U.S. v. Arredondo-Santos, ARREDONDO-SANTO

• Decision Date: 21 August 1990
• Docket Number: D,ARREDONDO-SANTO,No. 89-2173,89-2173
• Citation: 911 F.2d 424
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonioefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 424

911 F.2d 424

UNITED STATES of America, Plaintiff-Appellee, v. Antonio ARREDONDO-SANTOS, Defendant-Appellant.

No. 89-2173.

United States Court of Appeals Tenth Circuit.

Aug. 21, 1990.

Presiliano Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Charles A. Harwood (James B. Foy with him on the brief), Silver City, N.M., for defendant-appellant.

Before LOGAN, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Arredondo-Santos having pled guilty to the crime of possession with intent to distribute less than fifty kilograms of marijuana, appeals his sentence of thirty months.

Mr. Arredondo-Santos asserts only one issue on appeal, and that is did the district court err when it refused to decrease his offense level by two levels based upon Mr. Arredondo-Santos' contention that he was but a minor participant in the criminal activity? ¹

The Government and Mr. Arredondo-Santos entered into a written plea agreement, which included a stipulation "that pursuant to Sec. 3B1.2(b), the defendant was a minor participant in the criminal activity alleged in the indictment herein." This plea agreement further provided that the defendant (Mr. Arredondo-Santos) understands that "this stipulation is not binding on the Court and that whether or not the Court accepts this stipulation is solely in the discretion of the Court after it has reviewed the pre-sentence report."

A presentence report was then prepared and filed, which indicated that Mr. Arredondo-Santos was not entitled to a reduction of two offense levels for being a minor participant in the crime. This presentence report specified the offense conduct. It can be summarized as stating that Mr. Arredondo-Santos was driving a van, with a passenger, which was stopped at the United States-Mexico border. It was subsequently determined that concealed within the van was about 100 pounds of marijuana. Mr. Arredondo-Santos first claimed that, while he was in Mexico, he loaned his van to a man he had met several years ago and that this man must have concealed the marijuana in the van with the intent of recovering it later. Subsequently, Mr. Arredondo-Santos admitted that he knowingly transported the marijuana, which he had obtained in Mexico, and the marijuana was destined for Riverside, California.

Mr. Arredondo-Santos filed no written objections to the presentence report. Counsel for Mr. Arredondo-Santos said there was no need for an evidentiary hearing. He further stated that the defendant did not contest the facts as set forth in the presentence report. However, Mr. Arredondo-Santos argued at the sentencing hearing that he should receive a two-level reduction in the offense level. He contended that he was a mere driver and was less culpable than the people who purchased and sold the drugs; that he was less culpable than the owner of the marijuana; and that there was no evidence indicating that he had loaded or unloaded the marijuana or that he had concealed the marijuana in his van.

After hearing the arguments of Mr. Arredondo-Santos, the court stated:

I don't find that a driver under these circumstances is a minimal or minor participant. Obviously the system breaks down without people such as the defendant to transport the narcotics. So I don't find that he is a minor participant.

On appeal, Mr. Arredondo-Santos reiterates the same arguments advanced to the district court. The arguments can be summarized as stating that Mr. Arredondo-Santos contends that marijuana distributing operations usually involve many individuals with various responsibilities and that a "courier or mule," whose sole function is to drive the marijuana from point A to point B, should be classified as a minor participant.

We first address the stipulation of the parties. Mr. Arredondo-Santos correctly makes no argument to this court that the stipulation was binding upon the district court.

Mr. Arredondo-Santos contends that the sentence was imposed as a result of an incorrect application of the Sentencing Guidelines. We must accept the findings of fact of the district court unless they are clearly erroneous. 18 U.S.C. Sec. 3742(d)(2). A finding that a defendant is or is not a minor participant is a finding of fact. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989) (citing United States v. Franco-Torres, 869 F.2d 797, 800 (5th Cir.1989)). We give due deference to the district court's application of the Sentencing Guidelines to the facts. 18 U.S.C. Sec. 3742(e); United States v. Smith, 888 F.2d 720, 723 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1786, 108 L.Ed.2d 788 (1990).

The facts are undisputed. Mr. Arredondo-Santos was apprehended with a quantity of marijuana concealed in his van. Mr. Arredondo-Santos had...