United States v. De Varon

136 F.3d 740

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 3, 1998
• Docket: 96-5421
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 05/14/99 No. 96-5421 THOMAS K. KAHN ________________________ CLERK

D. C. Docket No. 96-576-CR-MOORE

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

ISABEL RODRIGUEZ DE VARON, Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (May 14, 1999)

Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS, Circuit Judges, and GODBOLD, Senior Circuit Judge.

MARCUS, Circuit Judge:

The central issue presented in this appeal is whether the district court clearly erred in

denying a drug courier who imported 512.4 grams of 85 percent pure heroin from Colombia into

the United States a two-point downward adjustment for her minor role in the offense under §

3B1.2 of the United States Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 3B1.2

(1996) [hereinafter U.S.S.G.]. We hold that the district court did not commit clear error, that

there was in fact ample evidence in the record to support its determination that the defendant did not play a minor role in the offense, and, finally, that the district court did not misapprehend

either the law of this Circuit or the rules established in the Guidelines. Accordingly, we affirm

the judgment of the district court.

More broadly, we reaffirm our longstanding view that a district court’s determination of

whether a defendant qualifies for a minor role adjustment under the Guidelines is a finding of

fact that will be reviewed only for clear error. We reemphasize, moreover, that the proponent of

the downward adjustment bears the burden at all times of establishing her role in the offense by a

preponderance of the evidence. Finally, we believe that two legal principles should guide the

district court in this fact-finding endeavor. First and foremost, the district court must measure

the defendant’s role against her relevant conduct, that is, the conduct for which she has been held

accountable under U.S.S.G. § 1B1.3. The Guidelines and our case precedent plainly require the

district court to undertake this method of analysis in every case where a role adjustment is at

issue. See U.S.S.G. Ch. 3, Pt. B, intro. comment. Second, where the record evidence is

sufficient, the district court may also measure the defendant’s conduct against that of other

participants in the criminal scheme attributed to the defendant. See U.S.S.G. § 3B1.2, comment.

(n.3). These principles advance both the directives of the Guidelines and our case precedent by

recognizing the fact-intensive nature of this inquiry and by maximizing the discretion of the trial

court in determining the defendant’s role in the offense.

I.

On June 12, 1996, Isabelle Rodriguez De Varon (“De Varon”) smuggled 70 heroin-filled

pellets into the United States. She had ingested the pellets and smuggled them from Colombia

2 into the United States inside her body. Upon arrival, De Varon reported to United States

Customs. Suspecting that she was an internal carrier of narcotics, the customs officials

confronted De Varon and she confessed. The government then accompanied De Varon to a

hospital and ultimately recovered 512.4 grams of 85 percent pure heroin. At the time of her

arrest, De Varon was carrying $2,350. De Varon admitted that a woman identified only as

“Nancy” provided her with $1,350 of travel advance money and instructed her to bring an

additional $1,000 of her own money to cover her expenses. De Varon said that upon delivery of

the drugs in Miami she had expected to receive $6,000.

A federal grand jury returned a two-count indictment against De Varon, charging her

with importing heroin into the United States, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. §

2 (Count I), and with possessing heroin with the intent to distribute it, in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2 (Count II). Pursuant to a plea agreement with the government, De

Varon pled guilty to the allegations in Count I and agreed to forfeit the $2,350 she was carrying

at the time of her arrest in return for the government agreeing to dismiss Count II. The

government also agreed that it would not oppose De Varon’s request for a three-level sentence

reduction for timely acceptance of responsibility, see U.S.S.G. § 3E1.1, or her application for the

“safety valve” protection provided in the Guidelines if she met all of the requirements, see

U.S.S.G. § 5C1.2.

The district court accepted the plea and ordered a probation officer to prepare a

Presentence Investigation Report (“PSI”). The PSI set De Varon’s base offense level under the

Guidelines at 28. The officer then deducted two levels because De Varon qualified for the

3 “safety valve” provision under U.S.S.G. § 2D1.1(b)(6)1 and three more levels for De Varon’s

timely acceptance of responsibility for her conduct under U.S.S.G. § 3E1.1(a), (b)(2). After

these adjustments, De Varon’s resulting offense level was 23. The probation officer then

assigned De Varon a criminal history category of I because she had no prior criminal

convictions. The sentencing guideline range for an offense level of 23 with a criminal history of

I is 46 to 57 months.

De Varon objected to the PSI’s assessment and claimed, inter alia, that she should be

granted a downward adjustment for her minor role in the offense under U.S.S.G. § 3B1.2. In

1 Section 2D1.1(b)(6) provides: “If the defendant meets the criteria set forth in subdivisions (1)-(5) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) and the offense level determined above is level 26 or greater, decrease by 2 levels.” As set forth in § 5C1.2, these five criteria include:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

4 support of her claim, De Varon argued that she was an internal carrier of narcotics and that she

was recruited by another, more culpable participant. Specifically, De Varon relied on the oral

statement that she had given to the probation officer who prepared her PSI. That statement is

recounted in De Varon’s PSI as follows:

[De Varon] reports that she met a lady by the name of Nancy at the office where she works in Colombia. Nancy inquired about moving some items with the trucking company [that employed De Varon]. After several visits to the company, Nancy asked [De Varon] if she possessed a visa. [De Varon] reports that Nancy knew that [De Varon] was having financial problems. [De Varon] reports that her son is mentally retarded and requires medical attention. Nancy asked [De Varon] if she would bring drugs to the United States. [De Varon] was told that she would have to swallow some pills and that [she] would be paid $6,000. [De Varon] relates that she agreed to swallow the drugs because she needed the money for her ill child. [De Varon] states that she knew what she did was wrong and regrets her actions.

At sentencing, De Varon’s counsel further said that De Varon was “prepared to testify to that

statement before the Court today, if the Court so chooses.” De Varon did not present any other

information or evidence in support of her claim.

The district court then denied De Varon’s request for a minor role reduction, making the

following statements:

Under Veloza, the act of transporting . . . or importing as a courier does not determine that a defendant is or is not entitled to a[n] adjustment. Secondly, the burden is on the defendant to establish the minor or minimal participation.

I would say [De Varon’s] statement standing alone is not sufficient to establish a minor or minimal level of participation. But even if we were to accept it as true, the fact that she can point to other people that may have provided the narcotics to her would not alter my own determination that she played an integral and essential part in the scheme to import.

5 As I have noted in the past, but for individuals willing to perform the role that this defendant played, we would not have the importation being attempted or succeeding in other instances.

And thirdly, the guidelines refer to a small amount of drugs to entitle a defendant to a reduction. And I would conclude that 512.4 grams of heroin is not a minor amount within the meaning of the guidelines in order to entitle someone to a minor or minimal level role. So I’ll note your objection and deny it.

The district court subsequently sentenced De Varon to 46 months of imprisonment, three

years of supervised release, and a $100 assessment. The district court also ordered that De

Varon be deported as a condition of her supervised release.2 De Varon appealed her sentence on

the ground that the district court erred in failing to reduce her sentence based on her minor role

as a heroin courier.

On appeal, a panel of this Court vacated De Varon’s sentence and remanded the case to

the district court for resentencing. United States v. De Varon, 136 F.3d 740 (11th Cir. 1998).

Following the issuance of the panel’s opinion, the government filed a suggestion of rehearing en

banc with this Court. On May 29, 1998, this Court granted the government’s petition, entered an

order vacating the panel’s decision, and set the case for en banc rehearing. United States v. De

Varon, 141 F.3d 1468 (11th Cir. 1998) (en banc).

II.

2 The district court had no jurisdiction to independently order deportation. After De Varon’s sentencing on October 10, 1996, we held in United States v. Romeo, 122 F.3d 941, 943-44 (11th Cir. 1997), that 8 U.S.C. § 1229a (Supp. III 1997), effective on April 1, 1997, eliminated the jurisdiction of the district courts to independently order deportation as a condition of supervised release. This jurisdictional bar also applies to cases pending on appeal. See id. at 944. De Varon, however, does not challenge the district court’s order of deportation on appeal.

6 A. Standard of Review

As an initial matter, we must address the appropriate standard of review to be applied in

this case. De Varon argues that this Court reviews a district court’s determination whether a

defendant qualifies for a minor role adjustment de novo. In contrast, the government contends

that this determination is a finding of fact subject to review only for clear error.

This Court has long and repeatedly held that a district court’s determination of a

defendant’s role in the offense is a finding of fact to be reviewed only for clear error. We

reaffirm that holding today. See, e.g., United States v. Campbell, 139 F.3d 820, 821-22 (11th

Cir. 1998) (“A sentencing court’s determination of a defendant’s role in an offense is a factual

finding reviewed for clear error.”); United States v. Everett, 129 F.3d 1222, 1224 (11th Cir.

1997) (per curiam) (“We consider the district court’s determination of appellee’s role in the

offense a factual finding, and thus review it for clear error.”); United States v. Fernandez, 92

F.2d 1121, 1123 (11th Cir. 1996) (per curiam) (holding that the district court’s factual

determination of a defendant’s role in the offense was not clearly erroneous); United States v.

