UNITED STATES COURT OF APPEALS for the Fifth Circuit _____________________________________
No. 90-2783 _____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH MICHAEL MASERATTI, GABRIEL RUIZ, MIGUEL ROCHA, JUAN MANUAL ZAMORA, JOHNNY DAVIS, JOSE SILVA, DAVID PIERATT, BONIFACIO FILOTEO, DEBORAH ANN GARZA, SEVERO GARZA, JR., and RAMIRO GONZALES ALVARADO,
Defendants-Appellants.
____________________________________
No. 91-2088 ______________________________________
JOHNNY DAVIS,
Defendant-Appellant.
______________________________________
No. 91-2332 ______________________________________
ROQUE URDIALES GARCIA,
Defendant-Appellant. ________________________________________________
Appeals from the United States District Court for the Southern District of Texas __________________________________________________ (August 27, 1993)
Before REAVLEY, DUHÉ, and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge:
Twelve of 28 defendants challenge their drug conspiracy
convictions arising out of a large marijuana and cocaine
enterprise. We affirm. Eight also contest their sentences. We
vacate six of their sentences and remand those six for
resentencing.
Background
This case involves a very large and long lasting drug
conspiracy. In a 40 count indictment, the Appellants, along with
16 others, were charged with conspiracy to possess cocaine with
intent to distribute (Count 1), conspiracy to possess marijuana
with intent to distribute (Count 2), conspiracy to import cocaine
(Count 3), possession of cocaine with intent to distribute
(Counts 4, 9, 26, 29), distribution of cocaine (Counts 5, 10,
27), possession of marijuana with intent to distribute (Counts 6,
12), distribution of marijuana (Counts 8, 16), importation of
cocaine (Count 31), use of the telephone to facilitate drug
trafficking (Counts 13-15, 17-25, 28-30, 32-38), continuing
criminal enterprise (Count 40), and travel in interstate commerce
to facilitate drug trafficking (Counts 7, 11), all in violation
2 of 21 U.S.C. §§ 841(a)(1), 846, 963, 843(b), and 848, and 18
U.S.C. § 1952.
Appellant Roque Garcia operated this extensive marijuana and
cocaine trafficking enterprise in Houston. Appellants Zamora,
Rocha, Silva, Pieratt, and Ruiz at various times assisted in the
distribution of the drugs. For most of the conspiracy's duration
Garcia used an apartment in Houston as his headquarters, but the
drugs were stored elsewhere, including the homes of Silva and
Zamora. Appellants Alvarado and Filoteo supplied some drugs, and
appellants Severo and Deborah Garza maintained a supply of
marijuana for the enterprise at their home. Appellants Davis and
Maseratti were regular customers of the enterprise.
By means of surveillance, a pen register, and a wire tap,
the DEA closely observed the Garcia enterprise for approximately
a year. At various times during the DEA's investigation, arrests
were made and drugs were confiscated. The DEA was careful,
however, to stage the arrests so that they appeared not to be
connected to the surveillance. By the time all was said and
done, the DEA had indicted 28 persons connected with the Garcia
enterprise. After a jury trial, all Appellants were convicted on
all counts in which they were charged.
The Appellants raise numerous claims on appeal. They
contend (1) the government's exercise of peremptory challenges
violated the Fifth Amendment, (2) the court's refusal to give a
buyer-seller jury instruction was error, (3) the court's refusal
to dismiss a juror who, during the trial, applied for a
3 government job was error, (4) the importation conspiracy was
improperly joined with the domestic conspiracies, (5) Appellant
Davis' car was unlawfully searched, (6) the wiretap order was
unlawfully issued, (7) a fatal variance exists between the
conspiracies charged and the conspiracies proven, (8) the
evidence was insufficient to support the convictions, and (9) the
sentences were unlawfully imposed. We consider each in turn.
I. Batson Challenge. The Appellants argue that the government
used three of its peremptory strikes to exclude prospective
jurors; two black females, and one Hispanic female, solely
because of their race and ethnicity in violation of Batson v.
