United States v. Rafiat Dolapo Ayorinde , 219 F. App'x 871 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 1, 2007
No. 06-14575 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00594-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFIAT DOLAPO AYORINDE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 1, 2007)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Rafiat Dolapo Ayorinde appeals her 90-month sentence for possession with
intent to distribute and importation of at least one kilogram of heroin. Ayorinde
argues that the district court clearly erred in finding that she was not entitled to a
minor-role reduction. U.S.S.G. § 3B1.2. We affirm.
Customs and Border Patrol officers arrested Ayorinde when she arrived at
the Atlanta airport with approximately ten kilograms of heroin hidden in her
luggage. Ayorinde told the officers that she met “Chief” at a party in Nigeria, he
introduced her to members of his drug cartel, and he convinced her to help him
smuggle heroin into the United States. Ayorinde identified Chief’s phone number
in the memory of her cell phone. Ayorinde also confessed that she intended to be
met by an accomplice at the airport, transported to a hotel, and paid $20,000.
At Ayorinde’s sentencing hearing, Drug Enforcement Agency experts
testified that ten kilograms of heroin is worth between $1.5 and $3 million and ten
kilograms of heroin is a large seizure for the Atlanta airport. DEA experts also
testified that it would be unusual for a common drug courier to know the name,
face, or contact information of the head of a drug cartel, unusual for a cartel to trust
a typical courier with a large quantity of drugs, and unusual to pay a first-time
courier $20,000 per trip. The district court denied Ayorinde a minor-role
reduction. The district court calculated Ayorinde’s guideline range as 87 to 108
months and imposed a sentence of 90 months.
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We review the determination of a defendant’s role in the offense for clear
error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). A
two-level reduction for a minor role is appropriate for a defendant “who is less
culpable than most other participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2, comment. (n.5). “The proponent of the downward
adjustment . . . always bears the burden of proving a mitigating role in the offense
by a preponderance of the evidence.” De Varon, 175 F.3d at 939.
In De Varon, we established a two-part test to determine whether a
mitigating-role reduction is appropriate. See id. at 940-45. The district court
should first determine the defendant’s role in the relevant conduct, and then
consider the defendant’s role compared to other participants in the relevant
conduct. Id. at 940. “[W]hen a drug courier’s relevant conduct is limited to her
own act of importation, a district court may legitimately conclude that the courier
played an important or essential role in the importation of those drugs.” Id. at
942-43. In the drug courier context, examples of relevant factors in determining
the defendant’s role include “amount of drugs, fair market value of drugs, amount
of money to be paid to the courier, equity interest in the drugs, role in planning the
criminal scheme, and role in the distribution.” Id. at 945.
The district court did not clearly err in denying Ayorinde a minor-role
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reduction. The district court found that a drug courier ordinarily transports fewer
than ten kilograms of heroin and makes less than $20,000. The district court also
found that Ayorinde’s knowledge of and connections with the other members of
the drug cartel were consistent with an important role in the cartel. These findings
were supported by the record.
Ayorinde erroneously argues that the district court relied on impermissible
factors to deny her a minor role reduction. The district court based its
determination on the large quantity of drugs Ayorinde carried, her sophistication,
and her large courier fee. The other factors mentioned by the district court related
to the offense for which Ayorinde was charged and the possibility that she was a
small-time drug courier. The district court did not consider impermissible
individual characteristics.
Even if the district court erred, any error was harmless. The district court
explained that, if its denial of a minor-role reduction was erroneous, it would still
enter the same sentence based on the statutory factors of sentencing. 18 U.S.C. §
3553(a). Because Ayorinde does not even attempt to argue that her sentence was
substantively unreasonable, her appeal fails based on the alternative ruling of the
district court.
Ayorinde’s sentence is AFFIRMED.
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