Mosquera, 95 F.3d 1012, 1014 (11th Cir. 1996) (per curiam) (“A sentencing court’s

determination of the defendant’s role as a ‘minor’ or ‘minimal’ participant in an offense is also

reviewed for clear error.”); United States v. Veloza, 83 F.3d 380, 381 (11th Cir. 1996) (holding

that the district court’s factual finding that the defendant did not play a minor role in the offense

was not clearly erroneous); United States v. Camargo-Vergara, 57 F.3d 993, 997 (11th Cir.

1995) (“A district court’s determination of a defendant’s role in an offense is a finding of fact

subject to review only for clear error.”); United States v. Costales, 5 F.3d 480, 483 (11th Cir.

1993) (per curiam) (“A district court’s determination of a defendant’s role in an offense is a

7 finding of fact that we will not disturb unless it is clearly erroneous.”); United States v. Gates,

967 F.2d 497, 501 (11th Cir. 1992) (per curiam) (holding that the district court was not clearly

erroneous in refusing to reduce the defendant’s offense level for being a minor participant);

United States v. Zaccardi, 924 F.2d 201, 202-03 (11th Cir. 1991) (per curiam) (“The district

court’s determination that appellant was not a minor participant in the conspiracy is a finding of

fact which will be reversed on appeal only if ‘clearly erroneous.’”); United States v. Smith, 918

F.2d 1551, 1565 (11th Cir. 1990) (“[T]he trial judge’s determination of whether a defendant is a

‘minor’ or ‘minimal’ participant is a factual finding subject to the clearly erroneous standard.”);

United States v. Asseff, 917 F.2d 502, 505 (11th Cir. 1990) (per curiam) (“[T]he sentencing

court’s determination regarding a defendant’s role in the offense is a factual finding subject to

the clearly erroneous standard.”); United States v. Sellers, 906 F.2d 597, 605 (11th Cir. 1990)

(“Our standard of review on this factual issue [the defendant’s role in the offense] is whether the

district court’s decision was ‘clearly erroneous.’”); United States v. Alston, 895 F.2d 1362, 1369

(11th Cir. 1990) (“The requirement in Guideline § 3B1.2 that a judge determine whether the

defendant was a ‘minor’ or ‘minimal’ participant is a factual determination and therefore subject

to the clearly erroneous standard.”).3

3 This Circuit also applies a clearly erroneous standard to other complex factual inquiries under the Guidelines. For example, we have held that a district court’s determination of whether a defendant has played an aggravating role in the offense under U.S.S.G. § 3B1.1 is a finding of fact subject to a clearly erroneous standard of review. See, e.g., United States v. Carrillo, 888 F.2d 117, 118 (11th Cir. 1989) (per curiam). Similarly, “[b]ecause the sentencing judge is uniquely positioned to evaluate the defendant’s acceptance of responsibility [under U.S.S.G. § 3E1.1],” we have also held that this determination is a factual question entitled to review only for clear error. United States v. Anderson, 23 F.3d 368, 369 (11th Cir. 1994) (per curiam).

8 Moreover, every other circuit has adopted the clear error standard to review a district

court’s determination of a defendant’s role in the offense.4 See, e.g., United States v. Edwards,

98 F.3d 1364, 1371 (D.C. Cir. 1996) (mixed question); United States v. Thompson, 76 F.3d 442,

456-58 (2d Cir. 1996) (fact question); United States v. Lampkins, 47 F.3d 175, 180 (7th Cir.

1995) (question “heavily dependent on the facts”); United States v. DeFranco, 30 F.3d 664, 669

(6th Cir. 1994) (fact question); United States v. Carr, 25 F.3d 1194, 1207 (3d Cir. 1994) (mixed

question); United States v. Arredondo-Santos, 911 F.2d 424, 425 (10th Cir. 1990) (fact

question); United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir. 1989) (per curiam) (fact

question); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989) (fact question);

United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989) (Wilkins, J.) (mixed question);

United States v. Wright, 873 F.2d 437, 443-44 (1st Cir. 1989) (Breyer, J.) (mixed question);

United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir. 1989) (fact question). While we

unquestionably afford deference to a district court’s subsidiary factual findings, the ultimate

determination of role in the offense is also a fundamentally factual determination entitled to due

deference and not a legal conclusion subject to de novo review.

Both the Guidelines and the relevant statutory language also explicitly recognize that a

district court’s determination of a defendant’s role in the offense is essentially factual and that

such findings must be afforded deference. The commentary to the Guidelines states that the

4 We have consistently held that the district court’s determination of the defendant’s role in the offense is a finding of fact. Although many other circuits have adopted this view, some have concluded, in contrast, that this determination is a mixed question of fact and law, derived from the application of the Guidelines to the facts of each case. See, e.g., United States v. Wright, 873 F.2d 437, 443 (1st Cir. 1989) (citing Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). Whether a fact question or a mixed question, however, every circuit agrees that the proper standard of review is clear error. See infra text accompanying note 4.

9 determination of mitigating role in the offense “is heavily dependent upon the facts of the

particular case.” U.S.S.G. § 3B1.2, comment. (backg’d.).5 The statute conferring jurisdiction on

this Court to review a district court’s sentencing decisions also instructs that appellate courts

“shall accept the findings of fact of the district court unless they are clearly erroneous and shall

give due deference to the district court’s application of the Guidelines to the facts.” 18 U.S.C. §

3742(e) (1994). Moreover, we believe that the district judge is in the best position to weigh and

assess both the defendant’s role in her relevant conduct and the relative degrees of culpability of

the other participants in that conduct. Intensely factual inquiries such as these are properly

consigned to the experienced discretion of the district judge. See Anderson v. City of Bessemer

City, 470 U.S. 564, 574-75 (1985) (expounding on the meaning of the clearly erroneous standard

and recognizing the trial judge’s superior position in making credibility determinations and

general expertise in fact finding relative to appellate courts); cf. Koon v. United States, 518 U.S.

81, 98 (1996) (“A district court’s decision to depart from the Guidelines, by contrast, will in

most cases be due substantial deference, for it embodies the traditional exercise of discretion by

a sentencing court.”). Therefore, in light of these directives and our unambiguous case

precedent, we reaffirm our holding that a district court’s determination of a defendant’s role in

the offense is a question of fact to be reviewed under the clearly erroneous standard.

B. Mitigating Role in the Offense

5 See Stinson v. United States, 508 U.S. 36, 37 (1993) (“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”).

10 The sentence imposed for a particular offense is based upon the applicable sentencing

offense levels set forth in Chapter Two (Offense Conduct) of the Sentencing Guidelines. A

sentence adjustment for “the role the defendant played in committing the offense” (either

mitigating or aggravating) may also be available. U.S.S.G. Ch. 3, Pt. B, intro. comment.

Specifically, a defendant may receive a two to four level reduction in her base offense level

where her role in the offense can be described as minimal, minor, or somewhere in between. See

U.S.S.G. § 3B1.2. Minimal participants may receive a four-level reduction, minor participants

may receive a two-level reduction, and those whose participation falls in between may receive a

three-level reduction. See U.S.S.G. § 3B1.2(a), (b). The commentary to the Guidelines instructs

that a four-level reduction “is intended to cover defendants who are plainly among the least

culpable of those involved in the conduct of a group. . . . [and their] lack of knowledge or

understanding of the scope and structure of the enterprise and of the activities of others is

indicative of a role as minimal participant.” U.S.S.G. § 3B1.1, comment. (n.1). The application

note provides, for example, that a four-level reduction would be appropriate “for someone who

played no other role in a very large drug smuggling operation than to offload part of a single

marihuana shipment, or in a case where an individual was recruited as a courier for a single

smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment. (n.2).

In contrast, a minor role in the offense “means any participant who is less culpable than most

other participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2,

comment. (n.3).

The proponent of the downward adjustment -- here the defendant -- always bears the

burden of proving a mitigating role in the offense by a preponderance of the evidence. See

11 Everett, 129 F.3d at 1224 (citing Gates, 967 F.2d at 501); Camargo-Vergara, 57 F.3d at 997-98.

This principle has been recognized by every circuit. See, e.g., United States v. Isaza-Zapata, 148

F.3d 236, 240 (3d Cir. 1998); United States v. Beltran, 109 F.3d 365, 370 (7th Cir.), cert. denied,

118 S. Ct. 145 (1997); United States v. Gonzalez-Soberal, 109 F.3d 64, 74 (1st Cir. 1997);

United States v. Carrazco, 91 F.3d 65, 67 (8th Cir. 1996); United States v. Atanda, 60 F.3d 196,

198 (5th Cir. 1995) (per curiam); United States v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994);

United States v. McCann, 940 F.2d 1352, 1359 (10th Cir. 1991); United States v. Garcia, 920

F.2d 153, 156 (2d Cir. 1990) (per curiam); United States v. Perry, 908 F.2d 56, 58 (6th Cir.

1990); United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990); see also United States v.

White, 1 F.3d 13, 18 (D.C. Cir. 1993) (“The defendant ‘properly bears the burden of proof under

those sections of the Guidelines that define mitigating factors’ . . . .”) (quoting United States v.

Burke, 888 F.2d 862, 869 n.10 (D.C. Cir. 1989)). It falls to the district court then to evaluate the

evidence presented and determine whether this burden has been satisfied.