Kentucky, 476 U.S. 79 (1986) and the Fifth Amendment. Appellants
objected to the strikes and the prosecutor gave the following
explanations:
One black woman was struck because "she appeared to be
sleeping during part of the voir dire." The second black woman
was struck because she also was not paying attention during the
voir dire, and because the prosecutor did not like the fact that
she was a City of Houston employee. The Hispanic woman was
struck because: It was my impression
from my experience in
Hispanic culture that she might tend to be sympathetic toward Debbie Garza's predicament in that she basically is doing what the male in the species is telling
4 her to do, and might be too sympathetic . . . .
The district court overruled Appellants' Batson objection.
The Supreme Court held in Batson that a defendant can
establish an equal protection violation based on the government's
use of peremptory challenges to remove black potential jurors in
his case. Batson, 476 U.S. at 96. If the defendant establishes
a prima facie case that the prosecutor used peremptory challenges
to remove potential jurors because of their race, the burden
shifts to the prosecutor to provide race neutral explanations.
The court must then determine, in light of all of the facts and
circumstances, whether the defendant has carried his burden to
establish purposeful discrimination. Id. at 94-98.
When Appellants objected to the prosecutor's exercise of
peremptory challenges in this case, the court, without expressly
determining whether a prima facie case was made out, asked the
prosecutor to explain his challenges. In Hernandez v. New York,
111 S.Ct. 1859 (1991), the Supreme Court stated that "[o]nce a
prosecutor has offered a race-neutral explanation for the
peremptory challenges and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary
issue of whether the defendant had made a prima facie showing
becomes moot." Id. at 1866.
In evaluating the race-neutrality of an attorney's
explanation, we must determine whether the challenges violate the
Fifth Amendment as a matter of law. Id. at 1866. Proof of
racially discriminatory intent or purpose is required to show a
5 violation of the Fifth Amendment. Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 264-65
(1977). "Discriminatory purpose implies more than intent as
volition or intent as awareness of consequences. It implies that
the decision maker selected a particular course of action at
least in part because of, not merely in spite of, its adverse
effects upon an identifiable group." Hernandez, 111 S.Ct. at
1866 (citations omitted).
Before addressing the merits of Appellants' argument,
however, we address the matter of timeliness. The trial court
questioned the timeliness of Appellants' Batson objection because
they asserted their objection after the unselected venirepersons
had been dismissed. One defense lawyer voiced his impression
that a Batson claim was timely until the jury was sworn. The
court's subsequent general denial of relief does not indicate
whether timeliness was the basis for its ruling. No one
requested clarification.
The notion that a Batson claim is timely until the jury is
sworn is incorrect. This Court has held "that to be timely, the
Batson objection must be made before the venire is dismissed and
before the trial commences." United States v. Romero-Reyna, 867
F.2d 834, 837 (5th Cir. 1989), cert denied, 494 U.S. 1084 (1990).
Therefore, this Batson claim can be dismissed as untimely.1 Even
1 Although it is not crystal clear in the record that the veniremen had been dismissed, we see no reason for the trial judge to raise the issue otherwise. Additionally, once the venire was dismissed from the courtroom, the opportunity for them to be tainted was too great, and it was the responsibility of the
6 considering the merits of the claim, however, we conclude that
the district court's ruling is correct.
While the prosecutor's explanation with regard to the
Hispanic woman appears on its face to offend Hernandez, the fact
that he seated another Hispanic female and that the prosecutor
himself is Hispanic shows that this challenge was particular to
this female and not a "stereo typical assumption" or a "gross
racial stereotype or anecdotal generalization" about Hispanics.
See Hernandez, 111 S.Ct. at 1867; United States v. Greene, 53 Cr.
L. 1003 (C.M.A. No. 67297, February 25, 1993).
As to the two black women excluded, the explanations given
by the prosecutor were clearly race-neutral, and Appellants'
arguments are without merit.
