U.S. v. Rios-Ramirez, RIOS-RAMIRE

• Decision Date: 02 April 1991
• Docket Number: RIOS-RAMIRE,D,No. 89-2167,89-2167
• Citation: 929 F.2d 563
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carmen Cesarefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 563

929 F.2d 563

UNITED STATES of America, Plaintiff-Appellee, v. Carmen Cesar RIOS-RAMIREZ, Defendant-Appellant.

No. 89-2167.

United States Court of Appeals, Tenth Circuit.

April 2, 1991.

Submitted on the Briefs: ^*

William L. Lutz, U.S. Atty., and Mary L. Higgins, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

William D. Fry, Asst. Federal Public Defender, Las Cruces, N.M., for defendant-appellant.

Before BRORBY and McWILLIAMS, Circuit Judges, and SPARR, ^** District Judge.

McWILLIAMS, Circuit Judge.

Carmen Cesar Rios-Ramirez, the driver and sole occupant of a 1974 Ford Cougar, entered the United States from the Republic of Mexico at the Port of Entry at Columbus, New Mexico, on February 3, 1989, at approximately 4:30 p.m. Because Rios-Ramirez appeared "nervous," the Customs agents asked him to step out of the vehicle. A "sniffer dog" was placed near the vehicle and the dog "alerted" to the side panels of the vehicle. A subsequent search of the vehicle disclosed 22.68 kilograms of marijuana concealed in the door panels. Rios-Ramirez advised the agents that he did not know there was marijuana hidden in the door panels of the vehicle he was driving. In this connection, Rios-Ramirez stated that he had recently purchased the vehicle from one Raul Jose Contreras in Texas and that he was at the time of his arrest en route from Mexico to California to meet Contreras, where, according to counsel, Rios-Ramirez was going to obtain the title to the vehicle.

Based on the foregoing chronology, Rios-Ramirez was charged in Count one of a two-count indictment with importing less than fifty kilograms of marijuana into the United States from the Republic of Mexico in violation of 21 U.S.C. Sec. 952(a), 21 U.S.C. Sec. 960(a)(1) and (b)(4). In a second count Rios-Ramirez was charged with possession of less than fifty kilograms of marijuana with an intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and 21 U.S.C. Sec. 841(b)(1)(D).

The government and Rios-Ramirez later entered into a plea agreement whereby Rios-Ramirez agreed to plead guilty to Count one and the government agreed to dismiss Count two. In that same agreement the government and Rios-Ramirez agreed that under the provisions of the United States Sentencing Commission, Guidelines Manual (hereinafter referred to as "Sentencing Guidelines"), Rios-Ramirez was entitled to a two-level reduction in his base offense level for acceptance of personal responsibility for his criminal conduct and a further reduction of two levels because he was only a minor participant in the criminal conduct alleged in the indictment. A further provision in the agreement provided that the parties understood that the district court was not bound by their stipulations concerning acceptance of responsibility and minor participation.

Pursuant to the plea agreement, Rios-Ramirez pled guilty to Count one of the indictment. At sentencing, the government dismissed Count two. During the hearing at which Rios-Ramirez entered his plea of guilty, the district judge advised him that the court was not bound by the stipulations contained in the plea agreement and Rios-Ramirez stated that he understood such to be the case.

The presentence report fixed Rios-Ramirez' base offense level at 18 and his criminal history category at I, resulting in a guideline range of 27 to 33 months imprisonment. In so doing, the pre-sentence report recommended no reduction for acceptance of responsibility or minor participation.

At sentencing, defense counsel did not ask for any reduction for acceptance of responsibility. Indeed, it was Rios-Ramirez' contention throughout the proceedings that he did not know that there was marijuana hidden in the door panels of the vehicle he was driving at the time of his arrest. It was in this setting that defense counsel advised the district court that Rios-Ramirez' plea of guilty was being entered on the basis of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). ¹

However, defense counsel at sentencing did request that under Sentencing Guidelines Sec. 3B1.2(b), Rios-Ramirez was entitled to have his base offense level reduced by two levels because he was only a minor participant in the drug importation. Such a reduction would have set Rios-Ramirez' base offense level at 16, resulting in a guideline range of only 21 to 27 months imprisonment.

Although the district court made no specific reference to counsel's request for a reduction in Rios-Ramirez' base offense level for his claimed minor participation in the drug importation, the district judge obviously rejected the request when he sentenced Rios-Ramirez to 33 months imprisonment, the maximum allowed by the Sentencing Guidelines for a defendant with a base offense level of 18 and a criminal history category of I.

On appeal, counsel presents one issue for review: "Whether the court committed error by failing to accord a two-level reduction to the base offense level as a result of appellant's minor participation in the offense." We find no error.

United States v. Pelayo-Munoz, 905 F.2d 1429 (10th Cir.1990) is almost a carbon copy of the instant case. There the defendant was charged in a one-count indictment with the possession with an intent to distribute more than fifty kilograms of marijuana. The defendant eventually pleaded guilty, and as a part of the plea agreement, the government and the defendant agreed that the defendant was entitled to a two-level reduction in his base offense level for acceptance of responsibility and another two-level reduction because he was only a minor participant in the criminal activity alleged in the indictment. Another provision in the plea agreement provided that these stipulations were not binding on the court. Later, the district court did not accept the stipulations in the plea agreement and, inter alia, refused to reduce the defendant's base offense level by two levels based on his claimed minor participation in the criminal activity.

The defendant in Pelayo-Munoz was stopped by United States Border Patrol Agents while traveling northward on Interstate 25 near Hatch, New Mexico. A search of his vehicle revealed 128 pounds of marijuana. The defendant's contention was that he was a "mere courier" and therefore entitled to a two-level reduction in his base offense level for being a minor participant in the criminal activity. As indicated, the district court refused to classify the defendant as a minor participant and on appeal we affirmed. In so doing, we held that "[t]he fact that a defendant is a courier does not necessarily mean that he is a minor participant under section 3B1.2 of the Guidelines" and that the defendant there had failed to prove by a preponderance of the evidence that he was only a minor participant. Pelayo-Munoz, 905 F.2d at 1430-31. To this same effect, see United States v. Maldonado-Campos, 920 F.2d 714, 717 (10th Cir.1990); 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); and United States v. Arredondo-Santos, 911 F.2d 424, 426 (10th Cir.1990).

In the instant case, the record was not such as to require the district court to find that Rios-Ramirez was but a...