In making the ultimate determination of the defendant’s role in the offense, the

sentencing judge has no duty to make any specific subsidiary factual findings. See United States

v. West, 898 F.2d 1493, 1503 (11th Cir. 1990) (“When the court mandates no departure, the

sentencing judge need not offer further reasons justifying the sentence.”). So long as the district

court’s decision is supported by the record and the court clearly resolves any disputed factual

issues, a simple statement of the district court’s conclusion is sufficient. See United States v.

Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989) (“The findings of fact of the sentencing court may

be based on evidence heard during trial, facts admitted by a defendant’s plea of guilty,

undisputed statements in the presentence report, or evidence presented at the sentencing

12 hearing.”); Fed. R. Crim. P. 32(c)(1) (“For each matter controverted, the court must make either

a finding on the allegation or a determination that no finding is necessary because the

controverted matter will not be taken into account in, or will not affect, sentencing.”). Although

we have never explicitly addressed this question in the context of § 3B1.2, many other circuits

have recognized that a final determination of the defendant’s role in the offense is the only

specific factual finding that a district court is required to make. See, e.g., United States v. Haut,

107 F.3d 213, 217-18 (3d Cir.) (“We are mindful that ‘[a] simple statement by the district court’

together with some supporting facts of record concerning a defendant’s status as a minimal

participant is ‘typically sufficient to settle the question.’”) (citations omitted), cert. denied, 117

S. Ct. 2528 and 118 S. Ct. 130 (1997); United States v. Edwards, 98 F.3d 1364, 1370 (D.C. Cir.

1996) (holding that district court need not “use magic words ‘relative culpability’ or . . . make

explicit findings of relative culpability on the record”); United States v. Davis, 36 F.3d 1424,

1436 (9th Cir. 1994) (“The district court has no duty to make a finding regarding a defendant’s

relative culpability; it only needs to make its resolution of disputed matters clear.”); United

States v. Flores-Payon, 942 F.2d 556, 561 (9th Cir. 1991) (holding that district court is not

required to make “factual findings of [defendant’s] culpability relative to that of his co-

defendants”); United States v. Ocampo, 937 F.2d 485, 491 (9th Cir. 1991) (“A simple statement

by the district court that the defendant was not a minor participant is typically sufficient to settle

the question.”); United States v. Caruth, 930 F.2d 811, 816 (10th Cir. 1991) (holding that

although a statement of reasons for denying a mitigating role adjustment would be helpful,

district court “‘is in no way required to make detailed findings, or explain why a particular

adjustment is or is not appropriate’”) (citation omitted); United States v. Gallegos, 868 F.2d 711,

13 713 (5th Cir. 1989) (“Although we encourage judges to supply more specific factual findings, a

simple statement that the defendant was not a ‘minor participant’ will suffice as a factual

finding.”). But see, e.g., United States v. Miranda-Santiago, 96 F.3d 517, 532 (1st Cir. 1996)

(holding that district court has obligation to make specific factual findings in support of its denial

of adjustment for defendant’s mitigating role in the offense); United States v. Webster, 996 F.2d

209, 212 (9th Cir. 1993) (per curiam) (remanding for factual findings regarding defendant’s role

and culpability in his relevant conduct); United States v. Melton, 930 F.2d 1096, 1099 (5th Cir.

1991) (holding that district court must articulate the factual basis upon which it concludes that

defendant was not minor participant). Though we “urg[e] district courts to clarify their ultimate

factual findings by more specific findings when possible,” West, 898 F.2d at 1503-04 (quoting

United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.1989)), we hold that a district court is

not required to make any specific findings other than the ultimate determination of the

defendant’s role in the offense.

Notwithstanding our deference to the district court’s discretion in this uniquely fact-

intensive inquiry, the district court’s ultimate determination of the defendant’s role in the offense

should be informed by two principles discerned from the Guidelines: first, the defendant’s role

in the relevant conduct for which she has been held accountable at sentencing, and, second, her

role as compared to that of other participants in her relevant conduct. We address each of these

principles in turn.

1. Role in the Relevant Conduct

14 First and foremost, the district court must measure the defendant’s role against the

relevant conduct for which she has been held accountable. This measurement is compelled by

both the Guidelines and our case precedent. The Guidelines provide that the district court should

evaluate the defendant’s role in the offense “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.”6 U.S.S.G. Ch. 3, Pt. B, intro.

comment. In other words, the district court must assess whether the defendant is a minor or

6 Section 1B1.3(a) specifies that adjustments in chapter 3, e.g., § 3B1.2, shall be determined on the basis of the following relevant conduct:

(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.

that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;

(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omission specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and

(4) any other information specified in the applicable guideline.

15 minimal participant in relation to the relevant conduct attributed to the defendant in calculating

her base offense level.

We believe that this principle of symmetry of relevant conduct is analytically sound. One

main purpose of the Guidelines is to punish similarly situated defendants in a like-minded way.

However, given the relatively broad definition of relevant conduct under § 1B1.3, some

defendants may be held accountable for conduct that is much broader than their specific acts. A

conspiracy conviction is the classic example of this phenomenon. In such cases, a defendant’s

relevant conduct may be coextensive with the entire conspiracy even though her role in that

conspiracy was relatively minor. Under these circumstances, a district court may adjust the

defendant’s sentence for her mitigating role in this broad criminal conspiracy. This adjustment

allows a district court to impose a sentence that more closely mirrors the defendant’s actual

conduct, furthering the Guidelines’ goal of imposing comparable sentences for similar acts.

However, such an adjustment only makes sense analytically if the defendant can establish that

her role was minor as compared to the relevant conduct attributed to her. Otherwise, a defendant

could argue that her relevant conduct was narrow for the purpose of calculating base offense

level, but was broad for determining her role in the offense. A defendant cannot have it both

ways. Application note four illustrates this principle by analogy: “If a defendant has received a

lower offense level by virtue of being convicted of an offense significantly less serious than

warranted by his actual criminal conduct, a reduction for a mitigating role under this section

ordinarily is not warranted because such defendant is not substantially less culpable than a

defendant whose only conduct involved the less serious offense.” U.S.S.G. § 3B1.2, comment.

(n.4). According to this example, a defendant must prove that she played a minor role in the

16 relevant conduct attributed to her. Where her actual conduct is more serious than her base

offense level suggests, a defendant will not be able to meet this burden. Similarly, where the

relevant conduct attributed to a defendant is identical to her actual conduct, she cannot prove that

she is entitled to a minor role adjustment simply by pointing to some broader criminal scheme in

which she was a minor participant but for which she was not held accountable.

Recognizing this principle, we have unambiguously held that a defendant’s role in the

offense may not be determined on the basis of criminal conduct for which the defendant was not

held accountable at sentencing. See United States v. Fernandez, 92 F.3d 1121, 1123 (11th Cir.

1996) (per curiam); United States v. Holley, 82 F.3d 1010, 1011-12 (11th Cir. 1996) (per

curiam). For example, in Fernandez, we considered whether a defendant’s role in a drug offense

was properly determined by reference to the conduct that determined his base offense level or by

reference to the greater drug conspiracy which produced that conduct. 92 F.3d at 1123.

Squarely rejecting the broader inquiry, we held that “the conspiracy on which a defendant’s base

offense level is founded is the relevant conspiracy for determining role in the offense.” Id. We

continue to adhere to this principle of symmetry of relevant conduct and acknowledge that

several other circuits have adopted this approach. See, e.g., United States v. James, 157 F.3d

1218, 1220 (10th Cir. 1998) (holding that defendant’s role in the offense is determined on the

basis of the relevant conduct attributed to him in calculating his base offense level); United

States v. Burnett, 66 F.3d 137, 140 (7th Cir. 1995) (same); United States v. Atanda, 60 F.3d 196,

199 (5th Cir. 1995) (per curiam) (same); United States v. Lampkins, 47 F.3d 175, 180 (7th Cir.

1995) (same); United States v. Gomez, 31 F.3d 28, 31 (2d Cir. 1994) (per curiam) (same);

United States v. Lucht, 18 F.3d 541, 555-56 (8th Cir. 1994) (same); United States v. Olibrices,

17 979 F.2d 1557, 1560 (D.C. Cir. 1992) (“To take the larger conspiracy into account only for

purposes of making a downward adjustment in the base level would produce the absurd result

that a defendant involved both as a minor participant in a larger distribution scheme for which

she was not convicted, and as a major participant in a smaller scheme for which she was

convicted, would receive a shorter sentence than a defendant involved solely in the smaller

scheme.”). But see, e.g., United States v. Isaza-Zapata, 148 F.3d 236, 240-41 (3d Cir. 1998)

(relying on this Court’s panel opinion in De Varon and holding that a court must examine all

relevant conduct even if defendant is sentenced only for own acts); United States v. Ruelas, 106

F.3d 1416, 1419 (9th Cir.) (recognizing that “[t]he defendant’s role in relevant conduct may

provide a basis for an adjustment even if that conduct is not used to calculate the defendant’s

base offense level” but holding that defendant was “not entitled to a reduction in his sentence

simply because he was tied to a larger drug trafficking scheme”), cert. denied, 520 U.S. 1282

(1997); United States v. Demers, 13 F.3d 1381, 1383 (9th Cir. 1994) (declining “to restrict the

scope of relevant conduct on which a downward adjustment may be based to the relevant

conduct that is included in the defendant’s base offense level.”) (citing Webster, 996 F.2d at

211).

