                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-2004

USA v. Taveres Encarnacion
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2809




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"USA v. Taveres Encarnacion" (2004). 2004 Decisions. Paper 711.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/711


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                                                               NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-2809

                          UNITED STATES OF AMERICA

                                            v.

                         JOSE TAVERES ENCARNACION,

                                         Appellant
                        _________________________________

                    On Appeal from the United States District Court
               of the Virgin Islands, Division of St. Thomas and St. John
                                 (Crim. No. 02-cr-00041)
                    District Judge: The Honorable Thomas K. Moore
                        _________________________________
                           Submitted Pursuant to LAR 34.1
                                      May 5, 2004


              BEFORE: BARRY, AMBRO and SMITH, Circuit Judges,
                                 (Filed: May 12, 2004 )


                                    _____________


                              OPINION OF THE COURT
                                    _____________


SMITH, Circuit Judge.

      Appellant Jose Taveres Encarnacion pled guilty to one count of conspiracy to possess
Ecstasy with the intent to distribute. He now challenges the District Court’s decision to

grant him a two-point reduction for his “minor” role in the conspiracy rather than a four-point

reduction for a “minimal” role. Encarnacion challenges the sentence imposed by the District

Court on June 4, 2003, contending that the District Court erred in making no independent

findings for denying the reduction and that his role as courier in the scheme necessitated a

classification of his role as “minimal” rather than “minor.” 1 Because we find that the District

Court did not err in refusing to reduce Encarnacion’s guideline level for “minimal”

participation, we will affirm.

                                               I.

       Because we write only for the parties, we set forth only a brief recitation of the facts.

On March 26, 2002, U.S. Customs inspectors at Cyril E. King Airport in St. Thomas, United

States Virgin Islands intercepted Encarnacion while he was attempting to transport

approximately 7,037 Ecstasy pills by concealing them in a removable reinforcement panel

in his luggage. He agreed to cooperate with the agents and decribed for them a conspiracy

to transport the pills from St. Thomas to Miami. Encarnacion pled guilty to one count of

Conspiracy to Possess Ecstasy with Intent to Distribute.

       At his sentencing hearing, Encarnacion argued for a four-level downward adjustment




  1
     The District Court had jurisdiction pursuant to 48 U.S.C. § 1612 and we exercise
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 48 U.S.C. § 1613.

                                               2
as a minimal participant pursuant to U.S. Sentencing Guidelines (“U.S.S.G.”) § 3B1.2.2 The

District Court Judge declined to grant a four-level decrease, stating, “I agree with the

probation officer’s assessment,” and, “I think it’s appropriate that Mr. Encarnacion receives

a minor role and that [his co-defendant] receive minimal.” The District Court Judge also

noted that the amount of drugs “seem[ed] like a lot,” and sentenced him to the “minimum of

37 months.”

                                               II.

       This Court reviews the District Court’s factual findings as to a § 3B1.2 minimal or

minor role adjustment for clear error. United States v. Haut, 107 F.3d 213, 218 (3d Cir.

1997); see also United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989) (“Minimal

participant status is . . . itself a factual determination.”). In Haut, we noted that “a simple

statement by the district court together with some supporting facts of record concerning a

defendant’s status as a minimal participant is typically sufficient to settle the question.” 107

F.3d at 217-18 (internal quotation omitted).

       Although the District Court’s explanation of its decision to decline Encarnacion’s

request for a four-level reduction for minimal participation is quite brief, the Court satisfied

the requirements of Haut. First, the District Judge noted that he agreed with the probation



  2
     U.S.S.G. § 3B1.2, “M itigating Role,” provides that “[b]ased on the defendant’s role
in the offense,” the defense level is decreased by four levels “[i]f the defendant was a
minimal participant in any criminal activity,” by two levels [i]f the defendant was a minor
participant in any criminal activity,” and by three levels in cases falling between minimal
and minor participation.

                                               3
officer’s assessment, rather than that he relied upon it, as Encarnacion suggests. The District

Court also discussed the large quantity of drugs involved in the conspiracy. Further, he

noted the relative roles of Encarnacion and his co-defendant by explaining that it was

appropriate that Encarnacion receive only a minor role reduction while his co-defendant was

entitled to a reduction for a minimal role.

       The decision to grant or deny a reduction for a defendant’s level of participation in

a conspiracy depends on the relative culpability of the defendants. See United States v.

Perez, 280 F.3d 318, 351-52 (3d Cir.), cert. denied,         537 U.S. 859 (2002); see also

Buenrostro, 868 F.2d at 138 (“§ 3B1.2 turns upon culpability, not courier status.”). Although

Encarnacion was a courier in the scheme, the District Court’s conclusion that he was entitled

only to a downward departure for a minor role, as opposed to a minimal role, was justified

on this record. Encarnacion was apprehended carrying over 7,000 Ecstasy pills, while his

co-defendant was recruited merely to monitor Encarnacion and to identify him in Miami. In

United States v. Headley, we noted that “‘the 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.’” 923 F.2d 1079, 1084 (3d Cir.

1991) (quoting United States v. Garcia, 920 F.2d 153 (2d Cir. 1990)). In this case, although

Encarnacion may not have known every detail of the scheme, he was clearly aware of its

“scope and structure,” and his participation was vital to its success. Id.



                                               4
                                             III.

       Because we conclude that the District Court did not err in denying Encarnacion’s

request for a four-level decrease for minimal participation under U.S.S.G. § 3B1.2, we will

affirm the judgment of the District Court.




______________________________________




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