                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2006

USA v. Medina
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4930




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"USA v. Medina" (2006). 2006 Decisions. Paper 197.
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                                                 NOT PRECEDENTIAL


          IN THE UNITED STATES COURT
                   OF APPEALS
              FOR THE THIRD CIRCUIT


                      NO. 05-4930


            UNITED STATES OF AMERICA

                           v.

                FRANCISCO MEDINA
             a/k/a PEDRO MALDONADO

                                FRANCISCO MEDINA,
                                Appellant




           On Appeal From the United States
                      District Court
             For the District of New Jersey
         (D.C. Crim. Action No. 01-cr-00106-1)
         District Judge: Hon. Freda L. Wolfson


     Submitted Pursuant to Third Circuit LAR 34.1(a)
                   November 9, 2006


BEFORE: SCIRICA, Chief Judge, McKEE and STAPLETON,
                  Circuit Judges

           (Opinion Filed November 16, 2006 )
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Appellant Francisco Medina pled guilty to conspiring to distribute 178.8 grams of

crack. He was ultimately sentenced to 135 months of incarceration and five years of

supervised release.

       Prior to sentencing, Medina moved for a two-point downward adjustment under

U.S.S.G. § 3B1.2(b) based on what he claimed to be his minor role in the offense. He

insisted that he had played a relatively minor role in a drug business operated by his co-

defendant, Domingo Valentin. After an evidentiary hearing, this motion was denied.

Where, as here, the District Court demonstrates in making its factual determinations that

it understood the applicable law, we review such a denial for clear error. United States v.

Perez, 280 F.3d 318, 351 (3d Cir. 2002). Findings of fact may thus be overturned only if

they are “completely devoid of a credible basis or bear . . . no rational relationship to the

supporting data.” United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997).

       As the District Court accurately observed, the factors to be considered in

determining whether a defendant’s role was minor are: “the nature of the defendant’s

relationship to other participants,” “the defendant’s awareness of the nature and scope of

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the criminal enterprise,” and “the importance of the defendant’s actions to the success of

the venture.” United States v. Rodriguez, 342 F.3d 296, 299 (3d Cir. 2003).

       The District Court found that Medina’s role was to recruit customers for Valentin

and to act as a translator for him when the customers spoke only English. It stressed that

Medina’s participation was “not an isolated event,” but rather involved “repeated” sales.

App. at 114. The Court had “no doubt” [that Medina] was integral to the success of this

venture.” App. at 115.

       The District Court also concluded with record support that Medina was aware of

the nature and scope of the criminal enterprise:

       He wasn’t just handed something on one day and said, Go out and do this.
       He was aware where the drugs were picked up, the 710 York [Street
       apartment], how it was accomplished. He was involved in using his pager
       to make contact; indeed, [he] invited officer King to use that pager as to
       when he wanted sales.

               So he was the one who facilitated how it would be done, and how
       payment was to be made; and, if it was turned over to Valentin – I’ll accept
       the testimony of Mr. Medina that he turned the money over to Valentin, and
       then got a portion of it – how it went from beginning to end.

App. at 114-15. The Court further observed that Medina had previously sold drugs and

“was not a stranger to what selling drugs means and what the consequences are.” App. at

113.

       While Medina testified that he did not participate in importing cocaine into the

country and did not produce or package the crack cocaine, the conspiracy of which he

was convicted was a conspiracy to distribute, and the District Court correctly focused on

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Medina’s knowledge of that conspiracy. It noted: “And even if he wasn’t the one who

packaged the drugs, that’s not what the issue is, it’s distribution.” App. at 116.

       It is true, as Medina stresses, that the record would support a finding that Valentin

was the organizer and leader of this conspiracy and that Medina was somewhat less

culpable. As we observed in United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001),

however, “the mere fact that a defendant was less culpable than his co-defendants does

not entitle the defendant to ‘minor participant’ status.” If that “were the case, then the

least culpable member of any conspiracy would be a minor participant regardless of that

member’s participation.” Id. While a sentencing court should evaluate the defendant’s

participation and culpability in part by comparing it with the participation and culpability

of others, a defendant is not entitled to an adjustment unless his or her role can fairly be

described as “minor.” Here, the District Court concluded that based on Medina’s close

relationship with Valentin and the importance of his activities to the success of the

conspiracy, Medina’s role was clearly not minor. This conclusion was not an abuse of

discretion.

       Medina was sentenced before the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), and the parties agree that a remand for resentencing is

required under our decision in United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005).

On remand, when initially calculating the applicable sentencing guideline range at the

first step in the post-Booker sentencing process, the District Court may, if it remains of



                                              4
the same view, decline to apply a downward adjustment under U.S.S.G. § 3B1.2.

      The judgment of the District Court will be reversed, and this case will be

remanded for resentencing in a manner consistent with this opinion.




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