II. Buyer-Seller Instructions. Ten of the twelve Appellants
argue that the trial judge erred when he refused to give a buyer-
seller instruction to the jury in the course of his discussion of
the law of conspiracy. We disagree.
During the charge conference, the Appellants requested a
charge based on United States v. Hughes, 817 F.2d 268, 273 (5th
Cir. 1987), cert denied, 484 U.S. 858 (1987), which included
language to the effect that the existence of a mere buyer-seller
relationship in and of itself is not sufficient to prove a
conspiracy. They also requested that the multiple conspiracy
Defendants, as the movers, to insure that the integrity of the jury security was preserved.
7 charge submitted contain similar language. The court denied
these requests.
Appellants are entitled to an instruction on any recognized
defense for which there exists evidence sufficient for a
reasonable jury to find in their favor. Mathews v. United
States, 485 U.S. 58, 63 (1988)(citations omitted). As we stated
in United States v. Schmick,2 "it is reversible error to refuse a
charge on a defense theory for which there is an evidentiary
foundation and which, if believed, would be legally sufficient to
render the accused innocent." However, a trial judge is "under
no obligation to give a requested instruction that misstates the
law, is argumentative, or has been covered adequately by other
instructions." United States v. L'Hoste, 609 F.2d 796, 805 (5th
Cir.), cert. denied, 449 U.S. 833 (1980)(citations omitted).
While it is true that a buyer-seller relationship, without
more, will not prove a conspiracy,3 evidence of such activity
goes to whether the defendant intended to join in the conspiracy
or whether his or her participation was more limited in nature.
The questions of whether a defendant is a buyer/seller, and
whether a defendant is a member of a conspiracy are mutually
exclusive. When Congress enacted the current drug laws, it
eliminated references to selling drugs as the basis for criminal
activity, and substituted the broader concept of distribution as
2 904 F.2d 936, 943 (5th Cir. 1990), cert denied, --- U.S. ---, 111 S.Ct. 782 (1991). 3 Hughes, 817 F.2d at 273.
8 the prohibited conduct. United States v. Johnson, 481 F.2d 645,
647 (5th Cir. 1973). As a result, the procuring agent defense
was eliminated. Id. Conspiracies, and culpable parties thereto
were expanded. One becomes a member of a drug conspiracy if he
knowingly participates in a plan to distribute drugs, whether by
buying, selling or otherwise. The drug conspiracy laws focus on
whether the participants knowingly joined an agreement to
distribute drugs in violation of the law. We conclude that if
the evidence showed that a defendant is merely a buyer or seller,
the elements necessary to prove a conspiracy would be lacking,
and a not guilty verdict would result. In this case, the jury
instruction given by the court accurately reflected the law on
conspiracy. The buyer-seller relationship has been adequately
covered by this other instruction. L'Hoste, 609 F.2d at 805.
III. Juror seeking job with GSA. The Appellants argue that the
court erred in not excusing a juror who, during trial, sought
employment as a security guard with the General Services
Administration (GSA). About 4 weeks into trial, the Defendants
advised the court that Juror Cardenas was repeatedly seen going
into the GSA security office in the courthouse during breaks and
lunch periods. They asked the court to question Cardenas and GSA
regarding whether Cardenas was seeking employment with them. The
court refused. Several days later, the Defendants renewed their
request. Apparently, Mr. Cardenas had continued to visit the GSA
9 office on a daily basis. The defense requested that Cardenas be
replaced with an alternate juror.
Prior to submitting the case to the jury, the court finally
agreed to let defense counsel question Cardenas about his
activities. Cardenas admitted that he was visiting with the GSA
security officers and that he had applied for a position as a
security guard. He testified that he had received a positive
response to his application pending his passing several tests.
Cardenas also testified that this would not affect his ability as
a juror. Defense counsel requested that he be removed, but the
court refused.
We review for abuse of discretion. United States v.
