United States v. Parra-Bojorquez , 1 F. App'x 778 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
JAN 4 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES of AMERICA,
Plaintiff-Appellee, Nos. 00-4016, 00-4079
v. D. Utah
JUAN PABLO PARRA-GARCIA; (D.C. No. 99-CR-202-1)
JUAN CARLOS PARRA-
BOJORQUEZ,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before TACHA , MCKAY , and HENRY , Circuit Judges.
Mr. Juan Carlos Parra-Bojorquez and Mr. Juan Pablo Parra-Garcia appeal
the district court’s denial of their respective motions to suppress evidence of
contraband seized during a pat-down search on April 19, 1999, at the Salt Lake
City International Airport. Mr. Parra-Bojorquez also appeals the sentencing
*
This order and judgment is not binding precedent, except under the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.
court’s decision not to grant a downward departure based on either his aberrant
conduct or his status as a minor participant. For the reasons set forth below, we
affirm the defendants’ convictions and sentences. We dismiss Mr. Parra-
Borjorquez’s appeal insofar as it challenges the district court’s refusal to depart
downward.
I. BACKGROUND
The relevant facts are as follows. On April 19, 1999, Officers Patricia
Roberts, Don Hutson and Special Agent Jim Wetzel were on duty as members of
the DEA Metro Narcotics Task Force in Salt Lake City, Utah. At that time these
officers were assigned to an airport drug interdiction unit at the Salt Lake City
International Airport. On that same date, Agent Wetzel received information
from Task Force Officer Leslie Tate of St. Louis, Missouri that three men,
identified as Carlos Parra (Juan Carlos Parra-Bojorquez, herein “Mr. Parra”),
Robert De La Cruz, (an alias for defendant Mr. Parra-Garcia), and Sean Herrera,
had purchased one-way tickets in Los Angeles, California twenty minutes before
the airplane’s departure time. The destination of the Los Angeles flight was Salt
Lake City, Utah. Agent Wetzel disclosed this information to Officers Roberts
and Hutson. The officers verified that there was in fact a Southwest Airlines
flight set to arrive from Los Angeles at 11:00 a.m. that day.
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The officers arrived at the gate and watched the passengers disembark from
the plane following its arrival from Los Angeles. Three male Hispanic
passengers deplaned together, two of them carrying bags. The three men were
later identified as Mr. Parra, Mr. Parra-Garcia, and Sean Herrera. Shortly after
the men exited the plane together, they began to separate, walking approximately
three to five yards apart in a somewhat single-file manner with Mr. Herrera in
front, followed by Mr. Parra and then Mr. Parra-Garcia. The officers testified
that Mr. Parra-Garcia and Mr. Herrera looked behind them more than once.
At one point, Mr. Herrera slowed down and allowed Mr. Parra to catch up
with him. Mr. Herrera then handed Mr. Parra a black nylon duffle bag and then
separated himself from Mr. Parra, walking three to five yards apart from him as
they boarded the escalator and the moving sidewalk leading to the parking
garage. While riding the moving sidewalk, Mr. Herrera appeared to notice
Officer Hutson, who was watching him from a distance. Mr. Herrera
immediately began to walk rapidly toward the parking lot and then veered toward
the rental car area. Agent Wetzel followed closely behind Mr. Herrera. Officer
Roberts followed Mr. Parra-Garcia, who was also walking in the same direction
as Mr. Herrera. Officer Hutson followed closely behind Mr. Parra, who turned
left and walked toward the elevators.
