United   States  v.   Vega-
                                              _______________       _____

          Encarnacion,  914 F.2d  20, 24  (1st Cir.  1990) (quoting  from
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          Anderson  v. Bessemer  City, 470 U.S.  564, 573  (1984)), cert.
          ________     ______________                               _____

          denied sub nom.  Cruz-Rosario v. United States, 111 S. Ct. 1626
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          (1991).

                      Appellant incorrectly alleges  that the court  made

          no findings to  support its decision that the appellant was not

          a minor participant  in the drug trafficking scheme to which he

          pled  guilty.    The  district  court stated  its  reasons  for

          concluding  that appellant was  not a minor  participant at the

          sentencing  hearing,  as the  hearing  transcript makes  clear.

          Moreover, the court  also adopted the  factual recitals of  the

          presentence  report, as  the official  judgment entered  in the

          case clearly indicates.   Thus, the findings on which the court

          relied were as  follows.  By his  own admissions appellant  had

          entered  into a drug  trafficking scheme with  an individual in

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Venezuela whom  he had  met while on  a trip  to that  country.

          Pursuant  to that scheme appellant would receive in Puerto Rico

          cocaine-carrying  crew members  from  luxury liners  travelling

          from  Venezuela to  Puerto  Rico.   He would  then  forward the

          cocaine to the continental United  States.  The specific events

          that led  to his arrest  and indictment for  possessing cocaine

          with intent to  distribute confirm that scheme.   On March  11,

          1991,  customs officials  detained and  searched a  crew member

          from  a  ship  that  had  just  arrived  in  Puerto  Rico  from

          Venezuela.  They  found cocaine in one  of the seaman's  shoes.

          After  his arrest, he  agreed to cooperate  with the government

          and participated  in a  controlled delivery  of the  cocaine to

          appellant and  another co-defendant.    Appellant and  his  co-

          defendant,  who was  to provide appellant  with transportation,

          were arrested  after  receiving  the  cocaine.    A  stipulated

          version  of  facts prepared  by  the government  and  signed by

          appellant further  indicates that the appellant  was to deliver

          $2,000 to  the crew member  for the  cocaine.  The  presentence

          report concludes that appellant was the  "most culpable" of the

          three persons who were arrested because he was "responsible for

          obtaining  the  cocaine  and  delivering  same  to  the  United

          States."   In contrast, the  crew member  was a "courier",  and

          appellant's other co-defendant was  only a "minimal participant

          and   the  least  culpable  as  his   role  only  consisted  of

          transporting the defendant . . . ."   

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These  facts  amply support  the  court's decision.

          Moreover,  in light  of appellant's  guilty  plea, there  is no

          question  that defendant  committed each  element necessary  to

          convict him of the charges for which he was arrested.  Finally,

          the court's decision is consistent with other decisions we have

          affirmed which arise  out of similar facts.  See, e.g., Rosado-
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          Sierra, 938 F.2d at 2, and cases cited therein.  Therefore, the
          ______

          district  court's  decision that  appellant  did  not merit  an

          offense level  reduction as a minor participant was not clearly

          erroneous.

                      2.  Under  USSG   5K1.1 the  court may depart  from

          the sentencing  guidelines  "[u]pon motion  of  the  government

          stating that the defendant has provided substantial  assistance

          in the investigation  or prosecution of another  person who has

          committed  an offense."  The district  court declined to depart

          downward because  the government  had  not brought  the  motion

          required  by Section 5K1.1.   Upon  appeal appellant  asks this

          court to  revisit its decisions holding that a district court's

          refusal to depart  downward is not  appealable if the  sentence

          imposed  was  within  the  sentencing  guidelines  and  that  a

          district court  may not  depart  downward absent  a  government

          motion seeking  such departure.1    In support  of his  request

          appellant alleges that the prosecutor  did not file the Section

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            1.  Appellant  states  in his  brief  on appeal  that  he had
            argued  before  the district  court  that  Section 5K1.1  was
            unconstitutional because it violated the separation of powers
            doctrine.  Appellant does not pursue this argument on appeal.

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5K1.1 motion  "simply because of [appellant's] colombian origin

          (he was born in Colombian [sic] but raised in Venezuela)."  

                      We see no reason to  revisit our prior holdings, as

          appellant  suggests.    Moreover,  the   question  whether  the

          district court  may depart downward absent  a government motion

          has been  resolved by the  Supreme Court.   In  Wade v.  United
                                                          ____     ______

          States,  112 S. Ct. 1840, 1842-43  (1992), the Court affirmed a
          ______

          decision that a district court may not  depart downward without

          a  government  motion, holding  that  Section  5K1.1 gives  the

          government "a power, not a duty" to file that motion.  Although

          a prosecutor's discretion in bringing a Section 5K1.1 motion is

          subject to constitutional limitations, id. at 1843, appellant's
                                                 ___

          allegation  of  prosecutorial  misconduct  is  misplaced  here.

          Appellant's  suggestion that  the prosecutor's decision  not to

          bring a Section  5K1.1 motion was based  on animus against  him

          because  of his  Colombian origin  is conclusory  and  finds no

          support  in  the  record.    See  id.   at  1844  ("generalized
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          allegations of improper motive" do not show prosecutorial abuse

          of discretion); United States v. Amparo, 961 F.2d 288, 293 (1st
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          Cir. 1992) (appellant's argument that the government chose  not

          to seek  downward departure in  her case because  she exercised

          her  constitutional right  to  a  jury  trial was  "[a]  wholly

          conclusory allegation, unsupported either by proven facts or by

          reasonable  inferences  from  proven  facts,  [and  so]  cannot

          suffice to  overcome  the  force  of  the  'government  motion'

          requirement").   In  addition, appellant  failed to  raise this

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argument before the district court.   His failure precludes him

          from  raising the argument  now.  United  States v. Uricoechea-
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          Casallas, 946 F.2d 162, 166  (1st Cir. 1991) (the long-standing
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          rule that this  court will not address issues presented for the

          first time  on appeal  applies  to arguments  about  sentencing

          guidelines).

                      Because  the district  court  properly  found  that

          appellant was not a minor participant in  the criminal activity

          to which he pled  guilty, and because appellant's assertion  of

          prosecutorial misconduct is unsupported by the evidence and was

          not made at  the hearing below, we affirm summarily pursuant to
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          1st Cir. Loc. R. 27.1.

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