U.S. v. Isaza-Zapata, ISAZA-ZAPAT

• Decision Date: 08 June 1998
• Docket Number: A,No. 97-5443,ISAZA-ZAPAT,97-5443
• Citation: 148 F.3d 236
• Parties: UNITED STATES of America v. Oscar Ivanppellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 236

148 F.3d 236

UNITED STATES of America v. Oscar Ivan ISAZA-ZAPATA, Appellant.

No. 97-5443.

United States Court of Appeals, Third Circuit.

Argued March 20, 1998.

Decided June 8, 1998.

Kevin F. Carlucci (argued), Office of Federal Public Defender, Newark, NJ, for Appellant.

George S. Leone, Elizabeth S. Ferguson (argued), Office of United States Attorney, Newark, NJ, for Appellee.

Before: BECKER, Chief Judge, RENDELL and HEANEY, ^* Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

This case requires us to review the factors a district court should consider in deciding whether a drug courier or "mule" convicted of importation may be characterized as a minor participant in the offense, such that a downward adjustment in sentencing pursuant to § 3B1.2 of the United States Sentencing Guidelines may be warranted. The district court concluded that, as a courier, the defendant's role was "essential" and he was not a minor participant. Because we cannot determine whether this conclusion was a factual finding, or was based on an interpretation of the sentencing guidelines, we will vacate and remand for resentencing consistent with this opinion. See United States v. Mummert, 34 F.3d 201, 205 (3d Cir.1994); United States v. Colletti, 984 F.2d 1339, 1348 (3d Cir.1992).

I.

While in Colombia on a vacation, Oscar Ivan Isaza-Zapata was approached by two men, Carlos and Tyson, in a park. The men offered to pay him $16,000 to transport 800 grams of heroin to the United States. In need of money for a foot operation, Isaza-Zapata agreed. He later met Carlos and Tyson at a hotel in Perriera, Colombia, where they gave him 100 pellets of heroin to swallow. They provided him with a ticket to Newark, where he was to meet another man named Carlos.

Upon his arrival at Newark International Airport, Isaza-Zapata was subjected to a routine customs examination. After his demeanor aroused suspicion, Isaza-Zapata was asked to consent to an X-ray examination. Isaza-Zapata signed the consent form and was transported to Bayonne Medical Center, where he passed approximately 100 pellets containing heroin. He advised the customs agents that he had been paid to bring narcotics into the United States. Isaza-Zapata attempted to cooperate with Customs officials by placing a call to his United States contact, but was unsuccessful.

In a one count indictment, the grand jury charged Isaza-Zapata with knowingly and intentionally importing into the United States more than 100 grams of heroin in violation of 21 U.S.C. §§ 952(a) & 960(a)(1), and 18 U.S.C. § 2. Isaza-Zapata subsequently pled guilty. At sentencing, he requested a two-point downward adjustment in his offense level as a minor participant. The government agreed that Isaza-Zapata was entitled to the downward adjustment. The district court, however, declined to grant the adjustment. The court sentenced Isaza-Zapata to 60 months imprisonment, four years supervised release, a $1,000 fine, and a special assessment of $100. This appeal followed.

II.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We employ a mixed standard of review when considering whether a defendant was entitled to a downward adjustment as a minor participant. See United States v. Carr, 25 F.3d 1194, 1207 (3d Cir.1994). We exercise plenary review where the district court's denial of a downward adjustment is based primarily on a legal interpretation of the Sentencing Guidelines. See United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir.1990). However, where the district court's decision rests on factual determinations, we review for clear error. See id.

At the sentencing hearing, the district court denied the two-point downward adjustment, stating only that "I find that his role is essential for the commission of the crime and that he is not a minor participant." The district court did not set forth any other reasons for its determination, and it is not clear whether the district court assessed the relative culpability of Isaza-Zapata as compared to others and considered the factors we have outlined in United States v. Headley, 923 F.2d 1079 (3d Cir.1991), in relation to the other participants, or whether the court had adopted a practice whereby mules or couriers do not qualify for a minor role adjustment because they are "essential." With respect to the latter, we note that because the determination of whether a defendant is entitled to a minor role adjustment is highly dependent on the facts of particular cases, see U.S. Sentencing Guidelines Manual § 3B1.2, Background Commentary, a mechanical application of the guidelines by which a court always denies minor role adjustments to couriers because they are "essential," regardless of the particular facts or circumstances, would be inconsistent with this guidance. See United States v. King, 53 F.3d 589, 591-92 (3d Cir.1995) (finding that sentencing "practices" are proscribed under § 5K1.1 of the Guidelines).

