United States v. Varon-Perez

972 F. Supp. 651, 1997 U.S. Dist. LEXIS 12331, 1997 WL 466815
CourtDistrict Court, S.D. Florida
DecidedJune 13, 1997
DocketNo. 96-342-CR
StatusPublished

This text of 972 F. Supp. 651 (United States v. Varon-Perez) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Varon-Perez, 972 F. Supp. 651, 1997 U.S. Dist. LEXIS 12331, 1997 WL 466815 (S.D. Fla. 1997).

Opinion

SENTENCING OPINION

ROETTGER, District Judge.

This heroin smuggling case by a “mule” is typical of so many drug courier cases that come through our Miami division. However, it has enough different facets to it that a sentencing opinion seems appropriate. Ms. Varon-Perez is 48 years old, has two children and resides in Colombia. Her 92-year-old mother resides with her although she has four siblings in Colombia.

As is typical in these cases, there is very little evidence of her past activities and there never seems to be any evidence of prior criminal conduct because most, if not all, of their lives have been spent in a foreign country. Consequently, the probation officer and the judge are nearly always dependent upon [652]*652what information can be gleaned from the U.S. Customs search — nearly always at Miami International Airport — and defendant’s own story as given to the probation officer which is predictably exculpatory or a litany of extenuating circumstances;

Ms. Varon-Perez entered the United States via an American Airlines flight from Bogota, Colombia. She was very nervous during the questioning by Customs’ agents and there is no question as to the legality of the border search. Although there was no proffer of evidence in this particular case, past proffers have indicated that Customs’ agents have an almost uncanny sense of when to send such new arrivals to the hospital for x-rays on the suspicion that they are carrying drugs in pellets; these pellets were, as they usually are, heroin-filled condoms which are swallowed by the drug courier before leaving the source country, often Colombia. Of course, the agents may well fail to detect such couriers, but the persons they send for x-rays almost invariably are “body carriers” or internal carriers.

The Customs’ agent’s suspicions about Ms. Varon-Perez were justified: Defendant was carrying 553 grams — 1.35 pounds — of heroin in 79 pellets which she passed in a period of five days after arrival at the hospital.

A computer records check of either Customs or the Immigration and Naturalization Service revealed that Ms. Varon-Perez had made five entries into the United States pri- or to this one in the last 18 months. She explained she had been here on buying trips; she has been selling clothes, custom jewelry and perfumes for a living since 1980.

Having so many trips to the United States in a brief period raises a suspicion that she has been a lucky drug courier who escaped detection by U.S. Customs before. On the other hand, a judge in South Florida could easily take judicial notice of the fact that there is a widespread industry from Latin American countries comprising persons who come to Miami with large empty suitcases or luggage, fill them with clothing and various other items and transport them back to Latin America for resale. This judge has seen dozens of such scenes in Miami International Airport or in the hotels in downtown Miami which seem to be, naturally enough, packing centers for the luggage.1

Of course, there is no evidence as to whether Ms. Varon-Perez was making legal trips in her alleged business of buying and selling clothing and other items or whether the purpose of the trips into the United States was illegal and she had previously escaped detection. And there is also the likely possibility she brought drugs into the United States and carried out items bought here for resale, thereby making money coming and going. However, the court is unable to make a finding as to the nature of Defendant’s prior trips to the United States.

At sentencing, Defendant objected to the probation officer’s failure to give a four-level reduction for her role in the offense, claiming she should receive a “minimal” role credit under Section 3B1.2 of the United States Sentencing Guidelines Manual (1995). In the alternative, Defendant sought to be declared a “minor” participant in the offense to receive a two-level reduction under Section 3B1.2. Defendant’s objections were overruled.

CONCLUSIONS OF LAW

The United States Sentencing Guidelines Manual § 3B1.2 (1995) provides for downward adjustments of a defendant’s offense level to reflect his or her limited role in a particular criminal activity. This provision, titled “Mitigating Role,” allows for a four-point decrease for defendants who were minimal participants or a two-point decrease for defendants who were minor participants. The Application Notes to Section 3B1.2 define “minimal” as the least culpable category reserved for defendants who are “plainly among the least culpable of those involved in the conduct of a group.” The Application Notes explain that the downward adjustment for a minimal participant should be used infrequently. “Minor” is defined as more [653]*653culpable than minimal, but “less culpable than most other participants.” According to the Background Note, the determination of whether a defendant is a “minimal” or a “minor” participant is heavily dependent upon the facts of the particular case. See United States v. Smith, 918 F.2d 1551, 1556-56 (11th Cir.1990) (emphasis supplied).

The conduct of all necessary participants in the criminal activity is relevant in making the determination about whether this provision of the Sentencing Guidelines applies. United States v. Costales, 5 F.3d 480, 484 (11th Cir.1993). A court must find that the “relevant conduct” for which a defendant would otherwise be accountable involved more than one participant. Id. A court must also find that a defendant’s culpability for such conduct paled in comparison to that of other participants. Id. at 485. Section 3B1.2 was inapplicable in Costales since only one “participant” was criminally responsible in receiving child pornography through the mail. Id. at 484-85.

In this case, Defendant based her request for a downward adjustment on the fact that she was merely a drug courier who did not know the drugs were heroin. However, the Eleventh Circuit, relying on United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990), has held that role reduction turns upon culpability, not courier status. Smith, 918 F.2d at 1566. A defendant courier may be just as culpable as other participants. Id. The Eleventh Circuit has recently reiterated that cornier status alone does not necessarily constitute a mitigating role. United States v. Veloza, 83 F.3d 380, 381 (11th Cir.1996). The court held that “a courier who carried drugs into the U.S. does not alone establish that he was a minor participant in the conspiracy.” Veloza, 83 F.3d at 381.

The defendant relies upon United States v. De Ramirez, Case Number 92-0295-CR-ATKINS (S.D.Fla. September 30, 1992) as a similar case involving a “mule” in which the district court accorded the defendant a four-level decrease as a minimal participant. However, the instant case is factually distinguishable. The “mule” in De Ramirez agreed to act as a drug courier and was taken to a hotel the night before her flight.

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United States v. Cardozo Veloza
83 F.3d 380 (Eleventh Circuit, 1996)
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951 F.2d 308 (Eleventh Circuit, 1992)
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Bluebook (online)
972 F. Supp. 651, 1997 U.S. Dist. LEXIS 12331, 1997 WL 466815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-varon-perez-flsd-1997.