NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 14, 2011
Decided March 30, 2012
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
Nos. 11‐2382 & 11‐2899
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. Nos. 10‐40090‐002 & 10‐40090‐003
VICTOR RUBIO QUINTERO and James E. Shadid,
ISMAEL RIOS QUINTERO, Judge.
Defendants‐Appellants.
ORDER
Victor Rubio Quintero and Ismael Rios Quintero, who apparently are cousins,
pleaded guilty to conspiring to possess and distribute methamphetamine in violation of 21
U.S.C. §§ 846, 841(a)(1), and both were sentenced to 108 months’ imprisonment. In these
consolidated appeals, both defendants argue that the district court erred by not applying a
minor‐role reduction to their offense levels. See U.S.S.G. § 3B1.2(b). Because neither one met
his burden of showing that he qualified for the reduction, we affirm the judgments.
I
Nos. 11‐2382 & 11‐2899 Page 2
The defendants were arrested in Chicago after taking possession of a car in which
$45,000 and almost 900 grams of methamphetamine were hidden in a secret compartment.
Also arrested was Hector Ahumada, who drove the car laden with the drugs and the money
from Arizona to Illinois. All three were charged together with one count of conspiracy; each
pleaded guilty, but only Ahumada negotiated a plea agreement. Ahumada cooperated with
the government and was rewarded with a below‐range prison sentence of 64 months. He
apparently furnished the details in the record about the conspiracy.
All three defendants lived in Arizona. According to Ahumada, in February 2010 a
man in Phoenix known to him only by the name “Brother” gave him money to buy a car in
his name for Brother’s use. Ahumada bought the car and delivered it to Brother. In August
2010, Brother instructed him to retrieve the car from a store parking lot in Arizona and drive
it to Chicago. By the time Ahumada picked it up, the drugs and money were already
stashed inside. Ahumada’s journey to Chicago, however, was interrupted in Henry County,
Illinois, by a traffic stop, during which a dog alerted the police to the drugs. Caught red‐
handed, Ahumada agreed to cooperate and continued driving to Chicago under
surveillance. Once in Chicago, he called his contact using the number sent to him earlier in a
text message from Brother. A short time later the defendants, driving a truck registered in
Arizona, met Ahumada and told him to park at a restaurant and ride with them to their
motel. While Ahumada waited at the motel, the defendants returned to his car. As soon as
they got into the car, they were arrested. Victor told the arresting officers that he had come
to Chicago a week earlier looking for work; Ismael said that he was just out to get
something to eat. According to the agent whose affidavit was submitted with the federal
criminal complaint, the telephone number used by Brother to contact Ahumada also was
stored in the cell phone Victor was carrying when he was arrested.
Both Victor and Ismael, on the advice of counsel, refused to discuss the crime with
the probation officer. For both defendants, the probation officer calculated a guidelines
imprisonment range of 108 to 135 months, guided by a total offense level of 31 and a
criminal history category of I. The quantity of methamphetamine was enough to mandate a
prison term of at least 10 years, 21 U.S.C. § 841(b)(1)(A)(viii), but the probation officer
concluded that both men were eligible for the “safety valve,” which allowed them to escape
the mandatory minimum, see 18 U.S.C. § 3553(f). The eligibility criteria for the safety valve
include a requirement that the defendant truthfully provide the government “all
information and evidence the defendant has about the offense.” Id. § 3553(f)(5). The
probation officer did not articulate the basis for her conclusion that the safety‐valve criteria
had been met, but if the defendants did discuss the conspiracy with the government, the
information they shared with investigators apparently was not passed along to the
probation officer or the district court. In any event, Victor’s lawyer filed a sentencing
memorandum arguing that he deserved a decrease of two offense levels for his purported
Nos. 11‐2382 & 11‐2899 Page 3
minor role in the conspiracy, see U.S.S.G. § 3B1.2(b), and further asserting that this
reduction would lead to a further three‐level decrease under U.S.S.G. § 2D1.1(a)(5)(ii).
Counsel asserted that Victor “was essentially a ‘mule’ . . . involved in but one load of
drugs.” Victor did not testify at the sentencing hearing, however, and his lawyer submitted
no evidence to back up his representations about the defendant’s role in the conspiracy.
Ismael’s lawyer submitted a commentary on the sentencing factors in which he argued that
the defendant was entitled to a minor‐role reduction because he was only an “intermediary
courier” who, as far as the evidence showed, was not “involved in the conspiracy on more
than one solitary occasion.” According to counsel, Ismael had been “paid a relatively small
amount of money to complete a discrete task” and had “never touched any drugs or
participated in any negotiations about the price or quantity of the drugs.” But like Victor’s
lawyer, counsel for Ismael offered no evidence to back up these representations.