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Officer Hutson displayed his badge to Mr. Parra and informed him that he
was a police officer. At the same time, Officer Roberts approached Mr. Parra-
Garcia. Officer Roberts, testified that, when she approached Mr. Parra-Garcia,
he would not make eye contact with her and the blood visibly drained from his
face. Mr. Parra-Garcia indicated to Officer Roberts that he did not speak
English. Officer Roberts told Mr. Parra-Garcia that Officer Hutson spoke
Spanish, and she walked with Mr. Parra-Garcia to the location where Officer
Hutson and Mr. Parra were standing. 1
Officer Hutson then began speaking in Spanish to Messrs. Parra and Parra-
Garcia. Officer Hutson asked Messrs. Parra and Parra-Garcia for airline tickets
and identification. Mr. Parra responded by retrieving his wallet and Mexican
voting card. After examining the documents, Officer Hutson returned the
materials to him. Officer Hutson then asked Messrs. Parra and Parra-Garcia if
the officers could search their bags. Mr. Parra said “yes,” and Mr. Parra-Garcia
nodded affirmatively, indicating that he also consented to the search. The search
of the bags did not reveal any illegal substances.
Officer Hutson then asked Mr. Parra if he could search his person. Mr.
Parra nodded his head affirmatively and then began searching himself by patting
1
Agent Wetzel eventually joined the group after having asked Mr. Herrera
for permission to search his person and receiving a negative response. After
declining consent to be searched, Mr. Herrera walked away.
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his body, lifting his shirt and then pulling his shirt away from his body. During
this time, Officer Roberts was kneeling down, re-packing Mr. Parra’s bag. She
looked up while Mr. Parra was searching himself and noticed a horizontal strap
across Mr. Parra’s torso. Based on her experience and training, she immediately
suspected that Mr. Parra was a body packer for narcotics. Officer Roberts
informed Officer Hutson of the body strap.
Officer Hutson then noticed a sound as if tape were being put on material
and then pulled off. Officer Hutson also observed a distinct, hard square bulge
under Mr. Parra’s right arm. Agent Wetzel then asked Mr. Parra-Garcia, in
Spanish, whether he would consent to a body search. Mr. Parra-Garcia agreed,
and the search revealed drugs under his right arm. Officer Hutson then continued
his search of Mr. Parra and found two rectangular objects under each of Mr.
Parra’s arms containing a white, powdery substance which was later tested and
identified as cocaine. Both Messrs. Parra and Para-Garcia were arrested.
A federal grand jury indicted Messrs. Parra and Parra-Garcia with one
count each of possession of cocaine with intent to distribute, and aiding and
abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Both pleaded
guilty to the charge. The district court sentenced Mr. Parra to seventy months in
prison, followed by thirty-six months of supervised release. It sentenced Mr.
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Parra-Garcia to one-hundred months in prison, followed by thirty-six months of
supervised release.
Mr. Parra and Mr. Parra-Garcia filed motions to suppress the cocaine,
arguing that Officer Hutson lacked reasonable suspicion to detain them. The
district court held an evidentiary hearing on each of the motions. The involved
officers testified at the hearings. The district court made thorough findings of
fact and found the officers’ testimony credible. Applying the factors set forth in
United States v. Torres-Guevara , 147 F.3d 1261, 1264-65 (10th Cir. 1998), the
court concluded that the encounter remained consensual and was not an
investigative detention implicating the Fourth Amendment. Accordingly, it
denied the motions to suppress. Mr. Parra also appeals the sentencing court’s
refusal to depart for his alleged involvement as a minor participant under USSG
§3B1.2 and for aberrant conduct pursuant to USSG §5K2.0.
II. DISCUSSION
A. Motions to Suppress
When reviewing the district court’s denial of a motion to suppress, we
accept its factual findings unless they are clearly erroneous. United States v.
Arzaga , 9 F.3d 91, 93 (10th Cir. 1993). In doing so, we consider the totality of
the circumstances and view the evidence in the light most favorable to the
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government. United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998).
The credibility of witnesses, the weight to be given evidence, and the reasonable
inferences drawn from the evidence fall within the province of the district court.
Id. However, the determination of whether a seizure occurred and the ultimate
determination of reasonableness under the Fourth Amendment are questions of
law reviewable de novo. Id.
1. Voluntariness of Encounter
In order to resolve the related question of whether the encounter was
consensual, and whether defendants voluntarily consented to the searches, we
evaluate the totality of the circumstances, with the government bearing the burden
of proof. United States v. McRae , 81 F.3d 1528, 1536-37 (10th Cir. 1996). The
government must show that there was “no duress or coercion, express or implied,
that the consent was unequivocal and specific, and that it was freely and
intelligently given.” United States v. Nicholson , 987 F.2d 983, 988 (10th Cir.
