United States v. Isabel Rodriguez De Varon

175 F.3d 930, 1999 U.S. App. LEXIS 9093, 1999 WL 303794
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 14, 1999
Docket96-5421
StatusPublished
Cited by747 cases

This text of 175 F.3d 930 (United States v. Isabel Rodriguez De Varon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Isabel Rodriguez De Varon, 175 F.3d 930, 1999 U.S. App. LEXIS 9093, 1999 WL 303794 (11th Cir. 1999).

Opinions

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 ease 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 ease 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 Varón (“De Varón”) smuggled 70 heroin-filled pellets into the United States. She had ingested the pellets and smuggled them from Colombia into the United States inside her body. Upon arrival, De Varón reported to United States Customs. Suspecting that she was an internal carrier of narcotics, the customs officials confronted De Varón and she confessed. The government then accompanied De Varón to a hospital and ultimately recovered 512.4 grams of 85 percent pure heroin. At the time of her arrest, De Varón was carrying $2,350. De Varón admitted that a-woman identified only as “Nancy” provided her [935]*935with $1,350 of travel advance money and instructed her to bring an additional $1,000 of her own money to cover her expenses. De Varón 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 Varón, 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 Varón 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 Var-on qualified for the “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. § 3El.l(a), (b)(2). After these adjustments, De Varon’s resulting offense level was 23. The probation officer then assigned De Varón 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 Varón 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 support of her claim, De Varón argued that she was an internal carrier of narcotics and that she was recruited by another, more culpable participant. Specifically, De Varón 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 Varón] 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 Varón]. After several visits to the company, Nancy asked [De Varón] if she [936]*936possessed a visa. [De Varón] reports that Nancy knew that [De Varón] was having financial problems. [De Varón] reports that her son is mentally retarded and requires medical attention. Nancy asked [De Varón] if she would bring drugs to the United States. [De Varón] was told that she would have to swallow some pills and that [she] would be paid $6,000. [De Varón] relates that she agreed to swallow the drugs because she needed the money for her ill child. [De Varón] states that she knew what she did was wrong and regrets her actions.

At sentencing, De Varon’s counsel further said that De Varón was “prepared to testify to that statement before the Court today, if the Court so chooses.” De Varón did not present any other information or evidence in support of her claim.

The district court then denied De Var-on’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.

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Bluebook (online)
175 F.3d 930, 1999 U.S. App. LEXIS 9093, 1999 WL 303794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-isabel-rodriguez-de-varon-ca11-1999.