U.S. v. Garcia

• Decision Date: 30 November 1990
• Docket Number: D,No. 335,335
• Parties: UNITED STATES of America, Appellee, v. GARCIA, Victor Monsalve, Palacio, Defendants. Appeal of Victor MONSALVE, Defendant-Appellant. ocket 90-1243.
• Court: U.S. Court of Appeals — Second Circuit

Page 153

920 F.2d 153

UNITED STATES of America, Appellee, v. GARCIA, Victor Monsalve, Palacio, Defendants Appeal of Victor MONSALVE, Defendant-Appellant.

No. 335, Docket 90-1243.

United States Court of Appeals Second Circuit.

Argued Nov. 20, 1990.

Decided Nov. 30, 1990.

Steven D. Jacobs, New Haven, Conn., for defendant-appellant.

Theodore B. Heinrich, Asst. U.S. Atty., Bridgeport, Conn. (Stanley A. Twardy, Jr., U.S. Atty., District of Connecticut, of counsel), for appellee.

Before Van Graafeiland and Walker, Circuit Judges, and Dearie, District Judge. ^*

PER CURIAM:

The defendant Victor Monsalve appeals from the refusal of the district court at his sentencing to reduce his offense level, pursuant to Sec. 3B1.2 of the Sentencing Guidelines, by two levels for what he claims to have been his minor participation in the offense based upon his role as a courier in a drug transaction.

At 1:35 P.M. on October 31, 1989, an undercover officer with a joint federal, state and local drug enforcement task force met Monsalve's co-defendant, Oscar Garcia, outside the McDonald's restaurant near Interstate 95 in Fairfield, Connecticut to purchase a kilogram of cocaine for $23,000. The meeting was preceded by several telephone conversations between the officer and Garcia during which the negotiations for the transactions were completed. Garcia drove alone to the meeting place. However, he was followed closely by a second car that contained a second co-defendant, John Palacio, and Monsalve. Garcia and Palacio left their cars and entered the undercover officer's car where the officer showed them the "buy money." Palacio returned to his car and conferred with Monsalve. When Palacio told Monsalve that he was afraid to deliver the package, Monsalve replied that somebody had to deliver it, so he would. Monsalve got out of his car carrying the package of cocaine, entered the undercover's car and handed the package to the undercover officer while Garcia counted the money. Moments later, Garcia, Palacio and Monsalve were arrested.

Thereafter all three defendants gave statements. Read together, the statements indicated that Garcia and Palacio knew each other previously but did not know Monsalve. Garcia had looked to Palacio to help him find a source for the cocaine and Palacio had contacted a source who directed Palacio to a Bridgeport shopping center. Garcia and Palacio went to the shopping center where they met Monsalve for the first time. Garcia was to receive $1000 and Palacio from $500 to $700 for the transaction. According to Monsalve, he was to be paid $150 to deliver the cocaine by the source whose name was "Wally". Monsalve, accompanied by Palacio, then drove his rental car with the cocaine under the back seat to the meeting place that Garcia had pre-arranged with the undercover officer.

On February 2, 1990, Monsalve entered a plea of guilty to a single count of conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841 and 846. The presentence report, prepared by the probation office, calculated the Guideline range applicable to Monsalve to be 51-63 months imprisonment based on an adjusted offense level of 24 after a two level reduction for acceptance of responsibility. The report indicated no reduction pursuant to Sec. 3B1.2 of the Guidelines for defendant's role in the offense.

At Monsalve's sentencing on March 30, 1990, his counsel argued for the first time that Monsalve should receive a two level downward adjustment for his "minor role" as a courier. The district court denied the reduction. The district court found that Monsalve's conduct was essential to the transaction "without which there was no deal." The district judge did not agree with Monsalve that Garcia was the "mastermind" of the conspiracy, nor did he agree that Monsalve was simply carrying out orders. He also discredited Monsalve's claim that "he did what he did for simply $150." The court imposed a prison sentence of 55 months. In doing so, the court stated: "I do that based on the nature of the offense, including the weight and purity of the cocaine, coupled with your closeness to the source of the cocaine."

Monsalve argues that the district court's ruling denying the minor role adjustment was clearly erroneous. He also argues that the district court's findings regarding Monsalve's role violated his fifth and sixth amendment rights because they were without support in the record and thus cannot support the court's ruling. We reject both arguments.

Monsalve claims minor role status based upon the following view of the facts: Garcia negotiated the transaction; Garcia arranged with Palacio to obtain the cocaine from a source known to the latter; Monsalve was given the package of cocaine by an individual known to him as "Wally" who instructed him to drive with Palacio to the meeting site; Monsalve delivered the package to the undercover officer whom he had never met; and Monsalve was to receive $150 for his part whereas Garcia and Palacia were to receive, respectively, $1000 and from $500 to $700 for theirs. In short, Monsalve asserts: "Garcia was the coordinator, Palacio the steerer and Monsalve the courier." Under such circumstances, Monsalve maintains, the district court's refusal to find that he was a "minor" participant pursuant to Sec. 3B1.2 and to reduce his offense level by two levels was clearly erroneous.

To the extent that Monsalve claims that one who is simply a courier is automatically entitled to a Sec. 3B1.2 minor role adjustment based on that status, we reject his argument. Whether a defendant may be accorded the benefit of a "minor" or "minimal" role adjustment under Sec. 3B1.2 does not turn solely upon his status or his assigned task in the criminal enterprise. Such a cramped view of "role" is inconsistent with the prescription in the Guidelines that this determination is to be made not with regard to status in the abstract but rather...