U.S. v. Maldonado-Campos

• Decision Date: 04 December 1990
• Docket Number: MALDONADO-CAMPO,D,No. 89-2227,89-2227
• Citation: 920 F.2d 714
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonioefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 714

920 F.2d 714

UNITED STATES of America, Plaintiff-Appellee, v. Antonio MALDONADO-CAMPOS, Defendant-Appellant.

No. 89-2227.

United States Court of Appeals, Tenth Circuit.

Dec. 4, 1990.

James B. Foy, Silver City, N.M., for defendant-appellant.

William L. Lutz, U.S. Atty. & David N. Williams, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, LOGAN and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant, Antonio Maldonado-Campos, appeals his conviction and sentence. A jury convicted defendant of possession with intent to distribute less than fifty kilograms of marijuana, contrary to 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 841(b)(1)(D). ¹ Defendant was sentenced to thirty-three months imprisonment to be followed by a three-year period of supervised release. Defendant timely filed his notice of appeal and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a).

Defendant raises three points for reversal: 1) sufficiency of the evidence, 2) failure to grant a two-level reduction based upon a mitigating role in the offense as a "minor participant," see United States Sentencing Comm'n, Guidelines Manual, Sec. 3B1.2(b) (Nov.1990), and 3) failure to depart downward from a criminal history category of III under the Sentencing Guidelines, see 18 U.S.C. Sec. 3553(b); U.S.S.G. Sec. 4A1.3. We affirm the conviction, vacate the sentence and remand for resentencing.

I.

At approximately 11:30 p.m. on March 28, 1989, border patrol agent Michael Harrison was alerted that a car entering north on Highway 11 near Columbus, New Mexico might contain illegal aliens. Harrison drove eighteen miles northward, after first observing an older Cadillac heading south. He turned around and headed toward Columbus, thinking that the Cadillac was the car he was after. As he was headed south toward Columbus, Harrison again saw the Cadillac; this time it was headed north. Harrison turned around to follow it. A few minutes later, he saw the Cadillac parked along the road with the passenger door open. No occupants were in the car, but three bags of clothing were. Harrison, assisted by other agents, used tracking methods to follow three sets of bootprints, two from common cowboy boots and one from Chihuahua-heel boots which have a smaller track.

The bootprints led directly east to a fence parallel to the highway. Further down, an abandoned suitcase was found containing nine packages of marijuana. Continuing to track the footprints, Harrison discovered a mark by a fence post where "somebody had drug their heel and made a big mark." Rec. vol. II at 57. Harrison tagged the location and continued to follow the tracks which led to a boarded-up house eight miles away from the abandoned car. Harrison and his fellow agents yelled for the occupants to come out. Three men crawled out of a window and were identified as defendant and his codefendants Lucatero-Campos and Castillos-Granados. Defendant was wearing Chihuahua-heel boots; his two codefendants were wearing regular cowboy boots. When the agents returned to the spot which was marked, they discovered a second suitcase containing marijuana hidden under tumbleweeds several yards away. The weight of the marijuana from the two suitcases was in excess of fifty pounds.

II.

Defendant contends that the circumstantial evidence is legally insufficient to convict him because it is equally consistent with flight to avoid prosecution for immigration violations as it is with flight to avoid prosecution for possession with intent to distribute a controlled substance. Appellant's Brief at 18. He also contends that because he had a brace on his arm, he could not have carried the suitcases full of marijuana and that no evidence even indicates that he was present where the suitcases of marijuana were found. According to the defendant, based on these contentions, the district court should have granted his motion for judgment of acquittal. Fed.R.Crim.P. 29(a).

Given the jury's verdict, we review the evidence and its reasonable inferences in the light most favorable to the government to determine whether "any rational trier of fact could have found the elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis omitted). A criminal conviction based upon principal liability, including aiding and abetting, may rest upon circumstantial evidence. United States v. Johnson, 911 F.2d 1394, 1399 (10th Cir.1990); United States v. Russell, 905 F.2d 1450, 1453 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 267, 112 L.Ed.2d 224 (1990). No requirement exists that the evidence negate all possibilities except guilt of the charged offense. United States v. Alonso, 790 F.2d 1489, 1493 (10th Cir.1986). Defendant need not have carried the suitcases of marijuana for the jury to conclude beyond a reasonable doubt that he knowingly participated in the marijuana importation venture, particularly given a flight on foot across the great plains with suitcases laden with marijuana rather than clothing. The evidence is sufficient to link defendant with the abandoned suitcases of marijuana found on the trail, which was followed "step-for-step the whole way" by border patrol agents. See rec. vol. II at 86. Plainly, a jury could have found the defendant guilty beyond a reasonable doubt.

