UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-20144
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HECTOR VALENCIA-GONZALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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April 9, 1999
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Valencia pled guilty to possession of a controlled
substance with intent to distribute under 21 U.S.C. § 841(a)(1) and
841(b)(1)(A)(i) and importation of a controlled substance under 21
U.S.C. § 952(a) and § 960(a)(1) and (b)(1)(A). He challenges his
sentence because he believed -- and the government stipulated he
believed -- that he was carrying cocaine, when in fact he was
carrying heroin, for which he received a longer sentence than if he
had been carrying cocaine. We reject all three of Valencia’s
challenges to his sentence.
I.
Valencia’s first argument apparently is that Due Process
requires a mens rea to be imported into sentencing, so that his
subjective belief that he was carrying cocaine would control his
sentence, even though the underlying crime required only possession
of a “controlled substance.”
Valencia’s legal challenge to his sentence is reviewed de
novo. See United States v. Shaw, 920 F.2d 1225, 1228 (5th Cir.
1991).
Valencia does not dispute that he had the mens rea
required for guilt under both statutes; he knew he possessed a
“controlled substance.” For sentencing, however, Valencia invokes
“the fundamental Anglo-American tradition” of calibrating
punishment to culpability. This language comes from a 48-page
opinion by Judge Weinstein holding precisely what Valencia argues.
See United States v. Cordoba-Hincapie, 825 F. Supp. 485, 488
(E.D.N.Y. 1993). Valencia also appeals to the Model Penal Code,
which allows a mistake of fact to control sentencing, and some
dicta in United States v. Gonzalez, 700 F.2d 196 (5th Cir. 1983).1
These authorities are insufficient to outweigh the
Supreme Court’s characterization of the constitutional limits on
1
Discussing jury instructions that allowed conviction even
when a defendant did not know what controlled substance he
possessed, the Gonzalez court observed: “Such an instruction does
not encourage the jury to convict a defendant for possessing some
controlled substance carrying a lesser penalty than heroin when, as
here, the substance found in the car concededly was heroin and
there was no evidence that Gonzalez believed the car contained any
other controlled substance.” 700 F.2d at 201.
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sentencing and the clear decision by Congress to make drug dealers
assume the risk of what kinds and amounts of controlled substances
they carry.
In evaluating an allegedly irrational sentencing scheme
for distribution of LSD, the Supreme Court commented: “a person who
has been ... convicted is eligible for, and the court may impose,
whatever punishment is authorized by statute for his offense, so
long as that penalty is not cruel and unusual, and so long as the
penalty is not based on an arbitrary distinction that would violate
the Due Process Clause of the Fifth Amendment.” Chapman v. United
States, 500 U.S. 453, 465, 111 S. Ct. 1919, 1927 (1991) (citations
omitted). The Chapman Court found Congress’s LSD sentencing
provisions had a “rational basis.” Id. The Court even went so far
as to hold that a sentencing scheme that fails to “consider[]
individual degrees of culpability ... would clearly be
constitutional,” because “Congress has the power to define criminal
punishments....” Id. at 467, 111 S. Ct. at 1928.
The statutes for possession and importation each
distinguish between the specific intent necessary for the “unlawful
act,” 21 U.S.C. §§ 841(a)(1), 952(a), 960(a), and a strict
liability punishment based on which controlled substance, and how
much of it, is involved in the offense, 21 U.S.C.
§§ 842(b)(1)(A)(i), 960(b)(1)(A); see also U.S.S.G. § 2D1.1(c)
(drug quantity table). Congress certainly had a rational basis to
“resolve that there is some deterrent value in exposing a drug
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trafficker to liability for the full consequences, both expected
and unexpected, of his own unlawful behavior.” United States v.
Strange, 102 F.2d 356, 361 (8th Cir. 1996). See also United States
v. Salazar, 5 F.3d 445, 446 (9th Cir. 1993); United States v.
Collado-Gomez, 834 F.2d 280, 281 (2d Cir. 1987).
The district court did not err in sentencing Valencia
according to the drug he was carrying rather than the drug he
believed he was carrying.
II.
Valencia’s second argument is that the district court
erred in denying his motion for a downward departure on grounds of
his mistaken belief that he was carrying cocaine.
This court can review a district court’s refusal to
depart from the guidelines “only if the district court based its
decision upon an erroneous belief that it lacked the authority to
depart. Moreover, something in the record must indicate that the
district court held such an erroneous belief.” United States v.
Landerman, 167 F.3d 895, 899 (5th Cir. 1999) (citations omitted).
Contrary to Valencia’s assertion, the district court’s summary
denial without explanation does not indicate any such erroneous
belief. See United States v. Aggarwal, 17 F.3d 737, 745 (5th Cir.
1994). Thus, this court has no jurisdiction to consider this
argument.
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III.
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Valencia’s third argument on appeal is that the district
court erred in denying a downward adjustment for his being a “minor
participant” under U.S.S.G. § 3B1.2(b).
In the face of silence, there is no reason to presume, as
Valencia does, that the district court relied upon a mistaken legal
rule in denying the adjustment. We review the district court’s
denial for clear error. See United States v. Lugman, 130 F.3d 113,
117 (5th Cir. 1997), cert. denied, 118 S. Ct. 1855 (1998).
A downward adjustment is appropriate “only where a
defendant was ‘substantially less culpable than the average
participant.’” United States v. Brown, 54 F.3d 234, 241 (5th Cir.
1995) (ultimately quoting U.S.S.G. § 3B1.2 (background)). Valencia
contends he was a mere “mule,” but he admitted that he was to be
paid $14,000 for his role, that he transported the heroin from
Colombia to Houston, that he was supposed to meet a co-conspirator
in San Antonio, and that they were to travel together to New York.
(During a controlled delivery, his co-conspirator did not meet him,
making it possible to infer that Valencia had misrepresented his
role.) Valencia was carrying a non-trivial quantity of heroin
(1005 grams). Furthermore, he was sentenced only for the amount
that he was actually carrying. See United States v. Marmolejo, 106
F.3d 1213, 1217 (5th Cir. 1997); United States v. Flucas, 99 F.3d
177, 181 (5th Cir. 1996). Under the circumstances, the district
court did not clearly err in concluding that Valencia’s role was
not minimal.
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IV.
For the foregoing reasons, Valencia’s appeal of the
district court’s refusal to grant a downward departure is
DISMISSED. All other aspects of Valencia’s sentence are AFFIRMED.
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