1993); see United States v. Hudson , 93 F.3d 1493, 1498 (10th Cir. 1996) (when
determining consensual nature of encounter, considering whether the defendant
“is free to leave at any time during the encounter”).
Our review of the record reveals no evidence of duress or coercion. See
United States v. Zapata , 997 F.2d 751, 756-57 (10th Cir. 1993) (listing various
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factors we consider “in determining whether a police-citizen encounter becomes a
seizure”). The plainclothesed officers never brandished or displayed their
weapons. See United States v. Soto, 988 F.2d 1548, 1558 (10th Cir.1993)
(relying, in part, on the fact that an officer “did not unholster his weapon” in
affirming a finding that the defendant’s consent was voluntary). The officers
made no threats while asking a series of relatively routine questions. The
encounter occurred in public space at the airport. Officer Hutson testified that he
returned Mr. Parra’s identification to him prior to asking permission to search his
belongings and person. See Florida v. Royer , 460 U.S. 491, 501 (1983)
(permissible for agents to examine a passenger’s ticket and driver’s license);
United States v. Gonzalez-Lerma , 14 F.3d 1479, 1483 (10th Cir. 1994) (“This
Circuit follows the bright-line rule that an encounter initiated by a traffic stop
may not be deemed consensual unless the driver’s documents have been returned
to him.”); United States v. Werking , 915 F.2d 1404, 1410 (10th Cir. 1990)
(affirming a district court finding of no duress when an officer returned driver’s
license and registration before asking to search). The district court found Officer
Hutson’s testimony that he promptly returned Mr. Parra’s identification credible.
Finally, there was no apparent physical touching or physical restraint of the
defendants.
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The defendants’ strongest argument in support of coercion stems from the
conduct of Officer Roberts. The record indicates that, when Mr. Parra-Garcia
stepped off the moving walkway, Officer Roberts displayed her badge. Mr. Parra-
Garcia quickened his pace, and Officer Roberts had to increase her gait to keep
alongside him. After determining that Mr. Parra-Garcia did not speak English,
she motioned him to escort her over to where Officer Hutson and Mr. Parra were
standing, approximately fifteen feet away. In addition, the defendants were never
informed that they need not answer the officers’ questions and that they could
refuse to consent to a search of their persons or luggage. See Zapata , 997 F.2d at
757 (noting that such statements by officers are relevant to the determination of
whether the encounter is consensual).
“[A] person is ‘seized’ only when, by means of physical force or a show of
authority, his freedom of movement is restrained.” United States v. Mendenhall ,
446 U.S. 544, 553 (1980). Additionally, a seizure is objectively measured by
whether under “all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.” Id. at 554. Although
the defendants were not advised they were free to go, there is no per se rule that
requires an advisement that the defendants are free to leave. See United States v.
Little , 18 F.3d 1499, 1505 (10th Cir. 1994) (“There is no per se rule requiring
such an advisement.”); see also United States v. Anderson , 114 F.3d 1059, 1064
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(10th Cir.1997) (“While [the officer] did not specifically tell [defendant] that he
was free to leave, that is not required for an encounter to be consensual.”). We
hold that, based on the totality of the circumstances, after Mr. Parra received his
identification back, there was no coercive police conduct. At this time, the
defendants engaged in an consensual encounter with the officers. See Werking ,
915 F.2d at 1408.
Although not specifically contested, we note that each defendant’s consent
was specific and unequivocal. Each officer specifically sought permission to
search the defendants’ luggage and persons. see Zapata , 997 F.2d at 758, and
there is no indication that defendants’ consent was anything less than
unequivocal, specific, and freely and intelligently given. Thus the district court
did not err when it refused to suppress the evidence.
C. Mr. Parra’s Sentencing Appeal
Mr. Parra contends that the district court erred when it refused to grant him
a downward departure based on his status as either a minor participant in the
transaction or for his aberrant conduct. We hold the district court did not so err.
