United States v. Santos

United States Court of Appeals
For the First Circuit

No. 03-1504

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ BELTRAN SANTOS A/K/A ARAMIS ESTÉBAN RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya, Circuit Judge,

and Stahl, Senior Circuit Judge.

John M. Cicilline for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Craig N. Moore, Acting United States Attorney, and Dulce
Donovan, Assistant United States Attorney, were on brief, for
appellee.

February 12, 2004
 SELYA, Circuit Judge. In this appeal, defendant-

appellant José Beltran Santos, whose true name is Aramis Estéban

Rodríguez, asseverates that the district court erred in calculating

his guideline sentencing range (GSR) by finding him responsible for

an excessive quantity of drugs and mischaracterizing his role in

the offenses of conviction. Discerning no error, we affirm the

judgment below.

Because this appeal follows a guilty plea, we draw the

facts from the change-of-plea colloquy, the presentence

investigation report (PSI Report), and the transcript of the

disposition hearing. See United States v. Tejada-Beltran, 50 F.3d

105, 107 (1st Cir. 1995); United States v. Dietz, 950 F.2d 50, 51

(1st Cir. 1991).

In the fall of 2001, three malefactors (Moni, Mercedes,

and Guillen) attended a series of meetings that culminated in an

agreement to purchase thirty-five kilograms of cocaine. The

transaction terms required the purchasers to pay a total of

$682,500, with a down payment of $140,000 due at the time of sale

and the balance payable over the next five weeks. Unbeknownst to

them, however, this was a sting operation, and the putative sellers

were, in reality, two undercover FBI agents and a cooperating

individual (CI).

At the final pre-sale meeting, the undercover agents

advised the purchasers that if they planned to use a courier, one

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of them would have to accompany the courier to a garage in

Cranston, Rhode Island (where the cocaine would be delivered),

while the others would wait at a different location with the down

payment. With this arrangement in mind, the three purchasers and

the appellant traveled to Warwick, Rhode Island, on December 17,

2001, and met with the CI and one of the agents in the parking lot

of a Holiday Inn. The record reflects that the appellant had been

offered $2,000 (or, perhaps, $2,500 — the difference is

inconsequential for present purposes) to act as a courier.

Mercedes and Guillen told the agent, in the appellant's presence,

that they had brought $140,000 in cash as an initial payment for

the thirty-five kilograms of cocaine. Mercedes, Moni, and the

money remained at the Holiday Inn with the CI while the agent led

Guillen and the appellant to the Cranston garage. During the trip,

Guillen told the appellant that he (Guillen) was being paid between

$10,000 and $15,000 for his participation in the transaction.

Upon their arrival at the garage, the men were greeted by

more undercover agents. On a table inside the garage, fifty

kilograms of cocaine were arrayed in plain view. One of the agents

asked Guillen and the appellant if they had come to pick up the

thirty-five kilograms of cocaine. The appellant responded: "I

guess." He and Guillen then attempted to open the "hide" of the

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car in which they had arrived, but they were unable to do so.1

They proceeded to inspect the cocaine. After acknowledging that it

was of good quality, they set about preparing it for transport,

sprinkling ground coffee onto each one-kilogram package and then

rewrapping each package in cellophane. Shortly after this activity

began — the parties dispute whether the men were in the process of

repackaging the third or fourth kilogram — the agents arrested

them.

On December 19, 2001, a federal grand jury sitting in the

District of Rhode Island returned a two-count indictment that

charged the appellant and his three confederates with conspiracy to

distribute in excess of five kilograms of cocaine and attempted

possession of that quantity of cocaine with intent to distribute.

See 21 U.S.C. §§ 846, 841(a)(1). The appellant initially

maintained his innocence. On June 10, 2002, however, he entered a

plea of guilty. In connection therewith, he executed a plea

agreement, which provided in pertinent part:

The defendant agrees and understands that the
substance involved in this case is powder
cocaine. And that the quantity at issue
exceeds five kilograms . . . .

