UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-30195
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROY BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(May 30, 1995)
Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Roy Brown (Brown), a Jamaican national, was originally
indicted, along with Steve Earl (Earl), for conspiracy to import
marijuana into the United States, in violation of 21 U.S.C. §§
952(a), 960, and 963. On September 15, 1993, after reaching a plea
agreement with the government, Brown pleaded guilty to a
superseding bill of information charging the same offense but
specifying a lesser quantity of marijuana.1 On March 16, 1994,
Brown was sentenced to a 46 month imprisonment term and a three
1
Brown's co-defendant, Earl, was tried and convicted on the
original indictment.
year term of supervised release. Brown now appeals this sentence.
For the reasons stated below, we affirm the district court.
BACKGROUND
The basic facts are undisputed. Brown was involved in a
conspiracy to import marijuana from Jamaica into Gramercy,
Louisiana. On August 23, 1993, the M/V GULF TRIDENT (TRIDENT) left
Port Rhoades, Jamaica with two metal cylinders attached to the
bottom of its hull. These cylinders contained 281 pounds of
marijuana. On August 26, having been alerted to the possibility
that the TRIDENT contained contraband, the U.S. Customs Service
established surveillance on the vessel upon its arrival into the
Port of Gramercy.
Approximately two days later, federal agents observed Brown,
in the company of Earl and an unidentified SCUBA diver, near the
river and in the vicinity of the TRIDENT. The diver entered the
Mississippi River and floated downstream to the TRIDENT. Shortly
before reaching the lighted area of the dock, the diver submerged,
detached the cylinders from the hull of the vessel, and then
secured the contraband to the bottom of the dock. After re-joining
Brown and Earl at the river's bank, the three men left the area.
The next evening, an unidentified driver left Stanford Reed
(Reed), Earl, and Brown on River Road, close to the dock. Reed,
dressed in SCUBA gear, entered the river. Before the individuals
had an opportunity to retrieve the cylinders from the dock, federal
agents swooped in to make the arrests. Earl was quickly
apprehended, but both Reed and Brown evaded the agents. After
2
several hours, Brown was arrested while attempting to leave a
wooded area near the river. Reed, however, was not captured and
currently remains at large.
After his indictment, Brown sang like a lark in exchange for
the government's promise to recommend a lighter sentence. After
receiving Brown's guilty plea, the United States fulfilled its
promise by requesting that the district court not depart upwardly
from the Sentencing Guidelines and select a sentence at the lowest
end of the applicable guidelines range, i.e., 37 months. The
district court, however, refused the government's request and
sentenced Brown to a maximum incarceration term of 46 months.
DISCUSSION
In the presentence report (PSR), the Probation Office
calculated Brown's offense level at 17 and his criminal history
category at IV, resulting in a guideline range of imprisonment from
37 to 46 months. Brown raised three objections to the PSR which he
now pursues on appeal.
I.
First, Brown objects to receiving two criminal history points
under U.S.S.G. § 4A1.1(d)2 for being on supervised release at the
time of his arrest. Brown's term of supervised release commenced
on October 1, 1990, but he argues that it was extinguished on
October 31, 1990. Brown asserts that district courts may not allow
2
Pursuant to U.S.S.G § 4A1.1(d), a defendant is to receive two
additional criminal history points if he or she "committed the
instant offense while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment, work
release, or escape status."
3
defendants to serve their terms of supervised release outside of
the United States. Thus, he argues that a term of supervised
release is effective only while the defendant remains in the United
States. Because Brown was deported from the United States by order
of the Immigration and Naturalization Service (INS), he asserts
that his term of supervised release was extinguished. Therefore,
Brown contends that he was not on supervised release when he was
arrested on August 29, 1993.
Although there is no direct legal impediment to prohibit a
court from allowing a defendant to serve his supervised release
abroad, we have found no case in which a court has authorized a
defendant to serve this term outside of the United States. On the
contrary, at least two cases have held that the defendants had to
serve their supervised release in the United States due to the
practical difficulties inherent in supervising their release
abroad. See United States v. Porat, 17 F.3d 660, 671 (3rd Cir.
1994)("[T]he court and the probation office have the responsibility
to see that [defendant] complies with the terms of his sentence.
In order to maintain the required supervision, we hold that
[defendant] must serve his complete sentence in the United
States."), petition for cert. filed, 63 U.S.L.W. 3067 (U.S. July
12, 1994) (No. 94-140); United States v. Pugliese, 960 F.2d 913,
(10th Cir. 1992)("the district court's order and its remarks . . .
mean that the structure needed to support defendant's
rehabilitative supervision is absent outside the United States,
[more specifically, in Thailand], and we agree with that
4
assessment."). Assuming arguendo that district courts do not have
the authority to allow defendants to serve their terms of
supervised release abroad, it does not necessarily follow that
supervised release is extinguished upon deportation.
