United States v. De Varon

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
05/14/99
No. 96-5421 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 96-576-CR-MOORE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISABEL RODRIGUEZ DE VARON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 14, 1999)
Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS, Circuit Judges, and
GODBOLD, Senior Circuit Judge.
MARCUS, Circuit Judge:
The central issue presented in this appeal is whether the district court clearly erred in
denying a drug courier who imported 512.4 grams of 85 percent pure heroin from Colombia into
the United States a two-point downward adjustment for her minor role in the offense under §
3B1.2 of the United States Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 3B1.2
(1996) [hereinafter U.S.S.G.]. We hold that the district court did not commit clear error, that
there was in fact ample evidence in the record to support its determination that the defendant did
not play a minor role in the offense, and, finally, that the district court did not misapprehend
either the law of this Circuit or the rules established in the Guidelines. Accordingly, we affirm
the judgment of the district court.
More broadly, we reaffirm our longstanding view that a district court’s determination of
whether a defendant qualifies for a minor role adjustment under the Guidelines is a finding of
fact that will be reviewed only for clear error. We reemphasize, moreover, that the proponent of
the downward adjustment bears the burden at all times of establishing her role in the offense by a
preponderance of the evidence. Finally, we believe that two legal principles should guide the
district court in this fact-finding endeavor. First and foremost, the district court must measure
the defendant’s role against her relevant conduct, that is, the conduct for which she has been held
accountable under U.S.S.G. § 1B1.3. The Guidelines and our case precedent plainly require the
district court to undertake this method of analysis in every case where a role adjustment is at
issue. See U.S.S.G. Ch. 3, Pt. B, intro. comment. Second, where the record evidence is
sufficient, the district court may also measure the defendant’s conduct against that of other
participants in the criminal scheme attributed to the defendant. See U.S.S.G. § 3B1.2, comment.
(n.3). These principles advance both the directives of the Guidelines and our case precedent by
recognizing the fact-intensive nature of this inquiry and by maximizing the discretion of the trial
court in determining the defendant’s role in the offense.
I.
On June 12, 1996, Isabelle Rodriguez De Varon (“De Varon”) smuggled 70 heroin-filled
pellets into the United States. She had ingested the pellets and smuggled them from Colombia
2
into the United States inside her body. Upon arrival, De Varon reported to United States
Customs. Suspecting that she was an internal carrier of narcotics, the customs officials
confronted De Varon and she confessed. The government then accompanied De Varon to a
hospital and ultimately recovered 512.4 grams of 85 percent pure heroin. At the time of her
arrest, De Varon was carrying $2,350. De Varon admitted that a woman identified only as
“Nancy” provided her with $1,350 of travel advance money and instructed her to bring an
additional $1,000 of her own money to cover her expenses. De Varon said that upon delivery of
the drugs in Miami she had expected to receive $6,000.
A federal grand jury returned a two-count indictment against De Varon, charging her
with importing heroin into the United States, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. §
2 (Count I), and with possessing heroin with the intent to distribute it, in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2 (Count II). Pursuant to a plea agreement with the government, De
Varon pled guilty to the allegations in Count I and agreed to forfeit the $2,350 she was carrying
at the time of her arrest in return for the government agreeing to dismiss Count II. The
government also agreed that it would not oppose De Varon’s request for a three-level sentence
reduction for timely acceptance of responsibility, see U.S.S.G. § 3E1.1, or her application for the
“safety valve” protection provided in the Guidelines if she met all of the requirements, see
U.S.S.G. § 5C1.2.
The district court accepted the plea and ordered a probation officer to prepare a
Presentence Investigation Report (“PSI”). The PSI set De Varon’s base offense level under the
Guidelines at 28. The officer then deducted two levels because De Varon qualified for the
3
“safety valve” provision under U.S.S.G. § 2D1.1(b)(6)1 and three more levels for De Varon’s
timely acceptance of responsibility for her conduct under U.S.S.G. § 3E1.1(a), (b)(2). After
these adjustments, De Varon’s resulting offense level was 23. The probation officer then
assigned De Varon a criminal history category of I because she had no prior criminal
convictions. The sentencing guideline range for an offense level of 23 with a criminal history of
I is 46 to 57 months.
De Varon objected to the PSI’s assessment and claimed, inter alia, that she should be
granted a downward adjustment for her minor role in the offense under U.S.S.G. § 3B1.2. In
1
Section 2D1.1(b)(6) provides: “If the defendant meets the criteria set forth in
subdivisions (1)-(5) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in
Certain Cases) and the offense level determined above is level 26 or greater, decrease by 2
levels.” As set forth in § 5C1.2, these five criteria include:
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and
was not engaged in a continuing criminal enterprise, as defined in 21
U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the
same course of conduct or of a common scheme or plan, but the fact that
the defendant has no relevant or useful other information to provide or that
the Government is already aware of the information shall not preclude a
determination by the court that the defendant has complied with this
requirement.
4
support of her claim, De Varon argued that she was an internal carrier of narcotics and that she
was recruited by another, more culpable participant. Specifically, De Varon relied on the oral
statement that she had given to the probation officer who prepared her PSI. That statement is
recounted in De Varon’s PSI as follows:
[De Varon] reports that she met a lady by the name of
Nancy at the office where she works in Colombia. Nancy inquired
about moving some items with the trucking company [that
employed De Varon]. After several visits to the company, Nancy
asked [De Varon] if she possessed a visa. [De Varon] reports that
Nancy knew that [De Varon] was having financial problems. [De
Varon] reports that her son is mentally retarded and requires
medical attention. Nancy asked [De Varon] if she would bring
drugs to the United States. [De Varon] was told that she would
have to swallow some pills and that [she] would be paid $6,000.
[De Varon] relates that she agreed to swallow the drugs because
she needed the money for her ill child. [De Varon] states that she
knew what she did was wrong and regrets her actions.
At sentencing, De Varon’s counsel further said that De Varon was “prepared to testify to that
statement before the Court today, if the Court so chooses.” De Varon did not present any other
information or evidence in support of her claim.
The district court then denied De Varon’s request for a minor role reduction, making the
following statements:
Under Veloza, the act of transporting . . . or importing as a
courier does not determine that a defendant is or is not entitled to
a[n] adjustment. Secondly, the burden is on the defendant to
establish the minor or minimal participation.
I would say [De Varon’s] statement standing alone is not
sufficient to establish a minor or minimal level of participation.
But even if we were to accept it as true, the fact that she can point
to other people that may have provided the narcotics to her would
not alter my own determination that she played an integral and
essential part in the scheme to import.
5
As I have noted in the past, but for individuals willing to
perform the role that this defendant played, we would not have the
importation being attempted or succeeding in other instances.
And thirdly, the guidelines refer to a small amount of drugs
to entitle a defendant to a reduction. And I would conclude that
512.4 grams of heroin is not a minor amount within the meaning of
the guidelines in order to entitle someone to a minor or minimal
level role. So I’ll note your objection and deny it.
The district court subsequently sentenced De Varon to 46 months of imprisonment, three
years of supervised release, and a $100 assessment. The district court also ordered that De
Varon be deported as a condition of her supervised release.2 De Varon appealed her sentence on
the ground that the district court erred in failing to reduce her sentence based on her minor role
as a heroin courier.
On appeal, a panel of this Court vacated De Varon’s sentence and remanded the case to
the district court for resentencing. United States v. De Varon, 136 F.3d 740 (11th Cir. 1998).
Following the issuance of the panel’s opinion, the government filed a suggestion of rehearing en
banc with this Court. On May 29, 1998, this Court granted the government’s petition, entered an
order vacating the panel’s decision, and set the case for en banc rehearing. United States v. De
Varon, 141 F.3d 1468 (11th Cir. 1998) (en banc).
II.
2
The district court had no jurisdiction to independently order deportation. After
De Varon’s sentencing on October 10, 1996, we held in United States v. Romeo, 122 F.3d 941,
943-44 (11th Cir. 1997), that 8 U.S.C. § 1229a (Supp. III 1997), effective on April 1, 1997,
eliminated the jurisdiction of the district courts to independently order deportation as a condition
of supervised release. This jurisdictional bar also applies to cases pending on appeal. See id. at
944. De Varon, however, does not challenge the district court’s order of deportation on appeal.
6
A. Standard of Review
As an initial matter, we must address the appropriate standard of review to be applied in
this case. De Varon argues that this Court reviews a district court’s determination whether a
defendant qualifies for a minor role adjustment de novo. In contrast, the government contends
that this determination is a finding of fact subject to review only for clear error.
This Court has long and repeatedly held that a district court’s determination of a
defendant’s role in the offense is a finding of fact to be reviewed only for clear error. We
reaffirm that holding today. See, e.g., United States v. Campbell, 139 F.3d 820, 821-22 (11th
Cir. 1998) (“A sentencing court’s determination of a defendant’s role in an offense is a factual
finding reviewed for clear error.”); United States v. Everett, 129 F.3d 1222, 1224 (11th Cir.
1997) (per curiam) (“We consider the district court’s determination of appellee’s role in the
offense a factual finding, and thus review it for clear error.”); United States v. Fernandez, 92
F.2d 1121, 1123 (11th Cir. 1996) (per curiam) (holding that the district court’s factual
determination of a defendant’s role in the offense was not clearly erroneous); United States v.
