U.S. v. Gordon

• Decision Date: 31 March 1990
• Docket Number: Nos. 89-5003,89-5038,s. 89-5003
• Citation: 895 F.2d 932
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ian GORDON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Ian GORDON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 932

895 F.2d 932

UNITED STATES of America, Plaintiff-Appellee, v. Ian GORDON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Ian GORDON, Defendant-Appellee.

Nos. 89-5003, 89-5038.

United States Court of Appeals Fourth Circuit.

Argued Oct. 5, 1989.

Decided Feb. 2, 1990.

Rehearing and Rehearing In Banc Denied March 31, 1990.

Marvin David Miller, Alexandria, Va., for defendant-appellant.

Bernard James Apperson, III, Asst. U.S. Atty., Arlington, Va. (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and MURNAGHAN and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:

Ian Gordon appeals his conviction of possession of cocaine with the intent to distribute. 21 U.S.C.A. Sec. 841(a)(1) (West 1981). He claims violations of the fourth and fifth amendments and that the district court erroneously denied him offense level reductions for acceptance of responsibility and for being a minimal participant. The United States cross-appeals Gordon's sentence claiming that the district court erroneously found Gordon to be a minor participant. We affirm the conviction but reverse and remand for resentencing.

I.

On September 14, 1988, Drug Enforcement Administration Special Agent Callahan and Loudoun County Deputy Becerra were engaged in general surveillance of passengers at Washington National Airport in Arlington, Virginia. They observed Gordon deplane from a Pan Am shuttle from New York. While the officers knew that New York was a "source city" for narcotics, they had no prior information about this particular flight or Gordon, nor did Gordon meet a "drug courier profile."

Callahan and Becerra followed Gordon outside the terminal, where Callahan approached Gordon and explained that he was part of a Drug Enforcement Administration drug interdiction team. Callahan asked for and received permission to search Gordon's bag. Finding no contraband, Callahan requested permission to "pat him down." Gordon again gave verbal permission. Upon discovering a bulge in Gordon's pocket, Callahan requested to see its contents. Although he claimed that the pocket contained only a sandwich, Gordon removed a small clear plastic bag partially wrapped in gray duct tape containing 249.50 grams of white powder, which Callahan recognized to be cocaine. The officers placed Gordon under arrest and informed him of his Miranda rights.

When the officers asked Gordon if he would answer some questions he responded, "What do you want to know?" When asked the question, "Where were you taking this stuff?" Gordon shook his head in response. He was immediately transported to a nearby police station, a trip which Gordon concedes took no more than five minutes. Becerra testified that at the station he asked Gordon "if he was high, at which he said no. I asked him if he snorted or smoked cocaine. He said no." When asked how Gordon indicated that he did not snort or smoke cocaine, Becerra stated that Gordon "made a negative gesture with his head."

At a preliminary hearing, Gordon moved to suppress the cocaine as the product of an illegal search and seizure. He also moved to suppress any inculpatory statements made at the police station on the basis that their admission would violate his fifth amendment rights under Miranda. Both motions were denied and Gordon was subsequently convicted by a jury of possession with the intent to distribute cocaine.

At sentencing, Gordon admitted that he was guilty of simple possession of cocaine and requested a reduction for acceptance of responsibility. U.S.S.G. Sec. 3E1.1. However, on the advice of counsel he would not acknowledge that he possessed the cocaine with the intent to distribute. He refused to elaborate, expressing his desire to preserve any fifth amendment rights in the event of a successful appeal and retrial. He also requested a four-level reduction of his offense level, claiming that as a courier he was entitled to be classified as a minimal participant under section 3B1.2(a) of the guidelines. Over the government's objection, the court granted Gordon a two-level reduction for being a minor participant. U.S.S.G. Sec. 3B1.2(b). The resulting offense level of 18 with a criminal history category of I produced a guideline range of 27-33 months. The court sentenced Gordon to 27 months.

II.