O'Neill, 767 F.2d 780, 785 (11th Cir. 1985). Appellants had the
burden of proving by a preponderance of the evidence that
Cardenas was actually biased. De La Rosa v. Texas, 743 F.2d 299,
306 (5th Cir. 1984), cert denied, 470 U.S. 1065 (1985); Smith v.
Phillips, 455 U.S. 209, 215-18 (1982).4 Appellants have failed
to carry this burden. Even if Cardenas had held a job as a
security guard with the GSA at the time of jury selection, he
would not have been ineligible to serve as a juror. Tinsley v.
Borg, 895 F.2d 520, 529 (9th Cir. 1990), cert denied, 498 U.S.
1091 (1991). The district court acted completely within its
discretion.
4 The appellants contend that the facts in this case are so extreme that they fit the situation Justice O'Connor described in her concurring opinion in Smith, and that they only have to show implied bias. We disagree.
10 IV. Sufficiency of the Evidence. All Appellants except Garcia,
Zamora, and Silva challenge the sufficiency of the evidence
supporting some or all of the counts of which they were
convicted. Before addressing the individual claims, we set
forth the principles governing our review of sufficiency issues.
We examine the evidence, together with all credibility choices
and reasonable inferences, in the light most favorable to the
government. United States v. Rena, 981 F.2d 765, 771 (5th Cir.
1993). The verdict must be upheld if the court concludes that
any reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. Id. at 770. The
evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
that of guilt. United States v. Lopez, 979 F.2d 1024, 1028 (5th
Cir. 1992), cert denied, --- U.S. ---, 113 S.Ct. 2349 (1993).
The government, however, must do more than pile inference upon
inference. United States v. Cardenas Alvarado, 806 F.2d 566, 570
(5th Cir. 1986). Finally, the standard is the same whether the
evidence is direct or circumstantial. Rena, 981 F.2d at 771.
In a narcotics conspiracy prosecution, the government must
prove beyond a reasonable doubt: (1) that an agreement to violate
the narcotics laws existed between two or more persons, (2) that
each alleged conspirator knew of the conspiracy and intended to
join it, and (3) that each alleged conspirator did participate in
the conspiracy. United States v. Medina, 887 F.2d 528, 530 (5th
11 Cir. 1989); United States v. Guerra-Marez, 928 F.2d 665 (5th Cir.),
cert. denied, --- U.S. ---, 112 S.Ct. 322(1991). Proof of any
element may be by circumstantial evidence, and "'[c]ircumstances
altogether inconclusive, if separately considered, may, by their
number and joint operation, . . . be sufficient to constitute
conclusive proof.'" United States v. Roberts, 913 F.2d 211, 218
(5th Cir. 1990), cert. denied, --- U.S. ---, 111 S.Ct. 2264 (1991)
(quoting United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.
1989)).
After a careful review of the record, we conclude that, viewed
in the light most favorable to the verdict, the evidence is
sufficient as to all defendants.
Appellants Maseratti, Filoteo, Alvarado, and Davis contend
that they should not have been convicted of conspiracy to possess
either marijuana or cocaine, or both, because the evidence proved
only a buyer-seller relationship between them and the Garcia
enterprise. Although a buyer-seller relationship, without more,
will not prove a conspiracy, the evidence was sufficient for the
jury to conclude that the activities of these Appellants went
beyond that of a mere buyer-seller.5 See Hughes, 817 F.2d at 273;
United States v. Thomas, 768 F.2d 611, 615 (5th Cir. 1985).
Maseratti was a repeat marijuana customer. As early as June
7, 1989, telephone conversations concerning drug distribution
5 Distribution means "to deliver . . . a controlled substance." 21 U.S.C. § 802(11). The statute defines "deliver" as the "transfer of a controlled substance, whether or not there exists an agency relationship." 21 U.S.C. § 802(8).
12 intercepted between Roque Garcia and another defendant, Ayala, made
reference to Maseratti as the "white guy". Garcia apparently knew
the identity of the individual so referred to. The jury could
easily infer that Maseratti's involvement began before that phone
call.
