United States v. Isabel Rodriguez De Varon

*950BARKETT, Circuit Judge,

dissenting:

The majority affirms the district court’s denial of De Varon’s request for a minor role reduction despite the fact that the district court’s ruling was predicated on a misapprehension of the applicable legal principles. Moreover, the principles the majority offers as guidance in this area conflict with both the letter and spirit of the Sentencing Guidelines. I therefore respectfully dissent, and would remand this case to the district court for resentencing.

I

In denying the motion for a § 3B1.2 minor role reduction, the district court made the following statements:

[Firstly, u]nder Veloza, the act of transporting ... or importing as a courier does not determine that a defendant is or is not entitled to a[n] adjustment. Secondly, the burden is on the defendant to establish the minor or minimal participation.
I would say [De Varon’s] statement standing alone is not sufficient to establish a minor or minimal level of participation. But even if we were to accept it as true, the fact that she can point to other people that may have provided the narcotics to her would not alter my own determination that she played an integral and essential part in the scheme to import.
As I have noted in the past, but for individuals willing to perform the role that this defendant played, we would not have the importation being attempted or succeeding in other instances.
And thirdly, the guidelines refer to a small amount of drugs to entitle a defendant to a reduction. And I would conclude that 512.4 grams of heroin is not a minor amount within the meaning of the guidelines in order to entitle someone to minor or minimal level role. So, I’ll note your objection and deny it.

The district court here begins with a correct statement of the law. See United States v. Veloza, 83 F.3d 380, 382 (11th Cir.1996) (holding that “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”). It then goes on to say that “[De Varon’s] statement standing alone is not sufficient to establish a minor or minimal level of participation.” Because this statement might arguably be read as a credibility determination, had the court stopped there, I would agree with the majority that we should defer to the district court.

The court did not, however, stop there. Instead, it went on to state that no facts De Varón might put forward to support her request for a'minor role reduction would have been sufficient to “alter [the court’s] own determination that she played an integral and essential part in the scheme to import, ... [because] but for individuals willing to perform the role that this defendant played, we would not have the importation being attempted or succeeding in other instances.” It is difficult to read these words as anything but a statement that, in the district court’s view, no one whose participation in a drug importation scheme consists solely of carrying drugs across the border would be entitled to a § 3B1.2 minor role reduction. As the majority concedes, this view is an incorrect statement of the law. Accordingly, I would remand and direct the district court to make the credibility findings necessary to determine the facts and to evaluate those facts according to the correct legal standard.

II

In applying the law to the facts to determine whether a § 3B1.2 minor role reduction is warranted, a district court should be guided by the spirit and the letter of the Sentencing Guidelines. The “guidance” offered by the majority in this regard is not supported by either, and in fact, conflicts with both.

*951The majority offers two “principles” which should guide the inquiry: “first, the defendant’s role in the relevant conduct for which she has been held accountable at sentencing, and second, her role as compared to that of other participants in her relevant conduct.” United States v. De Varón, at 940. As the Guidelines make clear, a defendant’s “relevant conduct” for purposes of § 3B1.2 includes not just the defendant’s oiun acts but also, in the case of jointly undertaken criminal activity, the acts of any other participants1 in the offense of conviction taken “during the commission of the offense of conviction, [or] in preparation for that offense,” whether or not the case is-charged as a conspiracy. U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] § lB1.3(a)(l); see also U.S.S.G. Ch. 3, Pt. B, intro, comment. (“The determination of a defendant’s role in the offense is to be made on the basis of all conduct within the scope of § 1B1.3 (Relevant Conduct) ... and not solely on the basis of elements and acts cited in the count of conviction.”).2

This broad understanding of a defendant’s “relevant conduct” as expressed in the Guidelines reflects an awareness of two factors of significance here: (1) many criminal endeavors, even those not charged as conspiracies, are joint undertakings involving several participants; and (2) different levels of culpability may be appropriately ascribed to participants in a joint criminal enterprise when those participants perform different tasks in furtherance of the crime charged. See, e.g., U.S.S.G. § 3B1.2, comment, (n.3) (defining a “minor participant” as “any participant who is less culpable than most other participants, but whose role could not be described as minimal”).