For its part, the government agreed to recommend that the court

impose the lowest available sentence consistent with the GSR (as

1
The "hide" is apparently a secret compartment in which
contraband may be stored.

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determined by the court) and any applicable statute imposing a

mandatory minimum term of imprisonment.

On March 28, 2003, the district court convened the

disposition hearing. The court found the defendant responsible for

the full thirty-five kilograms of cocaine. Because the court held

the appellant responsible for so much cocaine, his base offense

level ordinarily would have been 34 — the base offense level for an

individual who is responsible for fifteen to fifty kilograms of

cocaine. See USSG §2D1.1(c)(3). But the court thought the

appellant deserving of a mitigating role adjustment, and, thus, was

required to cap his base offense level at 30. See id.

§2D1.1(a)(3).

From this lowered base offense level, the court granted

a three-level reduction for acceptance of responsibility, see id.

§3E1.1, a two-level "safety valve" reduction, see id. §2D1.1(b)(6),

and a two-level mitigating role reduction, see id. §3B1.2(b).2

Coupled with the absence of any previous criminal history, these

determinations yielded a GSR of 46-57 months. See id. ch. 5, pt.

A (sentencing table). The court thereupon sentenced the appellant

to an incarcerative term of forty-six months. This appeal

followed.

2
The sentencing guidelines direct that the mitigating role
adjustment then be made from the capped base offense level. USSG
§3B1.2, cmt. (n.6). This is a form of "double counting" that the
Sentencing Commission has apparently deemed meet.

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 The appellant advances two assignments of error. First,

he asserts that the sentencing court erred in finding him

responsible for a drug quantity in excess of 3.5 kilograms of

cocaine,3 arguing that he could not foresee that the transaction

would involve so large an amount. Second, he posits that the court

should have classified him as a minimal participant rather than a

minor participant. We discuss these issues sequentially.

We begin with drug quantity. A district court's factual

finding as to the amount of drugs embraced by a conspiracy and

reasonably foreseeable by a particular coconspirator will be

disturbed on appeal only if it is clearly erroneous. United States

v. May, 343 F.3d 1, 6 (1st Cir. 2003); United States v. Garcia, 954

F.2d 12, 16 (1st Cir. 1992). Considering the concession made in

the plea agreement and the developments preceding the arrest, the

district court hardly can be said to have erred in holding the

appellant responsible for more than 3.5 kilograms of cocaine. We

explain briefly.

In a drug conspiracy case, "a key datum in constructing

the defendant's sentence is the quantity of narcotics attributable

3
Under the sentencing guidelines, drug quantity bears a direct
correlation to the GSR (and, therefore, to the length of a
defendant's sentence). United States v. Conley, 156 F.3d 78, 84
(1st Cir. 1998). To achieve a base offense level of 30, a
defendant must be responsible for more than 3.5 kilograms of
cocaine. USSG §2D1.1(c)(5). Because of the "capping" effect of
USSG §2D1.1(a)(3), see text supra, amounts above that quantity are
irrelevant in this case.

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to him for sentencing purposes, a datum initially bounded by the

sum of the charged conduct to which the defendant pleads plus his

relevant uncharged conduct." United States v. Bradley, 917 F.2d

601, 604 (1st Cir. 1990). Drug quantity is to be derived from all

acts "that were part of the same course of conduct or common scheme

or plan as the offense of conviction." USSG §1B1.3(a)(2). The

essential inquiry is not what the defendant knew but what acts were

reasonably foreseeable by him. See United States v. Colón-Solís,

___ F.3d ___, ___ (1st Cir. 2003) [No. 01-1773, slip op. at 5];

Garcia, 954 F.2d at 15. Thus, each coconspirator is responsible

not only for the drugs he actually handled but also for the full

amount of drugs that he could reasonably have anticipated would be

within the ambit of the conspiracy. See USSG §1B1.3(a)(1)(B), cmt.

(n.2); see also United States v. Sepulveda, 15 F.3d 1161, 1197 (1st

Cir. 1992).

The appellant argues that the sentencing court erred in

its drug-quantity determination because he agreed to act as a

courier without any inkling of how much cocaine his principals were

buying. This argument lacks force.