The district court concluded that neither defendant deserved a reduction for being a
minor participant in the conspiracy. At Victor’s sentencing, the court adopted the probation
officer’s view that “there was no leader or subordinates” in the charged conspiracy. The
judge pointed out that the two cousins had traveled from Arizona to Chicago to prepare for
Ahumada’s delivery, a fact that the court did not think “fits neatly enough into the minor
role participant that he should be awarded the minor role reduction.” Later when
sentencing Ismael the court said that neither man could be described as having a minor role
because Ismael, Victor, and Ahumada “all had equal parts” and all played an essential role
in the enterprise. For both Victor and Ismael the court adopted the probation officer’s
guidelines calculations and imposed a prison term of 108 months, the bottom of the
guidelines range.
II
Victor and Ismael each contends that the district court erred in rejecting his request
for a minor‐role adjustment. While Brother and the intended recipient in Chicago may have
played a central role in the conspiracy, the defendants depict themselves as
“unsophisticated, intermediary couriers, engaged in a single transaction,” who did not even
know “the quantity or type of drugs they were to pick up” or that there was money in the
vehicle. They urge that it was Ahumada who purchased the vehicle and then transported
the drugs across the country, while, in contrast, Victor’s and Ismael’s “only task” was to
transport the drugs they picked up from Ahumada to a third location. Because this “role
was minor in comparison to that of their associates,” they conclude, they each qualified for
a reduction under § 3B1.2(b).
The defendants concede that they had the burden of showing by a preponderance of
evidence that the reduction was warranted, see United States v. Panaigua‐Verdugo, 537 F.3d
Nos. 11‐2382 & 11‐2899 Page 4
722, 724 (7th Cir. 2008); United States v. Gonzalez, 534 F.3d 613, 617 (7th Cir. 2008), and they
also acknowledge that review here is for clear error only, see United States v. Haynes, 582
F.3d 686, 708–09 (7th Cir. 2009); United States v. Watts, 535 F.3d 650, 659 (7th Cir. 2008). They
are right to acknowledge this much. This court will not overturn the application of § 3B1.2
unless its review of the evidence leaves it “‘with a definite and firm conviction that a
mistake has been committed.’” Haynes, 582 F.3d at 709 (quoting Panaigua‐Verdugo, 537 F.3d
at 724).
Section 3B1.2(b) authorizes the two‐level reduction “[i]f the defendant was a minor
participant in any criminal activity.” U.S.S.G. § 3B1.2(b). The commentary clarifies that the
reduction is for a defendant “who is less culpable than most other participants, but whose
role could not be described as minimal.” Id. at cmt. n.5. “[T]he controlling standard is
whether the defendant is substantially less culpable than the average participant in the
offense.” United States v. Saenz, 623 F.3d 461, 468 (7th Cir. 2010). We have emphasized that
the defendant should be compared to the average participants, rather than the leaders of the
criminal enterprise. Id.; United States v. Gallardo, 497 F.3d 727, 741 (7th Cir. 2007).
Drug couriers are neither automatically entitled to nor precluded from receiving a
minor‐role reduction under § 3B1.2. United States v. Leiskunas, 656 F.3d 732, 739 (7th Cir.
2011); Saenz, 623 F.3d at 468; Panaigua‐Verdugo, 537 F.3d at 725; United States v.
Rodriguez‐Cardenas, 362 F.3d 958, 960 (7th Cir. 2004). The inquiry is fact‐bound, Saenz, 623
F.3d at 468; United States v. Garcia‐Ortiz, 657 F.3d 25, 29 (1st Cir. 2011), and, as we have
observed, the label “courier” can be given to “sophisticated professionals who exercise
significant discretion” or to persons “paid a small amount of money to do a discrete task,”
Saenz, 623 F.3d at 467. Factors that a sentencing court should consider include the courier’s
relationship with the leaders, United States v. Mendoza, 457 F.3d 726, 730 (7th Cir. 2006), as
well as the other tasks undertaken by that courier, see Gonzalez, 534 F.3d at 617 (concluding
that courier was not entitled to reduction because he “was trusted to carry a large quantity
of cash, pick up a large quantity of drugs from a dealer by himself, transport the drugs in
his own car and store them in his own home”).
In this case the defendants made no effort to marshal evidence that might have
supported (indeed, compelled) a finding that they were minor participants. Their appellate
brief is replete with assertions that the limited evidence of record does not show them to be
more than minor participants. But that reasoning gets the burden of proof backward.