Mosquera, 95 F.3d 1012, 1014 (11th Cir. 1996) (per curiam) (“A sentencing court’s
determination of the defendant’s role as a ‘minor’ or ‘minimal’ participant in an offense is also
reviewed for clear error.”); United States v. Veloza, 83 F.3d 380, 381 (11th Cir. 1996) (holding
that the district court’s factual finding that the defendant did not play a minor role in the offense
was not clearly erroneous); United States v. Camargo-Vergara, 57 F.3d 993, 997 (11th Cir.
1995) (“A district court’s determination of a defendant’s role in an offense is a finding of fact
subject to review only for clear error.”); United States v. Costales, 5 F.3d 480, 483 (11th Cir.
1993) (per curiam) (“A district court’s determination of a defendant’s role in an offense is a
7
finding of fact that we will not disturb unless it is clearly erroneous.”); United States v. Gates,
967 F.2d 497, 501 (11th Cir. 1992) (per curiam) (holding that the district court was not clearly
erroneous in refusing to reduce the defendant’s offense level for being a minor participant);
United States v. Zaccardi, 924 F.2d 201, 202-03 (11th Cir. 1991) (per curiam) (“The district
court’s determination that appellant was not a minor participant in the conspiracy is a finding of
fact which will be reversed on appeal only if ‘clearly erroneous.’”); United States v. Smith, 918
F.2d 1551, 1565 (11th Cir. 1990) (“[T]he trial judge’s determination of whether a defendant is a
‘minor’ or ‘minimal’ participant is a factual finding subject to the clearly erroneous standard.”);
United States v. Asseff, 917 F.2d 502, 505 (11th Cir. 1990) (per curiam) (“[T]he sentencing
court’s determination regarding a defendant’s role in the offense is a factual finding subject to
the clearly erroneous standard.”); United States v. Sellers, 906 F.2d 597, 605 (11th Cir. 1990)
(“Our standard of review on this factual issue [the defendant’s role in the offense] is whether the
district court’s decision was ‘clearly erroneous.’”); United States v. Alston, 895 F.2d 1362, 1369
(11th Cir. 1990) (“The requirement in Guideline § 3B1.2 that a judge determine whether the
defendant was a ‘minor’ or ‘minimal’ participant is a factual determination and therefore subject
to the clearly erroneous standard.”).3
3
This Circuit also applies a clearly erroneous standard to other complex factual inquiries
under the Guidelines. For example, we have held that a district court’s determination of whether
a defendant has played an aggravating role in the offense under U.S.S.G. § 3B1.1 is a finding of
fact subject to a clearly erroneous standard of review. See, e.g., United States v. Carrillo, 888
F.2d 117, 118 (11th Cir. 1989) (per curiam). Similarly, “[b]ecause the sentencing judge is
uniquely positioned to evaluate the defendant’s acceptance of responsibility [under U.S.S.G. §
3E1.1],” we have also held that this determination is a factual question entitled to review only for
clear error. United States v. Anderson, 23 F.3d 368, 369 (11th Cir. 1994) (per curiam).
8
Moreover, every other circuit has adopted the clear error standard to review a district
court’s determination of a defendant’s role in the offense.4 See, e.g., United States v. Edwards,
98 F.3d 1364, 1371 (D.C. Cir. 1996) (mixed question); United States v. Thompson, 76 F.3d 442,
456-58 (2d Cir. 1996) (fact question); United States v. Lampkins, 47 F.3d 175, 180 (7th Cir.
1995) (question “heavily dependent on the facts”); United States v. DeFranco, 30 F.3d 664, 669
(6th Cir. 1994) (fact question); United States v. Carr, 25 F.3d 1194, 1207 (3d Cir. 1994) (mixed
question); United States v. Arredondo-Santos, 911 F.2d 424, 425 (10th Cir. 1990) (fact
question); United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir. 1989) (per curiam) (fact
question); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989) (fact question);
United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989) (Wilkins, J.) (mixed question);
United States v. Wright, 873 F.2d 437, 443-44 (1st Cir. 1989) (Breyer, J.) (mixed question);
United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir. 1989) (fact question). While we
unquestionably afford deference to a district court’s subsidiary factual findings, the ultimate
determination of role in the offense is also a fundamentally factual determination entitled to due
deference and not a legal conclusion subject to de novo review.
Both the Guidelines and the relevant statutory language also explicitly recognize that a
district court’s determination of a defendant’s role in the offense is essentially factual and that
such findings must be afforded deference. The commentary to the Guidelines states that the
4
We have consistently held that the district court’s determination of the defendant’s role
in the offense is a finding of fact. Although many other circuits have adopted this view, some
have concluded, in contrast, that this determination is a mixed question of fact and law, derived
from the application of the Guidelines to the facts of each case. See, e.g., United States v.
Wright, 873 F.2d 437, 443 (1st Cir. 1989) (citing Pullman-Standard v. Swint, 456 U.S. 273, 289
n.19 (1982)). Whether a fact question or a mixed question, however, every circuit agrees that the
proper standard of review is clear error. See infra text accompanying note 4.
9
determination of mitigating role in the offense “is heavily dependent upon the facts of the
particular case.” U.S.S.G. § 3B1.2, comment. (backg’d.).5 The statute conferring jurisdiction on
this Court to review a district court’s sentencing decisions also instructs that appellate courts
“shall accept the findings of fact of the district court unless they are clearly erroneous and shall
give due deference to the district court’s application of the Guidelines to the facts.” 18 U.S.C. §
3742(e) (1994). Moreover, we believe that the district judge is in the best position to weigh and
assess both the defendant’s role in her relevant conduct and the relative degrees of culpability of
the other participants in that conduct. Intensely factual inquiries such as these are properly
consigned to the experienced discretion of the district judge. See Anderson v. City of Bessemer
City, 470 U.S. 564, 574-75 (1985) (expounding on the meaning of the clearly erroneous standard
and recognizing the trial judge’s superior position in making credibility determinations and
general expertise in fact finding relative to appellate courts); cf. Koon v. United States, 518 U.S.
81, 98 (1996) (“A district court’s decision to depart from the Guidelines, by contrast, will in
most cases be due substantial deference, for it embodies the traditional exercise of discretion by
a sentencing court.”). Therefore, in light of these directives and our unambiguous case
precedent, we reaffirm our holding that a district court’s determination of a defendant’s role in
the offense is a question of fact to be reviewed under the clearly erroneous standard.
B. Mitigating Role in the Offense
5
See Stinson v. United States, 508 U.S. 36, 37 (1993) (“[C]ommentary in the Guidelines
Manual that interprets or explains a guideline is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”).
10
The sentence imposed for a particular offense is based upon the applicable sentencing
offense levels set forth in Chapter Two (Offense Conduct) of the Sentencing Guidelines. A
sentence adjustment for “the role the defendant played in committing the offense” (either
mitigating or aggravating) may also be available. U.S.S.G. Ch. 3, Pt. B, intro. comment.
Specifically, a defendant may receive a two to four level reduction in her base offense level
where her role in the offense can be described as minimal, minor, or somewhere in between. See
U.S.S.G. § 3B1.2. Minimal participants may receive a four-level reduction, minor participants
may receive a two-level reduction, and those whose participation falls in between may receive a
three-level reduction. See U.S.S.G. § 3B1.2(a), (b). The commentary to the Guidelines instructs
that a four-level reduction “is intended to cover defendants who are plainly among the least
culpable of those involved in the conduct of a group. . . . [and their] 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.” U.S.S.G. § 3B1.1, comment. (n.1). The application
note provides, for example, that a four-level reduction would be appropriate “for someone who
played no other role in a very large drug smuggling operation than to offload part of a single
marihuana shipment, or in a case where an individual was recruited as a courier for a single
smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment. (n.2).
In contrast, a minor role in the offense “means 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).
The proponent of the downward adjustment -- here the defendant -- always bears the
burden of proving a mitigating role in the offense by a preponderance of the evidence. See
11
Everett, 129 F.3d at 1224 (citing Gates, 967 F.2d at 501); Camargo-Vergara, 57 F.3d at 997-98.
This principle has been recognized by every circuit. See, e.g., United States v. Isaza-Zapata, 148
F.3d 236, 240 (3d Cir. 1998); United States v. Beltran, 109 F.3d 365, 370 (7th Cir.), cert. denied,
118 S. Ct. 145 (1997); United States v. Gonzalez-Soberal, 109 F.3d 64, 74 (1st Cir. 1997);
United States v. Carrazco, 91 F.3d 65, 67 (8th Cir. 1996); United States v. Atanda, 60 F.3d 196,
198 (5th Cir. 1995) (per curiam); United States v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994);
United States v. McCann, 940 F.2d 1352, 1359 (10th Cir. 1991); United States v. Garcia, 920
F.2d 153, 156 (2d Cir. 1990) (per curiam); United States v. Perry, 908 F.2d 56, 58 (6th Cir.
1990); United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990); see also United States v.
White, 1 F.3d 13, 18 (D.C. Cir. 1993) (“The defendant ‘properly bears the burden of proof under
those sections of the Guidelines that define mitigating factors’ . . . .”) (quoting United States v.
Burke, 888 F.2d 862, 869 n.10 (D.C. Cir. 1989)). It falls to the district court then to evaluate the
evidence presented and determine whether this burden has been satisfied.