On July 1, 1989, Maseratti went to Apartment 603 (Garcia's
headquarters), and in the presence of Garcia and others, he
rejected the cocaine offered to him because of its off-color, but
agreed to take all of the marijuana.6 This evidence showed that
Maseratti knew that the Garcia organization had other members and
that Maseratti assisted in purchasing drugs for resale. The
evidence is sufficient to show that Maseratti knowingly intended to
join and did join in the conspiracy to distribute marijuana.
Davis was also a repeat marijuana and cocaine customer. Davis
knew Garcia and Zamora operated the business out of apartment 603,
and Davis was seen there many times. Garcia furnished Davis with
cocaine in up to half-kilogram quantities and more than 100 pounds
of marijuana. This evidence supports the conclusion that Davis was
a knowledgeable participant in the marijuana and cocaine
conspiracies.
Filoteo and Alvarado were suppliers to the Garcia enterprise.
They admit to an "occasional deal" with Garcia, but contend that
since they did not control the organization or share in its
profits, their buy-sell conduct cannot be deemed part of the
6 Maseratti had previously placed his drug order over the phone to Garcia, thus sustaining his conviction for use of the telephone to facilitate drug trafficking.
13 conspiracy charged. However, even a single act can be one from
which knowledge and participation in a conspiracy can be inferred.
United States v. Michelena-Orovio, 719 F.2d 738, 751 (5th Cir.
1983)(en banc), cert. denied, 465 U.S. 1104(1984). Filoteo and
Alvarado furnished the drugs which Garcia then sold to Maseratti.
They were in the process of making another delivery of marijuana to
Garcia when they were arrested. This is adequate evidence that
Filoteo and Alvarado were willing participants in the Garcia
conspiracy.
Rocha, Ruiz and Pieratt make "mere presence" arguments. The
evidence, however, examined in its totality, shows that these
defendants were knowing participants in the Garcia scheme. Rocha
was convicted in both the conspiracy to import and to distribute
cocaine. He was involved in the plan to import cocaine from its
outset. A number of phone calls were intercepted which provided
ample proof of his knowledgeable participation. In fact, Rocha
expressed his belief to Zamora that Garcia had placed himself and
Zamora in charge of this operation. Rocha was observed coming and
going from the warehouse where the cocaine-laden truck was
concealed. He also made a number of intercepted phone calls and
hard wire transmissions from the Garcia apartment headquarters.
Ruiz was convicted of conspiracy to distribute marijuana and
two uses of the telephone to facilitate marijuana distribution. On
June 29, 1989, Ruiz called Garcia looking for "work". DEA officers
testified that "work" is a code word often used to mean marijuana.
During the call, Ruiz provided Garcia with directions to his place
14 of business. On July 5, Ruiz telephoned Zamora and advised Zamora
that he would be coming to the apartment to deliver some "invoices"
that he had already "cleaned." Based on the officer's testimony,
the jury could conclude that Ruiz was thus planning to make a
payment for drugs. Additionally, Ruiz, Zamora, and another
associate met at a Whataburger restaurant from which Zamora's car
was driven to Ruiz's place of business. This conduct is consistent
with the delivery of drugs.
Pieratt was convicted of the marijuana conspiracy, possession
of marijuana with intent to distribute, and distribution of
marijuana. He was apparently Arnold Hatton's link to the Garcia
enterprise. He was observed at the Garcia apartment several weeks
before Hatton's car was loaded with marijuana. Pieratt was then
involved in the car switch which resulted in Hatton's car being
loaded with 201 pounds of marijuana. He drove the loaded car to
the hotel where Hatton was staying. A surveillance officer
testified that he observed Pieratt open the trunk and remove
something before he delivered the car to Hatton. Hatton was later
stopped by officers with the car trunk full of marijuana. This is
adequate evidence that Pieratt was involved in the marijuana
Finally, the Garzas also argue that they were mere occasional
sellers of marijuana to the Garcia enterprise. Marijuana wrappers
which had contained significant amounts of marijuana were
discovered in the Garzas' garbage. This discovery was made shortly
after Roque Garcia and his brother left a meeting at the Garza
15 home. Additionally, a ledger detailing a large quantity of
marijuana sales was discovered in the Garza's house. It showed
sales to Roque Garcia. Although other persons may have also lived
in the house, the government proved that the Garzas were the lawful
occupants. The jury was entitled to believe that the Garzas were
the sellers of marijuana to the Garcia enterprise and that their
involvement went beyond a single incident.