To begin with, we are unaware of any court which has held that
deportation extinguishes a term of supervised release. Moreover,
Congress has provided that:
If an alien defendant is subject to deportation, the
court may provide, as a condition of supervised release,
that he be deported and remain outside the United States,
and may order that he be delivered to a duly authorized
immigration official for deportation.
18 U.S.C. § 3583(d). Congress has also mandated the following:
An alien sentenced to imprisonment shall not be deported
until such imprisonment has been terminated by the
release of the alien from confinement. Parole,
supervised release, probation, or possibility of rearrest
or further confinement in respect of the same offense
shall not be ground for deferral of deportation.
8 U.S.C. § 1252(h). A plain reading of these two sections supports
the government's position that deportation does not extinguish
supervised release. Otherwise, Congress would not require that a
defendant be deported despite a term of supervised release and at
the same time allow for supervised release to be conditioned on the
defendant not reentering the United States illegally. If Congress
intended for deportation to terminate this sentence, it could have
specifically provided for such to occur. However, Congress has not
done so and viewing the legislation above, it has no such intent.
In addition, and contrary to Brown's argument,3 the courts
3
Brown cites two cases which allegedly support his contention
that supervised release is extinguished upon deportation. These
5
recognize that a term of supervised release remains intact after an
alien's deportation. For example, in United States v. Soto-Olivas,
44 F.3d 788 (9th Cir.1995), petition for cert. filed, (U.S. May 8,
1995) (No. 94-9173), the defendant was sentenced to prison for 36
months, to be followed by six years of supervised release. As one
of the conditions of his supervised release, the district court
ordered the defendant to "comply with the rules and regulations of
the [INS] and if deported from this country under any
circumstances, not to reenter the United States illegally." After
completing his prison term, the defendant was deported. However,
several months later, during his term of supervised release, he was
arrested on auto theft charges in the Los Angeles area. During a
subsequent revocation hearing, the defendant was sentenced to seven
months incarceration for violating the condition in his supervised
release that he not reenter the United States. Although the
cases support nothing of the sort, they merely recognize the
impossibility of imposing an effective program of supervised
release on a defendant who is to be deported. For example, in
United States v. Ceja-Hernandez, 895 F.2d 544 (9th Cir. 1990), the
district court justified an upward departure on the defendant's
sentence on the ground that the defendant would be immediately
deported following his release from prison, precluding the court
from effectively imposing a program of supervised release. The
Ninth Circuit, having held that the district court's basis for the
departure was impermissible, reversed the sentence. In United
States v. Chavez-Botello, 905 F.2d 279 (9th Cir. 1990) (per
curiam), the district court stated, among other things, that the
Sentencing Guidelines failed to take into account the fact that the
defendant would avoid being placed on supervised release after
being deported. Therefore, it departed upwards on the defendant's
sentence. Again, the Ninth Circuit reversed on the basis that a
"departure based upon the ground that a defendant would be
immediately deported following release is not permissible." Id. at
281. Again, not even by the farthest stretch of the imagination do
these cases support the notion that deportation extinguishes
supervised release.
6
question of whether deportation ended his term of supervised
release was not at issue in the case, the Ninth Circuit affirmed
the sentence. The facts and holding from this case indicate that
a term of supervised release is not extinguished upon deportation.
In United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir.
1992), the defendants served their prison terms and were deported.
The Ninth Circuit indicated that if either of the defendants were
rearrested in the United States during their terms of supervised
release, their supervised release time would be converted into
incarceration time. Again, this is a clear indication that
deportation does not extinguish a term of supervised release.
This Court has also recognized that a term of supervised
release does not terminate after a defendant is deported. See,
e.g., United States v. Tuangmaneeratmun, 925 F.2d 797, 802 n.6 (5th
Cir. 1991) (standard conditions of supervised release which should
be explained to a defendant include, among other things, that if
deported he is not to return to the United States while on
supervised release); United States v. Osiemi, 980 F.2d 344 (5th
Cir. 1993) (district court conditioned supervised release on the
condition that if deported, defendant would not illegally reenter
the United States); United States v. Cardenas-Alvarez, 987 F.2d
1129 (5th Cir. 1993) (district court sentenced defendant to a term
of imprisonment of 100 months and ordered him not to reenter the
United States illegally during a three year term of supervised
release); see also United States v. Ramirez, 948 F.2d 66 (1st Cir.
