08-6281-cr
USA v. Vargas



                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation "summary order"). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty-first day of May, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          ROBERT A. KATZMANN ,
          DENNY CHIN ,
                               Circuit Judges.
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UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               No. 08-6281-cr


TOMAS VARGAS,

                               Defendant-Appellant.


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FOR DEFENDANT-APPELLANT:                                  BRENDAN WHITE , White & White, New
                                                          York, NY.

FOR APPELLEE:                                             KATHERINE POLK FAILLA , Assistant United
                                                          States Attorney (Preet Bharara, United States
                                                          Attorney, Sarah Y. Lai, Assistant United
                                                          States Attorney, on the brief), Office of the
                                                          United States Attorney for the Southern
                                                          District of New York, New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Sidney H. Stein, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-appellant Tomas Vargas (“defendant” or “Vargas”) appeals from a judgment of
conviction entered December 22, 2008. Defendant was convicted, after entering a plea of guilty, of
one count of conspiracy to launder narcotics proceeds in violation of 18 U.S.C. § 1956(a)(1)(B)(i)
and thereafter sentenced principally to 121 months’ imprisonment. On appeal, defendant challenges
only his sentence, arguing that the District Court’s denial of a downward adjustment for his “minor
role” in the offense was clearly erroneous. We assume the parties’ familiarity with the remaining
factual and procedural history of the case.

         “We review for clear error a sentencing court’s finding that a defendant did not play a minor
role in the offense.” United States v. Brunshtein, 344 F.3d 91, 102 (2d Cir. 2003) (quoting United States
v. Castano, 234 F.3d 111, 113 (2d Cir. 2000)). A defendant bears the burden of proving by a
preponderance of the evidence that he is entitled to a minor role adjustment. Id.

        Section 3B1.2(b) of the United States Sentencing Guidelines (“U.S.S.G.” or the
“Guidelines”) provides that a defendant’s offense level shall be decreased by 2 levels if the
defendant was a “minor participant” in the offense. U.S.S.G. § 3B1.2(b). The commentary to that
Guideline defines “minor participant” as a defendant “who is less culpable than most other
participants, but whose role could not be described as minimal.” Id. cmt. n.5. The commentary
also makes clear that no mitigating role adjustment is appropriate unless a defendant is “substantially
less culpable than the average participant.” Id. cmt. n.3(A) (emphases added); cf. Stinson v. United States,
508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.”).



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        We have long recognized that defendants—such as Vargas—whose role in a criminal
enterprise is merely that of courier are not automatically entitled to a “minor role” adjustment.
United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990). Rather, “[t]he culpability of a defendant
courier must depend necessarily on such factors as the nature of the defendant’s relationship to
other participants, the importance of the defendant’s actions to the success of the venture, and the
defendant’s awareness of the nature and scope of the criminal enterprise.” Id.

        Applying those factors, we have little trouble concluding that the District Court’s finding
that Vargas was not entitled to a minor role adjustment was not clearly erroneous. First, defendant’s
“relationship to other participants” suggests that he was not a minor participant. See id. Although
Vargas did not personally carry any currency, his girlfriend acted as the primary courier with Vargas
following closely behind in a separate car. The manner in which the criminal activity occurred
suggests that Vargas and his girlfriend acted as partners. At the very least, there is no evidence that
Vargas’s role was subordinate. It was certainly not “clear error” for the District Court to find that
Vargas did not play a subordinate role merely because he rode in a separate car and did not
personally handle any currency. See Brunshtein, 344 F.3d at 102.

        Vargas’s “awareness of the nature and scope of the criminal enterprise” also supports the
District Court’s finding that he was not a minor participant. See Garcia, 920 F.2d at 155. By entering
a plea of guilty, Vargas admitted to attempting to conceal the proceeds of narcotics sales. He further
admitted to knowing that approximately $500,000 was being transported and that it was destined for
a foreign country. Finally, Vargas knew of and had been inside the building where the narcotics
proceeds were being stored prior to transport. It was, therefore, not clearly erroneous for the
District Court to find that defendant’s “awareness of the nature and scope of the criminal
enterprise” exceeded that of a “minor participant.” See id.; see also U.S.S.G. § 3B1.2(b) & cmt. n.5.

        In sum, we conclude that the District Court did not commit “clear error” in finding that
defendant was not a “minor participant” in the charged offense or in declining to reduce his offense
level accordingly. See Brunshtein, 344 F.3d at 102.

                                          CONCLUSION

        We have considered all of defendant’s arguments and find them to be without merit. For
the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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