REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20983
UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross-Appellant,
versus
REYNALDO MARMOLEJO,
Defendant-Appellant-Cross-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
February 21, 1997
Before HIGGINBOTHAM, SMITH, and EMILIO M. GARZA, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Reynaldo Marmolejo appeals his convictions under 21 U.S.C. §
846, 18 U.S.C. § 371, and 18 U.S.C. §§ 201(b)(2) & 2, urging that
they are not supported by sufficient evidence. The government
cross-appeals the sentence given to Marmolejo claiming that the
district court erred in failing to enhance Marmolejo’s sentence for
possession of a firearm and in reducing his sentence for acceptance
of responsibility and being a minor participant. We reject
Marmolejo’s contentions and, finding merit in the government’s
contentions, vacate Marmolejo’s sentence and remand to the district
court for sentencing consistent with this opinion.
I.
Reynaldo Marmolejo, a former INS agent, was indicted and
convicted for his role in transporting drugs for the Juan Garcia
Abrego organization. In 1986, the Ortiz cell of the Abrego
organization began transporting drugs across the border in INS
buses and vans used to transport undocumented aliens detained in
Bayview, Texas to Houston for deportation hearings. The INS
vehicles were not searched at the immigration checkpoint in Sarita,
Texas and were manned by armed INS agents. This was therefore an
easy way to transport the drugs, if there were INS agents willing
to stop their vehicle for loading and unloading of the contraband.
Joe Polanco and Mario Santana, former INS agents, admitted to
transporting marijuana and cocaine in INS vehicles. As part of
their plea bargains with the government, they agreed to testify
against Marmolejo at his trial. They both testified that he knew
that drugs were being transported in the INS vehicles and that he
agreed to transport drugs for a cash payment. Specifically, they
testified that Marmolejo was present at and assisted in the
transport of approximately 200 kilograms of cocaine on January 26,
1990. Santana originally implicated Marmolejo in a statement given
to FBI Special Agent Kim Woxman. When Marmolejo discovered that
Santana had confessed, he suggested that Santana get a lawyer and
feign mental illness in order to suppress his statement to Agent
Woxman.
The jury found Marmolejo guilty of conspiracy to possess with
intent to distribute cocaine and marijuana, in violation of 21
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U.S.C. § 846, conspiracy to commit money laundering, in violation
of 18 U.S.C. § 371, and aiding and abetting in the bribing of a
public official, in violation of 18 U.S.C. §§ 201(b)(2) and 2. The
presentence investigation report found that Marmolejo had
transported 200 kilograms of cocaine and gave Marmolejo a base
offense level of 38. The report recommended increasing the base
level because Marmolejo: 1) carried a gun during the transport;
2) abused his position of public trust; and 3) obstructed justice
by trying to persuade Santana to lie.
Marmolejo objected to the enhancement based on obstruction of
justice and possession of a firearm. He further claimed that he
should be entitled to a reduction of his base offense level because
he admitted involvement in the crimes to the probation officer and
he was only a minor participant in the conspiracy. The district
court declined to enhance Marmolejo’s sentence based on possession
of a firearm and reduced his sentence for acceptance of
responsibility and minor participation. The district court also
found that Marmolejo obstructed justice and abused his position of
trust and enhanced his sentence based on those provisions.
Marmolejo’s total offense level was 38 and he was sentenced (within
a range of 235-293 months) to 238 months in prison.
II.
Marmolejo challenges the sufficiency of the evidence against
him. The government claims that the evidence was sufficient and
that the district court failed to enhance Marmolejo’s sentence for
possession of a firearm and erroneously reduced Marmolejo’s
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sentence for acceptance of responsibility and participation in a
minor role. We will consider Marmolejo’s argument first and then
turn to the government’s contentions.
A.
Marmolejo claims that the evidence was insufficient to support
his conviction because the only witnesses who testified to his
direct involvement in the conspiracy were Polanco and Santana. He
claims that because they were co-conspirators who had cut deals
with the government, their testimony was so suspect that it could
not support his conviction. Marmolejo’s sufficiency argument
fails. A conviction may rest solely upon the uncorroborated
testimony of an accomplice if that testimony is not insubstantial
on its face. United States v. Gibson, 55 F.3d 173, 181 (5th Cir.
1995).
B.
The government claims that Marmolejo’s weapon, carried as a
requirement of his job as an INS agent, should have been the basis
for enhancement under U.S.S.G. § 2D1.1(b)(1). Possession of a
firearm will enhance a defendant’s sentence under U.S.S.G. §
2D1.1(b)(1) where a temporal and spatial relationship exists
between the weapon, the drug-trafficking activity, and the
defendant. United States v. Eastland, 989 F.2d 760, 770 (5th Cir.
1993), cert. denied, 114 S. Ct. 246 (1994)(citing United States v.
Hooten, 942 F.2d 878, 882 (5th Cir. 1991)). This enhancement
provision will not apply where the defendant is able to show that
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it is “clearly improbable” that the weapon was connected with an
offense. U.S.S.G. § 2D1.1 n.3.
The district court declined to enhance Marmolejo’s sentence
for possession of a firearm because he did not display or brandish
the firearm. However, this circuit has not required active use of
a firearm for enhancement. In United States v. Otero, 868 F.2d
1412 (5th Cir. 1989), this court upheld enhancement where a
defendant had a gun in his van while delivering drugs. The court
found that possession of a gun was sufficient for enhancement under
§ 2D1.1(b)(1). Otero, 868 F.2d at 1414. On appeal, Marmolejo
admits that he possessed a firearm while escorting the cocaine
shipment but claims that because he was required by his job to
carry a firearm, the firearm was not connected to the offense.
