United States v. Barron

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 12 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 03-2106
(D. Ct. No. CR-01-396-MV)
OSWALDO RAMIREZ BARRON, (D. N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, LUCERO, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant-Appellant Oswaldo Ramirez Barron pleaded guilty to one count
of possessing with intent to distribute more than fifty grams of methamphetamine
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii). Mr. Barron
contends that the District Court erred in failing to grant him a downward
adjustment due to his minor role in the overall drug trafficking endeavor. See
U.S. Sentencing Guidelines Manual § 3B1.2 (2002) (“U.S.S.G.”). We take
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
In March 2001, Mr. Barron left Calexico, California for Atlanta, Georgia in
a tractor-trailer, acting as translator for the driver, Mr. Lobatos. The truck
contained 123.2 kilograms of cocaine and 2.431 kilograms of methamphetamine.
Mr. Sierra, the presumed ring-leader of the operation, followed the truck in a
separate car. Along the way, they entered the New Mexico Port of Entry in
Gallup, New Mexico. Anticipating that law enforcement officers would discover
the drugs, Mr. Barron fled on foot. Subsequently, the officers arrested Mr.
Lobatos. Mr. Barron was arrested a day later. Apparently, Mr. Sierra remains at
large and has not been charged regarding this incident.
Mr. Barron pleaded guilty to possessing methamphetamine with intent to
distribute, in exchange for the dropping of all other charges against him.
Although Mr. Lobatos received a minor-participant reduction, the presentencing
report (“PSR”) did not recommend granting Mr. Barron a similar reduction
pursuant to U.S.S.G. § 3B1.2. Mr. Barron’s PSR justified this differential
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treatment because he “made the arrangements to transport drugs from Calexico,
California to Atlanta, Georgia,” while Mr. Lobatos did not “direct[] any other
participants.” Mr. Barron filed an objection to the PSR, which the district court
overruled.
Defense counsel presented the thrust of this objection during the sentencing
hearing:
[W]e’re contending that [Mr. Barron] was a minor participant. . . .
There was another individual, . . . Jose Luis Sierra, who is actually
the overseer, or sort of the foreman . . . of this particular trip . . . . It’s
our contention that [Mr. Barron] was working at the order of Mr. Jose
Luis Sierra.
Mr. Barron attempted to make this argument by proffer. The District Court,
in rejecting this attempt, noted: “This is too important. I don’t want your proffer,
and I won’t accept that, and I don’t have reports to the effect of what you’re
saying. So if you want to put [Mr. Barron] on the stand, that’s fine.” Mr. Barron
proceeded to testify that he was working under the direction of Mr. Sierra. Mr.
Barron’s testimony was the only evidence submitted of his minor role. The
District Court discounted this testimony, stating: “I do not find your testimony
truthful.” Instead, the District Court credited the facts as stated in the PSR as
accurate. Mr. Barron filed a timely notice of appeal.
II. STANDARD OF REVIEW
On sentencing appeals, we review the sentencing court’s factual findings
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“for clear error and its legal conclusions de novo.” United States v. Shumway , 112
F.3d 1413, 1426 (10th Cir. 1997). We interpret the Sentencing Guidelines “as if
they were a statute,” United States v. Plotts , 347 F.3d 873, 876 (10th Cir. 1998)
(quotations omitted), and the commentary to the Guidelines as “authoritative
unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of” the Guidelines, Stinson v. United States , 508 U.S.
36, 38 (1993). The defendant has the burden of proving his minor or minimal
participation. United States v. Harfst , 168 F.3d 398, 401-02 (10th Cir. 1999).
III. DISCUSSION
On appeal, Mr. Barron argues that the District Court “erred as a matter of
law in failing to consider Mr. Barron’s role in the context of other participants
[i.e., Mr. Sierra] in the relevant conduct for which he was held accountable at
sentencing.” We disagree.
U.S.S.G. § 3B1.2 instructs courts to reduce a defendant’s sentence if “the
defendant was a minimal [or minor] participant in any criminal activity.”
