United States v. De Varon

PUBLISH

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 96-5421
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D.C. Docket No. 96-576-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISABEL RODRIGUEZ DE VARON,

Defendant-Appellant,

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Appeal from the United States District Court for the
Southern District of Florida
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(March 3, 1998)

Before DUBINA and BARKETT, Circuit Judges, and GODBOLD, Senior
Circuit Judge.

GODBOLD, Senior Circuit Judge:

Isabel Rodriguez De Varon appeals from a conviction of the

importation of heroin in violation of 21 U.S.C. § 952(a) and 18

U.S.C. § 2(1). She was convicted in the U.S. District Court for

the Southern District of Florida after pleading guilty to the

charge. She was sentenced to 46 months in prison. She appeals

the district court’s denial of a two-point sentence reduction for

1
her role as a minor participant in the crime. We have reviewed

her contentions and vacate and remand her sentence for further

proceedings in the district court.

I. Factual and procedural history

De Varon arrived at Miami International Airport on June 12,

1996 aboard a flight from Bogota, Columbia. She reported to

United States Customs, and officials suspected that she might be

an internal carrier of narcotics. When examined by the officials

she admitted that their assumption was correct. De Varon was

then taken to a hospital where medical examination revealed that

she had ingested 70 pellets of heroin. The government recovered

514 grams of 85 percent pure heroin from De Varon.

A federal grand jury returned a two-count indictment against

De Varon charging her with importation of heroin in violation of

21 U.S.C. § 952 (a) and 18 U.S.C. § 2; and possession with intent

to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2. De Varon agreed to plead guilty to the charge of

importation alleged in Count One and to forfeit the $2,350 she

was carrying at the time of her arrest in return for the

government’s agreement to dismiss Count Two. The government also

agreed that it would not oppose De Varon’s request for a three-

level sentence reduction for timely acceptance of responsibility

or her application for the “safety valve” protection provided in

2
the sentencing guidelines if she met all of the requirements. See

U.S. Sentencing Commission, Guidelines Manual, § 5C1.2 (Nov.

1995).1

The district court accepted the plea and ordered that a

Presentence Investigation Report be prepared. The report

calculated De Varon’s base offense level under the guidelines as

a 28. The preparer then deducted two levels because De Varon

qualified for the “safety valve” provision found in USSG §

2D1.1(b)(4)2 and three more levels for De Varon’s timely

1
Section 5C1.2 of the sentencing guidelines provides that a
court may sentence below the statutory minimum where the
defendant meets the five requirements provided in 18 U.S.C. §
3553(f)(1)-(5). The five criteria are:
(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon (or
induce another participant to do so) in connection with the
offense;
(3) the offense did not result in death or serious bodily injury
to any person;
(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing
criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a
common scheme or plan, but the fact that the defendant has no
relevant or useful other information to provide or that the
Government is already aware of the information shall not preclude
a determination by the court that the defendant has complied with
this requirement.

2
Section 2D1.1(b)(4) provides that “[i]f the defendant meets
the criteria set forth in subdivisions (1)-(5) of §5C1.2

3
acceptance of responsibility for her conduct as provided by USSG

§§ 3E1.1(a) & 3E1.1(b)(2). The resulting offense level was a 23.

After determining that De Varon had no prior criminal convictions

the preparer assigned her a criminal history category of I. The

sentencing guideline range for an offense level of 23 with a

criminal history of I is 46 to 57 months.

De Varon objected to this calculation, insisting that she

should be granted a mitigating downward adjustment for her

minimal or minor role in the offense. The probation officer who

prepared the report rejected her assertions as did the district

court. The court noted that De Varon offered no evidence other

than her own statement to prove that other, more culpable parties

existed and had participated in the crime. Furthermore, the

court stated that even if her account of other participants was

true, it would not reduce her sentence. The court said:

[T]he 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.

(Limitation on Applicability of Statutory Minimum Sentences in
Certain Cases) and the offense level determined above is level 26
or greater, [the offense level should be] decrease[d] by 2
levels.” USSG § 2D1.1(b).

4
 And, . . . the guidelines refer to a small
amount of drugs to entitle the 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
[sic] minor or minimal level role.

After denying her requests for a downward adjustment the court

sentenced De Varon to 46 months in prison. On appeal De Varon

raises only one substantive issue, whether she should have been

granted a sentence reduction based on her minor role as a courier

of the heroin.3

II. Discussion

A. Standard of review

The parties dispute the proper standard of review for this

case. The government contends that a district court’s

determination of whether a defendant qualifies for a sentence

reduction based on her role must be reviewed only for clear

error. De Varon urges that the decision of the district court is

subject to de novo review. De Varon is correct. While it is

true that we review the district court’s factual findings with

deference, when we examine its legal conclusions as to what proof

3
De Varon also requested a downward adjustment to her
sentence based on her particular family circumstances. She
asserted that she has a child who is mentally retarded and going
blind and that her presence is necessary for his care. The
district court declined to adjust her sentence based on her
family situation. She does not appeal that denial, and we do not
address it.

