United States v. Valdez-Bretones

Opinion

USCA1 Opinion

October 16, 1995      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 95-1208 



                                    UNITED STATES,

                                      Appellee,



                                          v.



                                NANCY VALDES-BRETONES,

                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                                Lynch, Circuit Judge,
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                             and Watson,* Senior Judge. 
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            Benicio  Sanchez  Rivera,  Federal   Public  Defender,  and  Laura
            ________________________                                     _____

        Maldonado Rodriguez,  Assistant Federal Public Defender,  on brief for
        ___________________

        appellant.

            Guillermo  Gil,   United  States   Attorney,  Nelson   Perez-Sosa,
            ______________                                ___________________

        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior
                                               _______________________

        Litigation Counsel, on brief for appellee.



                                 ____________________


____________________



                        
        ________________

        *Senior Judge, U.S. Court of International Trade, sitting by 

         designation.



Per  Curiam.    Appellant   Nancy  Valdes-Bretones,
                      ___________



            having  pled guilty to  possession of cocaine  with intent to



            distribute, 21  U.S.C.   841(a)(1),1  challenges the district



            court's denial of a downward adjustment in her offense  level



            due to her alleged "minor  participant" status.  See U.S.S.G.
                                                             ___



              3B1.2.  We affirm.



                                          I.



                      We recount  only those  facts necessary to  a basic



            understanding  of the  issue  on appeal.2   Additional  facts



            will be incorporated as necessary.  



                      After a trip to Aruba, appellant returned to Puerto



            Rico  on  the morning  of July  5,  1994, aboard  an American



            Airlines  flight.    She  wore  an  American  Eagle  uniform.



            American  Airlines security  personnel observed  her approach



            from the  aircrew elevator area.  She  told them that she was



            leaving later that  day to go  to New York  and asked if  she



            could  leave a suitcase with them until then, when either she



            or  her cousin  would  pick it  up  prior to  boarding  their



            connecting flight.  


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            1.  Appellant  was charged  with  violating 21  U.S.C.    841

            (a)(1)  and 21  U.S.C.     952(a).    Pursuant  to  the  plea

            agreement, the latter charge was dropped.  



            2.  Since  this conviction  resulted from  a guilty  plea, we

            draw  the   facts  from  the  uncontested   portions  of  the

            presentence report ("PSR") and the transcript of the hearing.

            U.S. v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).  
            _____________



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The  security  personnel   X-rayed  the   suitcase,



            observed what they believed to be narcotics, and notified the



            U.S.  Customs service.  A  K-9 dog indicated  the presence of



            narcotics.   Search of  the  bag revealed  9.85 kilograms  of



            cocaine,3 later determined  to be 93% pure,  and $8,390.00 in



            U.S. currency. 



                      Later that afternoon, appellant boarded an airplane



            for Newark.  She  was detained on board  by a Customs  agent.



            She was questioned and  ultimately arrested.  At the  time of



            her arrest she  was not wearing  the American Eagle  uniform.



            She was  carrying  a cellular  phone  and $2,896.00  in  U.S.



            currency.   A subsequent  search of  her apartment  turned up



            $5,000.00 in U.S. currency, and an American Eagle uniform.4 



                      Based on  the quantity and type  of drugs involved,



            appellant was  given a base offense level  of 30.  U.S.S.G.  



            2D1.1.    This was  reduced by  three  levels because  of her



            guilty  plea and  her  timely acceptance  of  responsibility.



            U.S.S.G.    3E1.1.  With a  total offense level of  27, and a



            criminal history category of I, the  guidelines called for 70



            to 87 months of imprisonment, with a fine range of $12,500.00


____________________



            3.  For  purposes of  sentencing, the  amount of  cocaine was

            stipulated at 4.92 kilograms.



            4.  Investigation revealed that while appellant had once been

            an American Airlines  employee, she  had not  worked for  the

            airline since May, 1993.  Prior to that time, she  had worked

            with the Wackenhut Security  Company at the American Airlines

            terminal and with the U.S. Immigration Service in New York.  



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to $2,000,000.00 plus supervised  release.  The court imposed



            a  70   month  sentence   and  a  $50.00   "special  monetary



            assessment."                  II.



                      The Sentencing Guidelines provide for a decrease of



            two  levels  when  a  defendant is  a  minor  participant  in



            criminal activity.   Application Note  3 to U.S.S.G.    3B1.2



            explains that "a minor  participant means any participant who



            is less culpable than most other participants, but whose role



            could not be described as minimal."   



                      Role-in-the-offense  determinations  are  "innately



            fact specific."  U.S. v. Rostoff,  53 F.3d 398, 413 (1st Cir.
                             _______________



            1995).  "[O]ur standard of oversight is deferential:  `absent



            mistake of law, we review such determinations only for  clear



            error.'"  Id. (internal quotation  omitted).  We will reverse
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            the  district  court's  decision  not  to  grant  a  downward



            adjustment  "only if the evidence overwhelmingly demonstrates



            that the defendant played a part that makes him substantially



            less  culpable than  the  average participant...."   U.S.  v.
                                                                 ________



            Brandon, 17 F.3d 409, 460 (1st Cir.), cert. denied, 115 S.Ct.
            _______                               _____ ______



            80 (1994).



