                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4533




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"USA v. Barrera" (2002). 2002 Decisions. Paper 567.
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                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 01-4533


                       UNITED STATES OF AMERICA

                                  v.

                         VICTOR LUIS BARRERA,
                                                  Appellant


         On Appeal from the United States District Court
                  for the District of New Jersey
                    (D.C. Crim. 01-cr-00561-1)
             District Judge: Hon. Jerome B. Simandle


            Submitted Under Third Circuit LAR 34.1(a)
                        September 12, 2002

           Before:    SLOVITER, RENDELL, Circuit Judges
                     and McCLURE,* District Judge

                      (Filed September 13, 2002)



                         OPINION OF THE COURT

___________________

*    Hon. James F. McClure, Jr., United States District Court for the Middle District of
     Pennsylvania, sitting by designation.SLOVITER, Circuit Judge.
                                I.
     This is an appeal from a judgment of sentence in a drug importation case pursuant
to a written plea agreement. Appellant Victor Luis Barrera, who pled guilty to a single-
count information charging that he knowingly and intentionally imported into the United
States over 100 grams of heroin in violation of 21 U.S.C. 952(a) and 960(b)(2)(A) and
18 U.S.C. 2, challenges the District Court’s denial of a minor participant downward
departure under U.S.S.G. 3B1.2(b). The District Court, following the recommendations
of the Pre-Sentence Report (PSR), which were in accord with the stipulations in the
written plea agreement, assigned Barrera a base offense level of 30 for the unlawful
importation of an amount of heroin between 700 and 1,000 grams under U.S.S.G.
2D1.1(c)(5), reduced by three levels for timely acceptance of responsibility pursuant to
U.S.S.G. 3E1.1(a) and (b)(2), and reduced a further two levels under the "safety valve"
provision of U.S.S.G. 5C1.2, for a final offense level of 25. With Barrera’s criminal
history category of I, the PSR placed his applicable sentencing range at 57 to 71 months.
     At the sentencing hearing, Barrera objected to the PSR’s lack of recommendation
for a minor role adjustment pursuant to U.S.S.G. 3B1.2(b). Barrera argued that when
compared to the other participants in the importation scheme who were charged in the
Eastern District of New York under a separate, but related indictment for conspiracy to
distribute, his role was minor. In considering Barrera’s request, the District Court noted:
     1) The minor role adjustment applied only if Barrera played a part in committing
the offense that made him substantially less culpable than the average participant,
pursuant to U.S.S.G. 3B1.2, Application Note 3(A).
     2) Barrera could receive the adjustment notwithstanding the fact that he was only
charged with a single act of importation and, thus his relevant conduct consisted of only
one act (pursuant to a recent amendment to 3B1.2 by the Sentencing Commission).
     3) Its inquiry was "guided by the Third Circuit’s decision in United States v.
Isaza-Zapata," which required the district courts to examine "the nature of the defendant’s
relationship to the 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." 148 F.3d 236, 239 (3d Cir. 1998) (quotations omitted).
     The District Court then adopted the recommendations of the PSR and denied
Barrera’s motion for the minor role adjustment. The District Court acknowledged that
other participants acquired the drugs, packaged them for Barrera to swallow, and received
them from Barrera. However, it was Barrera who "swallowed them. He took a trip on
the airliner. He landed at Newark . . . He was entrusted with . . . delivery of these drugs.
Appellant’s App. at 43. The District Court then concluded that Barrera’s role and his
culpability in regard to the importation were as great as that of the other participants
because: 1) Barrera imported a large quantity of heroin and a large amount of drugs
militated against the finding of a minor role, 2) although he was subservient to Sandra
Foronda, his new wife, and her family, who were involved in heroin distribution, Barrera
differed little from an average participant for the conduct charged (importation), 3)
Barrera had smuggled drugs before for the same people and possessed the drugs for
several days, and was well paid for his efforts, thus demonstrating that he had sufficient
knowledge of the group’s organization and activities such that he could not qualify as a
minor participant, and 4) although not charged with the conspiracy or the distribution
aspects thereof, Barrera’s role in the importation was pivotal insofar as the importation
could not have occurred but for Barrera’s actions.
     The District Court sentenced Barrera to 57 months incarceration (the bottom of the
guideline), no fine, four years of supervised release, and a special assessment of $100.
Barrera filed a timely notice of appeal.
                               II.
     The District Court had subject matter jurisdiction under 18 U.S.C. 3231. This
court has jurisdiction under 28 U.S.C. 1291. We review the findings of fact by a district
court in a 3B1.2 analysis for clear error. United States v. Perez, 280 F.3d 318, 351 (3d
Cir. 2002), petition for cert. filed, No. 01-10721 (2002). We have plenary review of the
legal interpretations of the Sentencing Guidelines. United States v. Brown, 250 F.3d 811,
818 (3d Cir. 2001).
     Barrera asserts that the District Court erred as a matter of law by viewing him as
an "average participant in an importation scheme," Appellant’s App. at 42-3, and failing
to compare his actions to those of the entire importation/distribution scheme.
     The scope of the District Court’s inquiry was guided by our decision in Isaza-
Zapata where we stated:
               In 1990, the Sentencing Commission clarified the
          scope of the conduct relevant to the role in the offense
          adjustment, and the introductory commentary now directs that
          the determination of the defendant’s relative culpability for
          purposes of assessing the applicability of the adjustment must
          be made on the basis of all relevant conduct   namely, all
          conduct within the scope of 1B1.3    and not simply on the
          basis of the elements and acts referenced in the count of
          conviction.