5
is required for a role adjustment we must exercise de novo

review. See U.S. v. Veloza, 83 F.3d 380, 381 (11th Cir. 1996);

U.S. v. Rojas, 47 F.3d 1078, 1080 (11th Cir. 1995). In this

case the district court decided that as a matter of law a courier

who is the sole charged participant in a drug crime is not

eligible for a role reduction as a minor participant where she

offers only her own testimony as proof of her role. The court

also determined that the amount of drugs imported was conclusive

in determining role. These are legal conclusions subject to our

de novo review.

B. The minor role adjustment

Section 3B1.2 of the sentencing guidelines provides a two to

four-point offense level reduction where a defendant’s role in a

crime can be described as minimal or minor. The guidelines

provide a four-level decrease for minimal participants, a two-

level decrease for minor participants, and a three-level decrease

for those participants whose role falls between minimal and

minor. USSG § 3B1.2(a)&(b). To receive a four-level reduction a

defendant must be “among the least culpable of those involved in

the conduct of a group. . . . [L]ack 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.” USSG § 3B1.2, comment. n.1. The commentary gives

6
an example of a minimal participant as “someone who played no

other role in a very large drug smuggling operation than to off

load part of a single marihuana shipment, or . . . [who] was

recruited as a courier for a single smuggling transaction

involving a small amount of drugs.” Id. at n.2.

A minor participant in a crime is described as someone “who

is less culpable than most other participants, but whose role

could not be described as minimal.” Id. at n.3. The guidelines

also note that “[t]he determination whether to apply subsection

(a) or subsection (b), or an intermediate adjustment, involves a

determination that is heavily dependent upon the facts of the

particular case.” USSG § 3B1.2, comment. (backg’d.).

These comments indicate that downward adjustments based on

role are highly fact specific and that courts should make a

separate inquiry as to whether the facts support any of the three

levels of departure. In the present case the district court

considered both a minimal role reduction and a minor role

reduction simultaneously rather than applying the standard that

is unique to each ground for departure.

The district court’s ruling at the sentencing hearing can be

interpreted as denying a downward adjustment for each of the

three following alternative reasons: (1) the court found that De

Varon’s uncorroborated account of the crime and its participants

was unbelievable; (2) couriers of drugs should never be

7
considered minimal or minor participants because they are an

indispensable part of the drug importation scheme; and (3) the

amount of heroin that De Varon imported was too large for her to

be considered for either a minimal or minor role reduction.

Because the court offered these reasons in the alternative, we

could affirm its decision if any one of them properly supported

its denial of a downward adjustment. De Varon concedes that the

court’s third reason for the denial, drug amount, is a proper

ground for denying a minimal role adjustment. She challenges

only the court’s denial of her request for a minor role

adjustment pursuant to USSG § 3B1.2(b).

i. De Varon’s testimony

The district court’s first reason for denying the request

for an adjustment hinged on the fact that De Varon offered only

her own, uncorroborated testimony to prove that other

participants in the crime were more culpable than she was. De

Varon offered to testify that she was in desperate need of money

for her son’s operation and that she was approached by a woman

named “Nancy” at De Varon’s workplace who solicited her to become

an internal carrier of drugs. De Varon also proposed to testify

that she was to be met by an unknown person at the Miami airport

who would take the heroin. The district court declined to hear

this testimony. Instead the court ruled that because the

8
defendant bears the burden of proof in establishing role, De

Varon’s uncorroborated testimony was either unbelievable or

facially insufficient to establish her as a minor participant.4

To the extent that the court found her testimony

unbelievable, this finding was inconsistent with its earlier

decision, concerning the “safety valve” provision, that De Varon

had been completely truthful with the court. By finding De Varon

eligible for the “safety valve” protection of USSG § 5C1.2, the

court had to find that De Varon had “not later than the time of

the sentencing hearing, . . . truthfully provided to the

Government all information and evidence . . . [that she had]

concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan.” USSG §

5C1.2(5). The “safety valve” provision of the guidelines allows

a court to sentence a defendant below the statutory minimum and

to grant a two-level decrease where it finds that the defendant

does not have a criminal history, did not use violence or cause

injury, was not an organizer or leader, and has been completely

truthful with the court. USSG §§ 2D1.1(b)(4) & 5C1.2. The

government did not oppose De Varon’s application for the safety

valve, and the district court found that she met all requirements

4
The court’s comments do not clearly indicate whether it
found De Varon’s testimony unbelievable or whether the
uncorroborated testimony of a courier is never sufficient to
establish role.