Moreover, a defendant’s status as a drug courier does not alter the principle that the

district court must assess the defendant’s role in light of the relevant conduct attributed to her.

In Veloza, we recognized that courier status in and of itself is not dispositive of whether a

defendant is entitled to or precluded from receiving a downward adjustment for role in the

offense. 83 F.3d at 382. Simply put, the drug courier may or may not qualify for a minor role

reduction. See, e.g., United States v. Cacho, 951 F.2d 308, 309-10 (11th Cir. 1992) (“Although

18 [defendant] was a courier who carried the drugs into the United States, that fact alone does not

establish that she was either a minimal or minor participant in the conspiracy.”); Smith, 918

F.2d at 1566 (“[A] drug courier is not necessarily a minor or minimal participant within the

meaning of the Sentencing Guidelines.”). Having posited this unremarkable proposition,

however, it is perfectly legitimate for a district court to consider any fact related to a defendant’s

conduct as a courier in an importation scheme, including her status and assigned tasks in that

scheme. Indeed, in many drug courier cases these are the only discernable facts. Therefore,

when a drug courier’s relevant conduct is limited to her own act of importation, a district court

may legitimately conclude that the courier played an important or essential role in the

importation of those drugs. This is permissible even though facts related to the defendant’s

status as a drug courier form the basis for this determination. We do not create a presumption

that drug couriers are never minor or minimal participants, any more than that they are always

minor or minimal. Rather, we hold only that the district court must assess all of the facts

probative of the defendant’s role in her relevant conduct in evaluating the defendant’s role in the

offense.

We further note, in the drug courier context, that the amount of drugs imported is a

material consideration in assessing a defendant’s role in her relevant conduct. See Asseff, 917

F.2d at 507 (“It is evident that [the defendants’] conduct does not warrant a downward

adjustment in sentencing because of their apparent knowledge of their criminal activity and the

great amount of cocaine involved.”); see also Webster, 996 F.2d at 212 n.5 (recognizing that “the

amount of contraband may be relevant to whether a defendant is a minor participant”). Indeed,

because the amount of drugs in a courier’s possession -- whether very large or very small -- may

19 be the best indication of the magnitude of the courier’s participation in the criminal enterprise,

we do not foreclose the possibility that amount of drugs may be dispositive -- in and of itself --

in the extreme case. See, e.g., United States v. Carrazco, 91 F.3d 65, 67 (8th Cir. 1996) (holding

that when defendant is “apprehended in possession of a very substantial amount of drugs,” that is

“a circumstance that tends to suggest that his participation in the criminal enterprise was itself

very substantial”); United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991) (“[W]e have

recognized that possession of a substantial amount of narcotics is grounds for refusing to grant a

sentence reduction.”); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam)

(recognizing that district court may refuse “to grant a minor and/or minimal participant reduction

based solely on the significant amount of drugs involved”).

Indeed, the Guidelines explicitly recognize that amount of drugs may be determinative in

the context of minimal participants. Application note two states that an adjustment for minimal

participation “would be appropriate, for example, for someone who played no other role in a

very large drug smuggling operation than to offload part of a single marihuana shipment, or in a

case where an individual was recruited as a courier for a single smuggling transaction involving

a small amount of drugs.” U.S.S.G. § 3B1.2, comment. (n.2). We do not believe that the

Guidelines intended to preclude a district court from considering the amount of drugs as a factor

in the context of minor participants. Application note three states that “[f]or purposes of §

3B1.2(b), a minor participant means any participant who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment.

(n.2). Although this definition seems to suggest that the relevant inquiry for minor participants

is solely comparative, we can discern nothing in the Guidelines to suggest that the analysis of

20 role in the offense varies with the level of participation at issue. In fact, the Guidelines instruct

just the opposite. The commentary background states that “[t]his section provides a range of

adjustments for a defendant who plays a part in committing the offense that makes him

substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, comment. (backg’d.)

(emphasis added). The very fact that an intermediate role exists for defendants who fall in

between minimal and minor roles, moreover, suggests that the analysis used to measure role in

the offense must be uniform. Therefore, we reaffirm that amount of drugs is a relevant factor

and recognize that under some circumstances it may be dispositive.

To reiterate, in determining a defendant’s role in the offense, a district court must

measure the defendant’s role against the relevant conduct attributed to her in calculating her base

offense level. This methodology is essential to any evaluation of mitigating role. Only if the

defendant can establish that she played a relatively minor role in the conduct for which she has

already been held accountable -- not a minor role in any larger criminal conspiracy -- should the

district court grant a downward adjustment for minor role in the offense.

2. Role as Compared to Other Participants in the Relevant Conduct

The second principle we derive from the text of the Guidelines is that the district court

may also measure the defendant’s culpability in comparison to that of other participants in the

relevant conduct. We draw this principle from two application notes. Application note one

states that minimal participants are those “who are plainly among the least culpable of those

involved in the conduct of a group.” U.S.S.G. § 3B1.2, comment. (n.1). Application note three

says that “a minor participant means any participant who is less culpable than most other

21 participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment.

(n.3). These definitions clearly contemplate some assessment of relative culpability. However,

not all participants may be relevant to this inquiry. First, the district court should look to other

participants only to the extent that they are identifiable or discernable from the evidence. This is

a fact-intensive inquiry. Second, the district court may consider only those participants who

were involved in the relevant conduct attributed to the defendant. The conduct of participants in

any larger criminal conspiracy is irrelevant.

Relative culpability does not end the inquiry, however. The fact that a defendant’s role

may be less than that of other participants engaged in the relevant conduct may not be dispositive

of role in the offense, since it is possible that none are minor or minimal participants. In United

States v. Daughtrey, 874 F.2d 213 (4th Cir. 1989), Judge Wilkins gave the following example to

illustrate this principle:

[I]f three individuals had entered a bank with the intent to commit robbery and one stood guard at the door, another sprayed paint on the camera, and the third gathered the money from a teller’s cage, no adjustment for Role in the Offense would be warranted. Even if one of the participants deserved an aggravating adjustment because of other acts he committed, the other participants would not be entitled to minimal or minor Role in the Offense adjustments.

Id. at 216. We recognized this position in Zaccardi, 924 F.2d 201. Zaccardi claimed that he was

entitled to a minor role adjustment because the PSI characterized him as the least culpable

participant in the conspiracy. See id. at 202. We rejected that argument on the ground that it

“would require sentencing courts to regard the least culpable member of any conspiracy as a

minor participant, regardless of the extent of that member’s participation.” Id. at 203; see also

United States v. Miller, 159 F.3d 1106, 1111 (7th Cir. 1998) (“Though comparative roles are

22 important to determining whether to grant an offense level reduction, they are not

determinative.”); United States v. Rotolo, 950 F.2d 70, 71 (1st Cir. 1991) (Breyer, C.J.)

(recognizing that “one who, say, points a gun at a bank teller and seizes the money is not entitled

to a downward adjustment simply because someone else in the gang supervised his activities”).

Simply put, a defendant is not automatically entitled to a minor role adjustment merely because

she was somewhat less culpable than the other discernable participants. Rather, the district court

must determine that the defendant was less culpable than most other participants in her relevant

conduct.7

7 We also recognize that the Guidelines contemplate that the district court measure the defendant’s role in the offense against the roles of “average” participants in similar criminal schemes. See U.S.S.G. § 3B1.2, comment. (n.4) & (backg’d.). Some courts have explicitly incorporated this form of comparison. See, e.g., United States v. Ajmal, 67 F.3d 12, 18 (2d Cir. 1995) (holding that defendant only played a minor role in the offense if he was less culpable than his co-conspirators as well as the average participant in such a crime); United States v. Thomas, 932 F.2d 1085, 1092 (5th Cir. 1991) (holding that defendant was not entitled to minor role adjustment because his role “was greater than the minimal participation exercised by the defendants to whom we have previously allowed a downward adjustment”); United Caruth, 930 F.2d at 815 (“The Guidelines permit courts not only to compare a defendant’s conduct with that of others in the same enterprise, but also with the conduct of an average participant in that type of crime.”); Daughtrey, 874 F.2d at 216 (holding that the court should measure both the relative culpability of each participant in relation to the relevant conduct and the defendant’s acts and relative culpability against an objective standard); Rotolo, 950 F.2d at 71 (distinguishing between aggravating and mitigating roles and suggesting that “substantially less culpable than the average participant” means an objective comparison between the defendant and an average person engaged in such conduct). This normative analysis advances the Guidelines’ goal of like sentences for similarly situated defendants. However, because we are concerned about how a district court will be able to assess factually what level of conduct constitutes that of an “average” participant, we believe that this normative analysis generally should not be dispositive of the district court’s role in the offense determination. To the extent the district court does rely on this mode of analysis, we caution that the court must base its conclusions on a sufficient evidential foundation, and make sufficient factual findings to support its assessment of an “average” participant.