1991) (as a condition of supervised release, if ordered deported,
7
defendant shall remain outside the United States during that time).
Section 3583(d) expressly provides, as a condition of
supervised release, that the defendant be deported and remain
outside the United States. As discussed above, several cases have
incorporated this section into their sentence of supervised
release, i.e., that, if the defendant is deported, he remain
outside of the United States during his term of supervised release.
This is a clear indication that a term of supervised release
remains in effect after the defendant is deported.4 In fact, the
Probation Manual supports this conclusion because it directs that:
Officers should provide supervision to offenders subject
to deportation until the person actually leaves the
United States. Officers should then verify deportation
through the [INS] before making the case inactive until
the scheduled expiration date . . . . An offender
reentering the country prior to expiration of supervision
should be supervised.
X PROBATION MANUAL, GUIDE TO JUDICIARY POLICIES AND PROCEDURES IV, § 18
(emphasis added). It is doubtful that Congress intended for one
branch of the government to extinguish a lawfully imposed sentence
of another branch without specifically so providing. Therefore, we
hold that Brown's three year term of supervised release was not
extinguished when he was deported.
II.
Brown next argues that the district court erred in assessing
him three criminal history points under the applicable section of
4
But see United States v. Biyaga, 9 F.3d 204 (1st Cir. 1993),
where the reviewing court approved of the district court's
practice, when sentencing illegal aliens, to suspend supervised
release from the time the defendant was deported until, and if, he
returned to the United States.
8
the Sentencing Guidelines, which mandates that a defendant receive
three criminal history points for "each prior sentence of
imprisonment exceeding one year and one month." U.S.S.G. §
4A1.1(a). On October 14, 1986, Brown received two five year terms
of probation after pleading guilty in Texas state court to separate
counts of forgery and possession of marijuana. On January 21,
1987, he was arrested for illegal possession of a firearm. As a
result of this arrest, Brown's probation was revoked on April 16,
1987 and he was ordered to serve a two year prison sentence. On
April 27, 1987, Brown was sentenced to prison for 45 days for the
firearm offense itself. Brown was eventually released from custody
on June 19, 1987. Brown contends that his immediate release from
custody after completing the firearm sentence proves that he did
not serve any time for his 1986 convictions. Otherwise, he argues
that he would not have been released on June 19, 1987, only two
months after his probation was revoked. Therefore, Brown maintains
that he has not served a prior term of incarceration exceeding one
year and one month and contests the three points assessed against
him.
The government, when seeking to adjust a defendant's sentence
level, has the burden of proving by a preponderance of the evidence
the facts necessary to support the adjustment. United States v.
Kim, 963 F.2d 65, 69 (5th Cir. 1992). "In resolving any reasonable
dispute concerning a factor important to the sentencing
determination, the court may consider relevant information without
regard to its admissibility under the rules of evidence applicable
9
at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy." U.S.S.G. §
6A1.3(a).
The Sentencing Guidelines define "sentence of imprisonment" as
"a sentence of incarceration and refers to the maximum sentence
imposed." Id. § 4A1.2(b)(1). "If part of a sentence of
imprisonment was suspended, `sentence of imprisonment' refers only
to the portion that was not suspended." Id. § 4A1.2(b)(2). The
commentary to this section clarifies that "to qualify as a sentence
of imprisonment, the defendant must have actually served a period
of imprisonment on such sentence (or, if the defendant escaped,
would have served time) . . . . That is, criminal history points
are based on the sentence pronounced, not the length of time
actually served." Clearly, the Sentencing Guidelines require that
(1) a sentence exceed one year and one month and (2) that some time
actually be served on that sentence before assessing three
additional points to a defendant's criminal history. Brown has
satisfied the first requirement because the sentence of
imprisonment pronounced was for two years. Thus, the question is
whether any time was actually served on that sentence.
Brown was taken into custody on January 21, 1987 and was
released from prison on June 19, 1987. During that five month
period, Brown served his weapon's sentence, i.e., from April 27 to
June 11, but he argues that no jail time was served on the two year
10
prison sentence. However, the "pen pack,"5 which was introduced
into evidence without objection, clearly states that on April 16,
1987 Brown was given a 53 day credit on his two year sentence of
imprisonment for time already served. Thus, it is clear that Brown
served at least 53 days from the two year term. However, a
discrepancy exists between the days credited to Brown (53) and the
days he spent in jail before being sentenced (85). The record does
not shed any light on the 32 days (85 - 53) apparently spent in
jail and to which Brown was presumably entitled to as a credit.
