United States v. Rodriguez-Guerrero , 278 F. App'x 2 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1256
UNITED STATES OF AMERICA,
Appellee,
v.
DIANNERIS RODRÍGUEZ-GUERRERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Stahl, Senior Circuit Judges.
Lydia Lizarríbar-Masini, by appointment of the court, on brief
for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney (Chief, Appellate
Division), on brief for appellee.
May 23, 2008
Per Curiam. In United States v. Graciani, 61 F.3d 70 (1st
Cir. 1995), we forecast that battles over a defendant's role in the
offense "will almost always be won or lost in the district court."
Id. at 75. This appeal illustrates why we thought that forecast
appropriate.
The tale can quickly be told. On September 28, 2005, a
federal grand jury sitting in the District of Puerto Rico returned
a two-count indictment against defendant-appellant Dianneris
Rodríguez-Guerrero. Count 1 charged her with knowingly and
intentionally possessing heroin with intent to distribute, see 21
U.S.C. §841(a)(1); and count 2 charged her with importing heroin
from the Dominican Republic into the United States, see id. §952.
After initially maintaining her innocence, the appellant tendered
a guilty plea to both counts pursuant to a negotiated plea
agreement. See Fed. R. Crim. P. 11(c)(1)(A)-(B). Pertinently, the
plea agreement left open the appellant's role in the underlying
criminal activity.
The undisputed facts showed that the appellant had served
as a courier for a drug smuggler. She was caught red-handed while
disembarking from the ferry, at Mayagüez, driving a Chrysler minivan
bearing Puerto Rico license plates. The minivan had a spare battery
in its cargo compartment which, upon inspection, was found to
contain more than two kilograms of heroin.
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The district court held the disposition hearing on
December 22, 2006. It determined that the appellant was a minor but
not a minimal participant in the offenses of conviction. See USSG
§3B1.2(a)-(b)(2006). Taking into account this mitigating role
adjustment and other guideline computations not at issue here, the
court sentenced the appellant to a 46-month incarcerative term on
each count (to be served concurrently). This timely appeal
followed.
In this venue, the appellant advances only a solitary
claim of error. She asserts that the sentencing court's refusal to
award her a more generous mitigating role adjustment was incorrect
and requires a remand for resentencing.
Our standard of review is not appellant-friendly. Role-
in-the-offense determinations typically are factbound and,
therefore, we will reverse the denial of minimal participant status
only for clear error. See United States v. Mateo-Espejo, 426 F.3d
508, 512 (1st Cir. 2005); United States v. Mateo-Sánchez, 166 F.3d
413, 417 (1st Cir. 1999). The defendant bears the burden of proving
her entitlement to any downward adjustment, including a downward
adjustment for minimal participation. See, e.g., Mateo-Espejo, 426
F.3d at 512; United States v. Muñoz, 36 F.3d 1229, 1238 (1st Cir.
1994).
With these principles in mind, we turn to the matter of
mitigating role adjustments. The guidelines authorize a sentencing
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court to decrease a defendant's offense level by four levels if she
was "a minimal participant" in the criminal activity. USSG
§3B1.2(a)(2006). The commentary to this guideline indicates,
somewhat tautologically, that it applies to a defendant who plays
a minimal role in that activity. Id., cmt. (n.4). The Sentencing
Commission has made clear that the adjustment for minimal
participation should be invoked sparingly. See id.
The line between minor and minimal participation is fuzzy.
In the last analysis, that distinction comes down to a judgment
call. Labels are not dispositive.
This last precept is important because, in this case, the
appellant emphasizes that she was "merely" a courier. It is plain,
however, that drug couriers are not automatically entitled to
mitigating rule adjustments for minimal participation. See, e.g.,
United States v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994); United
States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990); United States
v. Paz Uribe, 891 F.2d 396, 399 (1st Cir. 1989); United States v.
Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). Everything depends
on the idiosyncratic circumstances of the particular case. See USSG
§3B1.2, cmt. (n.3(C)).
Here, the record shows a plausible basis for believing
that the appellant was more than a minimal participant. She
registered the minivan used to transport the contraband in her own
name, drove it to the Dominican Republic, waited while the drugs
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were loaded aboard, and then tried to smuggle them into the United
States. This course of conduct, coupled with the quantity and type
of drugs — upwards of two kilograms of heroin — argues convincingly
against a finding of minimal participation.
We need go no further. At the very least, the appellant's
involvement in the criminal activity lends itself to varying
inferences as to how her role should be characterized. That ends
the matter: "where there is more than one plausible view of the
circumstances, the sentencing court's choice among supportable
alternatives cannot be clearly erroneous." United States v. Ruiz,
905 F.2d 499, 508 (1st Cir. 1990).
Affirmed.
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