23 In sum, we believe that a district court’s determination of a defendant’s mitigating role in

the offense should be informed by two modes of analysis: First, and most importantly, the

district court must measure the defendant’s role against the relevant conduct for which she was

held accountable at sentencing; we recognize that in many cases this method of analysis will be

dispositive. Second, the district court may also measure the defendant’s role against the other

participants, to the extent that they are discernable, in that relevant conduct.

In making the ultimate finding as to role in the offense, the district court should look to

each of these principles and measure the discernable facts against them. In the drug courier

context, examples of some relevant factual considerations include: amount of drugs, fair market

value of drugs, amount of money to be paid to the courier, equity interest in the drugs, role in

planning the criminal scheme, and role in the distribution. This is not an exhaustive list, nor

does it suggest that any one factor is more important than another. In the final analysis, this

decision falls within the sound discretion of the trial court. Indeed, we acknowledge that a

similar fact pattern may on occasion give rise to two reasonable and different constructions.

This is inherent in the fact-intensive inquiry specifically contemplated by the Guidelines. As the

Supreme Court has recognized, a trial court’s choice between “two permissible views of the

evidence” is the very essence of the clear error standard of review. Anderson, 470 U.S. at 574.

So long as the basis of the trial court’s decision is supported by the record and does not involve a

misapplication of a rule of law, we believe that it will be rare for an appellate court to conclude

that the sentencing court’s determination is clearly erroneous.8

8 This is not a case in which a drug courier convicted of importation was granted a role reduction even though the only drugs attributed to her for base offense level purposes were those that she personally brought into this country in or on her person, her personal effects, or her

24 III.

Applying the aforementioned analysis to the instant case, the district court’s

determination that De Varon did not play a minor role in the relevant conduct of heroin

importation was not clearly erroneous. Again, we review the district court’s determination of De

Varon’s role in the offense only for clear error and we recognize that the district court had

considerable discretion in making this fact-intensive determination. Moreover, we do not

construe the statements of the district court as propounding a conclusion of law that all couriers

are ineluctably precluded from receiving a downward adjustment for their role in the offense.

The district court simply stated that De Varon “played an integral and essential part in the

scheme to import.” We read this statement as reflecting no more than the district court’s

measurement of De Varon’s role against her relevant conduct. As we have discussed, such a

finding is suggested by both the Guidelines and our case precedent. Thus, we are satisfied that

the court evaluated the particular evidence presented in this case and arrived at a finding of fact

that De Varon was not a minor participant in the offense.

The record amply supports the district court’s finding that De Varon did not play a minor

role in her offense of heroin importation. See United States v. Suarez, 939 F.2d 929, 934 (11th

Cir. 1991) (“When evaluating a district court’s reasons for imposing a particular sentence, an

appellate court may consider the record from the entire sentencing hearing and need not rely

upon the district court’s summary statement made at the closing of the sentencing hearing.”)

(citations omitted). First, De Varon played an important or essential role in her relevant conduct

luggage. Accordingly, we have no occasion to decide whether a role reduction could be appropriate in such a case, and leave that issue for another day.

25 of importing 512.4 grams of 85 percent pure heroin from Colombia into the United States in

violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2. De Varon knowingly and intentionally

entered the United States with the entire amount of drugs in her possession. Although De Varon

claims that she did not supply the heroin, we believe that it was within the trial court’s discretion

to conclude that her participation was central to the importation scheme. Second, De Varon’s

relevant conduct involved carrying a substantial amount of heroin of high purity. Third,

although De Varon was, by one construction of the evidence, arguably less culpable than the

only other known participant, Nancy, it is altogether possible on this abbreviated record for the

trial court to have concluded that Nancy was no more than a messenger and of relatively equal

culpability to De Varon. The facts, as recounted by De Varon, even if fully credited by the trial

court, establish no more than that she was hired by someone (Nancy) to smuggle one-half

kilogram of heroin into the United States, and to deliver the drugs to someone else -- albeit

unidentified -- in Miami. This bare record does not compel the conclusion that Nancy was

sufficiently more culpable than De Varon. At all events, these choices fell within the district

court’s discretion under U.S.S.G. § 3B1.2. Fourth, De Varon’s admission that she furnished

$1000 of her own money to finance the smuggling enterprise may likewise be taken as support

for the district court’s conclusion, notwithstanding De Varon’s claim that she became involved

in the enterprise because of financial problems.

We reiterate that the burden of establishing a minor role in the offense rests with the

proponent. De Varon was free to put on evidence in support of her position, and the district

court was free to find, as it plainly did, that De Varon failed to meet this burden. The

defendant’s suggestion that the district court somehow barred De Varon from testifying at the

26 sentencing hearing is belied by the record. While counsel for De Varon suggested that she was

available to testify to the statements she made to the probation officer “if the court so chooses,”

the district court was not obliged to decide for De Varon whether she should testify. This is an

adversarial process, and the decision to testify belongs solely with the defendant and her counsel.

Cf. United States v. Teague, 953 F.2d 1525, 1533 n.8 (11th Cir. 1992) (en banc) (noting that it is

inappropriate for the district court to become involved in defendant’s decision whether to take

the witness stand).

Moreover, the defendant’s alternate suggestion that the district court was obligated to

investigate and make detailed findings concerning the relative roles of all who may participate in

a far-flung narcotics enterprise -- that may stretch from the grower, to the manufacturer in a

foreign land, through the distribution mechanism, to the final street-level distributor in the

United States -- is similarly without merit. Again, it misapprehends the defendant’s burden of

proof; it violates the essential principle that the district court must measure the defendant’s role

against her relevant conduct, that is, the conduct for which she has been held accountable under

U.S.S.G. § 1B1.3; and it imposes an obligation on the trial court that we have explicitly rejected.

So long as the district court’s conclusion as to defendant’s role in the offense is supported by the

record, and the court has resolved any disputed factual issues in conformity with Fed. R. Crim. P.

32(c)(1), a simple statement of the district court’s conclusion is sufficient.

On the basis of this record and consonant with this Circuit’s longstanding view affording

substantial deference to the district court, we conclude that the district court’s determination that

De Varon was not entitled to a downward adjustment for her minor role in the offense was not

clearly erroneous. Accordingly, De Varon’s sentence must be, and is, AFFIRMED.

27 CARNES, Circuit Judge, concurring specially:

The Court’s opinion does a good job of surveying the law relating to role

reductions for drug couriers, employs correct reasoning, and reaches the right

result. I join all of the opinion and write separately only to point out the flaws in

one part of the dissenting opinion. By focusing on that one part, I do not mean to

imply that I agree with the remainder of the dissenting opinion. There are other

parts of it with which I disagree, but given the time limitations peculiar to issuance

of a decision in this case, I will confine my reply to one issue.

That issue is whether a drug courier, who is convicted of importation and

whose base offense level is calculated using only those drugs she personally brings

into this country, may ever qualify for a minor role reduction. In other words, if

the relevant conduct used to determine a courier’s sentence is no broader than her

personal importation offense conduct, may she ever be granted a role reduction?

The Court does not reach that issue because it is not necessary to decide this case,

see Op. at 26-27 n.8, but the dissenting opinion does. Speaking only for herself,

the dissenting judge asserts that a role reduction is permissible in some

circumstances even where a courier is sentenced only for the drugs she brings into

this country. I disagree.

28 Couriers, like De Varon, who are convicted solely of the crime of importing

drugs and whose base offense levels reflect only those drugs they personally

brought into this country, are not eligible for a role reduction of any kind. It will

always be clear error for district courts to grant a courier a role reduction in such

circumstances. See United States v. Lampkins, 47 F.3d 175, 181 (7th Cir. 1995)(“it

makes no sense to claim that one is a minor participant in one’s own conduct”);

United States v. Burnett, 66 F.3d 137, 140 (7th Cir. 1995)(“When a courier is held

accountable for only the amounts he carries, he plays a significant rather than a

minor role in that offense.”) (emphasis omitted). This conclusion necessarily

follows from the guidelines, from principles recognized in the Court’s opinion in

this case, and from common sense.

Importation is a simple crime consisting of nothing more than the act of

bringing drugs into this country. See 21 U.S.C. § 952(a). Once the drugs enter this

country from outside, the crime has been committed. Because the act of bringing

drugs into this country is the central element of the crime, the courier plays the

central role in the crime. She is every bit as important to a drug courier crime as a

hit man is to a murder for hire. Others may orchestrate or finance the crimes,

furnish weapons or drugs, or profit more from the nefarious undertakings, but the

drug courier and the hit man are the ones who actually carry out their respective

29 crimes. Neither is entitled to a role reduction of any kind insofar as the crime they

personally commit is concerned.

The guideline and its commentary supports this conclusion. The guideline

considers role in the offense and nothing else, beginning “Based on the defendant’s

role in the offense ...” U.S.S.G. § 3B1.2. It does not concern itself with risk

assumed or with whether the defendant herself (as distinguished from the role she

plays) is indispensable to the criminal organization. Role is the sole criterion and it

alone defines relative culpability.