III.

Defendant next contends that he was entitled to a two-level reduction based upon a mitigating role in the offense as a "minor participant." Section 3B1.2, U.S.S.G., allows for a four-level reduction upon a finding that a defendant was a "minimal participant in any criminal activity," and a two-level reduction for a "minor participant" finding. The four-level reduction for minimal participants is for those "who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. Sec. 3B1.2, comment (n. 1). A "defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as a minimal participant." Id. On the other hand, a "minor participant" is one "who is less culpable than most other participants, but whose role could not be described as minimal." Id. (n. 3). Whether a defendant is a minor or minimal participant is a fact question generally reviewed under the clearly erroneous standard. United States v. Alvarez, 914 F.2d 213, 215 (10th Cir.1990). The defendant has the burden of proof and must show his entitlement to a downward adjustment by a preponderance of the evidence. Id.

In a written motion reviewed by the judge prior to sentencing, defendant sought the four-level reduction based upon minimal participation, see id. Sec. 3B1.2(a). Rec. vol. I, doc. 19 at 1-2. At the sentencing hearing, the trial judge denied the requests contained in the motion and then, upon request, allowed defendant to add to the oral record. Defendant contended that codefendant Castillano-Granados, having acknowledged an interest in the marijuana, was more culpable and yet would receive a lighter sentence. Id. vol. II at 269. The trial judge responded that defendant's criminal history was responsible for defendant's heavier sentence. Thereafter, the following troublesome exchange occurred:

The Court: But furthermore, the Court is not persuaded that he [defendant] was a minimal participant. I think under the definition set forth in the sentencing guidelines, he was a minor participant, which is entirely different from minimal.

Mr. Foy: So would the Court be willing to give him a two level reduction then?

The Court: No sir.

Mr. Foy: Okay.

The Court: You're just making your record Mr. Foy, I said I've denied your motion.

Rec. vol. II at 269. Defendant contends that, having made a finding that defendant was a "minor participant," the trial court misapplied the sentencing guidelines by failing to decrease the offense level by two as envisioned by Sec. 3B1.2(b).

In providing effective representation, it is obvious that defense counsel seized the moment, recognizing that a two-level reduction for being a minor participant is better than no reduction at all. What is not obvious is whether the trial court actually made a finding of "minor participant" as that term is defined in the commentary to Sec. 3B1.2. See United States v. Rutter, 897 F.2d 1558, 1561 (10th Cir.) (guidelines commentary is "essential in correctly interpreting and uniformly applying the guidelines on a national basis"), cert. denied, --- U.S. ----, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990). This is not a situation which lends itself to easy or generic categorization of the defendant as a minor participant; our recent cases suggest that those who transport marijuana or other controlled substances often are not minimal or minor participants. See United States v. Donaldson, 915 F.2d 612, 615 (10th Cir.1990); United States v. Calderon-Porras, 911 F.2d 421, 423-24 (10th Cir.1990); United States v. Arredondo-Santos, 911 F.2d 424, 426 (10th Cir.1990); United States v. Pelayo-Munoz, 905 F.2d 1429, 1430-31 (10th Cir.1990).

As we explained in United States v. Beaulieu, 900 F.2d 1531 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3252, 111 L.Ed.2d 762 (1990), a trial court must make specific findings and explain its reasoning only concerning departures under the guidelines. Id. at 1535-36. When adjustments under the guidelines are involved, a trial court is in no way required to make detailed findings, or explain why a particular adjustment is or is not appropriate. Id. Thus, a district court is not required to announce the reasons supporting a factual finding concerning a role-in-the-offense adjustment under Sec. 3B1.2. Donaldson, 915 F.2d at 615. However, when it is apparent from the court's optional discussion that its factual finding may be based upon an incorrect legal standard, we must remand for reconsideration in light of the...