Essentially the defendants argue that the government did not know enough about them to
disprove their lawyers’ assertions that both of them were one‐time couriers with a discrete
role, no financial stake beyond getting paid to get the drugs from Ahumada’s car to the
buyer, and no decision‐making authority. Conspicuously missing is any evidence from the
record showing that their role was so limited. The defendants neither talked with the
Nos. 11‐2382 & 11‐2899 Page 5
probation officers nor testified at sentencing. And whatever the defendants told the
government in their safety‐valve debriefings apparently was never shared with the
probation officer or the district court; certainly the content of the debriefing is not part of the
record on appeal. So there is nothing in the record beyond what the arresting officers and
Ahumada contributed. The representations made by the defendants’ lawyers are not
evidence and count for nothing; a defendant cannot avail himself of a guidelines adjustment
on which he bears the burden of proof by hiding behind unsworn assertions of fact fronted
by his lawyer. See United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008); United States v.
Swanson, 483 F.3d 509, 513 (7th Cir. 2007); Campania Mgmt. Co., Inc. v. Rooks, Pitts & Poust,
290 F.3d 843, 853 (7th Cir. 2002); United States v. Mayberry, 272 F.3d 945, 948–49 (7th Cir.
2001); United States v. Purchess, 107 F.3d 1261, 1267–68 (7th Cir. 1997); United States v. Webb,
616 F.3d 605, 610 (6th Cir. 2010); United States v. Bueno, 443 F.3d 1017, 1022 (8th Cir. 2006);
United States v. Onofre‐Segarra, 126 F.3d 1308, 1310 (11th Cir. 1997).
The correct focus, then, is not on the unsupported picture the defendants present, but
on the concrete information about the charged conspiracy and the defendants’ role in it, as
compared with the only other participant who matters to the analysis. That participant is
Ahumada, not Brother or the buyer or the hypothetical couriers. The question is whether the
district court committed clear error in finding that these defendants did not show
themselves to be less culpable than the average person in the conspiracy. See Gonzalez, 534
F.3d at 617. To the extent that the defendants argue that they are less culpable than the
purported leaders of the conspiracy—Brother and the intended recipient of the drugs in
Chicago—they fail to understand that the relevant analysis compares them with the average
member of the criminal enterprise, not the leaders. Saenz, 623 F.3d at 468; Gallardo, 497 F.3d
at 741.
The defendants also characterize themselves as less culpable than Ahumada because
he purchased the car, and it was used to deliver drugs for Brother on more than one
occasion.” Yet here again there is nothing to back up that assertion. The defendants may be
alluding to the probation officer’s mention of another trip a few weeks earlier, when
Ahumada drove the car to Albuquerque, left the vehicle in a parking lot, and retrieved it 90
minutes later. The probation officer did not say, however, that Ahumada took drugs either
to or from Albuquerque. We can only speculate about the purpose of this trip, and an
equally plausible explanation is that the secret compartment was installed in Albuquerque.
The defendants also make much of the fact that Ahumada was trusted to transport
the drugs a longer distance, but “[t]he distance each member of a drug conspiracy
transports the drugs is not per se indicative of his level of involvement in the conspiracy.”
Mendoza, 457 F.3d at 729. Indeed, the record suggests that the defendants may have had a
closer relationship with the leadership because they not only were in contact with Brother
Nos. 11‐2382 & 11‐2899 Page 6
but also had been entrusted to meet the final recipient of the drugs in Chicago. See id.
(reasoning that defendant courier had leader’s “utmost trust and confidence” since he was
entrusted with leader’s identity, as well as “the final delivery of the drugs”). Ahumada, on
the other hand, could not finger the intended recipient, and since he was given the riskiest
task of transporting the drugs for all but the last few miles, another plausible inference is
that the defendants were higher in the conspiratorial pyramid. It is not uncommon, in drug
cases, to find that culpability and proximity to the drugs are inversely related. See United
States v. Dawson, 425 F.3d 389, 396 (7th Cir. 2005); United States v. Noble, 246 F.3d 946, 954
(7th Cir. 2001); United States v. Jones, 145 F.3d 959, 969–70 (8th Cir. 1998); United States v.
Gutierrez, 576 F.2d 269, 275 (10th Cir. 1978).
In the end, the defendants have not shown that the district court erred – much less
clearly erred – in concluding that they did not qualify for a minor‐role reduction. We
therefore AFFIRM both of the district court’s judgments.