United States v. Torrez

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 7, 2004
• Docket: 03-2089
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 7 2004 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-2089 v. (D.C. No. CR-02-1463 - JC) GARLAND TORREZ, (D. New Mexico)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before BRISCOE , McKAY , and HARTZ , Circuit Judges.

On May 8, 2002, Defendant was stopped at a Border Patrol checkpoint on

Interstate 25 near Truth or Consequences, New Mexico. After he gave officers

permission to search his vehicle, they found nearly 20 kilograms of marijuana in

the trunk and arrested him. Defendant pleaded guilty to possessing less than 50

kilograms of marijuana with intent to distribute, in violation of 21 U.S.C.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. §§ 841(a)(1) and 841(b)(1)(D). At sentencing, Defendant asserted that he was

entitled to a four-level downward adjustment in his offense level because he was

a “minimal participant” under U.S.S.G. § 3B1.2. The district court denied the

adjustment and sentenced him to 18 months in prison. Defendant appeals.

A sentencing court’s refusal to award a defendant minimal-participant

status is a finding of fact that we review for clear error. United States v. Virgen-

Chavarin, 350 F.3d 1122, 1131 (10th Cir. 2003). We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm.

U.S.S.G. § 3B1.2 provides for a downward adjustment for defendants who

were minimal or minor participants in an offense. It applies to 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, Application Note 3(A). “‘A

defendant has the burden of establishing, by a preponderance of the evidence, that

he is entitled to a reduction in [his] base offense level under § 3B1.2.’” Virgen-

Chavarin, 350 F.3d at 1131 (quoting United States v. Onheiber, 173 F.3d 1254,

1258 (10th Cir. 1999)). We have held that a drug courier is not necessarily a

minimal participant in a drug transaction. See United States v. Sukiz-Grado, 22

F.3d 1006, 1009 (10th Cir. 1994); see also United States v. Ballard, 16 F.3d 1110,

1115 (10th Cir. 1994) (noting that courier’s transportation of drugs is “as

indispensable to the completion of the criminal activity as those of the seller . . .

-2- and the buyer. . . .” (internal quotation marks and citation omitted)).

Furthermore, to weigh the relative culpability of participants, “evidence must

exist of other participants and their role in the criminal activity.” Sukiz-Grado,

22 F.3d at 1009 (internal quotation marks omitted). “The defendant’s own

assertion that he was a minimal participant is not enough to overcome the clearly

erroneous standard.” Virgen-Chavarin, 350 F.3d at 1131.

The record provides no information about the scheme in which Defendant

was involved. By Defendant’s own admission, “[t]he only evidence on this issue

before the trial court was [Defendant’s] statement . . . that [he] was to deliver the

marijuana to another individual and receive payment of $1,000. . . .” Aplt. Br. at

4. Defendant contends that he is entitled to the downward adjustment because

this evidence “shows that [Defendant] was merely a courier with no personal

ownership interest in the contraband, who was to be paid a modest flat sum for

his participation.” Id. We disagree. This evidence did not require the court to

find that Defendant was “substantially less culpable than the average participant,”

see U.S.S.G § 3B1.2, Application Note 3(A). Indeed, it tells the court little about

other participants or their relative levels of culpability. The district court did not

clearly err in finding that Defendant was not a minimal participant.

-3- We AFFIRM the district court.

ENTERED FOR THE COURT

Harris L Hartz Circuit Judge

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