In making the ultimate determination of the defendant’s role in the offense, the
sentencing judge has no duty to make any specific subsidiary factual findings. See United States
v. West, 898 F.2d 1493, 1503 (11th Cir. 1990) (“When the court mandates no departure, the
sentencing judge need not offer further reasons justifying the sentence.”). So long as the district
court’s decision is supported by the record and the court clearly resolves any disputed factual
issues, a simple statement of the district court’s conclusion is sufficient. See United States v.
Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989) (“The findings of fact of the sentencing court may
be based on evidence heard during trial, facts admitted by a defendant’s plea of guilty,
undisputed statements in the presentence report, or evidence presented at the sentencing
12
hearing.”); Fed. R. Crim. P. 32(c)(1) (“For each matter controverted, the court must make either
a finding on the allegation or a determination that no finding is necessary because the
controverted matter will not be taken into account in, or will not affect, sentencing.”). Although
we have never explicitly addressed this question in the context of § 3B1.2, many other circuits
have recognized that a final determination of the defendant’s role in the offense is the only
specific factual finding that a district court is required to make. See, e.g., United States v. Haut,
107 F.3d 213, 217-18 (3d Cir.) (“We are mindful that ‘[a] simple statement by the district court’
together with some supporting facts of record concerning a defendant’s status as a minimal
participant is ‘typically sufficient to settle the question.’”) (citations omitted), cert. denied, 117
S. Ct. 2528 and 118 S. Ct. 130 (1997); United States v. Edwards, 98 F.3d 1364, 1370 (D.C. Cir.
1996) (holding that district court need not “use magic words ‘relative culpability’ or . . . make
explicit findings of relative culpability on the record”); United States v. Davis, 36 F.3d 1424,
1436 (9th Cir. 1994) (“The district court has no duty to make a finding regarding a defendant’s
relative culpability; it only needs to make its resolution of disputed matters clear.”); United
States v. Flores-Payon, 942 F.2d 556, 561 (9th Cir. 1991) (holding that district court is not
required to make “factual findings of [defendant’s] culpability relative to that of his co-
defendants”); United States v. Ocampo, 937 F.2d 485, 491 (9th Cir. 1991) (“A simple statement
by the district court that the defendant was not a minor participant is typically sufficient to settle
the question.”); United States v. Caruth, 930 F.2d 811, 816 (10th Cir. 1991) (holding that
although a statement of reasons for denying a mitigating role adjustment would be helpful,
district court “‘is in no way required to make detailed findings, or explain why a particular
adjustment is or is not appropriate’”) (citation omitted); United States v. Gallegos, 868 F.2d 711,
13
713 (5th Cir. 1989) (“Although we encourage judges to supply more specific factual findings, a
simple statement that the defendant was not a ‘minor participant’ will suffice as a factual
finding.”). But see, e.g., United States v. Miranda-Santiago, 96 F.3d 517, 532 (1st Cir. 1996)
(holding that district court has obligation to make specific factual findings in support of its denial
of adjustment for defendant’s mitigating role in the offense); United States v. Webster, 996 F.2d
209, 212 (9th Cir. 1993) (per curiam) (remanding for factual findings regarding defendant’s role
and culpability in his relevant conduct); United States v. Melton, 930 F.2d 1096, 1099 (5th Cir.
1991) (holding that district court must articulate the factual basis upon which it concludes that
defendant was not minor participant). Though we “urg[e] district courts to clarify their ultimate
factual findings by more specific findings when possible,” West, 898 F.2d at 1503-04 (quoting
United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.1989)), we hold that a district court is
not required to make any specific findings other than the ultimate determination of the
defendant’s role in the offense.
Notwithstanding our deference to the district court’s discretion in this uniquely fact-
intensive inquiry, the district court’s ultimate determination of the defendant’s role in the offense
should be informed by two principles discerned from the Guidelines: first, the defendant’s role
in the relevant conduct for which she has been held accountable at sentencing, and, second, her
role as compared to that of other participants in her relevant conduct. We address each of these
principles in turn.
1. Role in the Relevant Conduct
14
First and foremost, the district court must measure the defendant’s role against the
relevant conduct for which she has been held accountable. This measurement is compelled by
both the Guidelines and our case precedent. The Guidelines provide that the district court should
evaluate the defendant’s role in the offense “on the basis of all conduct within the scope of §
1B1.3 (Relevant Conduct), i.e., all conduct included under § 1B1.3(a)(1)-(4), and not solely on
the basis of elements and acts cited in the count of conviction.”6 U.S.S.G. Ch. 3, Pt. B, intro.
comment. In other words, the district court must assess whether the defendant is a minor or
6
Section 1B1.3(a) specifies that adjustments in chapter 3, e.g., § 3B1.2, shall be
determined on the basis of the following relevant conduct:
(1) (A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant; and
(B) in the case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise undertaken
by the defendant in concert with others, whether or not
charged as a conspiracy), all reasonably foreseeable acts
and omissions of others in furtherance of the jointly
undertaken criminal activity.
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense;
(2) solely with respect to offenses of a character for which § 3D1.2(d) would
require grouping of multiple counts, all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part of the same course of
conduct or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts and omission specified in subsections
(a)(1) and (a)(2) above, and all harm that was the object of such acts and
omissions; and
(4) any other information specified in the applicable guideline.
15
minimal participant in relation to the relevant conduct attributed to the defendant in calculating
her base offense level.
We believe that this principle of symmetry of relevant conduct is analytically sound. One
main purpose of the Guidelines is to punish similarly situated defendants in a like-minded way.
However, given the relatively broad definition of relevant conduct under § 1B1.3, some
defendants may be held accountable for conduct that is much broader than their specific acts. A
conspiracy conviction is the classic example of this phenomenon. In such cases, a defendant’s
relevant conduct may be coextensive with the entire conspiracy even though her role in that
conspiracy was relatively minor. Under these circumstances, a district court may adjust the
defendant’s sentence for her mitigating role in this broad criminal conspiracy. This adjustment
allows a district court to impose a sentence that more closely mirrors the defendant’s actual
conduct, furthering the Guidelines’ goal of imposing comparable sentences for similar acts.
However, such an adjustment only makes sense analytically if the defendant can establish that
her role was minor as compared to the relevant conduct attributed to her. Otherwise, a defendant
could argue that her relevant conduct was narrow for the purpose of calculating base offense
level, but was broad for determining her role in the offense. A defendant cannot have it both
ways. Application note four illustrates this principle by analogy: “If a defendant has received a
lower offense level by virtue of being convicted of an offense significantly less serious than
warranted by his actual criminal conduct, a reduction for a mitigating role under this section
ordinarily is not warranted because such defendant is not substantially less culpable than a
defendant whose only conduct involved the less serious offense.” U.S.S.G. § 3B1.2, comment.
(n.4). According to this example, a defendant must prove that she played a minor role in the
16
relevant conduct attributed to her. Where her actual conduct is more serious than her base
offense level suggests, a defendant will not be able to meet this burden. Similarly, where the
relevant conduct attributed to a defendant is identical to her actual conduct, she cannot prove that
she is entitled to a minor role adjustment simply by pointing to some broader criminal scheme in
which she was a minor participant but for which she was not held accountable.
Recognizing this principle, we have unambiguously held that a defendant’s role in the
offense may not be determined on the basis of criminal conduct for which the defendant was not
held accountable at sentencing. See United States v. Fernandez, 92 F.3d 1121, 1123 (11th Cir.
1996) (per curiam); United States v. Holley, 82 F.3d 1010, 1011-12 (11th Cir. 1996) (per
curiam). For example, in Fernandez, we considered whether a defendant’s role in a drug offense
was properly determined by reference to the conduct that determined his base offense level or by
reference to the greater drug conspiracy which produced that conduct. 92 F.3d at 1123.
Squarely rejecting the broader inquiry, we held that “the conspiracy on which a defendant’s base
offense level is founded is the relevant conspiracy for determining role in the offense.” Id. We
continue to adhere to this principle of symmetry of relevant conduct and acknowledge that
several other circuits have adopted this approach. See, e.g., United States v. James, 157 F.3d
1218, 1220 (10th Cir. 1998) (holding that defendant’s role in the offense is determined on the
basis of the relevant conduct attributed to him in calculating his base offense level); United
States v. Burnett, 66 F.3d 137, 140 (7th Cir. 1995) (same); United States v. Atanda, 60 F.3d 196,
199 (5th Cir. 1995) (per curiam) (same); United States v. Lampkins, 47 F.3d 175, 180 (7th Cir.
1995) (same); United States v. Gomez, 31 F.3d 28, 31 (2d Cir. 1994) (per curiam) (same);
United States v. Lucht, 18 F.3d 541, 555-56 (8th Cir. 1994) (same); United States v. Olibrices,
17
979 F.2d 1557, 1560 (D.C. Cir. 1992) (“To take the larger conspiracy into account only for
purposes of making a downward adjustment in the base level would produce the absurd result
that a defendant involved both as a minor participant in a larger distribution scheme for which
she was not convicted, and as a major participant in a smaller scheme for which she was
convicted, would receive a shorter sentence than a defendant involved solely in the smaller
scheme.”). But see, e.g., United States v. Isaza-Zapata, 148 F.3d 236, 240-41 (3d Cir. 1998)
(relying on this Court’s panel opinion in De Varon and holding that a court must examine all
relevant conduct even if defendant is sentenced only for own acts); United States v. Ruelas, 106
F.3d 1416, 1419 (9th Cir.) (recognizing that “[t]he defendant’s role in relevant conduct may
provide a basis for an adjustment even if that conduct is not used to calculate the defendant’s
base offense level” but holding that defendant was “not entitled to a reduction in his sentence
simply because he was tied to a larger drug trafficking scheme”), cert. denied, 520 U.S. 1282(1997); United States v. Demers, 13 F.3d 1381, 1383 (9th Cir. 1994) (declining “to restrict the
scope of relevant conduct on which a downward adjustment may be based to the relevant
conduct that is included in the defendant’s base offense level.”) (citing Webster, 996 F.2d at
211).