In conclusion, after a careful review of the record, we
conclude that, viewed in the light most favorable to the verdict,
the evidence was sufficient as to all Appellants.
V. Sentencing. Eight of the Appellants raise sentencing issues.
The issues fall into four categories: computation of accountable
drugs, minor or minimal participant, acceptance of responsibility
and use of a firearm.
The standard of review is statutorily defined. The sentence
must be upheld unless the appellant demonstrates that it was
imposed in violation of the law, was imposed as a result of an
incorrect application of the guidelines, or was outside the range
of the applicable guidelines and was unreasonable. 18 U.S.C. §
3742(e); United States v. Ebertowski, 896 F.2d 906, 907 (5th Cir.
1990). This Court must give "due regard to the opportunity of the
district court to judge the credibility of witnesses" by accepting
its findings of fact unless they are clearly erroneous. 18 U.S.C.
§ 3742(d). Beyond even the clearly erroneous standard, this Court
must give due deference to the district court's application of the
16 guidelines to the facts. Id.; see United States v. Woolford, 896
F.2d 99, 103-04 (5th Cir. 1990).
1. Computation of Accountable Drugs. Filoteo, Alvarado,
Davis, Maseratti and the Garzas question the propriety of holding
them accountable for more than the amount of drugs in the specific
incidents in which they were personally involved. In Filoteo and
Alvarado's cases, at the sentencing hearing the court held them
responsible for all 914 kilograms of marijuana proved to be handled
by the Garcia enterprise, but they accepted responsibility only for
the 35 kilograms seized at the time of their arrest and 50
kilograms discussed in a telephone conversation with Garcia. Davis
admitted responsibility only for the cocaine directly attributable
to him and Buford Lachney, and he strongly opposed being held
accountable for the 144 kilograms of cocaine seized from a
warehouse on July 18, 1989. The court held Davis responsible for
all the cocaine and marijuana involved in the conspiracy.
Likewise, Maseratti and the Garzas challenged the presentence
report's recommendation that they be held accountable for 914
kilograms of marijuana. The court rejected their arguments.
The amount of drugs for which an individual shall be held
accountable at sentencing represents a factual finding, and will be
upheld unless clearly erroneous. United States v. Ponce, 917 F.2d
841, 842 (5th Cir. 1990), cert. denied, --- U.S. ---, 111 S.Ct.
1398 (1991). A factual finding is not clearly erroneous as long as
it is plausible in light of the record of the case as a whole.
17 United States v. Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied,
--- U.S. ---, 113 S.Ct. 348 (1992).
The Sentencing Guidelines allow the sentencing court to hold
a defendant accountable for all relevant conduct. United States v.
Smallwood, 920 F.2d 1231, 1237 (5th Cir. 1991). A co-conspirator
is accountable for his own conduct and the foreseeable acts of his
co-conspirators committed in furtherance of the conspiracy.
U.S.S.G. § 1B1.3(a)(1)(B); United States v. Puma, 937 F.2d 151, 159
(5th Cir. 1991), cert. denied, --- U.S. ---, 112 S.Ct. 1165 (1992).
Since the Appellants committed the offenses and were
sentenced, the Sentencing Commission has amended U.S.S.G. § 1B1.3
and its commentaries and application notes to clarify what is
relevant conduct. Amendment 439 to the guidelines effective
November 1, 1992, states "[t]his amendment clarifies and more fully
illustrates the operation of this guideline."
The revised guidelines are not applicable to the Appellants.