The precise question of whether Marmolejo’s sentence can be
enhanced where he possessed a gun as part of his employment as an
INS agent has not been confronted by this circuit in a published
opinion.1 Contrary to Marmolejo’s assertion, the court in United
States v. Siebe, 58 F.3d 161 (5th Cir. 1995), did not consider
whether an officer’s gun can be used to enhance under §
2D.1.(b)(1). The district court in Siebe presumed that the
defendant possessed a gun during the commission of a drug
trafficking crime because he had been issued a firearm in his
position as a law enforcement officer. This court reversed, noting
that there was no evidence that a weapon was found on the officer
1
In United States v. Davenport, No. 93-1216 (5th Cir. Sept.
6, 1994)(unpublished), a panel rejected two police officers’
contention that their guns could not be the basis for enhancement.
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during the drug trafficking crime. The parties agree that
Marmolejo did possess a gun while he was manning the INS van. The
only question remaining is the effect upon enhancement of the fact
that Marmolejo was required to carry the gun.
Under the facts of this case, we cannot say that Marmolejo has
borne his burden of proving that it is “clearly improbable” that
his gun was connected to his offense. Transporting drugs under the
watchful eyes of armed INS agents was the ‘perfect cover’ for the
Abrego organization. Marmolejo’s position allowed him to pass
undetected through INS checkpoints. That carrying a gun was an
requirement of his position does not undo the benefit that drug
traffickers received from having an armed guard protect their
goods. Marmolejo used his position to transport drugs and
therefore any incidence of that position which further facilitated
the transport should properly be taken into account at sentencing.
We therefore find that the district court erred in not enhancing
Marmolejo’s sentence under § 2D1.1(b)(1).
The government next urges that the district court erroneously
reduced Marmolejo’s sentence for acceptance of responsibility. To
qualify for sentence reduction under U.S.S.G. § 3E1.1(a), a
defendant must show “recognition and affirmative acceptance of
personal responsibility for his criminal conduct.” A trial court
receives greater deference than usual when reducing a sentence for
acceptance of responsibility under § 3E1.1, because this provision
requires an assessment of credibility. United States v. Rodriguez,
942 F.2d 899, 902-03 (5th Cir. 1991), cert. denied, 502 U.S. 1080
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(1992)(citing United States v. Mourning, 914 F.2d 699, 705 (5th
Cir. 1990)). However, the notes to 3E1.1 provide guidance for the
exercise of this discretion. Note 2 to 3E1.1 provides that,
although a defendant may receive this reduction even if he
proceeded to trial, the adjustment “is not intended to apply to a
defendant who puts the government to its burden of proof at trial
by denying the essential factual elements of guilt, is convicted,
and only then admits guilt and expresses remorse.” Marmolejo’s
claim to a sentence reduction under this provision hinges on
information he provided to the probation officer after his
conviction and therefore he faces a considerable headwind in
proving that he is entitled to the benefit of § 3E1.1(a).
Note 4 to 3E1.1 further dims Marmolejo’s chance for relief.
It states that where a sentence has been enhanced for obstruction
of justice, very rarely will a defendant be eligible for sentence
reduction under this provision. U.S.S.G. § 3E1.1 n.4 stating that
adjustment under both §§ 3C1.1 and 3F1.1 may be applied in
exceptional cases; see also United States v. Ayala, 47 F.3d 688,
691 (5th Cir. 1995); Rodriguez, 942 F.2d at 902. The sentencing
judge enhanced Marmolejo’s sentence for obstruction of justice
based on Marmolejo’s attempts to convince Santana to lie to the
court in order to suppress Santana’s statement implicating
Marmolejo.
This case does not present an extraordinary circumstance that
would warrant enhancement for obstruction of justice and reduction
for contrition. The presentence investigation report did not
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recommend reduction of Marmolejo’s sentence under this provision
and Marmolejo admitted to transporting cocaine only after a trial
and a guilty verdict. Even in his admission of guilt, Marmolejo
was less than frank. He admitted to involvement only in the
January 26th transport, and claimed that Santana paid him around
$9,000, not $19,000 or $13,000 as Santana testified. He also
stated that he did not observe marijuana loaded onto the bus and
was told that he would only be transporting marijuana. We
therefore find that Marmolejo has not shown that his is one of the
unusual cases where a defendant can be found to have obstructed his
prosecution but also shown a sincere acceptance of responsibility
for his acts.
Finally, the government argues that the district court erred
in finding Marmolejo to be a minor participant under § 3B1.2(b).
Marmolejo bears the burden of showing that his sentence level
should be reduced under this provision. United States v. Atanda,
60 F.3d 196, 198 (5th Cir. 1995). The guidelines define a minor
participant as one who is “less culpable than most other
participants.” § 3B1.2 n.3.
Marmolejo was an integral part of a successful conspiracy to
import large quantities of drugs into the United States. The
shipment that he rode with on January 26, 1990 consisted of 200-300
kilograms of cocaine. The district court calculated his base
offense level using this amount, not the amount of the entire
conspiracy, which the presentence investigation report estimated at
10,000 kilograms. Because only the drugs he actually participated
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in transporting were attributed to him in calculating his sentence,
he cannot now claim to be a minor participant in relation to his
offense. Atanda, 60 F.3d at 199 (“when a sentence is based on
activity in which a defendant was actually involved, § 3B1.2 does
not require a reduction in the base offense level even though the
defendant’s activity in a larger conspiracy may have been minor or
minimal”). Marmolejo’s role may appear to be small in relation to
the work of the Ortiz cell or the Abrego organization itself,
however, he himself accomplished much in the way of furthering
their goals. So much so that we must deny him the benefit of §
3B1.2(b).
III.
For the foregoing reasons, the sentence imposed by the
district court is vacated and this case remanded to the district
court for sentencing consistent with this opinion.
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