The commentary says the four-level minimal role reduction is intended to

cover defendants “who are plainly among the least culpable of those involved in

the conduct of a group” and whose “lack of knowledge or understanding of the

scope and structure of the enterprise and of the activities of others is indicative of a

role as minimal participant.” U.S.S.G. § 3B1.2, comment. (n.1) (Nov. 1998). One

who actually brings drugs into this country cannot be among the least culpable of

those responsible for bringing those particular drugs into this country. Her role in

the crime is of equal or greater importance to the role anyone else plays. In

addition, because she actually commits the act of importing the drugs, the courier

necessarily knows enough about the scope and structure of the crime, which is her

act, and about its central participant, whom she is, to rule out any role reduction

30 based on lack of knowledge. When she is an internal carrier, as De Varon was, she

is intimately familiar with the scope and structure of the importation crime.

The guidelines commentary advises that a four-level minimal role reduction

would be appropriate “in a case where an individual was recruited as a courier for a

single smuggling transaction involving a small amount of drugs.” U.S.S.G. §

3B1.2, comment. (n.2) That illustration applies to, and makes sense for, cases in

which the relevant criminal conduct that determines the courier’s base offense

level is a larger multi-courier smuggling enterprise. In other words, the courier

could be entitled to a role reduction if her base offense level reflects drugs that she

did not personally bring into this country. Her role conceivably could be minimal

if the amount of drugs the courier brought in is truly small compared to the total

amount brought in by the whole enterprise and attributed to her. But that

commentary illustration makes no sense in the context of, and was not intended to

apply to, the typical case in which the only drugs attributed to the courier are those

she herself brought into this country. In that situation, her role in the relevant

conduct which is used to define her base offense level – the actual act of bringing

in those particular drugs – cannot be described as minimal.

As for the two-level minor role adjustment, the commentary simply says that

it is intended for “any participant who is less culpable than most other participants,

31 but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment.

(n.3). A courier who commits the essential act that defines the importation crime,

like the hit man who commits the actual murder for hire, cannot be less culpable

than most other participants in that discrete crime. The situation might be different

where the relevant conduct attributed to the courier for purposes of calculating the

base offense level is broader than her personal act of bringing drugs into this

country, but that is not what we are talking about. What we are talking about are

importation cases, like this one, where the relevant conduct is coterminous with the

courier’s personal act of bringing drugs into this country on or in her body, her

luggage, or her personal effects. In this case, as in so many others, the courier was

sentenced as though the only drugs she or anyone involved with her had ever

imported were those she alone was carrying when arrested. In such circumstances,

a role reduction is clearly inappropriate.

The Court’s opinion does not address whether a role reduction could ever be

appropriate for a courier sentenced for only those drugs she personally brought

into this country, see Op. 26-27 n.8, but I think the Court’s reasoning compels the

conclusion I reach. The Court recognizes two controlling principles that district

courts should follow in deciding role reduction issues. “First and foremost,” its

opinion says, the defendant’s role must be measured against the relevant conduct

32 for which she has been held accountable in the calculation of her base offense

level. See Op. at 16. Where the defendant has been held responsible only for her

own conduct, that first and foremost principle will always lead to the conclusion

she is not entitled to a role reduction, because a defendant can never be a minor

participant in her own conduct. She is the central actor involved in her own

conduct, and thus plays the most important role in that conduct, never just a minor

role.

The second principle the Court’s opinion instructs district courts to follow in

deciding role reduction issues is that the defendant’s role in the relevant conduct

should be compared to that of other participants in the relevant conduct. See Op. at

15, 23. Again, where the relevant conduct consists of nothing more than the

defendant’s own transportation of drugs into this country, it is illogical to conclude

that she played a less important role than those who did not personally transport

those drugs into this country.

The Court’s refinement of the second principle to mean that the defendant

must have played a role “less culpable than most other participants in her relevant

conduct,” Op. at 25, solidifies my conclusion. How can most other participants

play roles more important to the transportation of drugs into this country than the

role played by the transporter? An example the Court borrows from Judge

33 Wilkins of the Fourth Circuit will illustrate my point. That example involves three

bank robbers, one of whom serves as a lookout, one of whom sprays paint on the

surveillance camera, and one of whom actually takes the money from a teller’s

cage. See Op. at 24, quoting United States v. Daughtrey , 874 F.2d 213, 216-17

(4th Cir. 1989). Judge Wilkins concluded that a role reduction would not be

appropriate for any of the three, and the Court endorses that conclusion. So do I,

and my point is this: Given that a role reduction would be inappropriate in a bank

robbery case for one who merely served as a lookout, how could a role reduction

ever be appropriate in a drug importation case for the drug courier? If a lookout is

not less culpable than most other participants in a bank robbery, then a drug courier

certainly is not less culpable than most other participants in a drug importation

crime.

The Court says the district court was within its discretion to conclude that

De Varon’s participation was central to the importation scheme, see Op. at 28; I

believe the district court lacked discretion to reach any other conclusion. The

Court says the record does not compel the conclusion that Nancy, another

participant, was sufficiently more culpable than De Varon, see Op. at 28; I believe

the record not only fails to compel that conclusion, but in fact would not permit it,

either. The Court concludes that the district court’s determination De Varon was

34 not entitled to a downward adjustment for her role in the offense was not clearly

erroneous, see Op. at 30; I believe that a contrary determination by the district

court would have been clearly erroneous.

35 BARKETT, Circuit Judge, dissenting:

The majority affirms the district court’s denial of De Varon’s request for a minor

role reduction despite the fact that the district court’s ruling was predicated on a

misapprehension of the applicable legal principles. Moreover, the principles the majority

offers as guidance in this area conflict with both the letter and spirit of the Sentencing

Guidelines. I therefore respectfully dissent, and would remand this case to the district

court for resentencing.

I

In denying the motion for a § 3B1.2 minor role reduction, the district court made

the following statements:

[Firstly, u]nder Veloza, the act of transporting . . . or importing as a courier does not determine that a defendant is or is not entitled to a[n] adjustment. Secondly, the burden is on the defendant to establish the minor or minimal participation. I would say [De Varon’s] statement standing alone is not sufficient to establish a minor or minimal level of participation. But even if we were to accept it as true, the fact that she can point to other people that may have provided the narcotics to her would not alter my own determination that she played an integral and essential part in the scheme to import. As I have noted in the past, but for individuals willing to perform the role that this defendant played, we would not have the importation being attempted or succeeding in other instances. And thirdly, the guidelines refer to a small amount of drugs to entitle a defendant to a reduction. And I would conclude that 512.4 grams of heroin is not a minor amount within the meaning of the guidelines in order to entitle someone to minor or minimal level role. So, I’ll note your objection and deny it.

The district court here begins with a correct statement of the law. See United States v.

Veloza, 83 F.3d 380, 382 (11th Cir. 1996) (holding that “the fact that a courier plays an

36 essential role in an importation scheme does not alone necessarily preclude him from

receiving a reduction for a minor role either”). It then goes on to say that “[De Varon’s]

statement standing alone is not sufficient to establish a minor or minimal level of

participation.” Because this statement might arguably be read as a credibility

determination, had the court stopped there, I would agree with the majority that we should

defer to the district court.

The court did not, however, stop there. Instead, it went on to state that no facts De

Varon might put forward to support her request for a minor role reduction would have

been sufficient to “alter [the court’s] own determination that she played an integral and

essential part in the scheme to import, . . . [because] but for individuals willing to perform

the role that this defendant played, we would not have the importation being attempted or

succeeding in other instances.” It is difficult to read these words as anything but a

statement that, in the district court’s view, no one whose participation in a drug

importation scheme consists solely of carrying drugs across the border would be entitled

to a § 3B1.2 minor role reduction. As the majority concedes, this view is an incorrect

statement of the law. Accordingly, I would remand and direct the district court to make

the credibility findings necessary to determine the facts and to evaluate those facts

according to the correct legal standard.

II

In applying the law to the facts to determine whether a § 3B1.2 minor role

reduction is warranted, a district court should be guided by the spirit and the letter of the

37 Sentencing Guidelines. The “guidance” offered by the majority in this regard is not

supported by either, and in fact, conflicts with both.

The majority offers two “principles” which should guide the inquiry: “first, the

defendant’s role in the relevant conduct for which she has been held accountable at

sentencing, and second, her role as compared to that of other participants in her relevant

conduct.” United States v. De Varon, – F.3d at –. As the Guidelines make clear, a

defendant’s “relevant conduct” for purposes of § 3B1.2 includes not just the defendant’s

own acts but also, in the case of jointly undertaken criminal activity, the acts of any other

participants1 in the offense of conviction taken “during the commission of the offense of

conviction, [or] in preparation for that offense,” whether or not the case is charged as a

conspiracy. U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] § 1B1.3(a)(1); see

also U.S.S.G. Ch. 3, Pt. B, intro. comment. (“The 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) . . . and not solely on the basis of elements and acts cited in the count

of conviction.”).2

1 See U.S.S.G. § 3B1.1 comment. (n.1) (“A ‘participant’ is a person who is criminally responsible for the commission of the offense, but need not have been convicted.”). 2 Section 1B1.3(a) defines “relevant conduct” for purposes of the Guidelines as: (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts

38 This broad understanding of a defendant’s “relevant conduct” as expressed in the

Guidelines reflects an awareness of two factors of significance here: (1) many criminal

endeavors, even those not charged as conspiracies, are joint undertakings involving

several participants; and (2) different levels of culpability may be appropriately ascribed

to participants in a joint criminal enterprise when those participants perform different

tasks in furtherance of the crime charged. See, e.g., U.S.S.G. § 3B1.2, comment. (n.3)

(defining a “minor participant” as “any participant who is less culpable than most other

participants, but whose role could not be described as minimal”).