Perhaps no crime illustrates these considerations as effectively as that of importing narcotics through the use of swallow-ers like De Varón. It is of course true that the completion of this crime requires the participation of a courier, but the actions of a courier are hardly the only components of the crime. Rather, several other significant tasks must be undertaken to complete even the simple crime of importation. Someone must, for example, formulate the plan, recruit the participants, coordinate their actions, locate suppliers, procure the drugs, purchase the tickets, arrange for a drop-off on the other side, and finance the whole venture. All of these activities, which may or may not involve only one person, constitute “relevant conduct” with respect to the crime of importation, “whether or not charged as a conspiracy.” U.S.S.G. § 1B1.3 comment. (n.2).

The task of district courts in cases like De Varon’s is therefore to determine the relative culpability of the courier as compared to those other participants, if any, who performed the additional tasks necessary to the importation scheme. In a given case, the same person may be found to have performed all the many tasks necessary to complete the crime of drug importation — the masterminding, financing, recruiting, coordinating, procuring, etc. In such a case, that person would plainly not be entitled to a § 3B1.2 role reduction as a *952minor participant. In other cases, however, the tasks necessary to carry out the crime of importing narcotics will be undertaken by several different participants. Here, if the court finds the defendant “less culpable than most other participants” although her “role could not be described as minimal,” it must likewise conclude that a § 3B1.2 minor role reduction is appropriate. U.S.S.G. § 3B1.2 comment, (n.3). Indeed, it is precisely for such cases that § 3B1.2 was intended.

In this case, the district court reasoned that but for the acts of couriers like De Varón there would be no crime of importation, thus essentially rejecting the suggestion that a courier could ever be a minor participant in this crime. Yet this “but for” analysis could be applied to most criminal acts prosecuted, treating all those defendants performing acts necessary to accomplish the crime as equally culpable. The Guidelines, however, reject this categorical approach and instead support the principle of relative culpability by enhancing the punishment for those with greater responsibility in the criminal enterprise and reducing the punishment for those less culpable. Specifically, the commentary to § 3B1.1 identifies characteristics which would make a participant “integral and essential”3 to the enterprise and therefore more culpable,

includ[ing] the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

U.S.S.G. § 3B1.1 comment, (n.4); see also U.S.S.G. § 3B1.1 comment, (backg’d) (“This [upward] adjustment [for organizers, leaders, managers, or supervisors] is included primarily because of concerns about relative responsibility.”). These same factors also help distinguish those individuals who play only a minor role in the criminal activity from the leaders and other mid-level criminal actors, clearly indicating the Sentencing Commission’s view that foot soldiers who actually carry out the crime are less culpable than the “organizer[s], leader[s], managers] or supervisor[s].” U.S.S.G. § 3B1.1 comment, (n.2). Under the facts of a given case, a foot soldier may well not receive a § 3B1.2 reduction, but it is wrong to assume that by virtue of his or her participation he or she is automatically to be considered “integral or essential” to the crime.

It is important to recognize what this Guidelines scheme does not entail. The majority fears that a defendant could “argue that her relevant conduct was narrow for the purpose of calculating base offense level, but was broad for determining her role in the offense.” De Varón, at 941. I agree with the majority that our opinion in United States v. Fernandez, 92 F.3d 1121 (11th Cir.1996), in which we reject the defendant’s suggestion that his role in the offense could be determined on the basis of an uncharged conspiracy, forecloses such an argument. However, under the definition of “relevant conduct” established in the Guidelines, a defendant whose charged crime required the performance of several different tasks and whose own actions toward the common goal were minor in relation to the other participants could well be found to be a minor participant in the conduct on which her base offense level was calculated. This is directly acknowledged in the Guidelines, which broadly defines an individual defendant’s “relevant conduct” for purposes of establishing the base offense level to include “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” *953U.S.S.G. § lB1.3(a)(l)(B). See also U.S.S.G. § 1B1.3 comment, (n.2) (defining a “jointly undertaken criminal activity” as a criminal plan “undertaken by the defendant in concert with others, whether or not charged as a conspiracy”).

