United States v. Brand
U.S. Court of Appeals for the First Circuit
United States v. Brand
Opinion
USCA1 Opinion
August 11, 1992 [NOT FOR PUBLICATION]
____________________
No. 91-2299
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN GUILLERMO BRAND,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Luis Rafael Rivera on brief for appellant.
__________________
Daniel F. Lopez Romo, United States Attorney, and Antonio R.
______________________ __________
Bazan, Assistant United States Attorney, on brief for appellee.
_____
____________________
____________________
Per Curiam. Appellant pled guilty to one count of
__________
possession of cocaine with intent to distribute in violation of
21 U.S.C. 841(a)(1) and 18 U.S.C. 2, and one count of
possession of cocaine on board a vessel in violation of 21
U.S.C. 955 and 18 U.S.C. 2. The district court sentenced
him to fifty-one months in prison. He now appeals that
sentence, arguing that the court erred by not granting him a
two-level reduction as a minor participant and by not departing
downward for his substantial assistance to the government under
the United States Sentencing Guidelines (USSG). Because
appellant's assignments of error are without merit, we affirm.
1. Under USSG 3B1.2(b) a defendant's offense
level is decreased by two levels if the defendant was a "minor
participant" in the charged criminal activity. A minor
participant is "any participant who is less culpable than most
other participants, but whose role could not be described as
minimal." USSG 3B1.2(b) (Application Note 3). In order to
merit this reduction, a defendant must have been "substantially
less culpable than the average participant" in committing the
offense. Id. (Background).
___
Our prior cases make clear that, in determining
whether a defendant was a minor participant in criminal
activity, we analyze both the relative conduct of the persons
involved in the criminal activity, as the Sentencing Guidelines
suggest, and the defendant's own conduct measured against the
elements of the offense with which the defendant was charged.
-2-
United States v. Gregorio, 956 F.2d 341, 344 (1st Cir. 1992);
______________ ________
see also United States v. Cepeda, 907 F.2d 11, 12 (1st Cir.
_______________________ ______
1990). The defendant bears the burden of proof in seeking a
sentencing adjustment as a minor participant. United States v.
_____________
Rosado-Sierra, 938 F.2d 1, 1 (1st Cir. 1991). To prevail upon
_____________
appeal, the defendant must show that the district court's
determination that defendant was not a minor participant was
"clearly erroneous." Id. at 1-2. Under this standard we will
___
reverse a lower court decision if, after reviewing the
evidence, we have "the definite and firm conviction that a
mistake has been committed." United States v. Vega-
_______________ _____
Encarnacion, 914 F.2d 20, 24 (1st Cir. 1990) (quoting from
___________
Anderson v. Bessemer City, 470 U.S. 564, 573 (1984)), cert.
________ ______________ _____
denied sub nom. Cruz-Rosario v. United States, 111 S. Ct. 1626
_____________________________ _____________
(1991).
Appellant incorrectly alleges that the court made
no findings to support its decision that the appellant was not
a minor participant in the drug trafficking scheme to which he
pled guilty. The district court stated its reasons for
concluding that appellant was not a minor participant at the
sentencing hearing, as the hearing transcript makes clear.
Moreover, the court also adopted the factual recitals of the
presentence report, as the official judgment entered in the
case clearly indicates. Thus, the findings on which the court
relied were as follows. By his own admissions appellant had
entered into a drug trafficking scheme with an individual in
-3-
Venezuela whom he had met while on a trip to that country.
Pursuant to that scheme appellant would receive in Puerto Rico
cocaine-carrying crew members from luxury liners travelling
from Venezuela to Puerto Rico. He would then forward the
cocaine to the continental United States. The specific events
that led to his arrest and indictment for possessing cocaine
with intent to distribute confirm that scheme. On March 11,
1991, customs officials detained and searched a crew member
from a ship that had just arrived in Puerto Rico from
Venezuela. They found cocaine in one of the seaman's shoes.
