Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-31-2003
USA v. Cruz
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2008
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"USA v. Cruz" (2003). 2003 Decisions. Paper 17.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2008
UNITED STATES OF AMERICA
v.
DAISY CRUZ,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 02-cr-00507)
District Judge: Honorable Dennis M. Cavanaugh
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2003
Before: RENDELL, BARRY and CHERTOFF, Circuit Judges.
(Filed December 31, 2003)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Daisy Cruz challenges the District Court’s refusal to reduce her offense level based
on her role as a minor participant in the offense, and the Court’s refusal to depart
downward under U.S.S.G. § 5K2.0 based on the circumstances of her prison detention
and her poor health and narcotic addiction. She pled guilty to knowingly and
intentionally conspiring and agreeing to distribute and to possess with intent to distribute
more than 50 grams of cocaine base, namely, crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(B)(1)(A)(iii) and 18 U.S.C. § 2; she was sentenced to the lower end
of the guideline range, 87 months.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and we
have jurisdiction to review the sentencing orders of the District Court pursuant to
18 U.S.C. §§ 1291 and 3742(a).
We must sustain the District Court’s factual findings regarding the offense level
reduction unless they are clearly erroneous. United States v. Perez, 280 F.3d 318, 351
(3d Cir. 2002). We exercise plenary review over the District Court’s “interpretation and
application of the Sentencing Guidelines.” United States v. Figueroa, 105 F.3d 874,
875-76 (3d Cir. 1997). But where the District Court “was aware of its authority to depart
from the Guidelines, and chose not to,” we are without jurisdiction to review the merits of
the sentencing decision. United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991).
With respect to the refusal to reduce Cruz’s offense level reduction, the “minor
role” adjustment provided for under section 3B1.2(b) is reserved 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, app. n.5. This determination is essentially fact-based,
concentrating on the defendant’s relationship to other participants, the importance of the
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defendant’s actions to the success of the venture, and the defendant’s awareness of the
nature and scope of the criminal enterprise. United States v. Isaza-Zapata, 148 F.3d 236,
239 (3d Cir. 1998) (quoting United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.
1991)). Here, the District Court carefully analyzed the appropriate factors and discussed
them in reaching its conclusion, noting that there was “no question but that the defendant
was aware of the drug distribution process, the proceeds involved, and she was a willing
participant of this scheme.”
Cruz had recruited and directed the actions of her co-defendant, Perez, and had
negotiated the transaction with the undercover officer before her arrest, and had also been
observed previously supplying known drug dealers. We conclude that the District Court’s
determination that Cruz was not a “minor participant” was supported by the record and
was not clearly erroneous.
With respect to the downward departure sought by Cruz on the basis of her ill
health, her addiction, and the inhumane conditions of her confinement, the District Court
concluded that although these factors might provide a basis for departing under certain
extreme circumstances, a departure was not warranted in Cruz’s situation. The record
shows that the District Court applied the proper sections of the Guidelines, and there is no
indication that the District Court “believed erroneously it lacked authority to depart, or
that it failed to consider [Cruz’s] request for a downward departure.” Georgiadis, 933
F.2d at 1223 (citation omitted). Thus, under our case law as it currently stands, we are
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compelled to conclude that we lack jurisdiction to consider the merits of Cruz’s departure
request. See United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1990).
Accordingly, we will affirm the Judgment and Conviction Order of the District
Court.
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TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/ Marjorie O. Rendell
Circuit Judge
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