Outside of conclusory allegations, neither of the parties attempt
to account for these 32 days and this Court will not speculate as
to the reasons why those 32 days are unaccounted for. Nonetheless,
this discrepancy is inapposite because the government conclusively
established by a preponderance of the evidence that 53 days were
served on the sentence of imprisonment.
Finally, the PSR explains that Brown was released from prison
because he was paroled on June 19, 1987 and finally discharged on
February 23, 1989 (two years from April 16, 1987 with a 53 day
credit). Contrary to Brown's assertion, the execution or
imposition of the two year sentence was not suspended. The
district court did not err in imposing the assessment.
III.
Brown also argues that he should receive a two point reduction
in his offense level under U.S.S.G. § 3B1.2(b) given that he was
5
The "pen pack," issued by the Texas Department of
Corrections, detailed the reasons for Brown's incarceration and the
term to be served.
11
allegedly a "minor participant" in the drug conspiracy. Both
parties characterize the marijuana shipment as involving a multi-
level international smuggling scheme, consisting of peripheral
participants and higher level participants, such as the scheme's
organizers. Brown alleges that his involvement in the operation
was merely peripheral as it was limited to helping Reed and Earl
transport the marijuana from the dock; he denies complete knowledge
or understanding of the scope of the conspiracy. Accordingly,
Brown seeks a downward adjustment to reflect this supposed minor
participation.
This Court will uphold a defendant's sentence unless it was
imposed contrary to law, as a result of an incorrect application of
the Sentencing Guidelines, or is outside of the range of the
Sentencing Guidelines and is unreasonable. United States v.
Buenrostro, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied, 495
U.S. 923 (1990) (citations omitted). The district court's factual
findings regarding sentencing matters are entitled to substantial
deference; we will not disturb those findings unless they are
clearly erroneous. United States v. Gadison, 8 F.3d 186, 193 (5th
Cir. 1993). A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole. Id. We review
the district court's interpretation of the Sentencing Guidelines de
novo. Id.
The Sentencing Guidelines provide that a district court must
reduce a defendant's offense level by two levels if the defendant
was a "minor participant" in the criminal activity. U.S.S.G. §
12
3B1.2(b). A minor participant is a defendant who is "less culpable
than most other participants, but whose role could not be described
as minimal." Id., Application note 3. A downward adjustment under
section 3B1.2 is generally appropriate only where a defendant was
"`substantially less culpable than the average participant.'"
Buenrostro, 868 F.2d at 138 (emphasis in original) (quoting
U.S.S.G. § 3B1.2, Background). Brown bears the burden of proving
his minor role in the offense by a preponderance of the evidence.
United States v. Zuniga, 18 F.3d 1254 (5th Cir.), cert. denied, ---
U.S.---, 115 S.Ct. 214 (1994).
At sentencing, the district court disagreed with the
characterization of Brown's role in the offense as minor.6 Indeed,
the evidence suggests that Brown was not "substantially less
culpable" than the average participant. For instance, he traveled
from Texas to Louisiana to participate in the conspiracy; stayed at
a motel in Gonzalez, Louisiana while his confederates stayed in
Laplace, Louisiana - a move designed to mask their drug activities
and avoid being captured in case they were discovered; assisted
accomplice Earl, the diver, and others on two occasions in an
attempt to stealthily retrieve 281 pounds of marijuana from the
TRIDENT; and would have aided in transporting it to points unknown
if not intercepted by federal agents. In light of these facts, the
6
The following exchange occurred during sentencing:
ATTORNEY: Well, I won't take up much time as long as it's clear
that our position is that . . . there should be a two
point reduction in Mr. Brown's minor role in the
offense.
THE COURT: I obviously don't agree with that.
13
district judge was not bound to accept Brown's self-serving
declarations, made with the purpose of reducing his sentence, about
his role in the crime. Buenrostro, 868 F.2d at 138.
Moreover, because most offenses are committed by participants
of roughly equal culpability, the adjustment is intended to be used
infrequently. United States v. Allibhai, 939 F.2d 244, 254 (5th
Cir. 1991), cert. denied, 507 U.S. 1072 (1992). As the Buenrostro
court noted, Brown may be a courier without being substantially
less culpable than the average participant.7 Id. "Culpability is
a determination requiring sensitivity to a variety of factors."
Id. Based on the evidence before us, we find no error in the
district court's conclusion that Brown did not prove that he was a
minor participant; he was just as culpable as the other criminal
participants.
IV.
