                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-31-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2008




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 03-2008


                            UNITED STATES OF AMERICA

                                             v.

                                      DAISY CRUZ,
                                         Appellant


                       Appeal from the United States District Court
                                for the District of New Jersey
                              (D.C. Criminal No. 02-cr-00507)
                     District Judge: Honorable Dennis M. Cavanaugh


                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 18, 2003

             Before: RENDELL, BARRY and CHERTOFF, Circuit Judges.

                                (Filed December 31, 2003)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Daisy Cruz challenges the District Court’s refusal to reduce her offense level based

on her role as a minor participant in the offense, and the Court’s refusal to depart

downward under U.S.S.G. § 5K2.0 based on the circumstances of her prison detention
and her poor health and narcotic addiction. She pled guilty to knowingly and

intentionally conspiring and agreeing to distribute and to possess with intent to distribute

more than 50 grams of cocaine base, namely, crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(B)(1)(A)(iii) and 18 U.S.C. § 2; she was sentenced to the lower end

of the guideline range, 87 months.

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and we

have jurisdiction to review the sentencing orders of the District Court pursuant to

18 U.S.C. §§ 1291 and 3742(a).

       We must sustain the District Court’s factual findings regarding the offense level

reduction unless they are clearly erroneous. United States v. Perez, 280 F.3d 318, 351

(3d Cir. 2002). We exercise plenary review over the District Court’s “interpretation and

application of the Sentencing Guidelines.” United States v. Figueroa, 105 F.3d 874,

875-76 (3d Cir. 1997). But where the District Court “was aware of its authority to depart

from the Guidelines, and chose not to,” we are without jurisdiction to review the merits of

the sentencing decision. United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991).

       With respect to the refusal to reduce Cruz’s offense level reduction, the “minor

role” adjustment provided for under section 3B1.2(b) is reserved for a defendant “who is

less culpable than most other participants, but whose role could not be described as

minimal.” U.S.S.G. § 3B1.2, app. n.5. This determination is essentially fact-based,

concentrating on the defendant’s relationship to other participants, the importance of the



                                            -2-
defendant’s actions to the success of the venture, and the defendant’s awareness of the

nature and scope of the criminal enterprise. United States v. Isaza-Zapata, 148 F.3d 236,

239 (3d Cir. 1998) (quoting United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.

1991)). Here, the District Court carefully analyzed the appropriate factors and discussed

them in reaching its conclusion, noting that there was “no question but that the defendant

was aware of the drug distribution process, the proceeds involved, and she was a willing

participant of this scheme.”

       Cruz had recruited and directed the actions of her co-defendant, Perez, and had

negotiated the transaction with the undercover officer before her arrest, and had also been

observed previously supplying known drug dealers. We conclude that the District Court’s

determination that Cruz was not a “minor participant” was supported by the record and

was not clearly erroneous.

       With respect to the downward departure sought by Cruz on the basis of her ill

health, her addiction, and the inhumane conditions of her confinement, the District Court

concluded that although these factors might provide a basis for departing under certain

extreme circumstances, a departure was not warranted in Cruz’s situation. The record

shows that the District Court applied the proper sections of the Guidelines, and there is no

indication that the District Court “believed erroneously it lacked authority to depart, or

that it failed to consider [Cruz’s] request for a downward departure.” Georgiadis, 933

F.2d at 1223 (citation omitted). Thus, under our case law as it currently stands, we are



                                            -3-
compelled to conclude that we lack jurisdiction to consider the merits of Cruz’s departure

request. See United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1990).

         Accordingly, we will affirm the Judgment and Conviction Order of the District

Court.




                                            -4-
TO THE CLERK OF COURT:

    Please file the foregoing opinion.


                                               /s/ Marjorie O. Rendell

                                               Circuit Judge




                                         -5-