148 F.3d at 239.
     We held that a 3B1.2 determination is heavily dependent on the individual facts
of the particular case at issue and the circumstances of the individual defendant. Id. at
238-39. Barrera had the burden to prove that the conduct charged in the New York
indictment was "conduct within the scope of 1B1.3." U.S.S.G. Ch. 3, Pt. B,
Introductory Commentary. It can be implied from the plea agreement that Barrera’s
relevant conduct was the extent of the importation scheme, as it stipulated "[t]he amount
of heroin that comprises the relevant conduct in this case is more than 700 grams but less
than 1 kilogram," rather than the 3.8 kilograms attributed to the members of the larger
distribution conspiracy of the New York indictment. Appellant’s App. at 15. Had the
court included the latter in Barrera’s relevant conduct, he would have been subject to a
base offense level four points higher than the one he actually received for the extra drug
amount, resulting in a guideline range of 70 to 87 months, even with his sought-after two-
level minor role adjustment.
     As the court stated in United States v. Rodriguez De Varon, 175 F.3d 930, 941
(11th Cir. 1999), it would not make sense for a defendant to claim that her relevant
conduct be construed narrowly for the purposes of calculating the offense level while
simultaneously arguing for a broad interpretation of the same conduct for the purpose of
determining whether a role adjustment was warranted. Barrera cannot have it both ways.
The District Court did not err in restricting its scope of inquiry to the relevant conduct of
the importation scheme.
     Nor did the District Court clearly err in its treatment of Barrera’s conduct relative
to the total importation scheme. A minor role adjustment is warranted only on a finding
that the defendant was substantially less culpable than an average participant in the
relevant conduct. U.S.S.G. 3B1.2, Application Note 3(A); see also United States v.
Headley, 923 F.2d 1079, 1084 (3d Cir. 1991); United States v. Price, 13 F.3d 711, 735
(3d Cir. 1994). Using the standards set forth in Isaza-Zapata, the District Court examined
"the nature of the defendant’s relationship to the 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." Isaza-Zapata, 148 F.3d at 239 (quotations
omitted).
     Barrera imported large amounts of heroin on more than one occasion and he was
twice offered a substantial monetary reward for his role in the importation. He married a
woman who was apparently the "number two" person in the organization so that she
could reside here and represent the interests of the cartel in the United States. He had
knowledge of the roles of Sandra Foronda, Wilson, and Romero within the organization,
as well as knowledge of the organization’s scope and purpose insofar as he had imported
large quantities of drugs into the United States on the organization’s behalf on more than
one occasion.
     The evidentiary basis of the above facts is not in dispute and, by the standards of
Isaza-Zapata, Barrera’s level of culpability in the importation scheme was at least
average, not substantially less so. Thus, there is both a credible evidentiary basis and a
firm rational connection between the facts of record and the findings of the District Court
based upon those facts. Barrera’s factual argument fails just as his legal argument did.
                               III.
     For the reasons set forth, we will affirm the judgment of sentence of the District
Court.
__________________________
TO THE CLERK:
                                                                       Please file the foregoi
                                                                           /s/ Dolores K. Slov
                                                                              Circuit Judge



                           No. 01-4533


                     UNITED STATES OF AMERICA

                                v.

                       VICTOR LUIS BARRERA,
                                                Appellant


         On Appeal from the United States District Court
                  for the District of New Jersey
                    (D.C. Crim. 01-cr-00561-1)
             District Judge:    Hon. Jerome B. Simandle


           Before:    SLOVITER, RENDELL, Circuit Judges
                     and McCLURE,* District Judge
                               ________


                               JUDGMENT

     This cause came on to be heard on the record from the United States District Court
for the District of New Jersey and was submitted pursuant to Third Circuit LAR 34.1(a)
on September 12, 2002.
___________________

*    Hon. James F. McClure, Jr., United States District Court for the Middle District of
     Pennsylvania, sitting by designation.     On consideration whereof, it is now here ordere
the judgment of sentence of the District Court entered on December 18, 2001, be and the
same is hereby affirmed. All of the above in accordance with the opinion of this Court.
                              ATTEST:



                                Clerk

Dated:
