IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________
92-5593 __________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR MARTINEZ-MONCIVAIS,
Defendant-Appellant.
__________________________________________
Appeal from the United States District Court for the Western District of Texas __________________________________________
(February 11, 1994)
Before GARWOOD and BARKSDALE, Circuit Judges, and SHAW* Chief Judge.
SHAW, Chief Judge:
O P I N I O N
In May 1990, a grand jury sitting in the San Antonio Division
of the Western District of Texas returned a 24-count indictment
charging 36 individuals with participating in a far-reaching
criminal enterprise involving the importation, transportation, and
distribution of substantial amounts of illegal drugs. The
appellant, Oscar Martinez-Moncivais ("Martinez"), was specifically
* Chief Judge of the Western District of Louisiana, sitting by designation. charged in Count Three of the indictment with conspiracy to possess
with intent to distribute marijuana and cocaine, and in Count Four
with conspiracy to import with intent to distribtue marijuana and
cocaine, all in violation of 21 U.S.C §§ 846 and 841(a)(1). The
conspiracy began in 1983 and continued until the date of the
superseding indictment in May of 1990. After a trial involving
Martinez and two other defendants, the jury found Martinez not
guilty on Count Four, but guilty on Count Three for conspiracy to
possess with intent to distribute in excess of 1,000 kilograms of
marijuana, and in excess of 5 kilograms of cocaine. On May 11,
1992, the district court judge sentenced Martinez under the
sentencing guidelines to imprisonment for 262 months, supervised
release for five years, and fined him $10,000 exclusive of the
special assessment.
I. FACTS
Oscar Martinez was charged with transporting large amounts of
marijuana and cocaine for an illegal narcotics enterprise known as
the Salinas organization. The organization was headed by Alberto
Salinas-Trevino (Salinas) and his brother Ramiro Salinas, and its
interests stretched from Mexico into the United States.
The evidence against Martinez at trial came primarily from
Government witness, Francisco De Leon Ortiz (De Leon). De Leon
worked as the personal driver for another of Alberto Salinas's
brothers, Baldemar Salinas, and as a warehouse worker and truck
driver for the Salinas organization. De Leon testified that he
first met Martinez when Martinez drove a tanker truck full of lime
2 to the Span Tile warehouse where De Leon was working. The Span
Tile warehouse, according to the evidence at trial, was one of the
centers for the Salinas organization's importation and distribution
of illegal narcotics. De Leon testified that customarily, workers
at that warehouse would extract the lime from such incoming tanker
trucks and then unload thirty-five gallon steel barrels that had
been buried in the lime inside hidden compartments. The marijuana
and cocaine were contained in these barrels.
According to the evidence, from 1986 to the summer of 1987,
Martinez transported drug-filled barrels inside hidden compartments
in lime-filled trucks to the warehouse and picked up the barrels in
trailers and transported them elsewhere. De Leon and others would
unload the barrels from the hidden compartments of the tanker
trucks driven by Martinez. Martinez was not directly involved in
either the loading or unloading of the barrels into the secret
compartments. He was, however, one of only four or five drivers
making deliveries to and from the Span Tile warehouse during the
period of time that Martinez worked as a truck driver for the
Salinas organization. There was additional testimony that Martinez
worked directly for Alberto Salinas.
There was further testimony that no one at the warehouse ever
did any business concerning tiles. The tanker trucks that arrived
contained drug-filled barrels buried in lime, and the trucks that
left the warehouse carried drugs. No tiles were manufactured,
stored, or sold at the Span Tile warehouse.
Martinez's defense to the charges was that although he did
3 drive some of the trucks loaded with marijuana and cocaine, he had
no knowledge that the trucks were carrying drugs because he was
never present when the trucks were being loaded and unloaded, and
because he always kept to himself, never talking to anyone at the
warehouse about the business. The jury did not believe this
defense and found sufficient evidence to convict Martinez on one
count of conspiracy to distribute narcotics.
II. DISCUSSION
Martinez appeals the decision of the jury in this case, as
well as certain rulings made by the district court judge, and the
sentence that the judge imposed. We will address each argument
that Martinez raises on appeal.
A. Sufficiency of the Evidence
Martinez first contends that the weight of the evidence does
not support the jury's verdict finding him guilty of conspiracy.
As a reviewing court, we must examine the evidence in the light
most favorable to the verdict. United States v. Ayala, 887 F.2d 62,
67 (5th Cir. 1989). We will affirm a verdict "if a rational trier
of fact could have found the essential elements of the offense
beyond a reasonable doubt." Id., quoting U.S. v. Palella, 846 F.2d
977, 981 (5th Cir.), cert. denied, 488 U.S. 863 (1988). In this
particular case, we will affirm the jury's determination if there
was sufficient evidence for us to conclude that it was not
irrational for the jury to have found that the Government proved
the elements of the crime charged beyond a reasonable doubt.
4 To convict a defendant of conspiracy to distribute narcotics
in violation of 21 U.S.C. §§ 841(a)(1) and 846, the Government must
prove three elements of the crime beyond a reasonable doubt: 1)
that there was an agreement between two or more persons to violate
the narcotics laws; 2) that the accused knew of the agreement or
conspiracy; and 3) that he voluntarily joined in the conspiracy.
United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992);
United States v. Rodriquez-Mireles, 896 F.2d 890, 892 (5th Cir.
1990). The required elements of a narcotics conspiracy need not be
proved by direct evidence but may instead be established solely by
circumstantial evidence. Ayala, 887 F.2d at 67; United States v.
Wright, 797 F.2d 245, 253 (5th Cir. 1986).
Martinez contends that, based on the circumstantial evidence
that the Government presented at trial, no rational jury could have
reasonably inferred either his knowledge of the existence of drugs
in the trucks he was driving or his voluntary participation in the
conspiracy. Absent adequate proof establishing those two elements
of the crime, Martinez correctly argues, the evidence would not
support the jury's verdict finding Martinez guilty of violating
Sections 841(a)(1) and 846 of Title 21.
Concerning the second element of the crime, appellant's
knowledge of the narcotics conspiracy, Martinez argues that as a
truck driver for the Salinas organization he had been merely
present at the center of the Salinas drug import/export business.
He contends that because the drugs were shipped in barrels that
were placed into hidden compartments inside the truck's trailer and
5 then covered with lime, he did not know that he was transporting
drugs -- that he thought he was simply hauling lime. He argues
that because there was no evidence that he ever witnessed the drugs
being loaded or unloaded from his truck at the Span Tile warehouse
he was therefore unaware that he was transporting drugs. In other
words, Martinez maintains that his mere proximity to criminal
activity is insufficient evidence of his knowledge of, or his
participation in, the conspiracy. Martinez is only partially
correct. In United States v. Maltos, we said:
mere presence at the crime scene or close association with conspirators, standing alone, will not support an inference of participation in the conspiracy. 985 F.2d 743, 746 (5th Cir. 1992)(emphasis added).
In this case, Martinez's presence at the center of the criminal
activity does not stand alone as the only evidence of his knowing
participation in this conspiracy. There are several other facts
that when added to Martinez's presence provide ample evidence to
support the jury's verdict finding him guilty of violating 21
U.S.C. §§ 841(a)(1) and 846.
First, Martinez was "merely present" at the center of the
conspiracy's criminal activity at the warehouse on more than an
isolated or random occasion. He was "merely present" at that
warehouse making deliveries as often as once or twice a week for
the better part of a year. The cases Martinez cites in support of
his "mere presence" argument involve defendants whose presence at
the scene of criminal activity occurred on isolated or random
occasions. See United States v. Skillern, 947 F.2d 1268, 1274 (5th
Cir. 1991); United States v. Blessing, 727 F.2d 353 (5th Cir.
6 1984). The implicit rationale behind the "mere presence" argument
is the theory that there may often be innocent parties who on
occasion unwittingly associate with guilty parties at the scene of
their criminal activity. See United States v. Fitzharris, 633 F.2d
416, 423 (5th Cir. 1980). So we have said that it is irrational
for a trier of fact to infer from a person's mere random presence
alone that the person was a knowing participant in the conspiracy.
See United States v. Tolliver, 780 F.2d 1177, 1182 (5th Cir. 1986).
In this case, however, Martinez was one of only a handful of
drivers that the Salinas organization used to make deliveries to
and from the Span Tile warehouse. The evidence showed that these
deliveries and pickups were made by the drivers on the average of
two to three times per week. This is not the type of "mere
presence" with which the courts in Blessing and Skillern were
concerned.
Second, Martinez was entrusted with transporting millions of
dollars worth of drugs. Other circuits have held that "it is
reasonable for a jury to conclude that in the course of
transporting millions of dollars of readily marketable marijuana
through channels that should lack the protections of organized
society, a prudent smuggler is not likely to suffer the presence of
unaffiliated bystanders." See United States v. Cruz-Valdez, 773
F.2d 1541, 1547 (11th Cir. 1985), cert. denied sub nom. Ariza-
Fuentas, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). Put
another way, reasonable jurors could conclude that Salinas would
not have entrusted millions of dollars in each truckload of drugs
7 to an unknowing, innocent driver. The jury could reasonably
conclude that Salinas would have considered the risk to be far too
great that such a driver, if he did discover the hidden drugs on
one of his many trips, would inform the authorities, or perhaps try
to sell the drugs himself, depriving Salinas of the millions of
dollars in profits.
Third, the evidence in this case shows that there was never a
legitimate business operating at the Span Tile warehouse where
Martinez made his frequent pickups and deliveries. The evidence
shows that no one working at the Span Tile warehouse conducted any
business concerning tiles. Moreover, the warehouse facility was
not easily accessed. There was a guarded gate that had to be
opened before any of the trucks could enter the facility -- another
sign that the jury could infer was inconsistent with the operation
of a legitimate business.
Another fact that was inconsistent with Martinez's defense
that he was merely an unknowing driver was that the head of the
Salinas organization, Alberto Salinas, purchased a new passenger
truck for Martinez as a gift. Although Martinez maintained that
the truck was not a gift, and that he would have paid Salinas back
for it, a jury could reasonably infer that in a normal business
relationship, an hourly-wage truck driver would not ordinarily
receive such an extravagant gift or bonus from his employer.
Finally, there was also testimony that Martinez had agreed on
the spur of the moment to drive a truckload of "lime" from Texas to
California immediately. He agreed to do so despite the fact that
8 Salinas's decision and request was made outside a McDonald's
restaurant in response to an emergency situation,1 and even though
the trailer Martinez was to haul did not have a license plate.
With regard to this particular trip, Mario Salinas's personal
notes, which were his records of where his trucks were going and
which were introduced at trial, contained the notation "one, Oscar"
with the date of the trip to California, "7/25/87," and a reference
to "polvo," which means "powder." On this same trip, Martinez was
ticketed by the California Highway Patrol for failing to keep a
logbook on that trip, as required by law, and as Martinez regularly
did on his trips, according to the testimony of his wife.
In summarizing, then, the issue of the sufficiency of the
evidence in this case, mere presence at the scene of criminal
activity is insufficient evidence to support a conviction for
participation in a narcotics conspiracy when such evidence stands
alone. When, as here, the defendant's presence is more than
isolated or random and is considered along with the other evidence
presented, we cannot say that the jury was irrational in finding
Martinez guilty of knowing, voluntary participation in the
narcotics conspiracy alleged in this indictment. See United States
v. Rodriguez-Mireles, 896 F.2d 890, 893 (5th Cir. 1990). The
1 According to the record, Salinas had received a tip that federal agents may raid the Span Tile warehouse. Two of his people immediately loaded the drugs from the warehouse into a trailer. The next day Salinas and others met at a McDonald's restaurant, while Martinez waited outside. After the meeting they asked Martinez to transport the untagged trailer to California immediately. There was no evidence at trial of any particularly dangerous shortage of lime in California that would have necessitated such an immediate shipment.
9 combined effect of all of the circumstantial evidence allowed the
jury to infer that Martinez had not been consistently duped into
unwittingly transporting illegal drugs. The evidence presented was
sufficient to show that Martinez had a subjective awareness of the
high probability that he was involved in illegal conduct. See
United States v. Stouffer, 986 F.2d 916, 925 (5th Cir. 1993). The
jury had ample evidence to conclude that Martinez was a knowing and
voluntary participant in the Salinas organization's drug
distribution business.
B. Propriety of the Jury Trial Proceedings
Martinez also raises several issues on appeal concerning the
district court judge's handling of particular aspects of the trial
proceeding. Specifically, Martinez claims that jury misconduct
occurred during deliberations that necessitated the judge's
granting his motion for a new trial; that mid-trial publicity
concerning the voluntary absence of a co-defendant prejudiced his
defense and required a voir dire of jurors; and that the judge
improperly answered a question from the jury by commenting on the
evidence.
Martinez's contention that there was jury misconduct in this
case is wholly without merit. We review the trial court's
decisions on this issue under the abuse of discretion standard.
Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 2746,
97 L.Ed.2d 90 (1987); United States v. Khoury, 539 F.2d 441, 443
(5th Cir. 1976), cert. denied, 429 U.S. 1040 (1977).
10 In this case, one of the jurors stated in a post-trial
affidavit that two other jurors suggested that if the defendant had
been innocent he would have taken the stand in his own defense.2
Outside of the narrow exception that arises when there is evidence
of outside influences on a jury, a court should adhere to the
common-law rule against admitting juror testimony to impeach a
verdict. See id., citing McDonald v. Pless, 238 U.S. 264, 267
(1915); Hyde v. United States, 225 U.S. 347, 384 (1912). In 1915,
the Supreme Court stated the rationale behind this rule:
[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding.... The result would be to make what was intended to be a private deliberation, the constant subject of public investigation -- to the destruction of all frankness and freedom of discussion and conference. McDonald v. Pless, 238 U.S. at 267.
Martinez correctly states that a trial court must hold an
evidentiary hearing when a defendant shows that external
influences3 were brought to bear on the jury's deliberative
2 Other circuits have held testimony or affidavits of jurors to be incompetent to show a jury's misinterpretation of instructions. See Farmers Coop. Elev. Ass'n. v. Strand, 382 F.2d 224, 230 (8th Cir. 1969). In Tanner v. United States, the Supreme Court noted that the Senate specifically rejected a version of Federal Rule of Civil Procedure 606(b) that would have permitted the impeachment of verdicts by inquiry into what happened in terms of conduct in the jury room. 483 U.S. at 123, citing S. Rep. No. 93-1277, p. 13 (1974). 3 Martinez argues that "external influences" and "extraneous prejudicial information" are different concepts under Federal Rule of Civil Procedure 606(b). He suggests that external influences generally include contacts between lawyers or parties to the case and jurors, threats on jurors, and so forth.
11 process. In this case, however, the jury did not encounter
improper external influences that would necessitate an evidentiary
hearing. See United States v. Duzac, 622 F.2d 911, 913 (5th Cir.),
cert. denied, 449 U.S. 1012 (1980). In the same affidavit, the
affiant states that other jurors reminded the jury of the judge's
instructions that they could not take into account Martinez's
decision not to testify in his defense. The affiant went on to
state that two jurors' statements did not weigh heavily in the
jury's deliberative process and were not a basis for the jury's
decision to find Martinez guilty. Based on these facts, it is
clear that the judge did not abuse his discretion in determining
that the information contained in the affidavit was not an adequate
basis on which to grant Martinez's motion for a new trial based on
a claim of jury misconduct.
Similarly, Martinez argues that the district judge erred in
Extraneous prejudicial information, he argues, is a broader concept embracing "more than extrarecord material brought to the jurors' attention by outside sources or through inadvertence." The cases he cites in support involve situations in which the jurors bring outside information into deliberations themselves. See, e.g., In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir. 1982); United States v. Castello, 526 F.Supp. 847 (W.D.Tex. 1981). These cases usually involve tests or experiments that jurors had conducted themselves to help them evaluate the evidence, juror visits to the scene of the alleged accident, and so on. Even if we were to agree that the drafters of 606(b) intended external influences and extraneous prejudicial information to be separate concepts, a finding which we do not make, the alleged juror misconduct in this case does not rise to the level of extraneous prejudicial information as defined by the appellant. There is no evidence that the jurors in question did anything outside of the courtroom, such as talking to a lawyer or doing legal research, that would have led them to make the statement concerning the appellant's not testifying in his own defense.
12 denying Martinez's request for individual voir dire of the jurors
regarding the effects upon the jury of mid-trial publicity
concerning a co-defendant's voluntarily absenting himself. Voir
dire of the jurors is necessary in such circumstances only if
serious questions of possible prejudice could arise because of the
trial publicity. See United States v. Aragon, 962 F.2d 439, 444
(5th Cir. 1992). The district court must perform a two-step
inquiry to determine whether such serious questions exist. See
United States v. Herring, 568 F.2d 1099, 1104-05 (5th Cir. 1978).
First, the court must look at the nature of the media coverage, and
determine whether it raises serious questions of possible
prejudice. Id. Factors influencing the first inquiry include the
timing of the media coverage of the trial proceedings, the nature
of the material disseminated, and its potential effect on legal
defenses. Aragon, 962 F.2d at 443. Second, the court must weigh
the likelihood that the damaging material has in fact reached the
jury. Id. Factors influencing the second inquiry include the
significance of the media coverage and the nature, number, and
regularity of warnings from the judge against viewing the coverage.
Id.