9
for the protection of this provision. Therefore, the court must

have found that she had truthfully provided all information that

she had concerning the crime. To discredit De Varon’s testimony

later in the sentencing hearing is an inconsistent finding. See

Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564,

575 (1985)(generally a district court’s findings on whether

testimony is true cannot be deemed clear error unless internally

inconsistent); Colvin v. U. S., 549 F.2d 1338, 1341 (9th Cir.

1977) (“These two findings are inconsistent and one must fall as

clearly erroneous.”). Because the court specifically found De

Varon truthful, it is bound to consider her testimony for the

purpose of determining role.

The district court also indicated that the uncorroborated

testimony of a courier alone is insufficient to establish role.

We do not limit the district court’s power to find, based on all

the evidence in the record, that a defendant’s testimony

describing her participation in a scheme is not credible.

However, we do hold that status as a courier is not by itself a

sufficient ground to support a credibility finding. Other

grounds may support a credibility decision, but status alone does

not. Whether other considerations exist that detract from a

particular defendant’s believability is for a district court to

decide. In this case the defendant’s truthfulness was

predetermined by the court, and credibility should not have been

10
an issue.

The district court did not properly support its decision to

disregard De Varon’s testimony on her role in the scheme. When a

court finds that a defendant has truthfully provided all

information that she has regarding the crime then the court must

consider that information in determining the defendant’s role.

Furthermore, status as a courier alone is not enough to sustain a

credibilty finding. Because the district court’s decision to

disbelieve De Varon was inconsistent with its earlier finding

that she had truthfully disclosed all information that she knew

about the crime, we must look to the court’s other proffered

reasons for its denial of De Varon’s request for a downward

adjustment based on role.

ii. The role of couriers

The district court stated that even if it had believed De

Varon’s proposed testimony it would deny a minimal or minor role

reduction because couriers are an “integral and essential part in

the scheme to import. . . . [B]ut for individuals willing to

perform the role that this defendant played, we would not have

the importation” of drugs. The court’s statement comes very

close to propounding that couriers are ineligible for role

adjustments as a matter of law. This circuit has firmly rejected

that contention.

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 In U.S. v. Veloza, we stated 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.” Veloza, 83 F.3d at 382. We relied on the language of the

guidelines in making this statement noting that “[i]f 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.” Id. Veloza’s guidance comports with the general

rule that “Congress did not grant federal courts authority to

decide what sorts of sentencing considerations are inappropriate

in every circumstance.” Koon v. U.S., 116 S. Ct. 2035, 2050

(1996). Indeed the guidelines specify that the decision to grant

a role adjustment is “heavily dependant on the facts of each

case.” USSG § 3B1.2, comment.(backg’d.).

The government has suggested that the district court’s

ruling can be affirmed because it makes no sense for De Varon to

claim that she was a minor participant in her own conduct. In

support of this proposition the government cites two Seventh

Circuit cases, U.S. v. Lampkins, 47 F.3d 175, 181 (7th Cir. 1995)

and U.S. v. Burnett, 66 F.3d 137, 140 (7th Cir. 1995).5 These

5
The government also cites the Eleventh Circuit case of U.S.
v. Costales, 5 F.3d 480, 484 (11th Cir. 1993), for this
proposition. The holding of Costales does not support the
government’s position in this case. Costales denied a role
reduction to a defendant convicted of buying child pornography

12
cases hold that where a defendant is sentenced only for the

amount of drugs actually handled by that defendant, a minor role

adjustment is unwarranted because one is not a minor participant

in one’s own conduct. Lampkins, 47 F.3d at 181. We reject this

rationale.

In 1990 the Sentencing Commission amended the commentary to

Chapter 3, Part B of the guidelines, which concerns level

adjustments based on role. This amendment announced that, “[t]he

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), i.e., all conduct included under § 1B1.3(a)(1)-(4),6

from undercover government agents. Id. Because the guidelines do
not recognize government agents as participants, See USSG §
3B1.1, comment. n.1, Costales was the only imaginable participant
in the crime. This holding is different from the Seventh
Circuit’s position that a defendant cannot be a minor
participants in his own conduct even where other participant in
the crime exist.
6
Section 1B1.3(a) defines relevant conduct 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;
(2) solely with respect to offenses of a character for which
§3D1.2(d) would require grouping of multiple counts, all acts and
omissions described in subdivisions (1)(A) and (1)(B) above that
were part of the same course of conduct or common scheme or plan

13
and not solely on the basis of elements and acts cited in the

count of conviction.” USSG Ch.3, Pt.B, intro. comment. This

amendment suggests that courts must look to the entire criminal

scheme that produced the crime in question and weigh the relative

culpability of all participants in that scheme. The guidelines

define participant as “a person who is criminally responsible for

the commission of the offense, but need not have been convicted.”

