Rosier v. USPC , 109 F.3d 212 ( 1997 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60541
Summary Calendar
VICTOR LEE ROSIER,
Petitioner,
VERSUS
UNITED STATES PAROLE COMMISSION,
Respondent.
Appeal from the United States District Court
for the Northern District of Texas
February 24, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:
The Mexican Federal Judicial Police arrested Victor Lee
Rosier, a United States Citizen, in Tijuana, Mexico, near the
Ysidoro port of entry to the United States, when they found him
parked in a van containing marijuana. The arrest occurred
following a search of the vehicle Rosier was driving which
discovered three tool-parts boxes holding 146.25 kilograms of
marijuana. Rosier was convicted and sentenced in Mexico for
possession of marijuana. Pursuant to the Treaty on Executions of
Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399, T.I.A.S.
No. 8718, Rosier was transferred to the United States to serve his
sentence.
Upon transfer, the Parole Commission determined a release date
and a period and conditions of supervised release for Rosier. See
18 U.S.C. § 4106A(b)(1)(A). At the transfer hearing, and in an
interview with the probation officer, Rosier explained that Victor
Vega, for whom he worked as a landscaper, asked him to help move
the van to a friend’s house. Rosier stated that Vega promised to
pay him a “certain amount of money” after the vehicle was delivered
to his friend’s house across the border. Rosier explained to
Mexican authorities that although he was never told that marijuana
was in the van, he suspected this might be the case given the
amount of money he was to be paid and that those persons involved
had many weapons at their home and on their persons. Rosier also
explained to the Mexican authorities that he had received money for
driving the van for “Victor N.” on other occasions.
On October 6, 1994, Rosier and Vega crossed the border from
California and entered Tijuana, Mexico, to retrieve the van. Vega
gave the keys to the van to Rosier and Rosier followed Vega to the
friend’s house, where Rosier was instructed to give the keys to
Vega’s friend. Rosier parked the van at Vega’s friend’s house and
delivered the keys. Rosier was subsequently arrested. Vega’s
friend identified Rosier as the driver of the van. Mexican
authorities convicted and sentenced Rosier to five years
imprisonment.
2
After his transfer to the United States, the probation officer
calculated Rosier’s base offense level at 26 by using the United
States federal offense of possession of marijuana with intent to
distribute, 21 U.S.C. § 841(b)(1)(B), which was the offense most
analogous to Rosier’s criminal offense in Mexico. See 18 U.S.C. §
4106A(b)(1)(A).
At his transfer hearing, Rosier requested a downward
adjustment for a “minor” or a “minimal” role contending that he was
no more than “a mule, perhaps even an unwitting mule.” The Parole
Commission determined that Rosier’s sentence should be adjusted
downward for his “minor” role in the offense, stating that “[h]e
clearly fits the profile of a mule and according to the testimony
was not even aware that drugs were involved, although he did
suspect that they may in some way be involved.” A base offense
level of 24, with the minor role reduction, combined with Rosier’s
criminal history category of II, resulted in a guideline
imprisonment range of 57-71 months.
Rosier appeals from the Parole Commission’s decision,
contending that the Parole Commission clearly erred when it reduced
his sentence for a “minor” role in the offense instead of applying
the guideline reduction for his “minimal” role, which carries a
greater downward reduction. Assuming Rosier raised this issue
below,1 we review the Commissioner’s determination under the
sentencing guidelines de novo. See Molano-Garcia v. United States
1
The Parole Commission contends that Rosier failed to
object to his sentence below and raises this objection for the
first time on appeal.
3
Parole Comm’n, 965 F.2d 20, 23 (5th Cir. 1992). We review the
Parole Commission’s factual findings for clear error. See Id.
The United States Sentencing Guidelines2 distinguish between
a “minor” and “minimal” participant in the commentary, noting that
minimal status is “intended to cover defendants who are plainly
among the least culpable ... [and a] defendant’s lack of knowledge
or understanding of the scope and structure of the enterprise and
of the activities of others is indicative of a role as minimal
participant.” See U.S.S.G. § 3B1.2, comment. (n.1). The
commentary further states that the “downward adjustment for a
minimal participant will be used unfrequently” and provides an
example of a one-time courier recruited to smuggle a small amount
of drugs as an appropriate candidate for minimal participant
status. U.S.S.G. § 3B1.2, comment. (n.2). A “minor” participant,
on the other hand, is described as “any participant who is less
culpable than most other participants, but whose role could not be
described as minimal.” U.S.S.G. § 3B1.2, comment. (n.3).
Whether to apply the “minor” or the “minimal” adjustment to a
sentence involves a determination that is heavily dependent upon
the facts of the particular case. An offender’s status as a mere
courier does not necessarily mean that he is entitled to a
reduction in sentence. See, e.g., United States v. Bethley, 973
F.2d 396, 401 (5th Cir. 1992) (holding that a transporter of drugs
is not entitled to a minor or minimal participant status).
2
U.S.S.G. § 3B1.2.
4
After carefully reviewing the briefs, the record excerpts and
relevant portions of the record itself, we hold that the Parole
Commission did not err in applying the “minor” participant
departure rather than the “minimal” participant departure in this
case. Rosier admitted to Mexican authorities that he had driven
the vehicle on other occasions and that he was paid large sums of
money for doing so. He also admitted that he suspected that drugs
were in the van. Rosier cannot, therefore, reasonably assert that
he lacked knowledge or understanding of the enterprise to the
degree necessary to support a reduction as a minimal participant.
For the foregoing reasons, we AFFIRM the decision of the Parole
Commission.
AFFIRMED.
5