It is for this reason that a majority of the circuits to have addressed this question have interpreted the Guidelines as I do here.4 See, e.g., United States v. Isaza-Zapata, 148 F.3d 236, 240 (3d Cir.1998) (“The scope of the relevant conduct that a court should consider [in a § 3B1.2 motion] is broader than merely the conduct required by the elements of the offense of conviction. Even if a courier is charged with importing only the quantity of drugs that he actually carried, there may still be other participants involved in the conduct relevant to that small amount or that one transaction.”) (citing United States v. Rodriguez De Varon, 136 F.3d 740, 745 (11th Cir.1998) (emphasis added)); United States v. Snoddy, 139 F.3d 1224, 1228 (8th Cir.1998) (“ ‘Whether a downward adjustment is warranted is determined not only by comparing the acts of each participant in relation to the relevant conduct for which the participant is held accountable, but also by measuring each participant’s individual acts and relative culpability against the elements of the offense.’ ”) (quoting United States v. Padilla-Pena, 129 F.3d 457, 471 (8th Cir.1997)); United States v. Caballero, 936 F.2d 1292, 1298 (D.C.Cir.1991) (concluding “that section 3B1 allows the sentencing judge to look to ‘the contours of the underlying scheme itself rather than the mere elements of the offense charged’ ”) (quoting United States v. Rodriguez, 925 F.2d 107, 111 (5th Cir.1991)).

The Seventh Circuit is an exception. In United States v. Lampkins, 47 F.3d 175 (7th Cir.1995), the court, noting that the defendant “was sentenced only for drugs that he himself handled,” concluded that “it makes no sense to claim that one is a minor participant in one’s own conduct.” Lampkins, 47 F.3d at 181. And in United States v. Burnett, 66 F.3d 137 (7th Cir.1995), although conceding that the defendant was “a small cog in the scheme,” the Seventh Circuit held that “[w]hen a courier is held accountable for only the amounts he carries, he plays a significant rather than a minor role in that offense.” Id. at 140; see also id. (“Couriers are integral to the success of drug rings.... ”). As noted previously herein, however, this position ignores the plain directive of the Guidelines. Declaring that one cannot be a “minor participant in one’s own conduct,” Lampkins, 47 F.3d at 181, overlooks the fact that for purposes of § 3B1.2, the “relevant conduct” a court must consider in an importation scheme may include much more than the lone acts of the actual courier. See De Varon, 136 F.3d at 745; see also Isaza-Zapata, 148 F.3d at 240 (“We disagree with Burnett. The district court must examine all relevant conduct, not merely the defendant’s, in assessing his relative culpability.”).

Therefore, it seems clear that, under the Guidelines, if a drug courier is found to have acted in concert with others, his or her acts in furtherance of the charged conduct are to be measured against the acts of those others, regardless of whether the offense was charged as a conspiracy or a simple count of importation.

Ill

I am also troubled by the suggestion that in and of itself the amount of drugs attributed to a defendant has any bearing on whether that defendant is entitled to a minor role reduction. The amount involved may be taken into account, but *954always as part of the inquiry into relative culpability. The majority asserts that “the amount of drugs in a courier’s possession ... may be the best indication of the magnitude of the courier’s participation in the criminal enterprise.” De Varón, at 943. This may or may not be the case, however, depending on how the amount informs the evidence, viewed in light of § 3B1.2’s emphasis on the relative culpability of the defendant to be sentenced.5 See U.S.S.G. § 3B1.2 comment, (backg’d) (“This section provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.”). The majority does not explain how it is that the culpability of a drug courier as compared with “most other participants” in the offense, U.S.S.G. § 3B1.2 comment. (n.3) (emphasis added), would be affected by the amount of drugs with which she was caught. Whatever amount the courier sought to smuggle will be the same amount that defines the offense, and the same amount that must therefore be attributed to the other participants in the scheme. De Varón, for example, was convicted of importing 512.4 grams of 85 percent pure heroin. This is the same amount given to her by “Nancy” and organized by Nancy or others for her to carry. The amount, in other words, remains constant throughout the court’s assessment of De Varon’s role in the relevant conduct relative to the other participants in the offense. For this reason, when assessing the relative culpability of the participants — the guiding consideration for courts considering requests for minor role reductions — the amount of drugs may well be beside the point.

The illustrations found in the commentary to § 3B1.2, offered by the majority as support for its conclusion that the amount of drugs “may be dispositive,” De Varón, at 943, in fact support a contrary conclusion. As the majority points out, the notes accompanying § 3B1.2 explain that a “minimal participant” adjustment “would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment, (n.2). If the latter example were the only one provided, I would agree that amount would play a larger role in the inquiry. In the first example, however, the defendant has helped “a very large drug smuggling operation ... to offload part of a single marihuana shipment.” The notes do not tell us what constitutes “part” of a drug shipment, but common sense tells us that “a very large drug smuggling operation” is likely to involve large shipments of drugs. “Part” of one shipment is thus likely to be comprised of as great a quantity as one person could carry in several trips from ship to shore — considerably more, that is, than 512.4 grams. Yet such a person is still entitled to a 4-level reduction as a “minimal participant.” One must therefore analyze both examples and attempt to harmonize them.

