United States v. Morales-Santamaria , 77 F. App'x 746 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-40272
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO RIGOBERTO MORALES-SANTAMARIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-02-CR-290-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Rogelio Rigoberto Morales-Santamaria appeals his guilty-plea
conviction and sentence for possession of heroin with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1).
Morales contends that the district court erred in refusing to grant
his request for a two-level “minor role” reduction under Sentencing
Guidelines § 3B1.2(b). He asserts that the district court abused
its sentencing discretion by relying on a fixed policy of denying
the reduction to drug couriers. Morales maintains that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
district court’s de facto policy amounts to an improper personal
disagreement with the Sentencing Commission’s conclusions about the
eligibility of drug couriers for the reduction. He seeks a remand
to a different judge for resentencing.
We review for clear error the denial of an adjustment for a
minor role. E.g., United States v. Gaytan, 74 F.3d 545, 561 (5th
Cir.), cert. denied, 519 U.S. 821 (1996). Morales contends,
however, that our review is for abuse of discretion where, as here,
a district judge fails to properly exercise his discretion by
instead sentencing according to a blanket policy. United States v.
Hartford, 489 F.2d 652, 655 (5th Cir. 1974). Although the district
judge’s statement that he “steadfastly refuses” to grant a minor
role reduction to drug couriers reflects such a policy, see United
States v. Garcia, No. 03-40265, 2003 WL 22120983 (5th Cir. 2003),
the record also reflects that the district judge requested argument
about Morales’ role in the drug trafficking and considered factors
specific to his case before deciding Morales was not entitled to
the reduction. Therefore, the stated policy of always refusing the
minor role reduction was of no effect; we review for clear error.
The record reflects that Morales transported a large quantity
of heroin (1.6 kilograms) and traveled over 400 miles to do so.
The district court also properly considered the scope of Morales’
drug trafficking offense in the larger picture of drug trafficking
in this Country. United States v. Buenrostro, 868 F.2d 135, 138
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(5th Cir. 1989). In the light of the facts, the district court did
not clearly err in finding Morales not entitled to a minor role
reduction. “[S]ome couriers may appropriately receive the
reduction; ... all couriers are [not] entitled to a downward
adjustment”. Id.For the first time on appeal, Morales also maintains that the
sentencing scheme of 21 U.S.C. § 841 is facially unconstitutional
in the light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Morales concedes that his contention is foreclosed by United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). He raises the
issue only to preserve it for possible further review.
AFFIRMED
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