Perhaps no crime illustrates these considerations as effectively as that of importing

narcotics through the use of swallowers like De Varon. It is of course true that the

completion of this crime requires the participation of a courier, but the actions of a courier

are hardly the only components of the crime. Rather, several other significant tasks must

be undertaken to complete even the simple crime of importation. Someone must, for

example, formulate the plan, recruit the participants, coordinate their actions, locate

suppliers, procure the drugs, purchase the tickets, arrange for a drop-off on the other side,

and finance the whole venture. All of these activities, which may or may not involve only

one person, constitute “relevant conduct” with respect to the crime of importation,

“whether or not charged as a conspiracy.” U.S.S.G. § 1B1.3 comment. (n.2).

and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense . . . .

39 The task of district courts in cases like De Varon’s is therefore to determine the

relative culpability of the courier as compared to those other participants, if any, who

performed the additional tasks necessary to the importation scheme. In a given case, the

same person may be found to have performed all the many tasks necessary to complete

the crime of drug importation – the masterminding, financing, recruiting, coordinating,

procuring, etc. In such a case, that person would plainly not be entitled to a § 3B1.2 role

reduction as a minor participant. In other cases, however, the tasks necessary to carry out

the crime of importing narcotics will be undertaken by several different participants.

Here, if the court finds the defendant “less culpable than most other participants”

although her “role could not be described as minimal,” it must likewise conclude that a §

3B1.2 minor role reduction is appropriate. U.S.S.G. § 3B1.2 comment. (n.3). Indeed, it

is precisely for such cases that § 3B1.2 was intended.

In this case, the district court reasoned that but for the acts of couriers like De

Varon there would be no crime of importation, thus essentially rejecting the suggestion

that a courier could ever be a minor participant in this crime. Yet this “but for” analysis

could be applied to most criminal acts prosecuted, treating all those defendants

performing acts necessary to accomplish the crime as equally culpable. The Guidelines,

however, reject this categorical approach and instead support the principle of relative

culpability by enhancing the punishment for those with greater responsibility in the

criminal enterprise and reducing the punishment for those less culpable. Specifically, the

40 commentary to § 3B1.1 identifies characteristics which would make a participant

“integral and essential”3 to the enterprise and therefore more culpable,

includ[ing] the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

U.S.S.G. § 3B1.1 comment. (n.4); see also U.S.S.G. § 3B1.1 comment. (backg’d) (“This

[upward] adjustment [for organizers, leaders, managers, or supervisors] is included

primarily because of concerns about relative responsibility.”). These same factors also

help distinguish those individuals who play only a minor role in the criminal activity from

the leaders and other mid-level criminal actors, clearly indicating the Sentencing

Commission’s view that foot soldiers who actually carry out the crime are less culpable

than the “organizer[s], leader[s], manager[s] or supervisors].” U.S.S.G. § 3B1.1

comment. (n.2). Under the facts of a given case, a foot soldier may well not receive a §

3B1.2 reduction, but it is wrong to assume that by virtue of his or her participation he or

she is automatically to be considered “integral or essential” to the crime.

It is important to recognize what this Guidelines scheme does not entail. The

majority fears that a defendant could “argue that her relevant conduct was narrow for the

purpose of calculating base offense level, but was broad for determining her role in the

3 Whether or not other people were involved and regardless of the role they played, the district court in this case held that these considerations “would not alter my own determination that she played an integral and essential part in the scheme to import.”

41 offense.” De Varon, – F.3d at –. I agree with the majority that our opinion in United

States v. Fernandez, 92 F.3d 1121 (11th Cir. 1996), in which we reject the defendant’s

suggestion that his role in the offense could be determined on the basis of an uncharged

conspiracy, forecloses such an argument. However, under the definition of “relevant

conduct” established in the Guidelines, a defendant whose charged crime required the

performance of several different tasks and whose own actions toward the common goal

were minor in relation to the other participants could well be found to be a minor

participant in the conduct on which her base offense level was calculated. This is directly

acknowledged in the Guidelines, which broadly defines an individual defendant’s

“relevant conduct” for purposes of establishing the base offense level to include “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). See also U.S.S.G. § 1B1.3

comment. (n.2) (defining a “jointly undertaken criminal activity” as a criminal plan

“undertaken by the defendant in concert with others, whether or not charged as a

conspiracy”).

It is for this reason that a majority of the circuits to have addressed this question

have interpreted the Guidelines as I do here.4 See, e.g., United States v. Isaza-Zapata, 148

F.3d 236, 240 (3d Cir. 1998) (“The scope of the relevant conduct that a court should

4 At least one circuit has interpreted them more broadly still. See United States v. Demers, 13 F.3d 1381, 1383 (9th Cir. 1994) (declining, on consideration of the 1990 Amendment, “to restrict the scope of relevant conduct on which a downward adjustment may be based to the relevant conduct that is included in the defendant’s base offense level”).

42 consider [in a § 3B1.2 motion] is broader than merely the conduct required by the

elements of the offense of conviction. Even if a courier is charged with importing only

the quantity of drugs that he actually carried, there may still be other participants involved

in the conduct relevant to that small amount or that one transaction.”) (citing United

States v. Rodriguez De Varon, 136 F.3d 740, 745 (11th Cir.1998) (emphasis added));

United States v. Snoddy, 139 F.3d 1224, 1228 (8th Cir. 1998) (“‘Whether a downward

adjustment is warranted is determined not only by comparing the acts of each participant

in relation to the relevant conduct for which the participant is held accountable, but also

by measuring each participant's individual acts and relative culpability against the

elements of the offense.’”) (quoting United States v. Padilla-Pena, 129 F.3d 457, 471 (8th

Cir. 1997)); United States v. Caballero, 936 F.2d 1292, 1298 (D.C.Cir. 1991) (concluding

“that section 3B1 allows the sentencing judge to look to ‘the contours of the underlying

scheme itself rather than the mere elements of the offense charged’”) (quoting United

States v. Rodriguez, 925 F.2d 107, 111 (5th Cir. 1991)).

The Seventh Circuit is an exception. In United States v. Lampkins, 47 F.3d 175

(7th Cir. 1995), the court, noting that the defendant “was sentenced only for drugs that he

himself handled,” concluded that “it makes no sense to claim that one is a minor

participant in one’s own conduct.” Lampkins, 47 F.3d at 181. And in United States v.

Burnett, 66 F.3d 137 (7th Cir. 1995), although conceding that the defendant was “a small

cog in the scheme,” the Seventh Circuit held that “[w]hen a courier is held accountable

for only the amounts he carries, he plays a significant rather than a minor role in that

43 offense.” Id. at 140; see also id. (“Couriers are integral to the success of drug rings. . . .”).

As noted previously herein, however, this position ignores the plain directive of the

Guidelines. Declaring that one cannot be a “minor participant in one’s own conduct,”

Lampkins, 47 F.3d at 181, overlooks the fact that for purposes of § 3B1.2, the “relevant

conduct” a court must consider in an importation scheme may include much more than

the lone acts of the actual courier. See De Varon, 136 F.3d at 745; see also Isaza-Zapata,

148 F.3d at 240 (“ We disagree with Burnett. The district court must examine all relevant

conduct, not merely the defendant's, in assessing his relative culpability.”).

Therefore, it seems clear that, under the Guidelines, if a drug courier is found to

have acted in concert with others, his or her acts in furtherance of the charged conduct are

to be measured against the acts of those others, regardless of whether the offense was

charged as a conspiracy or a simple count of importation.

III

I am also troubled by the suggestion that in and of itself the amount of drugs

attributed to a defendant has any bearing on whether that defendant is entitled to a minor

role reduction. The amount involved may be taken into account, but always as part of the

inquiry into relative culpability. The majority asserts that “the amount of drugs in a

courier’s possession . . . may be the best indication of the magnitude of the courier’s

participation in the criminal enterprise.” De Varon, – F.3d –. This may or may not be the

case, however, depending on how the amount informs the evidence, viewed in light of §

44 3B1.2's emphasis on the relative culpability of the defendant to be sentenced.5 See

U.S.S.G. § 3B1.2 comment. (backg’d) (“This section provides a range of adjustments for

a defendant who plays a part in committing the offense that makes him substantially less

culpable than the average participant.”). The majority does not explain how it is that the

culpability of a drug courier as compared with “most other participants” in the offense,

U.S.S.G. § 3B1.2 comment. (n.3) (emphasis added), would be affected by the amount of

drugs with which she was caught. Whatever amount the courier sought to smuggle will

be the same amount that defines the offense, and the same amount that must therefore be

attributed to the other participants in the scheme. De Varon, for example, was convicted

of importing 512.4 grams of eighty-five percent pure heroin. This is the same amount

given to her by “Nancy” and organized by Nancy or others for her to carry. The amount,

in other words, remains constant throughout the court’s assessment of De Varon’s role in

the relevant conduct relative to the other participants in the offense. For this reason,

when assessing the relative culpability of the participants – the guiding consideration for

courts considering requests for minor role reductions – the amount of drugs may well be

beside the point.

