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October 16, 1995 [NOT FOR PUBLICATION]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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Lynch, Circuit Judge,
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and Watson,* Senior Judge.
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Benicio Sanchez Rivera, Federal Public Defender, and Laura
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Maldonado Rodriguez, Assistant Federal Public Defender, on brief for
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appellant.
Guillermo Gil, United States Attorney, Nelson Perez-Sosa,
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Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior
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Litigation Counsel, on brief for appellee.
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*Senior Judge, U.S. Court of International Trade, sitting by
designation.
Per Curiam. Appellant Nancy Valdes-Bretones,
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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.
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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
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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.
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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.
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Brandon, 17 F.3d 409, 460 (1st Cir.), cert. denied, 115 S.Ct.
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80 (1994).
A criminal defendant has the burden of proving an
entitlement to a downward adjustment. U.S. v. Lopez-Gil, 965
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F.2d 1124 (1st Cir.), cert. denied, 113 S. Ct. 483 (1992).
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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.
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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
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Uribe, 891 F.2d 396, 399 (1st Cir. 1989), cert. denied, 495
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U.S. 951 (1990). See U.S. v. Garcia, 920 F.2d 153, 155 (2d
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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
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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
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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,
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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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