DocketNumber： 92-1722
Filed Date： 11/19/1992
Status： Precedential
Modified Date： 9/21/2015
November 19, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1722
UNITED STATES OF AMERICA,
Appellee,
v.
RICARDO JOSE NOCHE,
Defendant, Appellant.
___________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Circuit Judge,
_____________
Skinner,* District Judge.
______________
____________________
Laura Maldonado-Rodr guez, Assistant Federal Public
___________________________
Defender, with whom Benicio S nchez-Rivera, Federal Public
_______________________
Defender, was on brief for appellant.
Jeanette Mercado-R os, Assistant United States Attorney,
______________________
with whom Daniel F. L pez-Romo, United States Attorney, and Jos
_____________________ ____
A. Quiles-Espinosa, Senior Litigation Counsel, were on brief for
__________________
appellee.
____________________
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
Per Curiam. Appellant Ricardo Jos Noche and three co-
__________
defendants pled guilty to aiding and abetting the knowing and
intentional possession of 2,000 pounds of marijuana with intent
to distribute. On May 28, 1992, the district court sentenced
appellant to 78 months in prison, five years of supervised
release, and a $50 fine. Appellant now asserts that the district
court erred in refusing to grant a downward adjustment to his
sentence as either a minimal or minor participant pursuant to the
United States Sentencing Guidelines ("U.S.S.G.") 3B1.2(a) and
(b) respectively.
Appellant has the burden of proving his entitlement to
a downward adjustment to his sentence. U.S. v. Ocasio, 914 F.2d
____ ______
330, 332-33 (1st. Cir. 1990). Only defendants who are "plainly
among the least culpable of those involved in the conduct of a
group" are entitled to a downward adjustment as a minimal
participant, U.S. v. DiIorio, 948 F.2d 1, 5 (1st Cir. 1991)
____ _______
(quoting U.S.S.G. 3B1.2(a), Application Note 1), and to be a
minor participant a defendant must be less culpable than the
average participant. U.S. v. Rosado-Sierra, 938 F.2d 1, 1 (1st
____ _____________
Cir. 1991).
We review a district court's determination of whether a
defendant played a minor or minimal role in an offense under
3B1.2 only for clear error. DiIorio, 948 F.2d at 5.
_______
In the present case, both parties agree that appellant
and his co-defendants were on a vessel that contained 2,000
pounds of marijuana; they aided and abetted the possession with
intent to distribute that marijuana, and expected $3,000 in
return. In addition, during his plea, appellant acknowledged
that he knew that the ship was to be used to smuggle marijuana.
From this evidence, the district court reasonably determined that
appellant was an active and essential participant in the offense.
Moreover, appellant never alleged that he was less
culpable than his co-defendants. Instead, he attempted to argue
that the incident was part of a larger drug smuggling scheme in
which he played a minor role. The only evidence that he offered
in support of this theory, however, was testimony that there was
a captain of the ship who abandoned it due to engine trouble, and
the fact that he was promised payment for his role in the crime.
Appellant could point to no other individuals who were part of
the alleged scheme. He offered only speculation that if there
was a captain and someone who paid him, there must have been a
larger criminal structure.
The court committed no clear error in determining that
appellant failed to prove a larger criminal scheme and that
appellant played more than a minor role in the charged offense.
Thus, it correctly denied the downward adjustment to appellant's
sentence. We affirm the district court's judgment.
Affirmed.
________
-3-