Moreover, a defendant’s status as a drug courier does not alter the principle that the
district court must assess the defendant’s role in light of the relevant conduct attributed to her.
In Veloza, we recognized that courier status in and of itself is not dispositive of whether a
defendant is entitled to or precluded from receiving a downward adjustment for role in the
offense. 83 F.3d at 382. Simply put, the drug courier may or may not qualify for a minor role
reduction. See, e.g., United States v. Cacho, 951 F.2d 308, 309-10 (11th Cir. 1992) (“Although
18
[defendant] was a courier who carried the drugs into the United States, that fact alone does not
establish that she was either a minimal or minor participant in the conspiracy.”); Smith, 918
F.2d at 1566 (“[A] drug courier is not necessarily a minor or minimal participant within the
meaning of the Sentencing Guidelines.”). Having posited this unremarkable proposition,
however, it is perfectly legitimate for a district court to consider any fact related to a defendant’s
conduct as a courier in an importation scheme, including her status and assigned tasks in that
scheme. Indeed, in many drug courier cases these are the only discernable facts. Therefore,
when a drug courier’s relevant conduct is limited to her own act of importation, a district court
may legitimately conclude that the courier played an important or essential role in the
importation of those drugs. This is permissible even though facts related to the defendant’s
status as a drug courier form the basis for this determination. We do not create a presumption
that drug couriers are never minor or minimal participants, any more than that they are always
minor or minimal. Rather, we hold only that the district court must assess all of the facts
probative of the defendant’s role in her relevant conduct in evaluating the defendant’s role in the
offense.
We further note, in the drug courier context, that the amount of drugs imported is a
material consideration in assessing a defendant’s role in her relevant conduct. See Asseff, 917
F.2d at 507 (“It is evident that [the defendants’] conduct does not warrant a downward
adjustment in sentencing because of their apparent knowledge of their criminal activity and the
great amount of cocaine involved.”); see also Webster, 996 F.2d at 212 n.5 (recognizing that “the
amount of contraband may be relevant to whether a defendant is a minor participant”). Indeed,
because the amount of drugs in a courier’s possession -- whether very large or very small -- may
19
be the best indication of the magnitude of the courier’s participation in the criminal enterprise,
we do not foreclose the possibility that amount of drugs may be dispositive -- in and of itself --
in the extreme case. See, e.g., United States v. Carrazco, 91 F.3d 65, 67 (8th Cir. 1996) (holding
that when defendant is “apprehended in possession of a very substantial amount of drugs,” that is
“a circumstance that tends to suggest that his participation in the criminal enterprise was itself
very substantial”); United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991) (“[W]e have
recognized that possession of a substantial amount of narcotics is grounds for refusing to grant a
sentence reduction.”); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam)
(recognizing that district court may refuse “to grant a minor and/or minimal participant reduction
based solely on the significant amount of drugs involved”).
Indeed, the Guidelines explicitly recognize that amount of drugs may be determinative in
the context of minimal participants. Application note two states that an adjustment for minimal
participation “would be appropriate, for example, for someone who played no other role in a
very large drug smuggling operation than to offload part of a single marihuana shipment, or in a
case where an individual was recruited as a courier for a single smuggling transaction involving
a small amount of drugs.” U.S.S.G. § 3B1.2, comment. (n.2). We do not believe that the
Guidelines intended to preclude a district court from considering the amount of drugs as a factor
in the context of minor participants. Application note three states that “[f]or purposes of §
3B1.2(b), a minor participant means 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.2). Although this definition seems to suggest that the relevant inquiry for minor participants
is solely comparative, we can discern nothing in the Guidelines to suggest that the analysis of
20
role in the offense varies with the level of participation at issue. In fact, the Guidelines instruct
just the opposite. The commentary background states that “[t]his section provides a range of
adjustments 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, comment. (backg’d.)
(emphasis added). The very fact that an intermediate role exists for defendants who fall in
between minimal and minor roles, moreover, suggests that the analysis used to measure role in
the offense must be uniform. Therefore, we reaffirm that amount of drugs is a relevant factor
and recognize that under some circumstances it may be dispositive.
To reiterate, in determining a defendant’s role in the offense, a district court must
measure the defendant’s role against the relevant conduct attributed to her in calculating her base
offense level. This methodology is essential to any evaluation of mitigating role. Only if the
defendant can establish that she played a relatively minor role in the conduct for which she has
already been held accountable -- not a minor role in any larger criminal conspiracy -- should the
district court grant a downward adjustment for minor role in the offense.
2. Role as Compared to Other Participants in the Relevant Conduct
The second principle we derive from the text of the Guidelines is that the district court
may also measure the defendant’s culpability in comparison to that of other participants in the
relevant conduct. We draw this principle from two application notes. Application note one
states that minimal participants are those “who are plainly among the least culpable of those
involved in the conduct of a group.” U.S.S.G. § 3B1.2, comment. (n.1). Application note three
says that “a minor participant means any participant who is less culpable than most other
21
participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment.
(n.3). These definitions clearly contemplate some assessment of relative culpability. However,
not all participants may be relevant to this inquiry. First, the district court should look to other
participants only to the extent that they are identifiable or discernable from the evidence. This is
a fact-intensive inquiry. Second, the district court may consider only those participants who
were involved in the relevant conduct attributed to the defendant. The conduct of participants in
any larger criminal conspiracy is irrelevant.
Relative culpability does not end the inquiry, however. The fact that a defendant’s role
may be less than that of other participants engaged in the relevant conduct may not be dispositive
of role in the offense, since it is possible that none are minor or minimal participants. In United
States v. Daughtrey, 874 F.2d 213 (4th Cir. 1989), Judge Wilkins gave the following example to
illustrate this principle:
[I]f three individuals had entered a bank with the intent to commit
robbery and one stood guard at the door, another sprayed paint on
the camera, and the third gathered the money from a teller’s cage,
no adjustment for Role in the Offense would be warranted. Even if
one of the participants deserved an aggravating adjustment because
of other acts he committed, the other participants would not be
entitled to minimal or minor Role in the Offense adjustments.
Id. at 216. We recognized this position in Zaccardi, 924 F.2d 201. Zaccardi claimed that he was
entitled to a minor role adjustment because the PSI characterized him as the least culpable
participant in the conspiracy. See id. at 202. We rejected that argument on the ground that it
“would require sentencing courts to regard the least culpable member of any conspiracy as a
minor participant, regardless of the extent of that member’s participation.” Id. at 203; see also
United States v. Miller, 159 F.3d 1106, 1111 (7th Cir. 1998) (“Though comparative roles are
22
important to determining whether to grant an offense level reduction, they are not
determinative.”); United States v. Rotolo, 950 F.2d 70, 71 (1st Cir. 1991) (Breyer, C.J.)
(recognizing that “one who, say, points a gun at a bank teller and seizes the money is not entitled
to a downward adjustment simply because someone else in the gang supervised his activities”).
Simply put, a defendant is not automatically entitled to a minor role adjustment merely because
she was somewhat less culpable than the other discernable participants. Rather, the district court
must determine that the defendant was less culpable than most other participants in her relevant
conduct.7
7
We also recognize that the Guidelines contemplate that the district court measure the
defendant’s role in the offense against the roles of “average” participants in similar criminal
schemes. See U.S.S.G. § 3B1.2, comment. (n.4) & (backg’d.). Some courts have explicitly
incorporated this form of comparison. See, e.g., United States v. Ajmal, 67 F.3d 12, 18 (2d Cir.
1995) (holding that defendant only played a minor role in the offense if he was less culpable than
his co-conspirators as well as the average participant in such a crime); United States v. Thomas,
932 F.2d 1085, 1092 (5th Cir. 1991) (holding that defendant was not entitled to minor role
adjustment because his role “was greater than the minimal participation exercised by the
defendants to whom we have previously allowed a downward adjustment”); United Caruth, 930
F.2d at 815 (“The Guidelines permit courts not only to compare a defendant’s conduct with that
of others in the same enterprise, but also with the conduct of an average participant in that type
of crime.”); Daughtrey, 874 F.2d at 216 (holding that the court should measure both the relative
culpability of each participant in relation to the relevant conduct and the defendant’s acts and
relative culpability against an objective standard); Rotolo, 950 F.2d at 71 (distinguishing
between aggravating and mitigating roles and suggesting that “substantially less culpable than
the average participant” means an objective comparison between the defendant and an average
person engaged in such conduct). This normative analysis advances the Guidelines’ goal of like
sentences for similarly situated defendants. However, because we are concerned about how a
district court will be able to assess factually what level of conduct constitutes that of an
“average” participant, we believe that this normative analysis generally should not be dispositive
of the district court’s role in the offense determination. To the extent the district court does rely
on this mode of analysis, we caution that the court must base its conclusions on a sufficient
evidential foundation, and make sufficient factual findings to support its assessment of an
“average” participant.