Alternatively, Brown argues that if we cannot conclude that
Brown was substantially less culpable than other members of the
conspiracy, that the issue be remanded to the district court for a
more complete articulation of the factual basis of its conclusion
7
"[E]ven if the defendant were purely a courier having no
knowledge of the other aspects of the drug-dealing operation, the
defendant might nonetheless be a highly culpable participant in the
operation. A courier who willingly undertakes illegal transit
without asking may questions is especially valuable to a criminal
organization. When police apprehend a studiously ignorant,
courier, the organization can rest comfortably, knowing that its
other operations remain hidden from the law." Buenrostro, 868 F.2d
at 138. But see United States v. Valdez-Gonzalez, 957 F.2d 643,
647 (9th Cir. 1992) (role in drug trade played by "mules" may
constitute a mitigating circumstance justifying a downward
departure under § 3B1.2).
14
that he was not a minor participant.
Determining participant status is a complex fact question,
which requires a court to consider the broad context of the
defendant's offense. United States v. Melton, 930 F.2d 1096, 1099
(5th Cir. 1991) (citing Mejia-Orosco, 868 F.2d 807, clarifying on
reh'g, 867 F.2d 216 (5th Cir.), cert. denied, 492 U.S. 924 (1989)).
In Melton, the court found the record to be woefully inadequate to
determine whether the defendant was entitled to a downward
adjustment, a deficiency compounded by the district court's refusal
to articulate his findings after being requested to do so by the
defendant. This court held that
The district court must articulate the factual basis for
the finding that, in this particular offense, [defendant]
was an average participant. The sentencing court must
state for the record the factual basis upon which it
concludes that a requested reduction for minor
participation is, or is not, appropriate.
Id.
In making factual determinations, we note that a district
court may "draw [] inference[s] from a variety of data, including
information in the [PSR] and the defendant's statements and
demeanor at the sentence hearing." Mejia-Orosco, 867 F.2d at 220-
21. The PSR generally bears sufficient indicia of reliability to
be considered as evidence by the district court in resolving
disputed facts. United States v. Montoya-Ortiz, 7 F.3d 1171, 1180
(5th Cir. 1993). A district court may thus adopt facts contained
in the PSR without further inquiry if the facts have an adequate
evidentiary basis and the defendant does not present rebuttal
evidence. United States v. Puig-Infante, 19 F.3d 929, 943 (5th
15
Cir.), cert. denied, ---U.S.---, 115 S.Ct. 180 (1994).
The district court stated that due to the "reasons . . . set
forth by the probation department," Brown's objections, including
his objection for not receiving a two point downward adjustment
under § 3B1.2(b), were denied. The judge specifically rejected
Brown's contention that he played a minor role in the offense. At
no point prior to this appeal did Brown request the court to
articulate the factual basis for its finding. Moreover, because we
do not find the sentencing record to be inadequate in this respect,
there is no need for the court to regurgitate the basis for denying
the downward departure after adopting the PSR, which sufficiently
articulates the basis for the denial. For example, after Brown
objected to the PSR's recommendation that he not receive a two
point deduction in his sentence, the Probation Department again
reviewed the particular facts of the case in a supplemental
addendum and concluded that
Brown is as culpable as any of the other participants in
this scheme. He was present on the bank of the river to
supervise the SCUBA diver's efforts to retrieve the
canisters from the hull of the ship. He was again
present to supervise the retrieval of the canisters from
the dock. Brown's persistent presence at the site
precludes the possibility that he was a minor participant
in this scheme.
However, Brown further argues that additional facts were
revealed after the PSR was prepared, during his co-defendant's
(Earl's) trial, which were allegedly not considered by the lower
court; facts allegedly supporting the downward adjustment. This
argument is meritless. Not only does the evidence not suggest that
he was "substantially less culpable" than the other members of the
16
conspiracy, but even so, his argument that the more complex the
smuggling scheme becomes, the less culpable he becomes is
inconsistent with Buenrostro. Simply claiming that a complex
scheme is involved and that he is a mere courier does not
automatically entitle a defendant to the deduction. See Buenrostro,
868 F.2d at 138. Finally, the sentencing judge presided over
Earl's trial prior to sentencing Brown. He was aware of all the
facts relating to the conspiracy before ruling that Brown was not
a minor participant.8 This disposes of the contention that the
judge was not privy to all the facts relating to the conspiracy.
The downward adjustment was properly denied.
CONCLUSION
For the reasons stated, the sentence imposed by the district
court is, in all respects,
AFFIRMED.
8
"In resolving any reasonable dispute concerning a factor
important to the sentencing determination, the court may consider
relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy." U.S.S.G. § 6A1.3(a).
17