U.S. v. Buenrostro

• Decision Date: 08 March 1989
• Docket Number: No. 88-2490,88-2490
• Citation: 868 F.2d 135
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard Orozco BUENROSTRO, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 135

868 F.2d 135

UNITED STATES of America, Plaintiff-Appellee, v. Leonard Orozco BUENROSTRO, Defendant-Appellant.

No. 88-2490

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 8, 1989.

Rehearing and Rehearing En Banc Denied April 19, 1989.

J. Gary Trichter (Court-appointed), W. Troy McKinney, Houston, Tex., for defendant-appellant.

Paula C. Offenhauser, Asst. U.S. Atty., Houston, Tex., Henry K. Oncken, U.S. Atty., Corpus Christi, Tex., for plaintiff-appellee.

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

Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Leonard Orozco Buenrostro pled guilty to possession of 18 kilograms of heroin with intent to distribute. See 21 U.S.C. Secs. 841(a)(1) and (b)(1)(A). On appeal, he challenges only his sentence. He contends that the district court incorrectly applied the sentencing guidelines, see 18 U.S.C. Sec. 3553(a), by denying his request for a reduction in offense level on the ground that he was a "minimal participant." Guideline 3B1.2. He also contends that the district court should have made a downward departure from the guideline sentence pursuant to Sec. 5K2.0. Because we find that the district court correctly applied the guidelines to factual findings which were not clearly erroneous, and because the court's refusal to depart from the guideline range was not in violation of law, we affirm.

I

According to Buenrostro's own admissions at his sentencing hearing, the United States border patrol apprehended him with 18 kilograms of heroin in December 1987. Buenrostro, accompanied by his wife and children, was crossing into the United States from Mexico. He was driving a 1984 Granada, which he owned. The border agent found evidence of tampering with some panels in the car, and, after using a "sniffer dog," eventually discovered the 18 kilograms of heroin. The drug has a value of approximately three million dollars.

At the time he was apprehended, Buenrostro denied any knowledge of the contraband. Buenrostro speculated that the parcels of heroin might have been inserted into the car by some mechanics who had recently done body work on the vehicle. Later, however, Buenrostro admitted that he knew that the car contained a controlled substance, but maintained that he believed the substance to be marijuana, rather than heroin. Buenrostro pled guilty to possession of a controlled substance with intent to distribute. The government agreed to deem Buenrostro's admission an "acceptance of responsibility" pursuant to Guideline 3E1.1, and to recommend that Buenrostro receive a sentence at the bottom of the applicable guideline range.

Buenrostro received the agreed upon two-point reduction to his offense level for "acceptance of responsibility." The resulting offense level was 34, and, combined with a Criminal History Category of I, resulted in a sentencing range of 151 to 188 months. The district judge eventually imposed a 151 month sentence, the minimum sentence within the applicable range.

At the sentencing hearing, and again on appeal, Buenrostro contended that his offense level should have been further reduced pursuant to Guideline 3B1.2(a), allowing a four-point reduction if the defendant is found to be a "minimal participant." Buenrostro also asked the district judge to depart downward from the sentencing range on the ground that Buenrostro thought the heroin was marijuana. The district judge declined to make the proposed adjustment and departure.

II

A reviewing court will uphold a sentence unless the sentence was "imposed in violation of law," or was "imposed as a result of an incorrect application of the sentencing guidelines," or was "outside the range of the applicable sentencing guideline, and is unreasonable." 18 U.S.C. Secs. 3742(d) and (e). The reviewing court "shall accept the findings of fact of the district court unless they are clearly erroneous." 18 U.S.C. Sec. 3742(d).

This court's recent decision in United States v. Mejia-Orosco, 867 F.2d 216 (5th Cir.1989), controls our review of a defendant's appeal from a sentence imposed under the sentencing guidelines. The Mejia-Orosco court stressed that the "district court's fact-finding power is an important guarantor of the practical judgment essential to any just sentencing procedure." 867 F.2d at 219. We recognized that the sentencing guidelines necessarily call upon the district courts to make sophisticated factual determinations which "depend upon an assessment of the broad context of the crime." We specifically noted that the defendant's status as a "minimal participant" or a "minor participant" was among these sophisticated factual determinations, and that these findings "enjoy the protection of the 'clearly erroneous' standard." 867 F.2d 221. Although we encouraged judges to supply more specific factual findings, we held that a simple statement that the defendant was not a "minor participant" would suffice as a factual finding. We declined to require the judge to write out more specific findings. 867 F.2d at 221.

The Mejia-Orosco court also clarified the difference between the standard of review applicable to "adjustments" and "departures" under the guidelines. Citing 18 U.S.C. Sec. 3553, we said that we will "affirm sentences imposed by district judges who make factual findings that are not clearly erroneous, and who apply the guidelines to those findings. In such cases, the sentencing judge need not offer further reasons justifying the sentence. When, however, the judge departs from the guideline range, an additional reasonableness requirement applies: the judge must offer reasons explaining why the departure is justified in terms of the policies underlying the sentencing guidelines." Mejia-Orosco, 867 F.2d at 221.

III

Buenrostro's first argument turns upon Sec. 3B1.2 of the guidelines, titled "Mitigating Role." The guideline states:

Based on the defendant's role in the offense, decrease the offense level as follows:

(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

Buenrostro places great emphasis upon the second application note accompanying the guideline. That note first observes that the "minimal participant" adjustment should be used infrequently. It goes on to state that the 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." Buenrostro contends that he is the sort of one-time courier mentioned in the last phrase of the application note.

At the sentencing hearing, Buenrostro contended that he had agreed to carry a controlled substance in his car after being asked to do so by some men he had just met at a bar. Buenrostro said the men told him that he would be carrying marijuana. He said that he did not observe the men when they put the drugs into his car. Buenrostro also contended that he had agreed to carry the drugs into the United States only because he had recently lost his house in Houston and was living on food stamps.

The district judge denied Buenrostro's request for a downward adjustment based upon minimal participant status. The judge specifically found that Buenrostro had "committed ... a very significant crime." The district judge found that the defendant was a courier. He also stated that the fact that the defendant was...