1. Minor Participant
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Mr. Parra contends that the district court erred when it found him to be
more than a minor participant in the transaction. Mr. Parra bears the burden of
proving his entitlement to an offense level reduction by a preponderance of the
evidence. United States v. Smith , 131 F.3d 1392, 1399 (10th Cir. 1997). We
review the district court’s factual findings regarding sentencing for clear error
and its legal interpretation of the Guidelines de novo. United States v.
Maldonado-Acosta , 210 F.3d 1182, 1183 (10th Cir. 2000).
Section 3B1.2 “vests the district court with discretion to grant a base
offense level reduction if it finds a defendant is less culpable relative to other
participants in a given offense.” United States v. Santistevan , 39 F.3d 250, 254
(10th Cir. 1994). Subsection 3B1.2(b) provides a two-level reduction if the
defendant acted as a “minor participant” in the offense.
Mr. Parra contends that he was merely an intermediary transporter of drugs
and that there were other individuals involved besides Mr. Parra-Garcia and
himself. He contends that the district court erred when it considered only the
culpability of Messrs. Parra and Parra-Garcia at sentencing. See Rec. vol. II,
Case No. 00-4016, doc. 2 at pp. 13-16 (Tr. of Sentencing Hr’g, Jan. 18, 2000).
We agree with Mr. Parra’s argument that a courier may be eligible for a
minor participant adjustment by “looking at the contours of the underlying scheme
rather than the mere elements of the offense charged.” United States v. Harfst ,
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168 F.3d 398, 403 (10th Cir. 1999) (quotation marks omitted). We also agree that
the district court’s reference to the participants charged suggest that its inquiry
was somewhat limited in scope. At the same time, the transcript indicates Mr.
Parra chose not to testify regarding other members of the distribution scheme.
See id. at 15. The district court could only consider the evidence it had before it.
In addition, our precedent indicates that Mr. Parra’s status as courier does
not automatically entitle him to a downward departure. See United States v.
Ballard , 16 F.3d 1110, 1114 (10th Cir. 1994) (stating that “this court has refused
to adopt a per se rule that couriers are minor or minimal participants”). In fact,
we have noted that a courier’s services may be “as indispensable to the
completion of the criminal activity as those of the seller . . . and the buyer . . . and
. . . to debate which one is less culpable than the others is not productive.” Id. at
1115 (quotation marks and citations omitted).
Regarding the culpability of a defendant, we consider a sentence reduction
appropriate when “‘an individual was recruited as a courier for a single smuggling
transaction involving a small amount of drugs.’” United States v. Martinez , 983
F.2d 968, 977 (10th Cir.1992) (quoting USSG § 3B1.2 cmt. (n.1)). In a
transaction involving over two kilograms of cocaine, the district court did not
clearly err in finding that Mr. Parra did not prove by a preponderance of the
evidence that he was a minor participant.
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2. Aberrant Conduct
Mr. Parra also objects to the district court’s refusal to grant a downward
departure from the sentencing guidelines. At the sentencing hearing, Mr. Parra
argued that a downward departure was warranted in his case based on the aberrant
nature of his criminal offense conduct. See United States v. Jones , 158 F.3d 492,
500 (10th Cir.1998) (considering aberrant conduct as a “mitigating factor in a
downward departure decision”).
We “cannot exercise jurisdiction to review a sentencing court’s refusal to
depart from the sentencing guidelines except in the very rare circumstance that
the district court states that it does not have any authority to depart from the
sentencing guideline range for the entire class of circumstances proffered by the
defendant.” United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). The
sentencing court considered Mr. Parra’s arguments and acknowledged that it did
have authority to consider Mr. Parra’s conduct as a factor in a departure decision.
Therefore, we lack jurisdiction to review the court’s refusal to depart.
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For the reasons stated above, we AFFIRM the district court’s denial of
defendants’ motions to dismiss and we AFFIRM the district court’s decision not
to grant Mr. Parra a two-level reduction in his offense level. As to the district
court’s decision refusing to depart downward, we DISMISS this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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