                      A criminal  defendant has the burden  of proving an



            entitlement to a downward adjustment.  U.S. v. Lopez-Gil, 965
                                                   _________________



            F.2d 1124  (1st Cir.),  cert. denied,  113 S.Ct.  483 (1992).
                                    _____ ______



            The question  whether a criminal  defendant is entitled  to a



            downward  adjustment  is  based  ultimately  on  the  court's


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consideration of the facts of each particular case.  U.S.S.G.



              3B1.2, comment. (backg'd.).  



                      The  probation  officer  observed  in  his  report,



            adopted  by the district court,  that no role  in the offense



            adjustment   was   warranted   because   of   the   lack   of



            substantiating  evidence to  establish a  criminal hierarchy.



            In response  to appellant's  objection that there  were other



            people  involved  and  she played  only  a  minor  role as  a



            courier, the report noted that the facts of this case did not



            reflect  that appellant  was  a typical  courier with  little



            knowledge  and understanding of  the nature and  scope of the



            criminal activity.  A. 3-4.  The officer detailed his reasons



            for  this conclusion:  appellant,  who had not  for some time



            been an  American Eagle  employee, nonetheless  brought along



            her  uniform on a business  and pleasure trip  to Aruba; once



            the plane  returned to  Puerto Rico,  she separated from  the



            people  she  had  traveled  with  and  circumvented   several



            inspection points.  The officer considered as well the amount



            of drugs involved and the high degree of purity.  Id.  
                                                              ___



                      Appellant  reiterates  before this  court arguments



            rejected  by  the   district  court.5    They   are  no  more



                                
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            5.  We  have  reviewed appellant's  claim  that the  district

            court may  not ever have seen certain documents purporting to

            show that there was at least one other person involved in the

            smuggling  scheme.    Assuming  that appellant  had  in  fact

            provided certain documents to the probation officer which the

            probation officer  neglected  to hand  to  the court  at  the

            hearing  - an assumption not wholly supported by the record -



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persuasive here.  We  have specifically rejected the argument



            that status  as  a drug  courier,  without more,  entitles  a



            defendant to a reduction of the offense level as a minimal or



            minor  participant.  Lopez-Gil, 965 F.2d at 1131; U.S. v. Paz
                                 _________                    ___________



            Uribe, 891 F.2d 396,  399 (1st Cir. 1989), cert.  denied, 495
            _____                                      _____  ______



            U.S. 951 (1990).   See U.S. v. Garcia, 920  F.2d 153, 155 (2d
                               ___ ______________



            Cir.  1990)  ("[w]hile in  certain  cases  and on  particular



            facts,  a  district court  might  conclude  that a  defendant



            courier was  `substantially  less culpable  than the  average



            participant' and thus make  a downward adjustment pursuant to



              3B1.2,  this  conclusion  is  by  no  means  mandated.  ...



            Couriers are  indispensable to the smuggling  and delivery of



            drugs and their proceeds.").



                      Balanced against  appellant's  claim that  she  was



            only  a minor  part  of a  larger  enterprise is  the  record



            evidence as found  or adopted6  by the district  court:   the



                                
            ____________________



            we are not  convinced that  appellant has been  harmed.   The

            court permitted  testimony at  the sentencing hearing  to the

            effect  that defendant  had consistently  claimed there  were

            others involved.   A. 38-39.   The government  indicated that

            defendant, when arrested, alleged that a  person in Aruba had

            provided her with  the drugs.  A. 41.   Whether in fact there

            were others involved,  the court did not find  that appellant

            was substantially less culpable than they.  Given the details

            of  the scheme, the weight and  purity of the cocaine and the

            amount of  money  involved, the  court had  ample grounds  on

            which to deny appellant a downward adjustment.    



            6.  Appellant claims  that the district court  failed to make

            findings  in  support of  its rejection  of  her role  in the

            offense   adjustment.  We have already observed that the PSR,

            adopted by the district court, sets out sufficient reasons in

            support  of the denial of the role in the offense adjustment.



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considerable amount of  cocaine involved; the cocaine's  high



            degree of purity,  see U.S.S.G.   2D1.1, comment.  (n.9); the
                               ___



            planning  involved in  the  smuggling scheme;  and the  large



            amount of cash  found with the  drugs, on appellant's  person



            and in her home.  



                      We have  not been  shown that the  district court's



            failure  to grant appellant a  downward adjustment was in any



            way  erroneous.    On  this record,  oral  argument  will not



            advance appellant's case.  Accordingly, the  district court's



            decision is affirmed.  Loc. R. 27.1.  
                        ________


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            We find appellant's argument untenable in light of our recent

            decision  in U.S.  v. Catano,  ___F.3d___, ___,  No. 94-1502,
                         _______________

            slip op. at 26 (1st Cir. Sept. 18, 1995)("in a case where the

            PSR  findings themselves  adequately set  forth a  meaningful

            rationale  for the sentence, a district judge does not err in

            adopting such findings.").        



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