USSG § 3B1.1, comment. n.1.

The government’s stance ignores the plain directives of the

guidelines. Declaring that De Varon cannot be a minor

participant in her own conduct overlooks the fact that the

“relevant conduct” a court must consider in an importation scheme

includes much more than the lone acts of the actual courier.

Under the definition provided in the guidelines, participants in

the crime might include those who provided the heroin for

importation, those who solicited De Varon as a courier, those who

were to receive the heroin in Miami, and those who procured

buyers or distributors for the heroin in the United States. All

of this conduct is relevant.

A court must examine the defendant’s role in the scope and

as the offense of conviction;
(3) all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above, and all harm
that was the object of such acts and omissions; and
(4) any other information specified in the applicable
guideline.

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structure of the scheme, including whether this was the

defendant’s single contact with the criminal enterprise and

whether the defendant had any connection to the source or

destination of the drugs. At the least a court must make some

factual inquiry which measures that particular individual’s

conduct against that of the other participants in a criminal

scheme. See U.S. v. Webster, 996 F.2d 209, 212 (9th Cir.

1993)(“the evidence available to the court at sentencing must, at

a minimum, show (i) that the ‘relevant conduct’ . . . involved

more than one participant . . . [and](ii) that the defendant's

culpability . . . was relatively minor compared to that of the

other participant(s).”); U.S. v. Caballero, 936 F.2d 1292, 1299

(D.C. Cir. 1991)(“[S]ection 3B1 allows the sentencing judge to

look to the contours of the underlying scheme itself rather than

the mere elements of the offense charged.")(internal quotations

and citations omitted).

The fact-specific nature of this inquiry makes the district

court’s comments in this case improper. It did not examine De

Varon’s role in comparison to the conduct of other participants

in the criminal scheme to import heroin. After the necessary

inquiry is made, the district court may determine De Varon’s role

according to what the facts of this case warrant.7

7
We note that the role of a courier can vary widely in an
importation scheme. Some couriers may be the most culpable or
even sole participant in the crime of importation, while others

15
 Because the district court in this case based its second

reason for denial solely on De Varon’s status as a courier,

rather than on the distinct factual ingredients of her case, we

cannot credit that reason to deny her request for a minor role

reduction.

iii. Amount of heroin

We next consider the district court’s third reason for its

denial of a downward adjustment, the amount of heroin. The court

stated ”that 512.4 grams of heroin is not a minor amount within

the meaning of the guidelines in order to entitle someone to

[sic] minor or minimal level role.” This assertion is an

erroneous statement of the law. The guidelines indicate that

amount alone may preclude a departure on the ground of minimal

participation. USSG 3B1.2, comment. n.2.8 They do not offer the

same illustration for a minor role adjustment. The guidelines

instruct that minimal and minor reductions assume two different

levels of culpability. The inquiries that a court must make for

each are different. While amount may be relevant in determining

may not even know the true nature of the substance they
transport. This discrepancy is the reason the guidelines require
a factual inquiry and the reason we decline to fashion a per se
rule on the role of couriers.
8
De Varon concedes this point as to minimal role adjustments,
(but not as to minor role adjustments) and because she does not
appeal her denial of a minimal adjustment, we do not consider
this issue.

16
role, it alone should not prevent a minor reduction. See

Webster, 996 F.2d at 212 n.5. (“Although a finding that Webster

carried a substantial amount of PCP would foreclose a minimal

participant adjustment, it does not prevent an adjustment for

minor participation.”).

Relying on the amount of drugs carried by a courier is not a

sufficient substitute for the factual inquiry that the guidelines

require in determining a defendant’s role.9 The court’s third

reason for denying a minor-role sentence adjustment is therefore

inadequate.

We find each of the district court’s reasons for denying the

role adjustment flawed. The court did not make the proper

factual findings regarding De Varon’s role; therefore we cannot

determine whether she is entitled to a minor role adjustment. We

must vacate her sentence and remand so that the district court

can make the factual investigation that this determination

requires.

III. Conclusion

We VACATE De Varon’s current sentence and REMAND this case

9
We also note that the amount of drugs carried is the sole
factor used to determine a defendant’s base offense level for the
purpose of sentencing. Because amount is already taken into
consideration by the guidelines in determining the appropriate
sentence it should not also be the sole factor in denying a minor
role adjustment.

17
to the district court with instructions to make an appropriate

factual inquiry into De Varon’s role in the criminal scheme to

import heroin and to resentence De Varon accordingly.

18