The emphasis of § 3B1.2 on relative culpability — the heart of § 3B1 — helps to do so. Under § 3B1.2, the minimal participant reduction

is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant’s lack of knowledge or understanding of the *955scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.

U.S.S.G. § 3B1.2 comment. (n.l). In light of this language, one cannot construe the illustrations that follow to mean that amount is the sole determinative factor, to be considered in isolation from the relative culpability of all the participants. If, as the majority claims, the amount of drugs were “determinative in the context of minimal participants,” the offloader, who may well have shouldered several hundred kilos during his short time at the dock, should be considerably less likely to get the reduction than the courier caught with a “small amount of drugs.” But the offload-er as well as the courier gets the reduction, because it is relative culpability and not drug quantity that drives the analysis.

Neither the letter nor the spirit of § 3B1.2 supports the suggestion that amount alone, regardless of other contextual considerations, is a sufficient basis on which to deny a courier a § 3B1.2 reduction. Although the language of the Guidelines suggests that a courier with a large amount of drugs is not entitled to a 4-level minimal participant reduction, he or she may still be eligible for a 2-level minor role reduction if he or she is a “participant who is less culpable than most other participants, ... whose role could not be described as minimal.” U.S.S.G. § 3B1.2 comment (n.3).

IV

Finally, I must also dissent from the reasoning used by the majority to uphold the district court’s conclusion that De Var-ón was not entitled to a minor role reduction. First, the district court made no credibility determination regarding De Varon’s testimony, and we are in no position to do so here. The most generous interpretation of the district court’s ruling on this record is that it provided no indication as to the court’s view of the defendant’s credibility. For this reason alone, the case should be remanded to the district court for a ruling on the credibility of the defendant and a finding as to whether or .not she played a minor role in the offense.

Moreover, assuming that there was such a “finding,” which I believe the record refutes, I cannot agree with the majority’s analysis concluding that the record in this case “amply supports the district court’s finding that De Varón did not play a minor role in her offense of heroin importation.” De Varón, at 946. The majority explains that

although De Varón was, by one construction of the evidence, arguably less culpable than the only other known participant, Nancy, it is altogether possible on this abbreviated record for the trial court to have concluded that Nancy was no more than a messenger and of relatively equal culpability to De Varón. The facts, as recounted by De Varón, even if fully credited by the trial court, establish no more than that she was hired by someone (Nancy) to smuggle one-half kilogram of heroin into the United States, and to deliver the drugs to someone else — albeit unidentified — in Miami. This bare record does not compel the conclusion that Nancy was sufficiently more culpable than De Varón.

Id.

I find this logic flawed. According to De Varon’s testimony, if De Varón were to be believed, we know that someone else— maybe Nancy,6 maybe one or more other participants — masterminded and financed the operation, called the shots, recruited and coordinated the several players,' procured the drugs, bought the tickets, and arranged for a drop-off in Miami. In light of this knowledge, De Varon’s inability to provide the names of the other participants should not be allowed to render her *956ineligible for a minor role reduction.7 Yet rather than assessing De Yaron’s role in the offense in light of all the relevant conduct suggested by both the law and common sense, the majority implicitly crafts a rule to the effect that, for purposes of § 3B1.2, an unnamed participant to the crime is no participant at all.8

The majority’s implicit requirement that a defendant must provide the names of all the participants to the crime has the paradoxical and troubling effect of rendering defendants with little inside knowledge or understanding of the larger scheme less likely to receive a minor participant reduction, while allowing those defendants with sufficient knowledge to name all the players and the tasks performed by each to widen the range of participants against whose actions theirs will be judged, thus making them more likely to receive the reduction. Yet as the Guidelines explicitly recognize, a “defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.” U.S.S.G. § 3B1.2 comment. (n.l). This is not to say that where the concerted criminal act involves a single leader and many actors with small roles, the minor players would necessarily be entitled to reductions as “less culpable than most other participants.” U.S.S.G. § 3B1.2 comment (n.3). At the same time, however, minimal knowledge of the larger scheme should not automatically defeat the very defendants who might be most entitled to a § 3B1.2 reduction.