23
In sum, we believe that a district court’s determination of a defendant’s mitigating role in
the offense should be informed by two modes of analysis: First, and most importantly, the
district court must measure the defendant’s role against the relevant conduct for which she was
held accountable at sentencing; we recognize that in many cases this method of analysis will be
dispositive. Second, the district court may also measure the defendant’s role against the other
participants, to the extent that they are discernable, in that relevant conduct.
In making the ultimate finding as to role in the offense, the district court should look to
each of these principles and measure the discernable facts against them. In the drug courier
context, examples of some relevant factual considerations include: amount of drugs, fair market
value of drugs, amount of money to be paid to the courier, equity interest in the drugs, role in
planning the criminal scheme, and role in the distribution. This is not an exhaustive list, nor
does it suggest that any one factor is more important than another. In the final analysis, this
decision falls within the sound discretion of the trial court. Indeed, we acknowledge that a
similar fact pattern may on occasion give rise to two reasonable and different constructions.
This is inherent in the fact-intensive inquiry specifically contemplated by the Guidelines. As the
Supreme Court has recognized, a trial court’s choice between “two permissible views of the
evidence” is the very essence of the clear error standard of review. Anderson, 470 U.S. at 574.
So long as the basis of the trial court’s decision is supported by the record and does not involve a
misapplication of a rule of law, we believe that it will be rare for an appellate court to conclude
that the sentencing court’s determination is clearly erroneous.8
8
This is not a case in which a drug courier convicted of importation was granted a role
reduction even though the only drugs attributed to her for base offense level purposes were those
that she personally brought into this country in or on her person, her personal effects, or her
24
III.
Applying the aforementioned analysis to the instant case, the district court’s
determination that De Varon did not play a minor role in the relevant conduct of heroin
importation was not clearly erroneous. Again, we review the district court’s determination of De
Varon’s role in the offense only for clear error and we recognize that the district court had
considerable discretion in making this fact-intensive determination. Moreover, we do not
construe the statements of the district court as propounding a conclusion of law that all couriers
are ineluctably precluded from receiving a downward adjustment for their role in the offense.
The district court simply stated that De Varon “played an integral and essential part in the
scheme to import.” We read this statement as reflecting no more than the district court’s
measurement of De Varon’s role against her relevant conduct. As we have discussed, such a
finding is suggested by both the Guidelines and our case precedent. Thus, we are satisfied that
the court evaluated the particular evidence presented in this case and arrived at a finding of fact
that De Varon was not a minor participant in the offense.
The record amply supports the district court’s finding that De Varon did not play a minor
role in her offense of heroin importation. See United States v. Suarez, 939 F.2d 929, 934 (11th
Cir. 1991) (“When evaluating a district court’s reasons for imposing a particular sentence, an
appellate court may consider the record from the entire sentencing hearing and need not rely
upon the district court’s summary statement made at the closing of the sentencing hearing.”)
(citations omitted). First, De Varon played an important or essential role in her relevant conduct
luggage. Accordingly, we have no occasion to decide whether a role reduction could be
appropriate in such a case, and leave that issue for another day.
25
of importing 512.4 grams of 85 percent pure heroin from Colombia into the United States in
violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2. De Varon knowingly and intentionally
entered the United States with the entire amount of drugs in her possession. Although De Varon
claims that she did not supply the heroin, we believe that it was within the trial court’s discretion
to conclude that her participation was central to the importation scheme. Second, De Varon’s
relevant conduct involved carrying a substantial amount of heroin of high purity. Third,
although De Varon was, by one construction of the evidence, arguably less culpable than the
only other known participant, Nancy, it is altogether possible on this abbreviated record for the
trial court to have concluded that Nancy was no more than a messenger and of relatively equal
culpability to De Varon. The facts, as recounted by De Varon, even if fully credited by the trial
court, establish no more than that she was hired by someone (Nancy) to smuggle one-half
kilogram of heroin into the United States, and to deliver the drugs to someone else -- albeit
unidentified -- in Miami. This bare record does not compel the conclusion that Nancy was
sufficiently more culpable than De Varon. At all events, these choices fell within the district
court’s discretion under U.S.S.G. § 3B1.2. Fourth, De Varon’s admission that she furnished
$1000 of her own money to finance the smuggling enterprise may likewise be taken as support
for the district court’s conclusion, notwithstanding De Varon’s claim that she became involved
in the enterprise because of financial problems.
We reiterate that the burden of establishing a minor role in the offense rests with the
proponent. De Varon was free to put on evidence in support of her position, and the district
court was free to find, as it plainly did, that De Varon failed to meet this burden. The
defendant’s suggestion that the district court somehow barred De Varon from testifying at the
26
sentencing hearing is belied by the record. While counsel for De Varon suggested that she was
available to testify to the statements she made to the probation officer “if the court so chooses,”
the district court was not obliged to decide for De Varon whether she should testify. This is an
adversarial process, and the decision to testify belongs solely with the defendant and her counsel.
Cf. United States v. Teague, 953 F.2d 1525, 1533 n.8 (11th Cir. 1992) (en banc) (noting that it is
inappropriate for the district court to become involved in defendant’s decision whether to take
the witness stand).
Moreover, the defendant’s alternate suggestion that the district court was obligated to
investigate and make detailed findings concerning the relative roles of all who may participate in
a far-flung narcotics enterprise -- that may stretch from the grower, to the manufacturer in a
foreign land, through the distribution mechanism, to the final street-level distributor in the
United States -- is similarly without merit. Again, it misapprehends the defendant’s burden of
proof; it violates the essential principle that the district court must measure the defendant’s role
against her relevant conduct, that is, the conduct for which she has been held accountable under
U.S.S.G. § 1B1.3; and it imposes an obligation on the trial court that we have explicitly rejected.
So long as the district court’s conclusion as to defendant’s role in the offense is supported by the
record, and the court has resolved any disputed factual issues in conformity with Fed. R. Crim. P.
32(c)(1), a simple statement of the district court’s conclusion is sufficient.
On the basis of this record and consonant with this Circuit’s longstanding view affording
substantial deference to the district court, we conclude that the district court’s determination that
De Varon was not entitled to a downward adjustment for her minor role in the offense was not
clearly erroneous. Accordingly, De Varon’s sentence must be, and is, AFFIRMED.
27
CARNES, Circuit Judge, concurring specially:
The Court’s opinion does a good job of surveying the law relating to role
reductions for drug couriers, employs correct reasoning, and reaches the right
result. I join all of the opinion and write separately only to point out the flaws in
one part of the dissenting opinion. By focusing on that one part, I do not mean to
imply that I agree with the remainder of the dissenting opinion. There are other
parts of it with which I disagree, but given the time limitations peculiar to issuance
of a decision in this case, I will confine my reply to one issue.
That issue is whether a drug courier, who is convicted of importation and
whose base offense level is calculated using only those drugs she personally brings
into this country, may ever qualify for a minor role reduction. In other words, if
the relevant conduct used to determine a courier’s sentence is no broader than her
personal importation offense conduct, may she ever be granted a role reduction?
The Court does not reach that issue because it is not necessary to decide this case,
see Op. at 26-27 n.8, but the dissenting opinion does. Speaking only for herself,
the dissenting judge asserts that a role reduction is permissible in some
circumstances even where a courier is sentenced only for the drugs she brings into
this country. I disagree.
28
Couriers, like De Varon, who are convicted solely of the crime of importing
drugs and whose base offense levels reflect only those drugs they personally
brought into this country, are not eligible for a role reduction of any kind. It will
always be clear error for district courts to grant a courier a role reduction in such
circumstances. See United States v. Lampkins, 47 F.3d 175, 181 (7th Cir. 1995)(“it
makes no sense to claim that one is a minor participant in one’s own conduct”);
United States v. Burnett, 66 F.3d 137, 140 (7th Cir. 1995)(“When a courier is held
accountable for only the amounts he carries, he plays a significant rather than a
minor role in that offense.”) (emphasis omitted). This conclusion necessarily
follows from the guidelines, from principles recognized in the Court’s opinion in
this case, and from common sense.
Importation is a simple crime consisting of nothing more than the act of
bringing drugs into this country. See 21 U.S.C. § 952(a). Once the drugs enter this
country from outside, the crime has been committed. Because the act of bringing
drugs into this country is the central element of the crime, the courier plays the
central role in the crime. She is every bit as important to a drug courier crime as a
hit man is to a murder for hire. Others may orchestrate or finance the crimes,
furnish weapons or drugs, or profit more from the nefarious undertakings, but the
drug courier and the hit man are the ones who actually carry out their respective
29
crimes. Neither is entitled to a role reduction of any kind insofar as the crime they
personally commit is concerned.
The guideline and its commentary supports this conclusion. The guideline
considers role in the offense and nothing else, beginning “Based on the defendant’s
role in the offense ...” U.S.S.G. § 3B1.2. It does not concern itself with risk
assumed or with whether the defendant herself (as distinguished from the role she
plays) is indispensable to the criminal organization. Role is the sole criterion and it
alone defines relative culpability.