We do not hold that the district court erred in refusing to grant Isaza-Zapata a minor role adjustment. We are simply unable to determine the basis of the district court's ruling from the record. Since our standard of review turns on whether the court denied the downward adjustment based on a proper legal interpretation of the mitigating role provision based on the facts of this particular case, see Carr, 25 F.3d at 1207, we conclude that the appropriate course of action is to remand to allow the district court to state the basis for its ruling, and we take this opportunity to review the proper standards if the court wishes to clarify or reconsider its ruling in light of this opinion. See Mummert, 34 F.3d at 205.

III.

The Sentencing Guidelines permit adjustments to a defendant's offense level based on the role that he played in committing the offense. Section 3B1.2 affords a reduction in the offense level if the defendant was either a minimal or a minor participant:

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 an y criminal activity, decrease by 2 levels.

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

U.S. Sentencing Guidelines Manual § 3B1.2. The district courts are allowed broad discretion in applying this section, and their rulings are left largely undisturbed by the courts of appeal. See United States Sentencing Commission, 1996 Sourcebook of Federal Sentencing Statistics (1996) (stating that the affirmance rate under § 3B1.2 is 99.3%).

The background commentary to this provision indicates that its application is heavily dependent on the facts of a particular case, and that the reduction is available for a defendant whose role in the offense makes him substantially less culpable than the average participant. See U.S. Sentencing Guidelines Manual § 3B1.2, Background Commentary. Section 3B1.2 does not itself define the term "participant," but an application note to § 3B1.1, which addresses a defendant's aggravating role in the offense, defines a participant as "a person who is criminally responsible for the commission of the offense, but need not have been convicted. A person who is not criminally responsible for the commission of the offense (e.g., an undercover law enforcement officer) is not a participant." U.S. Sentencing Guidelines Manual § 3B1.1, Application Note 1. That same definition of "participant" should also apply to the mitigating role provision. See United States v. Katora, 981 F.2d 1398, 1402 (3d Cir.1992).

It is clear that the adjustments for a defendant's role in the offense apply where there has been concerted activity involving one or more participants. The application notes indicate that "a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." U.S. Sentencing Guidelines Manual § 3B1.2, Application Note 3. The notes further explain that a defendant who plays a minimal role in concerted activity is one who is among the least culpable of those involved in the group conduct. Such factors as a defendant's lack of knowledge or understanding of the overall enterprise and of others' activities are evidence of a minimal role in the offense. See U.S. Sentencing Guidelines Manual § 3B1.2, Application Note 1. Thus, the two prerequisites to the application of § 3B1.2 are multiple participants and a differentiation in levels of culpability. See Katora, 981 F.2d at 1405. The Guideline provides little additional guidance, however, to district courts attempting to determine whether a particular defendant played a minor role.

In Headley, we adopted the following principles, as enunciated by the Second Circuit, as relevant to the determination of whether a courier is a minor participant: " '[t]he culpability of a defendant courier must depend necessarily on such factors as the nature of the defendant's relationship to the other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." ' 923 F.2d at 1084 (quoting United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990)). Although both Headley and Garcia involved defendant drug couriers, it should be noted that the relevance of these factors is not necessarily limited to couriers. Rather, these considerations are directed generally towards a defendant's involvement, knowledge, and culpability, and should provide guidance in any case. See United States v. Price, 13 F.3d 711, 735 (3d Cir.1994) (referring to Headley factors in discussion of non-courier defendant's role in offense).

Since § 3B1.2 is ultimately concerned with the defendant's relative culpability, a district court should consider the defendant's...