After his arrest, he agreed to cooperate with the government
and participated in a controlled delivery of the cocaine to
appellant and another co-defendant. Appellant and his co-
defendant, who was to provide appellant with transportation,
were arrested after receiving the cocaine. A stipulated
version of facts prepared by the government and signed by
appellant further indicates that the appellant was to deliver
$2,000 to the crew member for the cocaine. The presentence
report concludes that appellant was the "most culpable" of the
three persons who were arrested because he was "responsible for
obtaining the cocaine and delivering same to the United
States." In contrast, the crew member was a "courier", and
appellant's other co-defendant was only a "minimal participant
and the least culpable as his role only consisted of
transporting the defendant . . . ."
-4-
These facts amply support the court's decision.
Moreover, in light of appellant's guilty plea, there is no
question that defendant committed each element necessary to
convict him of the charges for which he was arrested. Finally,
the court's decision is consistent with other decisions we have
affirmed which arise out of similar facts. See, e.g., Rosado-
__________________
Sierra, 938 F.2d at 2, and cases cited therein. Therefore, the
______
district court's decision that appellant did not merit an
offense level reduction as a minor participant was not clearly
erroneous.
2. Under USSG 5K1.1 the court may depart from
the sentencing guidelines "[u]pon motion of the government
stating that the defendant has provided substantial assistance
in the investigation or prosecution of another person who has
committed an offense." The district court declined to depart
downward because the government had not brought the motion
required by Section 5K1.1. Upon appeal appellant asks this
court to revisit its decisions holding that a district court's
refusal to depart downward is not appealable if the sentence
imposed was within the sentencing guidelines and that a
district court may not depart downward absent a government
motion seeking such departure.1 In support of his request
appellant alleges that the prosecutor did not file the Section
____________________
1. Appellant states in his brief on appeal that he had
argued before the district court that Section 5K1.1 was
unconstitutional because it violated the separation of powers
doctrine. Appellant does not pursue this argument on appeal.
-5-
5K1.1 motion "simply because of [appellant's] colombian origin
(he was born in Colombian [sic] but raised in Venezuela)."
We see no reason to revisit our prior holdings, as
appellant suggests. Moreover, the question whether the
district court may depart downward absent a government motion
has been resolved by the Supreme Court. In Wade v. United
____ ______
States, 112 S. Ct. 1840, 1842-43 (1992), the Court affirmed a
______
decision that a district court may not depart downward without
a government motion, holding that Section 5K1.1 gives the
government "a power, not a duty" to file that motion. Although
a prosecutor's discretion in bringing a Section 5K1.1 motion is
subject to constitutional limitations, id. at 1843, appellant's
___
allegation of prosecutorial misconduct is misplaced here.
Appellant's suggestion that the prosecutor's decision not to
bring a Section 5K1.1 motion was based on animus against him
because of his Colombian origin is conclusory and finds no
support in the record. See id. at 1844 ("generalized
________
allegations of improper motive" do not show prosecutorial abuse
of discretion); United States v. Amparo, 961 F.2d 288, 293 (1st
_____________ ______
Cir. 1992) (appellant's argument that the government chose not
to seek downward departure in her case because she exercised
her constitutional right to a jury trial was "[a] wholly
conclusory allegation, unsupported either by proven facts or by
reasonable inferences from proven facts, [and so] cannot
suffice to overcome the force of the 'government motion'
requirement"). In addition, appellant failed to raise this
-6-
argument before the district court. His failure precludes him
from raising the argument now. United States v. Uricoechea-
______________ ___________
Casallas, 946 F.2d 162, 166 (1st Cir. 1991) (the long-standing
________
rule that this court will not address issues presented for the
first time on appeal applies to arguments about sentencing
guidelines).
Because the district court properly found that
appellant was not a minor participant in the criminal activity
to which he pled guilty, and because appellant's assertion of
prosecutorial misconduct is unsupported by the evidence and was
not made at the hearing below, we affirm summarily pursuant to
______
1st Cir. Loc. R. 27.1.
-7-
Reference
- Status
- Published