In terms of the legal landscape, the appellant's

challenge must take root in inhospitable soil. Four points come

readily to mind. First, a sentencing court need only support a

drug-quantity determination by a preponderance of the evidence.

Sepulveda, 15 F.3d at 1198. Second, such a determination need not

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be exact, but, rather, may be approximate, as long as the

approximation represents a reasoned estimate. United States v.

Rodriguez, 162 F.3d 135, 149 (1st Cir. 1998). Third, the

sentencing court's drug-quantity determination can be set aside

only if it is clearly erroneous. United States v. Sklar, 920 F.2d

107, 110-11 (1st Cir. 1990). Fourth, if there are two plausible

views of the record, the sentencing court's choice between them

cannot be clearly erroneous. United States v. Cruz, 120 F.3d 1, 4

(1st Cir. 1997) (en banc).

Silhouetted against this landscape, the record provides

adequate support for a finding that the appellant reasonably could

have foreseen that the amount of cocaine involved in the deal would

exceed 3.5 kilograms. After all, the appellant had pleaded guilty

to conspiring and attempting to possess in excess of five kilograms

of cocaine, and the sentencing court — which expressly found that

there was a sound factual basis for the plea — was entitled to

accept that concession at face value and to draw reasonable

inferences from it. See, e.g., United States v. Marrero-Rivera,

124 F.3d 342, 353-54 (1st Cir. 1997). Moreover, the fact that the

appellant was going to be paid a minimum of $2,000 for his

relatively brief involvement in picking up and transporting the

contraband plainly indicated that this was not a penny-ante

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transaction.4 Then, too, the appellant was present during a

discussion outside the Holiday Inn at which Mercedes and Guillen

mentioned both the quantity to be purchased (thirty-five kilograms)

and the size of the down payment ($140,000), and he saw an enormous

amount of cocaine displayed on a table when he first entered the

garage. We previously have warned that "[a] defendant who

conspires to transport for distribution a large quantity of drugs,

but happens not to know the precise amount, pretty much takes his

chances that the amount actually involved will be quite large."

United States v. De La Cruz, 996 F.2d 1307, 1314 (1st Cir. 1993).

That comment is apposite here.

The appellant argues that there is countervailing

evidence, for example, that he was not present during any of the

pre-sale negotiations and that, when asked if he had come to pick

up thirty-five kilograms, he responded with an enigmatic "I guess."

But the facts to which he clings do not lead inescapably — or even

logically — to the conclusion that he foresaw a cache of less than

3.5 kilograms. The most that can be said for his position is that

there are two plausible views of the record, and the sentencing

court therefore was free to adopt the one that it thought correct.

See Cruz, 120 F.3d at 4.

4
To reinforce this point, the appellant learned, while en
route to the Cranston garage, that Guillen was to receive between
$10,000 and $15,000 for his participation.

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 This brings us to the appellant's argument that he should

have been classified as a minimal participant in the offenses of

conviction (and, thus, should have received a four-level reduction

under USSG §3B1.2(a)). The lower court rejected this argument, and

so do we.

Because the sentencing court's determination of a

defendant's role in the offense is necessarily fact-specific,

appellate review of such a determination must be conducted

deferentially. See United States v. Ortiz-Santiago, 211 F.3d 146,

148-49 (1st Cir. 2000); Cruz, 120 F.3d at 3. The standard of

review is for clear error. Dietz, 950 F.2d at 52. So long as the

district court's decision is based on reasonable inferences drawn

from adequately supported facts, we cannot find it to be clearly

erroneous. United States v. Rosado-Sierra, 938 F.2d 1, 2 (1st Cir.

1991). It follows logically that in the absence of a mistake of

law — and we descry none here — "battles over a defendant's status

. . . will almost always be won or lost in the district court."

United States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995).

The sentencing guidelines afford two possible adjustments

for a defendant whose part in the offense of conviction dilutes his

culpability: a two-level adjustment for minor participation and a

somewhat more generous four-level adjustment for minimal

participation. See USSG §3B1.2. The difference between a minimal

and a minor participant is a difference of degree, not kind.

