U.S. v. Carter, 91-2243

• Decision Date: 31 July 1992
• Docket Number: No. 91-2243,91-2243
• Citation: 971 F.2d 597
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lynette CARTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 597

971 F.2d 597

UNITED STATES of America, Plaintiff-Appellee, v. Lynette CARTER, Defendant-Appellant.

No. 91-2243.

United States Court of Appeals Tenth Circuit.

July 31, 1992.

David Williams, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., and Presiliano A. Torrez, Asst. U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Charles R. Finley of Warner & Finley, Albuquerque, N.M., for defendant-appellant.

Before ANDERSON, Circuit Judge, and McWILLIAMS and SNEED ^*, Senior Circuit Judges.

McWILLIAMS, Senior Circuit Judge.

Lynette Carter was charged in a one-count indictment with possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(D). Carter and the United States Attorney later presented to the district court a memorandum of understanding wherein Carter agreed to plead guilty to the charge, and Carter and the government agreed to certain stipulations which both recognized as being non-binding on the district court. One of these stipulations was that Carter was only a minimal participant and pursuant to Sentencing Guidelines § 3B1.2(a) was entitled to a decrease in her base offense level of 4 levels.

At sentencing, the district court declined to find that Carter was only a minimal participant, and rejected the ensuing suggestion of counsel that at least Carter be deemed a minor participant and thereby entitled to have her base offense level decreased by 2 levels. Carter was then sentenced to a term of 15 months imprisonment and 3 years supervised release upon her release from confinement. Carter appeals her sentence, claiming that the district court erred in declining to find that she was a minimal participant and entitled to a decrease in her base offense level of 4 levels or, in the alternative, that she was only a minor participant and entitled to a 2-level reduction in her base offense level.

Sentencing Guidelines § 3B1.2 provides 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.

As indicated, the only issue on appeal is whether the district court erred in declining to find that Carter was entitled to a reduction of her base offense level because her participation in the criminal activity was either minimal or minor. Both parties agree that their stipulation that she was a minimal participant was not binding on the district court. Both further agree that the district court's finding that Carter was neither a minimal nor minor participant is a finding of fact which on appeal must be accepted by us unless clearly erroneous. United States v. Calderon-Porras, 911 F.2d 421 (10th Cir.1990). Both agree also that Carter had the burden of establishing by a preponderance of the evidence that she was a minimal or minor participant. United States v. Caruth, 930 F.2d 811 (10th Cir.1991).

Carter's basic argument is that because she was only a drug courier she should have been granted a 4-level decrease as a minimal participant, or, at the least, a 2-level decrease as a minor participant. In this connection counsel agree that a courier is not automatically entitled to a reduction in base offense level as a minimal or minor participant, but counsel for Carter argues that under the facts and circumstances of this case the district court was clearly erroneous in not finding that she was a minimal or at least a minor participant.

At sentencing, the only evidentiary matter before the district court was the presentence report. From that report we learn that Carter was a passenger on an Amtrak train en route from Los Angeles, California, to Chicago, Illinois. During a stop in Albuquerque, New Mexico, a DEA special agent and a border patrol agent boarded the train. After detecting the smell of marijuana and tracing it to a soft-sided suitcase with the name L. Carter on the tag, the agents questioned the appellant who was the only Carter on board. Carter denied that the luggage was hers. Determining that the suitcase had been abandoned, the agents conducted a search of the bag. The search of the luggage disclosed approximately 42 pounds of marijuana. Carter was then placed under arrest at Lamy, New Mexico. It was later determined that the marijuana had been placed in Carter's luggage by persons in Los Angeles with whom she had been visiting and was for ultimate delivery to persons in Boston, Massachusetts. Carter subsequently agreed that she knew she was transporting marijuana and that she expected to be compensated for her efforts.

In the presentence report the Probation Officer set Carter's base offense level at 16. In so doing, the Probation Officer stated that the "instant offense" involved 42.3 net pounds of marijuana, which amount was the equivalent of 19.18 net kilograms of marijuana, and that under the drug quantity table, 10 to 20 kilograms of marijuana establishes a base offense level of 16. There is no objection by counsel to the establishment of Carter's base offense level at 16.

The Probation Officer recommended an upward adjustment of 2 levels in Carter's base offense level for her obstruction of justice. The district court declined to find that Carter had obstructed justice and accordingly Carter's base offense level remained at 16. The government has not...