Either a witness who professes to possess limited information about the larger scheme is telling the truth, or she is not. If the judge finds it to be the latter, the judge is free to deny the reduction. But if the judge finds the witness credible and the testimony consistent, the judge may on the basis of the testimony alone determine that the defendant is entitled to a reduction. The judge would, in that instance, consider all of those factors which we know to impact upon the concept of relative culpability, including the defendant’s level of education and sophistication, prior involvement in criminal activity, and manner of involvement in the concerted criminal activity relative to other participants.

With regard to the manner in which De Varón participated in the crime at issue, I am troubled by the complete exclusion from the majority’s discussion of any consideration of what, exactly, De Varón did, and what is done by an unfortunately high number of the men and women apprehended as drug smugglers at our nation’s borders. She swallowed and carried in her intestinal tract 512.4 grams of 85 percent pure heroin, risking not just an extended stay in an American prison, but her very life.9 This is not a reason that De Varón should not be held responsible for the act she undertook. But the Guidelines direct courts to determine a defendant’s relative culpability, and no one can debate the. position of a courier like De Varón in the hierarchy of the criminal enterprise. If De Varón was part of a larger enterprise, it is clear that, as a swallower, she was considered by definition as expendable *957to that organization, for no organization, illicit or otherwise, would risk the lives of .its central or valuable members in this way. The fact that De Varón filled the role of swallower in the importation scheme cannot be totally ignored in considering whether she was a minor player.

For all the foregoing reasons, I would reverse the district court’s denial of De Varon’s request for a § 3B1.2 minor participant reduction, and remand for the court to consider whether De Varón met her burden of demonstrating that she was less culpable than most other participants in the offense.

. See U.S.S.G. § 3B1.1 comment, (n.l) ("A 'participant' is a person who is criminally responsible for the commission of the offense, but need not have been convicted.”).

. Section IB 1.3(a) defines "relevant conduct" for purposes of the Guidelines as:

(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense....

. Whether or not other people were involved and regardless of the role they played, the district court in this case held that these considerations "would not alter my own determination that she played an integral and essential part in the scheme to import.”

. At least one circuit has interpreted them more broadly still. See United States v. Demers, 13 F.3d 1381, 1383 (9th Cir.1994) (declining, on consideration of the 1990 Amendment, "to restrict the scope of relevant conduct on which a downward adjustment may be based to the relevant conduct that is included in the defendant's base offense level”).

. The majority acknowledges that the language of § 3B1.2 and its accompanying notes "seems to suggest that the relevant inquiry for minor participants is solely comparative,” but nonetheless claims it "can discern nothing in the Guidelines to suggest that the analysis of role in the offense varies with the level of participation at issue.” De Varón, at 943. Given that § 3B1 was designed for the sole purpose of enhancing the sentences of those participants with a relatively higher level of participation in the offense, see U.S.S.G. § 3B1.1, and reducing the sentences of those with a relatively lower level of participation, see U.S.S.G. § 3B1.2, I find this statement somewhat puzzling.

. If "Nancy was no more than a messenger and of relatively equal culpability as De Var-ón,” this may only go to show merely that both Nancy and De Varón were minor participants in the relevant conduct.

. Of course, it is not enough that the defendant is less culpable than some of the other participants. Rather, he or she must show that he or she is less culpable than "most other participants.” U.S.S.G. § 3B1.2 comment. (n.3).

. See U.S.S.G. § 3B1.1 comment, (n.l) (defining "participant” as “a person who is criminally responsible for the commission of the offense, but need not have been convicted”).

. See United States v. Purchess, 107 F.3d 1261, 1263-64, 1270-71 (7th Cir.1997) (affirming a § 5K2.1 upward departure for conduct resulting in death, where the defendant was convicted of organizing the importation of drugs through the use of swallowers and one of his couriers died en route of "body packer syndrome” after a "deadly amount of cocaine [] leaked from the [ingested drug-filled] pellets”); Huguez v. United States, 406 F.2d 366, 391 (9th Cir.1968) (explaining that "the acidic nature of the gastric juices in the [stomach] makes the swallowing of almost any flexible container of narcotics quite dangerous”) (citing Blefare v. United States, 362 F.2d 870, 873-74 (9th Cir.1966)).