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United States v. Sanchez, ___ F.3d ___, ___ n.2 (1st Cir. 2004)

[No. 02-2504, slip op. at 7 n.2].

To qualify as a minor participant, a defendant must prove

that he is both less culpable than his cohorts in the particular

criminal endeavor and less culpable than the majority of those

within the universe of persons participating in similar crimes.

Id. at ___ [slip op. at 7]; United States v. Teeter, 257 F.3d 14,

30-31 (1st Cir. 2001). To qualify as a minimal participant, a

defendant must prove that he is among the least culpable of those

involved in the criminal activity. In our view, this entails proof

that he is substantially less culpable than his cohorts in the

actual offense and that he is substantially less culpable than the

vast majority of those taking part in similar crimes. See USSG

§3B1.2, cmt. (nn.3(A), 4, 5); see also United States v. Kerr, 13

F.3d 203, 206 (7th Cir. 1993) (refusing reduction for minimal

participation where defendant did not prove that she was

substantially less culpable than the average participant in similar

crimes); De La Cruz, 996 F.2d at 1314 (giving as examples of a

minimal participant "someone who played no other role in a very

large smuggling operation than to offload part of a single

marijuana shipment" or someone who "was recruited as a courier for

a single smuggling operation involving a small amount of drugs")

(quoting USSG §3B1.2 cmt. (n.2)). In short, a defendant must be a

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plainly peripheral player to justify his classification as a

minimal participant.

This standard is hard to meet and, accordingly, it will

be the rare case in which a defendant will warrant designation as

a minimal participant. See USSG §3B1.2, cmt. (n.4). That is

especially so since a defendant who seeks a downward role

adjustment bears the burden of proof on that issue. United States

v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990).

With this framework in mind we return to the instant

case. At the disposition hearing, the appellant argued that his

role was minimal because he was to act only as a courier and lacked

an understanding of the scope of the criminal enterprise. He makes

essentially the same argument on appeal, insisting that such things

as his somewhat equivocal answer when asked if he was at the garage

to pick up the thirty-five kilograms of cocaine, his absence during

the pre-sale negotiations, his method of compensation (he was to be

paid a flat fee, not a share of the anticipated profits), and his

inability to open the vehicle's "hide" indicate how far removed he

was from the protagonists.

To be sure, all of these things count in the appellant's

favor — but they tell only a part of the story. For one thing, the

appellant's argument overlooks that the quantity of drugs involved

in this transaction was very large — and the appellant should have

known as much. That fact militates against a finding that his role

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was minimal. See, e.g., United States v. Rodriguez Cortes, 949

F.2d 532, 547 (1st Cir. 1991) (holding that "twenty-six kilos of

cocaine is clearly not the small amount of drugs contemplated in

the guidelines" for minimal participation). For another thing, the

record contains evidence that the appellant did more than merely

serve as a courier: for example, he inspected the cocaine for

quality and assisted in repackaging it for transportation.

The sockdolager is that even those who serve purely and

simply as drug couriers are not automatically guaranteed mitigating

role reductions. See, e.g., United States v. Lopez-Gil, 965 F.2d

1124, 1131 (1st Cir. 1992) (upholding the denial of a two-level

"minor participant" credit to a drug courier); United States v. Paz

Uribe, 891 F.2d 396, 399 (1st Cir. 1989) (same). If drug couriers

cannot lay claim as of right to minor participant status, the

assertion that every drug courier is entitled to a four-level

reduction for minimal participation is obviously untenable.

In this case, the sentencing court carefully appraised

the appellant's involvement and acknowledged that he was the least

culpable of the four coconspirators. The court determined,

however, that he properly should be classified as a minor, not a

minimal, participant. Under the circumstances, the court's

recension of the evidence seems entirely plausible. Thus, we

cannot say that its conclusion was clearly erroneous.

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 We need go no further. For the reasons elucidated above,

we uphold the appellant's sentence.

Affirmed.

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