However, if an amendment was intended only to clarify Section
1B1.3's application and, therefore, implicitly was not intended to
make any substantive changes to it or its commentary, we may
consider the amended language of Application note 2 even though it
was not in effect at the time of the commission of the offense.
United States v. Evbuomwan, 992 F.2d 70, 74 n.1 (5th Cir. 1993);
United States v. Nissen, 928 F.2d 690, 694-95 (5th Cir. 1991).
Application note 2 makes clear that criminal liability and
relevant conduct are two different concepts, regardless of whether
the indictment includes a conspiracy allegation. A defendant is
18 accountable for the conduct of others that was both: (1) in
furtherance of the jointly undertaken criminal activity; and (2)
reasonably foreseeable in connection with that criminal activity.
The clarifying amendments provide a number of helpful
illustrations. Illustration (c)(7) is particularly pertinent:
Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. As long as Defendant S's agreement and conduct is limited to the distribution of the 500 grams, Defendant S is accountable only for that 500 gram amount (under subsection (a)(1)(A)), rather than the much larger quantity imported by Defendant R.
The illustrations indicate that it was not necessarily the intent
of the Sentencing Commission to hold persons who buy or sell drugs
to a major distributor responsible for all the drugs bought or sold
by that distributor. The district court did not have the benefit
of these clarifications at the time of sentencing. We believe that
those defendants who may be involved in less than the entire
conspiracy should have their sentences reexamined in light of these
guideline clarifications. Therefore, the sentences of Appellants
Maseratti, Davis, Alvarado, Filoteo, Severo Garza, and Deborah
Garza are vacated and their cases are remanded for resentencing in
light of the clarification of Guideline 1B1.3.
2. Minor or Minimal Participants. Davis, Maseratti, and
Pieratt contend that they should have been given credit for either
two or four level reductions as minor or minimal participants in
the criminal activity. Guideline section 3B1.2 provides a two- to
four-level reduction in the base offense level for those offenders
19 found to be relatively less culpable than others involved in the
same scheme or conspiracy. See United States v. Buenrostro, 868
F.2d 135, 137 (5th Cir. 1989), cert. denied, 495 U.S. 928. The
guidelines define "minimal participant" as one who demonstrates a
"lack of knowledge or understanding of the scope and structure of
the enterprise." U.S.S.G. § 3B1.2, comment. (n.1). A "minor
participant" is similarly defined as one who is "less culpable than
most other participants, but whose role could not be described as
minimal." Id. (n.3). Because most offenses are committed by
participants of roughly equal culpability, our Court has noted that
"it is intended that [the adjustment] will be used infrequently."
United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir.
1989). We are unpersuaded by the Appellants' suggestion that
either classification applies to them.
3. Acceptance of Responsibility. Davis and Pieratt challenge
the court's refusal to grant them a credit for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1. The court found that
Davis "has not exhibited an affirmative or timely acceptance of
responsibility for his criminal conduct." Davis claims that this
ruling is clearly erroneous because he furnished a written
statement of accountability. The probation officer in Pieratt's
case recommended against the credit because Pieratt did not make a
statement relative to his participation in the offense. Pieratt
argues that this was unnecessary because those details were
thoroughly discussed at trial.
20 The sentencing judge's factual determinations on acceptance of
responsibility are entitled to even greater deference than that
accorded under a clearly erroneous standard. United States v.
Kinder, 946 F.2d 362, 367 (5th Cir. 1991), cert. denied, --- U.S.
---, 112 S.Ct. 1677 (1992). After a careful review of the record,
we find Appellants' arguments unconvincing.
As to the remaining issues raised by the Appellants, our
detailed and painstaking review of the enormous record and briefs
in this case convinces us that the district court committed no
reversible error.
For the foregoing reasons, the judgments of conviction are
AFFIRMED and the sentences of Maseratti, Davis, Alvarado, Filoteo,
Severo Garza, Jr., and Deborah Garza are VACATED and their cases
REMANDED for resentencing.