At the outset of the trial, the judge admonished the members
of the jury to avoid reading or listening to any media coverage
that they may encounter concerning the trial. After the co-
defendant disappeared, the judge granted Martinez a four-day delay
to give his attorney an opportunity to find him. When that proved
unsuccessful, the judge then admonished the jury not to consider
13 the co-defendant's absence as evidence of the guilt or innocence of
any other defendant. In this case, the news media had merely
publicized an issue that the jurors had already been informed of by
the judge himself -- that one of the defendants had absented
himself. In other words, even if jurors defied the judge's
instructions and read or heard media accounts of the co-defendant's
disappearance, there was no evidence that they would have learned
much more than what the judge explained to them when he told them
about the co-defendant's "voluntary absence" and admonished them
that it was to have no bearing on their view of the remaining
defendants' guilt or innocence. Therefore, Martinez failed to
establish the first element of the Herring test -- the potential
for prejudice to his defense as a result of the publicity. Because
the judge did not find that there was a potential for prejudice
caused by the media publicity concerning the other defendant's
absence, he was not required to address the second part of the
inquiry in order to determine that there were no serious questions
of possible prejudice that would require a voir dire of the jury.4
Martinez's final contention in this area of the trial
procedure itself is that the trial court judge erred by improperly
commenting on the evidence in its answer to a question from the
jury. In that question, the jury asked:
4 In United States v. Manzella, we affirmed the defendant's conviction despite the trial court's failure to voir dire the jury on grounds that while the media account of the defendant's prior conviction was prejudicial, the chance of its actual influence over the jury's decision-making process was minute. 782 F.2d 533, 543 (5th Cir. 1986).
14 May we have information concerning Government's Exhibit 84-A, 84-C, the Rolodex card? Where was the card found?
After consultation with both sides, the court responded, over
defense counsel objection, and based on the Government's notes of
Customs Agent, Raul Cardenas's, testimony:
The testimony of November 14, 1991 of Raul Cardenas, U.S. Customs Agent, during his testimony 84-A and 84-C were found inside the van at the time of the arrest of Margarito Flores and John Kritzer...on July 24, 1987.
Martinez claims that this response was an improper comment on the
evidence because the judge told the jury where Cardenas found the
exhibits and based his answer on the recordation of Cardenas's
testimony as supplied by the Government.5 By merely reciting one
portion of the trial testimony, however, in response to a narrow,
factual question from the jury, the court was not endorsing the
testimony as correct or incorrect, but was merely recounting what
the witness had said about where the cards were found. The jury
could decide whether or not to believe that witness's testimony,
just as they could evaluate the credibility of testimony from all
of the witnesses on both sides in the case. We cannot therefore
say that the district court erred in its response to the question
from the jury in this case.
C. Sentencing Guidelines Issues
Martinez also raises several issues concerning the sentence
the district court judge imposed. Martinez first argues that the
5 Nothing in the record or in appellant's briefs indicates that the government's notes regarding Cardenas's testimony were inaccurate or incorrect.
15 sentencing guidelines were not applicable to his case. He suggests
that because his last overt act in furtherance of the conspiracy
occurred in July of 1987, four months before the sentencing
guidelines became effective on November 1, 1987, the judge should
not have applied the guidelines to this case. This contention is
entirely without merit. The jury convicted Martinez for his
participation in a conspiracy that, according to the superseding
indictment charging Martinez, remained ongoing into 1990.
Conspiracy is a continuing offense, and this court has affirmed
application of the guidelines to a defendant who, while not
participating in overt acts of the conspiracy after the guidelines
took effect, failed to take affirmative actions to withdraw from a
conspiracy that remained ongoing after the guidelines became
effective. See United States v. Puma, 937 F.2d 151, 158 (5th Cir.
1991), cert. denied, 112 S.Ct. 1165 (1992). The United States
Supreme Court defined such "affirmative acts" as those acts that
are "inconsistent with the object of the conspiracy and [that are]
communicated in a manner reasonably calculated to reach co-
conspirators...." United States v. U.S. Gypsum Co., 438 U.S. 422,
464-65, 98 S.Ct. 2864, 2887-88, 57 L.Ed.2d 854 (1978). Martinez
took no such affirmative actions in this case, and thus remains
responsible as a co-conspirator for the all of the acts charged to
the conspiracy, which continued into 1990. There was therefore no
retroactive application of the sentencing guidelines to Martinez in
this case. The district court correctly looked to the sentencing
guidelines in sentencing Martinez.
16 The appellant also claims that the district court erred in its
sentence by miscalculating Martinez's criminal history category.