5 The majority acknowledges that the language of § 3B1.2 and its accompanying notes “seems to suggest that the relevant inquiry for minor participants is solely comparative,” but nonetheless claims it “can discern nothing in the Guidelines to suggest that the analysis of role in the offense varies with the level of participation at issue.” De Varon, – F.3d –. Given that § 3B1 was designed for the sole purpose of enhancing the sentences of those participants with a relatively higher level of participation in the offense, see U.S.S.G. § 3B1.1, and reducing the sentences of those with a relatively lower level of participation, see U.S.S.G. § 3B1.2, I find this statement somewhat puzzling.

45 The illustrations found in the commentary to § 3B1.2, offered by the majority as

support for its conclusion that the amount of drugs “may be dispositive,” De Varon, –

F.3d at –, in fact support a contrary conclusion. As the majority points out, the notes

accompanying § 3B1.2 explain that a “minimal participant” adjustment “would be

appropriate, for example, for someone who played no other role in a very large drug

smuggling operation than to offload part of a single marihuana shipment, or in a case

where an individual was recruited as a courier for a single smuggling transaction

involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment. (n.2). If the latter

example were the only one provided, I would agree that amount would play a larger role

in the inquiry. In the first example, however, the defendant has helped “a very large drug

smuggling operation . . . to offload part of a single marihuana shipment.” The notes do

not tell us what constitutes “part” of a drug shipment, but common sense tells us that “a

very large drug smuggling operation” is likely to involve large shipments of drugs.

“Part” of one shipment is thus likely to be comprised of as great a quantity as one person

could carry in several trips from ship to shore – considerably more, that is, than 512.4

grams. Yet such a person is still entitled to a 4-level reduction as a “minimal participant.”

One must therefore analyze both examples and attempt to harmonize them.

The emphasis of § 3B1.2 on relative culpability – the heart of § 3B1 – helps to do

so. Under § 3B1.2, the minimal participant reduction

is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant’s lack of

46 knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.

U.S.S.G. § 3B1.2 comment. (n.1). In light of this language, one cannot construe the

illustrations that follow to mean that amount is the sole determinative factor, to be

considered in isolation from the relative culpability of all the participants. If, as the

majority claims, the amount of drugs were “determinative in the context of minimal

participants,” the offloader, who may well have shouldered several hundred kilos during

his short time at the dock, should be considerably less likely to get the reduction than the

courier caught with a “small amount of drugs.” But the offloader as well as the courier

gets the reduction, because it is relative culpability and not drug quantity that drives the

analysis.

Neither the letter nor the spirit of § 3B1.2 supports the suggestion that amount

alone, regardless of other contextual considerations, is a sufficient basis on which to deny

a courier a § 3B1.2 reduction. Although the language of the Guidelines suggests that a

courier with a large amount of drugs is not entitled to a 4-level minimal participant

reduction, he or she may still be eligible for a 2-level minor role reduction if he or she is a

“participant who is less culpable than most other participants, . . . whose role could not be

described as minimal.” U.S.S.G. § 3B1.2 comment (n.3).

IV

Finally, I must also dissent from the reasoning used by the majority to uphold the

district court’s conclusion that De Varon was not entitled to a minor role reduction. First,

47 the district court made no credibility determination regarding De Varon’s testimony, and

we are in no position to do so here. The most generous interpretation of the district

court’s ruling on this record is that it provided no indication as to the court’s view of the

defendant’s credibility. For this reason alone, the case should be remanded to the district

court for a ruling on the credibility of the defendant and a finding as to whether or not she

played a minor role in the offense.

Moreover, assuming that there was such a “finding,” which I believe the record

refutes, I cannot agree with the majority’s analysis concluding that the record in this case

“amply supports the district court’s finding that De Varon did not play a minor role in her

offense of heroin importation.” De Varon, – F.3d at –. The majority explains that

although De Varon was, by one construction of the evidence, arguably less culpable than the only other known participant, Nancy, it is altogether possible on this abbreviated record for the trial court to have concluded that Nancy was no more than a messenger and of relatively equal culpability to De Varon. The facts, as recounted by De Varon, even if fully credited by the trial court, establish no more than that she was hired by someone (Nancy) to smuggle one-half kilogram of heroin into the United States, and to deliver the drugs to someone else -- albeit unidentified -- in Miami. This bare record does not compel the conclusion that Nancy was sufficiently more culpable than De Varon.

De Varon, – F.3d at –.

I find this logic flawed. According to De Varon’s testimony, if De Varon were to

be believed, we know that someone else – maybe Nancy,6 maybe one or more other

6 If “Nancy was no more than a messenger and of relatively equal culpability as De Varon,” this may only go to show merely that both Nancy and De Varon were minor participants in the relevant conduct.

48 participants – masterminded and financed the operation, called the shots, recruited and

coordinated the several players, procured the drugs, bought the tickets, and arranged for a

drop-off in Miami. In light of this knowledge, De Varon’s inability to provide the names

of the other participants should not be allowed to render her ineligible for a minor role

reduction.7 Yet rather than assessing De Varon’s role in the offense in light of all the

relevant conduct suggested by both the law and common sense, the majority implicitly

crafts a rule to the effect that, for purposes of § 3B1.2, an unnamed participant to the

crime is no participant at all.8

The majority’s implicit requirement that a defendant must provide the names of all

the participants to the crime has the paradoxical and troubling effect of rendering

defendants with little inside knowledge or understanding of the larger scheme less likely

to receive a minor participant reduction, while allowing those defendants with sufficient

knowledge to name all the players and the tasks performed by each to widen the range of

participants against whose actions theirs will be judged, thus making them more likely to

receive the reduction. Yet as the Guidelines explicitly recognize, a “defendant’s lack of

knowledge or understanding of the scope and structure of the enterprise and of the

activities of others is indicative of a role as minimal participant.” U.S.S.G. § 3B1.2

7 Of course, it is not enough that the defendant is less culpable than some of the other participants. Rather, he or she must show that he or she is less culpable than “most other participants.” U.S.S.G. § 3B1.2 comment. (n.3). 8 See U.S.S.G. § 3B1.1 comment. (n.1) (defining “participant” as “a person who is criminally responsible for the commission of the offense, but need not have been convicted”).

49 comment. (n.1). This is not to say that where the concerted criminal act involves a single

leader and many actors with small roles, the minor players would necessarily be entitled

to reductions as “less culpable than most other participants.” U.S.S.G. § 3B1.2 comment

(n.3). At the same time, however, minimal knowledge of the larger scheme should not

automatically defeat the very defendants who might be most entitled to a § 3B1.2

reduction.

Either a witness who professes to possess limited information about the larger

scheme is telling the truth, or she is not. If the judge finds it to be the latter, the judge is

free to deny the reduction. But if the judge finds the witness credible and the testimony

consistent, the judge may on the basis of the testimony alone determine that the defendant

is entitled to a reduction. The judge would, in that instance, consider all of those factors

which we know to impact upon the concept of relative culpability, including the

defendant’s level of education and sophistication, prior involvement in criminal activity,

and manner of involvement in the concerted criminal activity relative to other

participants.

With regard to the manner in which De Varon participated in the crime at issue, I

am troubled by the complete exclusion from the majority’s discussion of any

consideration of what, exactly, De Varon did, and what is done by an unfortunately high

number of the men and women apprehended as drug smugglers at our nation’s borders.

She swallowed and carried in her intestinal tract 512.4 grams of eighty-five percent pure

50 heroin, risking not just an extended stay in an American prison, but her very life.9 This is

not a reason that De Varon should not be held responsible for the act she undertook. But

the Guidelines direct courts to determine a defendant’s relative culpability, and no one

can debate the position of a courier like De Varon in the hierarchy of the criminal

enterprise. If De Varon was part of a larger enterprise, it is clear that, as a swallower, she

was considered by definition as expendable to that organization, for no organization,

illicit or otherwise, would risk the lives of its central or valuable members in this way.

The fact that De Varon filled the role of swallower in the importation scheme cannot be

totally ignored in considering whether she was a minor player.

For all the foregoing reasons, I would reverse the district court’s denial of De

Varon’s request for a § 3B1.2 minor participant reduction, and remand for the court to

consider whether De Varon met her burden of demonstrating that she was less culpable

than most other participants in the offense.

9 See United States v. Purchess, 107 F.3d 1261, 1263-64, 1270-71 (7th Cir. 1997) (affirming a § 5K2.1 upward departure for conduct resulting in death, where the defendant was convicted of organizing the importation of drugs through the use of swallowers and one of his couriers died en route of “body packer syndrome” after a “deadly amount of cocaine [] leaked from the [ingested drug-filled] pellets”); Huguez v. United States, 406 F.2d 366, 391 (9th Cir. 1968) (explaining that “the acidic nature of the gastric juices in the [stomach] makes the swallowing of almost any flexible container of narcotics quite dangerous”) (citing Blefare v. United States, 362 F.2d 870, 873-874 (9th Cir. 1966)).