On appeal, review of a district court determination regarding role in the offense is governed by the clearly erroneous standard. United States v. Daughtrey, 874 F.2d 213 (4th Cir.1989) (determination that defendant was neither minimal nor minor participant is a factual question and due deference requires affirmance unless clearly erroneous); see United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir.1989); United States v. Wright, 873 F.2d 437 (1st Cir.1989); United States v. Nunley, 873 F.2d 182 (8th Cir.1989); United States v. Rojas, 868 F.2d 1409 (5th Cir.1989).

Gordon bases his claim that he was a minimal participant on the commentary to section 3B1.2 of the guidelines, which states that an offense level reduction for minimal participation would be appropriate "in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs." U.S.S.G. Sec. 3B1.2, comment. (n.2). Gordon also argues that the government's reference to him during the trial as a courier entitles him to a reduced offense level. However, as this circuit and the Fifth Circuit have held, the fact that a defendant is a drug courier does not automatically entitle him to a reduction. United States v. White, 875 F.2d 427, 434 (4th Cir.1989); see United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989). In Buenrostro the court, referring to the commentary cited by Gordon, stated that "[t]he example suggests that some couriers may appropriately receive the reduction; it does not suggest that all couriers are entitled to a downward adjustment." Buenrostro, 868 F.2d at 138. In White we adopted the reasoning of Buenrostro and held that section 3B1.2 of the guidelines turns upon culpability, not courier status. White, 875 F.2d at 434. A defendant may be a courier without being less culpable than the other participants. Id. Gordon offered absolutely no evidence to support a finding that he was a minimal participant. Therefore, we affirm the refusal by the district court to grant Gordon a four-level reduction of his offense level on this basis.

In its cross-appeal, the government urges that Gordon was not entitled to the two-level reduction for minor participant status. Its position is simply that Gordon was apprehended while possessing, with the intent to distribute, a quantity of cocaine. The government had no knowledge of the source of the cocaine or that Gordon was involved in a conspiracy with others. At sentencing Gordon offered no evidence regarding the scope of his involvement with another participant or any other evidence on which the district court could base a finding of reduced culpability or involvement justifying his classification as a minor participant. Although Gordon correctly asserts that the number of defendants indicted does not determine whether there was more than one participant involved in the offense, there was no evidence here of participation by anyone else.

The government is correct that mitigating role adjustments apply only when there has been group conduct and a particular defendant is less culpable than other members of the group to such a degree that a distinction should be made at sentencing between him and the other participants. ¹ When seeking a mitigating adjustment, a defendant has the burden of proof to convince the district court of its application by a preponderance of the evidence. United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989). Since there are no facts in the record to support Gordon's position, he is forced to rely on two conclusory statements, one by the prosecuting attorney and the other by the probation officer who prepared the presentence report. During trial, the prosecuting attorney referred to Gordon as a courier, and Gordon argues that this entitles him to be viewed as a minimal participant. Interestingly, Gordon continues to deny that he intended to deliver the cocaine to anyone, yet at the same time he contends that the government's reference to him as a courier entitles him to a reduced offense level. Also, a worksheet prepared by the probation officer and submitted to the court recommended a two- level reduction as a minor participant. But, as we have previously held, the decision of the district court on whether to apply a particular guideline is not controlled by the probation officer's recommendation. White, 875 F.2d at 431. Further, in paragraph 5 of the presentence report entitled "Defendant's Role in the Offense," it is reported that "[t]he defendant is solely responsible for the charge for which he is before the court." The district court adopted the report in its statement of findings and reasons for the sentence imposed.

We are faced with a record devoid of any justification for the conclusion of the district court that "[t]he court finds that the base level should be reduced by 2 for the defendant's role in the offense...." The court offered no explanation nor pointed to any fact to support its conclusion. See United States v. White, 888 F.2d 490, 495 (7th Cir.1989) ("Every sentence under the Guidelines must be supported by reasons.").

Under the new sentencing system mandated by the Sentencing Reform Act of 1984, 18 U.S.C.A. Secs. 3551, et seq. (West 1985 & Supp.1989), a request for the district court to find and apply an aggravating or mitigating factor when determining the appropriate guideline sentence must be based on some evidence. The moving party cannot meet his burden simply by offering...