June 14, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2142
UNITED STATES,
Appellee,
v.
ARGERMIRO AYA,
Defendant, Appellant.
ERRATA SHEET
The opinion of this court issued on June 8, 1995 is amended as
follows:
On page 5, second line from the bottom, change the word "minor"
to "minimal".
June 8, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2142
UNITED STATES,
Appellee,
v.
ARGERMIRO AYA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Lynch, Circuit Judges.
Elfrick Mendez Morales on brief for appellant.
Guillermo Gil, United States Attorney, Jacabed Rodriguez-Coss,
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior
Litigation Counsel, on brief for appellee.
Per Curiam. Argermiro Aya pleaded guilty to
possession with intent to distribute cocaine, in violation of
21 U.S.C. 841(a)(1). The district court sentenced him to
57 months imprisonment. On appeal from this sentence, Aya
raises only one issue. He contends that the sentencing court
erred in reducing his offense level by only two levels, for
his role in the offense as a "minor" participant, instead of
by four levels, in recognition of his role as a "minimal"
participant. See United States Sentencing Commission,
Guidelines Manual, 3B1.2 (November, 1993) ("Sentencing
Guidelines"). We affirm.
I. Background
The following facts are derived from the pre-
sentence report ("PSR") to which neither party objected. Aya
arrived in Puerto Rico at the Luis Munoz Marin International
airport on May 14, 1994 on a flight from Panama City, en
route to Madrid, Spain. U.S. Customs officials had
identified Aya and two other passengers as fitting the
profile of a narcotics trafficker. Custom agents separately
stopped both Aya and another passenger, later identified as
Hector R. Zamora-Velez, at the airport in Puerto Rico. Pat
downs and subsequent searches revealed that Aya and Zamora
were each wearing vests with pockets containing packages of
cocaine. The cocaine found on Aya had a net weight of 4,503
grams or 4.5 kilograms and an average purity strength of 81%.
The cocaine found on Zamora had a net weight of 4,339 grams
and an average purity strength of 77%.
According to the PSR, Zamora waived his rights at
the time of his arrest and stated that he and Aya were
travelling together. He said that a few weeks earlier he had
been approached in Colombia by an (unnamed) person who asked
him if he wanted to earn $5,000. That person provided Aya
and Zamora with passports, airline tickets and a small amount
of cash. The two allegedly obtained the cocaine and vests in
Panama, where they boarded the plane for Spain, via Puerto
Rico. Aya, in a later conversation with a probation officer,
also stated that he was going to be paid $5,000 upon the
delivery of the drugs in Spain. He claimed that he had
agreed to smuggle the drugs because he needed the money to
pay his father's medical bills.
A two-count indictment charged Aya with possession
with intent to distribute approximately 5.1 kilograms of
cocaine (Count One) and importing the same quantity of
cocaine (Count Two). After initially pleading not guilty,
Aya changed his plea to guilty on Count One, pursuant to a
plea agreement entered on July 26, 1994, in which the
government agreed to move for dismissal of Count Two. The
parties also agreed to stipulate that Aya was personally
responsible for the possession with intent to distribute of
4.5 kilograms of cocaine.
-4-
A PSR was prepared, recommending a base offense
level of 30 and a reduction of three levels for acceptance of
responsibility and two levels for Aya's role in the offense
as a "courier". See U.S.S.G. 3B1.2(b) (providing for a
decrease of two levels where the defendant is a "minor
participant"). The total offense level of 25 and a criminal
history category of I yielded a guideline sentencing range of
57 to 71 months. There were no objections to the PSR.
At the sentencing hearing, the district court
denied defendant's request for a four-level reduction for his
role as a "minimal" participant in the offense. The reasons
given, if any, are not included as part of the record.
(Apparently, a transcript of the sentencing hearing was not
prepared.) The sentencing court adopted the factual findings
and guideline application in the PSR, however, which included
a finding that Aya's role was as a courier. Although the
statutory mandatory minimum sentence was five years, the
district court agreed with defendant and the government that
Aya met the criteria under 18 U.S.C. 3553(f).1 Therefore,
the court imposed a prison sentence of 57 months.
1. Section 3553(f) provides that a Guideline sentence below
the statutory minimum may be imposed for defendants with no
more than 1 criminal history point, if certain other criteria
are also met.
-5-
II. Discussion
Section 3B1.2 of the Sentencing Guidelines provides
for reductions in a defendant's offense level based upon his
role in the offense: a decrease of 4 levels if the defendant
was a "minimal participant" and a decrease of 2 levels if the
defendant was a "minor participant." Commentary to the
Sentencing Guidelines provides that "[t]he determination of a
defendant's role in the offense is to be made on the basis of
all conduct within the scope of 1B1.3 (Relevant Conduct),
i.e., all conduct included under 1B1.3(a)(1)-(4), and not
solely on the basis of elements and acts cited in the count
of conviction." U.S.S.G. 3B1 (introductory commentary). In
the commentary to 3B1.2, the four-level reduction for
minimal participation is explained as follows:
It is intended to cover defendants who
are plainly among the least culpable of
those involved in the conduct of a
group.. . .
It is intended that the downward
adjustment for a minimal participant will
be used infrequently. It would be
appropriate, for example, . . . in a case
where an individual was recruited as a
courier for a single smuggling
transaction involving a small amount of
drugs.
A two-level reduction for "minimal" participation is meant
for a participant "who is less culpable than most other
participants, but whose role could not be described as
minor." U.S.S.G. 3B1.2 (commentary).
-6-
The defendant has the burden of proving entitlement
to a downward adjustment pursuant to 3B1.2. United States
v. Munoz, 36 F.3d 1229, 1238 (1st Cir. 1994), cert. denied,
U.S. , 115 S. Ct. 1164 (1995). This court has recently
emphasized that "[r]ole-in-the offense determinations are
innately fact-specific. The court of appeals must,
therefore, pay careful heed to the sentencing judge's views."
United States v. Rostoff, No. 93-1376, slip op. at 29 (1st
Cir. April 24, 1995) (citation omitted). "Absent a mistake
of law, a district court's finding as to whether a defendant
was a minor or minimal participant will be reversed only if
clearly erroneous." United States v. Neal, 36 F.3d 1190, 1211
(1st Cir. 1994).
Aya argues that his role in the offense was that of
a mere courier, a role that he argues is necessarily
"minimal." This court has twice directly rejected that
argument. In United States v. Lopez-Gil, 965 F.2d 1124, 1131
(1st Cir. 1992), we held that "a defendant who is a drug
courier is not entitled as of right to a reduction of the
offense level as a minimal or minor participant." Lopez-Gil
was arrested at the same airport in Puerto Rico, also en
route to Spain, carrying suitcases containing cocaine.
Although the district court determined that Lopez-Gil "'acted
as a courier and apparently had no proprietary interest in
the cocaine as such,'" it refused to grant him even a two-
-7-
level reduction for minor involvement. Id. at 1126 (quoting
sentencing court). Nonetheless, this court affirmed the
sentence. Id. at 1131.
Lopez-Gil cited to this Court's holding to the same
effect in United States v. Paz Uribe, 891 F.2d 396, 399 (1st
Cir. 1989) ("[E]ven if the court had found that Paz was only
a courier, he would not automatically be entitled to a
reduction."), cert. denied, 495 U.S. 951 (1990). Under these
circumstances, the district court did not clearly err in
sentencing Aya as a "minor" rather than a "minimal"
participant.
Appellant's sentence is therefore affirmed. See
Loc. R. 27.1.
-8-