The commentary says the four-level minimal role reduction is intended to
cover defendants “who are plainly among the least culpable of those involved in
the conduct of a group” and whose “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.” U.S.S.G. § 3B1.2, comment. (n.1) (Nov. 1998). One
who actually brings drugs into this country cannot be among the least culpable of
those responsible for bringing those particular drugs into this country. Her role in
the crime is of equal or greater importance to the role anyone else plays. In
addition, because she actually commits the act of importing the drugs, the courier
necessarily knows enough about the scope and structure of the crime, which is her
act, and about its central participant, whom she is, to rule out any role reduction
30
based on lack of knowledge. When she is an internal carrier, as De Varon was, she
is intimately familiar with the scope and structure of the importation crime.
The guidelines commentary advises that a four-level minimal role reduction
would be appropriate “in a case where an individual was recruited as a courier for a
single smuggling transaction involving a small amount of drugs.” U.S.S.G. §
3B1.2, comment. (n.2) That illustration applies to, and makes sense for, cases in
which the relevant criminal conduct that determines the courier’s base offense
level is a larger multi-courier smuggling enterprise. In other words, the courier
could be entitled to a role reduction if her base offense level reflects drugs that she
did not personally bring into this country. Her role conceivably could be minimal
if the amount of drugs the courier brought in is truly small compared to the total
amount brought in by the whole enterprise and attributed to her. But that
commentary illustration makes no sense in the context of, and was not intended to
apply to, the typical case in which the only drugs attributed to the courier are those
she herself brought into this country. In that situation, her role in the relevant
conduct which is used to define her base offense level – the actual act of bringing
in those particular drugs – cannot be described as minimal.
As for the two-level minor role adjustment, the commentary simply says that
it is intended for “any participant who is less culpable than most other participants,
31
but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment.
(n.3). A courier who commits the essential act that defines the importation crime,
like the hit man who commits the actual murder for hire, cannot be less culpable
than most other participants in that discrete crime. The situation might be different
where the relevant conduct attributed to the courier for purposes of calculating the
base offense level is broader than her personal act of bringing drugs into this
country, but that is not what we are talking about. What we are talking about are
importation cases, like this one, where the relevant conduct is coterminous with the
courier’s personal act of bringing drugs into this country on or in her body, her
luggage, or her personal effects. In this case, as in so many others, the courier was
sentenced as though the only drugs she or anyone involved with her had ever
imported were those she alone was carrying when arrested. In such circumstances,
a role reduction is clearly inappropriate.
The Court’s opinion does not address whether a role reduction could ever be
appropriate for a courier sentenced for only those drugs she personally brought
into this country, see Op. 26-27 n.8, but I think the Court’s reasoning compels the
conclusion I reach. The Court recognizes two controlling principles that district
courts should follow in deciding role reduction issues. “First and foremost,” its
opinion says, the defendant’s role must be measured against the relevant conduct
32
for which she has been held accountable in the calculation of her base offense
level. See Op. at 16. Where the defendant has been held responsible only for her
own conduct, that first and foremost principle will always lead to the conclusion
she is not entitled to a role reduction, because a defendant can never be a minor
participant in her own conduct. She is the central actor involved in her own
conduct, and thus plays the most important role in that conduct, never just a minor
role.
The second principle the Court’s opinion instructs district courts to follow in
deciding role reduction issues is that the defendant’s role in the relevant conduct
should be compared to that of other participants in the relevant conduct. See Op. at
15, 23. Again, where the relevant conduct consists of nothing more than the
defendant’s own transportation of drugs into this country, it is illogical to conclude
that she played a less important role than those who did not personally transport
those drugs into this country.
The Court’s refinement of the second principle to mean that the defendant
must have played a role “less culpable than most other participants in her relevant
conduct,” Op. at 25, solidifies my conclusion. How can most other participants
play roles more important to the transportation of drugs into this country than the
role played by the transporter? An example the Court borrows from Judge
33
Wilkins of the Fourth Circuit will illustrate my point. That example involves three
bank robbers, one of whom serves as a lookout, one of whom sprays paint on the
surveillance camera, and one of whom actually takes the money from a teller’s
cage. See Op. at 24, quoting United States v. Daughtrey , 874 F.2d 213, 216-17
(4th Cir. 1989). Judge Wilkins concluded that a role reduction would not be
appropriate for any of the three, and the Court endorses that conclusion. So do I,
and my point is this: Given that a role reduction would be inappropriate in a bank
robbery case for one who merely served as a lookout, how could a role reduction
ever be appropriate in a drug importation case for the drug courier? If a lookout is
not less culpable than most other participants in a bank robbery, then a drug courier
certainly is not less culpable than most other participants in a drug importation
crime.
The Court says the district court was within its discretion to conclude that
De Varon’s participation was central to the importation scheme, see Op. at 28; I
believe the district court lacked discretion to reach any other conclusion. The
Court says the record does not compel the conclusion that Nancy, another
participant, was sufficiently more culpable than De Varon, see Op. at 28; I believe
the record not only fails to compel that conclusion, but in fact would not permit it,
either. The Court concludes that the district court’s determination De Varon was
34
not entitled to a downward adjustment for her role in the offense was not clearly
erroneous, see Op. at 30; I believe that a contrary determination by the district
court would have been clearly erroneous.
35
BARKETT, Circuit Judge, dissenting:
The majority affirms the district court’s denial of De Varon’s request for a minor
role reduction despite the fact that the district court’s ruling was predicated on a
misapprehension of the applicable legal principles. Moreover, the principles the majority
offers as guidance in this area conflict with both the letter and spirit of the Sentencing
Guidelines. I therefore respectfully dissent, and would remand this case to the district
court for resentencing.
I
In denying the motion for a § 3B1.2 minor role reduction, the district court made
the following statements:
[Firstly, u]nder Veloza, the act of transporting . . . or importing as a courier
does not determine that a defendant is or is not entitled to a[n] adjustment.
Secondly, the burden is on the defendant to establish the minor or minimal
participation.
I would say [De Varon’s] statement standing alone is not sufficient to
establish a minor or minimal level of participation. But even if we were to accept
it as true, the fact that she can point to other people that may have provided the
narcotics to her would not alter my own determination that she played an integral
and essential part in the scheme to import.
As I have noted in the past, but for individuals willing to perform the role
that this defendant played, we would not have the importation being attempted or
succeeding in other instances.
And thirdly, the guidelines refer to a small amount of drugs to entitle a
defendant to a reduction. And I would conclude that 512.4 grams of heroin is not a
minor amount within the meaning of the guidelines in order to entitle someone to
minor or minimal level role. So, I’ll note your objection and deny it.
The district court here begins with a correct statement of the law. See United States v.
Veloza, 83 F.3d 380, 382 (11th Cir. 1996) (holding that “the fact that a courier plays an
36
essential role in an importation scheme does not alone necessarily preclude him from
receiving a reduction for a minor role either”). It then goes on to say that “[De Varon’s]
statement standing alone is not sufficient to establish a minor or minimal level of
participation.” Because this statement might arguably be read as a credibility
determination, had the court stopped there, I would agree with the majority that we should
defer to the district court.
The court did not, however, stop there. Instead, it went on to state that no facts De
Varon might put forward to support her request for a minor role reduction would have
been sufficient to “alter [the court’s] own determination that she played an integral and
essential part in the scheme to import, . . . [because] but for individuals willing to perform
the role that this defendant played, we would not have the importation being attempted or
succeeding in other instances.” It is difficult to read these words as anything but a
statement that, in the district court’s view, no one whose participation in a drug
importation scheme consists solely of carrying drugs across the border would be entitled
to a § 3B1.2 minor role reduction. As the majority concedes, this view is an incorrect
statement of the law. Accordingly, I would remand and direct the district court to make
the credibility findings necessary to determine the facts and to evaluate those facts
according to the correct legal standard.
II
In applying the law to the facts to determine whether a § 3B1.2 minor role
reduction is warranted, a district court should be guided by the spirit and the letter of the
37
Sentencing Guidelines. The “guidance” offered by the majority in this regard is not
supported by either, and in fact, conflicts with both.
The majority offers two “principles” which should guide the inquiry: “first, the
defendant’s role in the relevant conduct for which she has been held accountable at
sentencing, and second, her role as compared to that of other participants in her relevant
conduct.” United States v. De Varon, – F.3d at –. As the Guidelines make clear, a
defendant’s “relevant conduct” for purposes of § 3B1.2 includes not just the defendant’s
own acts but also, in the case of jointly undertaken criminal activity, the acts of any other
participants1 in the offense of conviction taken “during the commission of the offense of
conviction, [or] in preparation for that offense,” whether or not the case is charged as a
conspiracy. U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] § 1B1.3(a)(1); see
also U.S.S.G. Ch. 3, Pt. B, intro. comment. (“The determination of a defendant’s role in
the offense is to be made on the basis of all conduct within the scope of § 1B1.3
(Relevant Conduct) . . . and not solely on the basis of elements and acts cited in the count
of conviction.”).2
1
See U.S.S.G. § 3B1.1 comment. (n.1) (“A ‘participant’ is a person who is criminally
responsible for the commission of the offense, but need not have been convicted.”).