The district court judge's calculation of a defendant's relevant
criminal history category is a finding of fact that we review for
clear error. See U.S. v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.
1989). A court's factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole. United States v.
Sanders, 942 F.2d 894, 897 (5th Cir. 1991).
Martinez claims that the district court miscalculated his
relevant criminal history category under U.S.S.G. § 4A1.2(a)(2), by
counting two of his prior convictions as separate convictions
rather than as "related cases" which under the guidelines would
only be counted as a single prior conviction. United States
Sentencing Commission, Guidelines Manual, § 4A1.2(a)(2)(Nov. 1993).
Martinez contends that because the two cases were set on the
sentencing docket for the same day, and were tried together with
the involvement of the same judge, prosecutor, and defense
attorney, that they are related cases that should only count as one
prior conviction. In truth, however, the record indicates that
there were two separate offenses. On February 28, 1977, Martinez
was convicted of possession with intent to distribute marijuana and
was sentenced to probation. In June of 1977, he was convicted for
being a felon in possession of a firearm. Because of this
subsequent conviction, Martinez's probation for the first offense
had to be revoked. It was the revocation of Martinez's probation
for the prior marijuana conviction that was scheduled for the same
17 day that his sentence was imposed on the conviction for illegal
possession of a firearm. In effect then, there were three prior
sentences. Martinez was initially sentenced to probation for his
original marijuana conviction. Several months later, after he was
convicted on the subsequent firearms charge, he was sentenced both
for the possession of a firearm, and for the violation of his
probation on the marijuana conviction. The district court did not
therefore err in counting these two offenses as separate
convictions and calculating Martinez's criminal history as a
category IV rather than a category III.
The appellant also contends that the lower court erred in
calculating Martinez's relevant conduct under the sentencing
guidelines by using an incorrect quantity of drugs as the figure on
which to base its calculation. Appellant argues that the court
should have considered only the equivalent of 174,000 kilograms of
marijuana in calculating his offense level. The district court has
broad discretion in considering the reliability of the submitted
information regarding the quantities of drugs involved. United
States v. Kinder, 946 F.2d 362, 366 (5th Cir. 1991). We will
overrule the factual findings of the district court on sentencing
issues only if such findings are clearly erroneous. Id. In this
case, we need not address whether the district court improperly
used any amounts in excess of 174,000 kilograms. According to the
1987 version of the Sentencing Guidelines,6 under which Martinez
6 The 1987 version of the Sentencing Guidelines are actually more generous to Martinez than the current Guidelines, which would have placed him at an offense level of 40 for any
18 was sentenced, anything over 10,000 kilograms of marijuana would
result in the highest offense level at the time -- 36. United
States Sentencing Commission, Guidelines Manual, § 2D1.1 (May
1987). Since appellant does not dispute the amount of drugs the
court used in its calculation up to 174,000 kilograms, the district
court used the proper offense level in calculating Martinez's
sentence.
Martinez's final contention in this appeal is that the
district court erred in failing to adjust his offense level
downward pursuant to U.S.S.G. §§ 3B1.1-3B1.4. The sentencing
guidelines allow a sentencing judge to effect a downward adjustment
for a defendant who plays a mitigating role in the offense for
which he was convicted. U.S.S.G. § 3B1.2. As stated earlier, we
review a district court's factual findings in preparation for
sentencing under the clearly erroneous standard. Mejia-Orosco, 867
F.2d at 221. In this case, Martinez argued that he deserved a
downward adjustment in his sentence because, as defined in U.S.S.G.
§§ 3B1.2(a)(b), he was either a "minimal" participant or a "minor"
participant in the conspiracy for which he was convicted of being
involved. The Application Notes explain that 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, Application Note 1. As
an example of a defendant who may be described as a minor
amount of drugs between 100,000 and 300,000 kilograms. U.S.S.G. § 2D1.1(c)(2)(1993).
19 participant in a conspiracy for guidelines purposes, the
Application Notes describe a person "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, Application Note 2.
Martinez contends that because he did not know what he was
delivering, and was basically an innocent participant in this
conspiracy, his role was either "minimal" or "minor." The jury,
however, clearly found him guilty of participation in the
conspiracy as charged in this case, which by definition entailed
the jury's finding that Martinez had knowledge of, and voluntarily
participated in, the ongoing transportation of entire truckloads of
narcotics. The judge's determination that the facts of this case
did not warrant a downward adjustment was therefore not a clearly
erroneous finding.
III. CONCLUSION
Finding no error, we AFFIRM the district court on all issues
raised on appeal.