United States Court of Appeals,
Eleventh Circuit.
No. 95-4407.
UNITED STATES of America, Plaintiff-Appellee,
v.
Pedro Nel Cardozo VELOZA, a/k/a Pedro Nel Cardozo-Veloza,
Defendant-Appellant.
May 21, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-599 CR-KMM), K. Michael Moore, Judge.
Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit
Judge.
BARKETT, Circuit Judge:
Pedro Nel Cardozo Veloza appeals his sentence following his
guilty plea to importation of heroin. Veloza argues that the
district court erred in refusing to grant a downward adjustment
based upon his minor role in the offense under U.S.S.G. § 3B1.2,
and a downward departure based upon his status as a deportable
alien under U.S.S.G. § 5K2.0.
Veloza arrived at Miami International Airport on a flight from
Colombia. During a Customs inspection, officials discovered 799.2
grams of heroin hidden in the lining of two ski jackets found in
Veloza's luggage. Veloza admitted that he owned both the jackets
and the luggage. He stated that he had purchased the ski jackets
used to conceal the drugs in Bogota and that he had packed the
luggage, containing the heroin, himself. He further stated that he
knew that an illegal substance was "hiding inside the jackets"
although he thought it was 500 grams of cocaine. Veloza carried
$2,000 in cash and his ticket had been paid in cash. At
sentencing, he moved for a downward adjustment asserting that he
played only a minor role in the offense. He also moved for a
downward departure based upon his status as a deportable alien
because he would serve a longer and harsher sentence than a U.S.
citizen. The district court denied both motions and sentenced him
to seventy months incarceration.
In Sentencing Guidelines cases, we review the district
court's findings of fact for clear error and its legal conclusions
de novo. United States v. Rojas, 47 F.3d 1078, 1080 (11th
Cir.1995).
Veloza argues that the district court clearly erred in
concluding that he was not entitled to a downward adjustment for
playing a minor role under the facts presented in this case and in
suggesting that he might not have been entitled to the reduction
because he was a courier and therefore was "essential" to the
importation offense. Veloza contends that he should not have been
precluded from receiving a downward adjustment merely because he
was a courier or "mule." Although we agree with Veloza that the
act of transporting illegal drugs, in and of itself, cannot, as a
matter of law, preclude a defendant from receiving a downward
adjustment based on his role in the offense, we conclude that the
district court did not clearly err in denying an adjustment based
on the evidence, or lack thereof, presented in this case.
The fact that Veloza was a courier who carried drugs into the
U.S. does not alone establish that he was a minor participant in
the conspiracy. United States v. Cacho, 951 F.2d 308, 310 (11th
Cir.1992). By the same token, the fact that a courier plays an
essential role in an importation scheme does not alone necessarily
preclude him from receiving a reduction for a minor role either.
Indeed, the guidelines provide as much. They recognize two levels
of participation that warrant a downward adjustment, minimal and
minor, see U.S.S.G. § 3B1.2, and define minimal as the least
culpable category and minor as more culpable than minimal, but less
culpable than most other participants. See U.S.S.G. § 3B1.2,
comment. (n.3). The guidelines provide that a minimal participant
receive a four-level reduction, while a minor participant may
receive only a two-level reduction. Id. Yet the guidelines
provide that it is appropriate to grant the larger reduction for
the lesser minimal participant "in a case where an individual was
recruited as a courier for a single smuggling transaction involving
a small amount of drugs." See Id., comment. (n.2). If the
guidelines foresee granting a four-level reduction to a courier as
a less-culpable minimal participant, they certainly do not
foreclose granting a two-level reduction to a courier as a minor
participant. Nevertheless, based on the evidence in this case, the
district court's factual finding that Veloza did not play a minor
role was not clearly erroneous.
Second, Veloza contends that the district court erred in
refusing to grant a downward departure based on his status as a
deportable alien. Veloza argues that, because he is a deportable
alien, he will be ineligible to serve his sentence in a minimum
security facility and ineligible for a halfway house during the
last part of his sentence, making his sentence harsher than that of
a citizen. We adopt the Second Circuit's rationale in United
States v. Restrepo, 999 F.2d 640 (2nd Cir.1993). There, the Second
Circuit "decline[d] to rule that pertinent collateral consequences
of a defendant's alienage could not serve as a basis for departure
if those consequences were extraordinary in nature or degree[,]"
but held that "(1) the unavailability of preferred conditions of
confinement, (2) the possibility of an additional period of
detention pending deportation following the completion of the
sentence, and (3) the effect of deportation as banishment from the
United States and separation from family" were consequences of a
defendant's alienage that did not warrant a departure. Id. at 644.
Based on the reasoning of Restrepo, we find that the district court
did not err in denying Veloza's motion for a downward departure.
For the foregoing reasons, we AFFIRM the district court.