2
Section 1B1.3(a) defines “relevant conduct” for purposes of the Guidelines as:
(1) (A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant; and
(B) in the case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise undertaken
by the defendant in concert with others, whether or not
charged as a conspiracy), all reasonably foreseeable acts
38
This broad understanding of a defendant’s “relevant conduct” as expressed in the
Guidelines reflects an awareness of two factors of significance here: (1) many criminal
endeavors, even those not charged as conspiracies, are joint undertakings involving
several participants; and (2) different levels of culpability may be appropriately ascribed
to participants in a joint criminal enterprise when those participants perform different
tasks in furtherance of the crime charged. See, e.g., U.S.S.G. § 3B1.2, comment. (n.3)
(defining a “minor participant” as “any participant who is less culpable than most other
participants, but whose role could not be described as minimal”).
Perhaps no crime illustrates these considerations as effectively as that of importing
narcotics through the use of swallowers like De Varon. It is of course true that the
completion of this crime requires the participation of a courier, but the actions of a courier
are hardly the only components of the crime. Rather, several other significant tasks must
be undertaken to complete even the simple crime of importation. Someone must, for
example, formulate the plan, recruit the participants, coordinate their actions, locate
suppliers, procure the drugs, purchase the tickets, arrange for a drop-off on the other side,
and finance the whole venture. All of these activities, which may or may not involve only
one person, constitute “relevant conduct” with respect to the crime of importation,
“whether or not charged as a conspiracy.” U.S.S.G. § 1B1.3 comment. (n.2).
and omissions of others in furtherance of the jointly
undertaken criminal activity,
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense . . . .
39
The task of district courts in cases like De Varon’s is therefore to determine the
relative culpability of the courier as compared to those other participants, if any, who
performed the additional tasks necessary to the importation scheme. In a given case, the
same person may be found to have performed all the many tasks necessary to complete
the crime of drug importation – the masterminding, financing, recruiting, coordinating,
procuring, etc. In such a case, that person would plainly not be entitled to a § 3B1.2 role
reduction as a minor participant. In other cases, however, the tasks necessary to carry out
the crime of importing narcotics will be undertaken by several different participants.
Here, if the court finds the defendant “less culpable than most other participants”
although her “role could not be described as minimal,” it must likewise conclude that a §
3B1.2 minor role reduction is appropriate. U.S.S.G. § 3B1.2 comment. (n.3). Indeed, it
is precisely for such cases that § 3B1.2 was intended.
In this case, the district court reasoned that but for the acts of couriers like De
Varon there would be no crime of importation, thus essentially rejecting the suggestion
that a courier could ever be a minor participant in this crime. Yet this “but for” analysis
could be applied to most criminal acts prosecuted, treating all those defendants
performing acts necessary to accomplish the crime as equally culpable. The Guidelines,
however, reject this categorical approach and instead support the principle of relative
culpability by enhancing the punishment for those with greater responsibility in the
criminal enterprise and reducing the punishment for those less culpable. Specifically, the
40
commentary to § 3B1.1 identifies characteristics which would make a participant
“integral and essential”3 to the enterprise and therefore more culpable,
includ[ing] the exercise of decision making authority, the nature of participation in
the commission of the offense, the recruitment of accomplices, the claimed right to
a larger share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
U.S.S.G. § 3B1.1 comment. (n.4); see also U.S.S.G. § 3B1.1 comment. (backg’d) (“This
[upward] adjustment [for organizers, leaders, managers, or supervisors] is included
primarily because of concerns about relative responsibility.”). These same factors also
help distinguish those individuals who play only a minor role in the criminal activity from
the leaders and other mid-level criminal actors, clearly indicating the Sentencing
Commission’s view that foot soldiers who actually carry out the crime are less culpable
than the “organizer[s], leader[s], manager[s] or supervisors].” U.S.S.G. § 3B1.1
comment. (n.2). Under the facts of a given case, a foot soldier may well not receive a §
3B1.2 reduction, but it is wrong to assume that by virtue of his or her participation he or
she is automatically to be considered “integral or essential” to the crime.
It is important to recognize what this Guidelines scheme does not entail. The
majority fears that a defendant could “argue that her relevant conduct was narrow for the
purpose of calculating base offense level, but was broad for determining her role in the
3
Whether or not other people were involved and regardless of the role they played, the
district court in this case held that these considerations “would not alter my own determination
that she played an integral and essential part in the scheme to import.”
41
offense.” De Varon, – F.3d at –. I agree with the majority that our opinion in United
States v. Fernandez, 92 F.3d 1121 (11th Cir. 1996), in which we reject the defendant’s
suggestion that his role in the offense could be determined on the basis of an uncharged
conspiracy, forecloses such an argument. However, under the definition of “relevant
conduct” established in the Guidelines, a defendant whose charged crime required the
performance of several different tasks and whose own actions toward the common goal
were minor in relation to the other participants could well be found to be a minor
participant in the conduct on which her base offense level was calculated. This is directly
acknowledged in the Guidelines, which broadly defines an individual defendant’s
“relevant conduct” for purposes of establishing the base offense level to include “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). See also U.S.S.G. § 1B1.3
comment. (n.2) (defining a “jointly undertaken criminal activity” as a criminal plan
“undertaken by the defendant in concert with others, whether or not charged as a
conspiracy”).
It is for this reason that a majority of the circuits to have addressed this question
have interpreted the Guidelines as I do here.4 See, e.g., United States v. Isaza-Zapata, 148
F.3d 236, 240 (3d Cir. 1998) (“The scope of the relevant conduct that a court should
4
At least one circuit has interpreted them more broadly still. See United States v.
Demers, 13 F.3d 1381, 1383 (9th Cir. 1994) (declining, on consideration of the 1990
Amendment, “to restrict the scope of relevant conduct on which a downward adjustment may be
based to the relevant conduct that is included in the defendant’s base offense level”).
42
consider [in a § 3B1.2 motion] is broader than merely the conduct required by the
elements of the offense of conviction. Even if a courier is charged with importing only
the quantity of drugs that he actually carried, there may still be other participants involved
in the conduct relevant to that small amount or that one transaction.”) (citing United
States v. Rodriguez De Varon, 136 F.3d 740, 745 (11th Cir.1998) (emphasis added));
United States v. Snoddy, 139 F.3d 1224, 1228 (8th Cir. 1998) (“‘Whether a downward
adjustment is warranted is determined not only by comparing the acts of each participant
in relation to the relevant conduct for which the participant is held accountable, but also
by measuring each participant's individual acts and relative culpability against the
elements of the offense.’”) (quoting United States v. Padilla-Pena, 129 F.3d 457, 471 (8th
Cir. 1997)); United States v. Caballero, 936 F.2d 1292, 1298 (D.C.Cir. 1991) (concluding
“that section 3B1 allows the sentencing judge to look to ‘the contours of the underlying
scheme itself rather than the mere elements of the offense charged’”) (quoting United
States v. Rodriguez, 925 F.2d 107, 111 (5th Cir. 1991)).
The Seventh Circuit is an exception. In United States v. Lampkins, 47 F.3d 175(7th Cir. 1995), the court, noting that the defendant “was sentenced only for drugs that he
himself handled,” concluded that “it makes no sense to claim that one is a minor
participant in one’s own conduct.” Lampkins, 47 F.3d at 181. And in United States v.
Burnett, 66 F.3d 137 (7th Cir. 1995), although conceding that the defendant was “a small
cog in the scheme,” the Seventh Circuit held that “[w]hen a courier is held accountable
for only the amounts he carries, he plays a significant rather than a minor role in that
43
offense.” Id. at 140; see also id. (“Couriers are integral to the success of drug rings. . . .”).
As noted previously herein, however, this position ignores the plain directive of the
Guidelines. Declaring that one cannot be a “minor participant in one’s own conduct,”
Lampkins, 47 F.3d at 181, overlooks the fact that for purposes of § 3B1.2, the “relevant
conduct” a court must consider in an importation scheme may include much more than
the lone acts of the actual courier. See De Varon, 136 F.3d at 745; see also Isaza-Zapata,
148 F.3d at 240 (“ We disagree with Burnett. The district court must examine all relevant
conduct, not merely the defendant's, in assessing his relative culpability.”).
Therefore, it seems clear that, under the Guidelines, if a drug courier is found to
have acted in concert with others, his or her acts in furtherance of the charged conduct are
to be measured against the acts of those others, regardless of whether the offense was
charged as a conspiracy or a simple count of importation.
III
I am also troubled by the suggestion that in and of itself the amount of drugs
attributed to a defendant has any bearing on whether that defendant is entitled to a minor
role reduction. The amount involved may be taken into account, but always as part of the
inquiry into relative culpability. The majority asserts that “the amount of drugs in a
courier’s possession . . . may be the best indication of the magnitude of the courier’s
participation in the criminal enterprise.” De Varon, – F.3d –. This may or may not be the
case, however, depending on how the amount informs the evidence, viewed in light of §
44
3B1.2's emphasis on the relative culpability of the defendant to be sentenced.5 See
U.S.S.G. § 3B1.2 comment. (backg’d) (“This section provides a range of adjustments for
a defendant who plays a part in committing the offense that makes him substantially less
culpable than the average participant.”). The majority does not explain how it is that the
culpability of a drug courier as compared with “most other participants” in the offense,
U.S.S.G. § 3B1.2 comment. (n.3) (emphasis added), would be affected by the amount of
drugs with which she was caught. Whatever amount the courier sought to smuggle will
be the same amount that defines the offense, and the same amount that must therefore be
attributed to the other participants in the scheme. De Varon, for example, was convicted
of importing 512.4 grams of eighty-five percent pure heroin. This is the same amount
given to her by “Nancy” and organized by Nancy or others for her to carry. The amount,
in other words, remains constant throughout the court’s assessment of De Varon’s role in
the relevant conduct relative to the other participants in the offense. For this reason,
when assessing the relative culpability of the participants – the guiding consideration for
courts considering requests for minor role reductions – the amount of drugs may well be
beside the point.
