U.S. v. Rodriguez De Varon

• Citation: 175 F.3d 930
• Decision Date: 14 May 1999
• Docket Number: No. 96-5421,96-5421
• Parties: 12 Fla. L. Weekly Fed. C 837 UNITED STATES of America, Plaintiff-Appellee, v. Isabel Rodriguez DE VARON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 930

175 F.3d 930

12 Fla. L. Weekly Fed. C 837

UNITED STATES of America, Plaintiff-Appellee, v. Isabel Rodriguez DE VARON, Defendant-Appellant.

No. 96-5421.

United States Court of Appeals, Eleventh Circuit.

May 14, 1999.

Kathleen M. Williams, Federal Public Defender, Faith Mesnekoff, Assistant Federal Public Defender, Miami, FL, for Defendant-Appellant.

William A. Keefer, U.S. Attorney, Anne Ruth Schultz, Phillip DiRosa, Assistant U.S. Attorney, Eduardo I. Sanchez, Richard S. Hong, Assistant U.S. Attorney, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

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 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 "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 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.

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.

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....