U.S.S.G. § 3B1.2(a)-(b). According to the commentary, “[t]his guideline is not
applicable unless more than one participant was involved in the offense,”
U.S.S.G. § 3B1.2, Application Note 2, and it provides a reduction only for “a
defendant who plays a part in committing the offense that makes him substantially
less culpable than the average participant[,]” U.S.S.G. § 3B1.2, Application Note
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3(A). The court may compare the defendant’s conduct to that of a codefendant or
that of an uncharged person who played a role in the criminal endeavor. See
U.S.S.G. § 3B1.2, Application Note 3(A); U.S.S.G. Supplement to Appendix C,
Amendment 635 (2001) (amending U.S.S.G. § 3B1.2, Application Note 3(A)).
Accordingly, we have held that the minor-participant inquiry must “focus
upon the defendant’s knowledge or lack thereof concerning the scope and
structure of the enterprise and of the activities of others involved in the offense.”
United States v. Calderon-Porras , 911 F.2d 421, 423 (10th Cir. 1990). Given the
nature of this focus, “[t]he determination whether to apply [U.S.S.G. § 3B1.2] . . .
involves a determination that is heavily dependant upon the facts of the particular
case. . . . [T]he court, in weighing the totality of the circumstances, is not
required to find, based solely on the defendant’s bare assertion, that such a role
adjustment is warranted.” U.S.S.G. § 3B1.2, Application Note 3(C).
The record belies Mr. Barron’s assertion that the District Court did not
consider whether Mr. Barron’s role was minor compared to that of Mr. Sierra, as
it is replete with in-court testimony regarding Mr. Barron’s subservient role in
relation to Mr. Sierra. The following questions asked of Mr. Barron by his
counsel are indicative:
Q. Who was Sierra, and what did he do?
A. Sierra was in charge of the operation. He had the contacts in
Los Angeles to receive the drugs, and had the contacts in
Atlanta to deliver them.
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Q. Did you know the contacts in California?
A. No.
Q. Did you know the contacts in Atlanta?
A. No, I didn’t.
Q. Okay. Who were you working for during this particular - -
A. Jose Luis Sierra.
Q. You were working by his orders?
A. Yes.
....
Q. - - would it be fair to say that you were functioning as an
interpreter?
....
A. Yes. Yes.
....
Q. And who were you paid by?
A. Jose Luis [Sierra].
A similar discussion, albeit from a different perspective, occurred during the
government’s cross-examination.
In the face of this record, Mr. Barron asserts that “the [district] court
focused on the slight differences between [Mr. Barron’s] role and that of his co-
defendant, Lobatos, and did not consider the significant difference between Mr.
Barron’s role and that of Sierra.” In so doing, Mr. Barron claims that the District
Court failed to conform to the dictates of U.S.S.G. § 3B1.2, Application Note
3(A). See id. (a court “is not precluded” from considering an uncharged person
who played a role in the criminal endeavor when determining whether the
defendant played a minor role).
This contention misstates the record. As the record demonstrates, the
District Court heard live testimony regarding the respective roles of Messrs.
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Barron and Sierra. The only reasonable conclusion one can reach from the record
is that the District Court considered the distinctions between Messrs. Barron and
Sierra, but did not find Mr. Barron’s testimony credible.
In a nearly identical U.S.S.G. § 3B1.2 case, we held:
The only evidence that [the defendant] was not himself involved in
any of these [non-minor] roles is the appellant’s own testimony,
which the district court could quite reasonably have found not
credible. . . .Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly erroneous. A
defendant’s own testimony that others were more heavily involved in
a criminal scheme may not suffice to prove his minor or minimal
participation, even if uncontradicted by other evidence. United
States v. Salazar-Samaniega , 361 F.3d 1271, 1278 (10th Cir. 2004)
(internal citations and quotations omitted).
As Salazar-Samaniega makes clear, the District Court need not have found
Mr. Barron’s testimony credible; and, absent extraordinary facts not found in this
record, we will not second-guess such a finding by the District Court. See United
States v. Onheiber , 173 F.3d 1254, 1258 (10th Cir. 1999) (holding that the
defendant’s own testimony that he was “merely a middleman in the transaction,
hired to bring the drugs to another contact, and that he had limited knowledge of
and control over the transaction” was insufficient to prove that he was a minor or
minimal participant).
III. CONCLUSION
Because the record demonstrates that the District Court heard testimony of
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Mr. Barron’s role in relation to that of Mr. Sierra, but found it untruthful, we
AFFIRM.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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