5
The majority acknowledges that the language of § 3B1.2 and its accompanying notes
“seems to suggest that the relevant inquiry for minor participants is solely comparative,” but
nonetheless claims it “can discern nothing in the Guidelines to suggest that the analysis of role in
the offense varies with the level of participation at issue.” De Varon, – F.3d –. Given that § 3B1
was designed for the sole purpose of enhancing the sentences of those participants with a
relatively higher level of participation in the offense, see U.S.S.G. § 3B1.1, and reducing the
sentences of those with a relatively lower level of participation, see U.S.S.G. § 3B1.2, I find this
statement somewhat puzzling.
45
The illustrations found in the commentary to § 3B1.2, offered by the majority as
support for its conclusion that the amount of drugs “may be dispositive,” De Varon, –
F.3d at –, in fact support a contrary conclusion. As the majority points out, the notes
accompanying § 3B1.2 explain that a “minimal participant” adjustment “would be
appropriate, for example, for someone who played no other role in a very large drug
smuggling operation than to offload part of a single marihuana shipment, or in a case
where an individual was recruited as a courier for a single smuggling transaction
involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment. (n.2). If the latter
example were the only one provided, I would agree that amount would play a larger role
in the inquiry. In the first example, however, the defendant has helped “a very large drug
smuggling operation . . . to offload part of a single marihuana shipment.” The notes do
not tell us what constitutes “part” of a drug shipment, but common sense tells us that “a
very large drug smuggling operation” is likely to involve large shipments of drugs.
“Part” of one shipment is thus likely to be comprised of as great a quantity as one person
could carry in several trips from ship to shore – considerably more, that is, than 512.4
grams. Yet such a person is still entitled to a 4-level reduction as a “minimal participant.”
One must therefore analyze both examples and attempt to harmonize them.
The emphasis of § 3B1.2 on relative culpability – the heart of § 3B1 – helps to do
so. Under § 3B1.2, the minimal participant reduction
is intended to cover defendants who are plainly among the least culpable of those
involved in the conduct of a group. Under this provision, the defendant’s lack of
46
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.
U.S.S.G. § 3B1.2 comment. (n.1). In light of this language, one cannot construe the
illustrations that follow to mean that amount is the sole determinative factor, to be
considered in isolation from the relative culpability of all the participants. If, as the
majority claims, the amount of drugs were “determinative in the context of minimal
participants,” the offloader, who may well have shouldered several hundred kilos during
his short time at the dock, should be considerably less likely to get the reduction than the
courier caught with a “small amount of drugs.” But the offloader as well as the courier
gets the reduction, because it is relative culpability and not drug quantity that drives the
analysis.
Neither the letter nor the spirit of § 3B1.2 supports the suggestion that amount
alone, regardless of other contextual considerations, is a sufficient basis on which to deny
a courier a § 3B1.2 reduction. Although the language of the Guidelines suggests that a
courier with a large amount of drugs is not entitled to a 4-level minimal participant
reduction, he or she may still be eligible for a 2-level minor role reduction if he or she is a
“participant who is less culpable than most other participants, . . . whose role could not be
described as minimal.” U.S.S.G. § 3B1.2 comment (n.3).
IV
Finally, I must also dissent from the reasoning used by the majority to uphold the
district court’s conclusion that De Varon was not entitled to a minor role reduction. First,
47
the district court made no credibility determination regarding De Varon’s testimony, and
we are in no position to do so here. The most generous interpretation of the district
court’s ruling on this record is that it provided no indication as to the court’s view of the
defendant’s credibility. For this reason alone, the case should be remanded to the district
court for a ruling on the credibility of the defendant and a finding as to whether or not she
played a minor role in the offense.
Moreover, assuming that there was such a “finding,” which I believe the record
refutes, I cannot agree with the majority’s analysis concluding that the record in this case
“amply supports the district court’s finding that De Varon did not play a minor role in her
offense of heroin importation.” De Varon, – F.3d at –. The majority explains that
although De Varon was, by one construction of the evidence, arguably less
culpable than the only other known participant, Nancy, it is altogether possible on
this abbreviated record for the trial court to have concluded that Nancy was no
more than a messenger and of relatively equal culpability to De Varon. The facts,
as recounted by De Varon, even if fully credited by the trial court, establish no
more than that she was hired by someone (Nancy) to smuggle one-half kilogram of
heroin into the United States, and to deliver the drugs to someone else -- albeit
unidentified -- in Miami. This bare record does not compel the conclusion that
Nancy was sufficiently more culpable than De Varon.
De Varon, – F.3d at –.
I find this logic flawed. According to De Varon’s testimony, if De Varon were to
be believed, we know that someone else – maybe Nancy,6 maybe one or more other
6
If “Nancy was no more than a messenger and of relatively equal culpability as De
Varon,” this may only go to show merely that both Nancy and De Varon were minor participants
in the relevant conduct.
48
participants – masterminded and financed the operation, called the shots, recruited and
coordinated the several players, procured the drugs, bought the tickets, and arranged for a
drop-off in Miami. In light of this knowledge, De Varon’s inability to provide the names
of the other participants should not be allowed to render her ineligible for a minor role
reduction.7 Yet rather than assessing De Varon’s role in the offense in light of all the
relevant conduct suggested by both the law and common sense, the majority implicitly
crafts a rule to the effect that, for purposes of § 3B1.2, an unnamed participant to the
crime is no participant at all.8
The majority’s implicit requirement that a defendant must provide the names of all
the participants to the crime has the paradoxical and troubling effect of rendering
defendants with little inside knowledge or understanding of the larger scheme less likely
to receive a minor participant reduction, while allowing those defendants with sufficient
knowledge to name all the players and the tasks performed by each to widen the range of
participants against whose actions theirs will be judged, thus making them more likely to
receive the reduction. Yet as the Guidelines explicitly recognize, 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.” U.S.S.G. § 3B1.2
7
Of course, it is not enough that the defendant is less culpable than some of the other
participants. Rather, he or she must show that he or she is less culpable than “most other
participants.” U.S.S.G. § 3B1.2 comment. (n.3).
8
See U.S.S.G. § 3B1.1 comment. (n.1) (defining “participant” as “a person who is
criminally responsible for the commission of the offense, but need not have been convicted”).
49
comment. (n.1). This is not to say that where the concerted criminal act involves a single
leader and many actors with small roles, the minor players would necessarily be entitled
to reductions as “less culpable than most other participants.” U.S.S.G. § 3B1.2 comment
(n.3). At the same time, however, minimal knowledge of the larger scheme should not
automatically defeat the very defendants who might be most entitled to a § 3B1.2
reduction.
Either a witness who professes to possess limited information about the larger
scheme is telling the truth, or she is not. If the judge finds it to be the latter, the judge is
free to deny the reduction. But if the judge finds the witness credible and the testimony
consistent, the judge may on the basis of the testimony alone determine that the defendant
is entitled to a reduction. The judge would, in that instance, consider all of those factors
which we know to impact upon the concept of relative culpability, including the
defendant’s level of education and sophistication, prior involvement in criminal activity,
and manner of involvement in the concerted criminal activity relative to other
participants.
With regard to the manner in which De Varon participated in the crime at issue, I
am troubled by the complete exclusion from the majority’s discussion of any
consideration of what, exactly, De Varon did, and what is done by an unfortunately high
number of the men and women apprehended as drug smugglers at our nation’s borders.
She swallowed and carried in her intestinal tract 512.4 grams of eighty-five percent pure
50
heroin, risking not just an extended stay in an American prison, but her very life.9 This is
not a reason that De Varon should not be held responsible for the act she undertook. But
the Guidelines direct courts to determine a defendant’s relative culpability, and no one
can debate the position of a courier like De Varon in the hierarchy of the criminal
enterprise. If De Varon was part of a larger enterprise, it is clear that, as a swallower, she
was considered by definition as expendable to that organization, for no organization,
illicit or otherwise, would risk the lives of its central or valuable members in this way.
The fact that De Varon filled the role of swallower in the importation scheme cannot be
totally ignored in considering whether she was a minor player.
For all the foregoing reasons, I would reverse the district court’s denial of De
Varon’s request for a § 3B1.2 minor participant reduction, and remand for the court to
consider whether De Varon met her burden of demonstrating that she was less culpable
than most other participants in the offense.
9
See United States v. Purchess, 107 F.3d 1261, 1263-64, 1270-71 (7th Cir. 1997)
(affirming a § 5K2.1 upward departure for conduct resulting in death, where the defendant was
convicted of organizing the importation of drugs through the use of swallowers and one of his
couriers died en route of “body packer syndrome” after a “deadly amount of cocaine [] leaked
from the [ingested drug-filled] pellets”); Huguez v. United States, 406 F.2d 366, 391 (9th Cir.
1968) (explaining that “the acidic nature of the gastric juices in the [stomach] makes the
swallowing of almost any flexible container of narcotics quite dangerous”) (citing Blefare v.
United States, 362 F.2d 870, 873-874 (9th Cir. 1966)).
51