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


2-13-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1542




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"USA v. Santo" (2004). 2004 Decisions. Paper 1005.
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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 03-1542
                       ____________

            UNITED STATES OF AMERICA,

                              v.

                   FRANCISCO SANTO
                         a/k/a
                       FRANKIE

                           Francisco Santo

                              Appellant

                  ____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA

               (Dist. Court No. 94-cr-00497-2)
      District Court Judge: Hon. Thomas J. O’Neill, Jr.


        Submitted Under Third Circuit LAR 34.1(a)
                    January 12, 2004

  Before: ALITO, CHERTOFF and BECKER, Circuit Judges

            (Opinion Filed: February 13, 2004)

                ______________________

                OPINION OF THE COURT
                ______________________
ALITO, Circuit Judge:

       This appeal requires us to decide whether the District Court erred as a matter of

law and fact when it did not grant Appellant Francisco Santo a two-level downward

adjustment, pursuant to U.S.S.G. § 3B1.2, based on the extent of his participation in a

drug distribution conspiracy. Santo claims that because his participation as a street seller

of heroin in the instant criminal conspiracy was minor, he was substantially less culpable

than the average participant in the conspiracy. The District Court disagreed and denied

the two-level downward adjustment. Because we agree with the District Court’s

conclusion that Santo’s contribution to this conspiracy as a street seller does not qualify

him for entitlement to a two-level downward adjustment, we will affirm.

                                              I.

       Between February 1992 and March 1994, Santo and many others participated in

the Nissan Heroin Organization, a narcotics distribution organization that sold heroin

from a street corner in Philadelphia. Santo participated in some of these drug sales during

a three-month period early in the conspiracy. By pleading guilty to participation in this

conspiracy, Santo accepted responsibility for selling approximately 735 grams of heroin

on the corner during the day shift during the three-month period of his participation.

       There is no dispute that Santo’s participation in this conspiracy was rather limited,

and that his role was less important than the government originally believed. Because

Santo played a more limited role in this rather large conspiracy, the Probation Officer did



                                             -2-
not seek an enhancement under U.S.S.G. § 3B1.1 for an aggravating role as an

“organizer, leader, manager, or supervisor.”

       Insofar as Santo’s plea agreement obligated him to render substantial assistance to

the government, he adhered to that condition. According to the government, he provided

useful cooperation. However, Santo violated the conditions of bail twice by leaving the

jurisdiction and returning home to the Dominican Republic. When last arrested on March

19, 2002 in St. Croix, U.S. Virgin Islands, he had been a fugitive for approximately five

years. Charges of illegal entry are pending against him in that jurisdiction.

       Santo originally agreed to cooperate with the authorities. However, he forfeited

his chances of being considered for a motion for a downward departure for substantial

assistance to authorities, under U.S.S.G. § 5K1.1, by becoming a fugitive from justice.

Due to Santo’s unusual combination of cooperation and absconding, the Probation

Officer and the government recommended both a three-level reduction in offense level

for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, and a two-level increase

for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. Prior to sentencing, defense

counsel proposed an additional two-level downward adjustment pursuant to U.S.S.G. §

3B1.2, arguing that Santo’s role in the offense was minor. Denial of that motion is the

issue on appeal.

                                               II.

       Contrary to Santo’s contention, the District Court did not conclude that Santo was



                                               -3-
ineligible for the adjustment for being a minor participant in the criminal conspiracy as a

matter of law. Instead, the District Court properly considered Santo’s participation under

U.S.S.G. § 3B1.2. In particular, the District Court noted that the guidelines “provide[] a

range of adjustments for a defendant who plays a part in committing the offense that

makes him substantially less culpable than the average participant,” and made a factual

determination on that basis. See U.S.S.G. § 3B1.2 Application Note 3. Prior to deciding

whether Santo was entitled to a downward adjustment in his offense level pursuant to

U.S.S.G. § 3B1.2, the District Court entertained argument on the issue from both defense

counsel and counsel for the government. After evaluating Santo’s participation in the

conspiracy, the District Court concluded: “I just don’t think that fits this defendant, who

was a street seller. So I will not honor the defense request on this matter.” App. 198a.

                                            III.

       Where the District Court has denied a downward adjustment under U.S.S.G. §

3B1.2 based primarily upon a legal interpretation of the sentencing guidelines, we

exercise plenary review. Where the sentencing court’s decision is based upon a factual

determination, our review is for clear error. United States v. Isaza-Zapata, 148 F.3d 236,

237 (3d Cir. 1998) (“We employ a mixed standard of review when considering whether a

defendant was entitled to a downward adjustment as a minor participant.”).

                                            IV.

       The Sentencing Guidelines afford sentencing courts discretion to adjust a



                                             -4-
defendant’s sentence if his participation in the offense was minor. U.S.S.G. § 3B1.2(b)

(“If the defendant was a minor participant in any criminal activity, decrease by 2 levels.”).

The district courts are allowed broad discretion in applying this section, and their rulings

are left largely undisturbed by the courts of appeal. United States v. Isaza-Zapata, 148

F.3d 236, 238 (3d Cir. 1998).

       We have set forth three factors that are relevant to the determination of the

applicability of a minor role adjustment: “1) the defendant's awareness of the nature and

scope of the criminal enterprise; (2) the nature of the defendant's relationship to the other

participants; and (3) the importance of the defendant's actions to the success of the

venture.” United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001) (citation omitted).

Evaluating these factors, aided by defense counsel’s argument, the District Court was not

persuaded that Santo’s role was minor. We are not convinced that the District Court’s

factual finding was clearly erroneous.

       There was abundant evidence that Santo was an integral part of the conspiracy.

This conspiracy was responsible for distributing 18.75 kilograms of heroin over a period

spanning two years. For the first three months of the conspiracy, Santo sold 735 grams of

heroin directly to customers, collected their money, and transferred it to other members of

the organization. He also assisted in setting up drug transactions between customers and

other members of the organization. He spoke directly to the customers, obtained the

heroin necessary to complete the transaction, provided the heroin to a seller, and received



                                             -5-
money for the sale. In this capacity, Santo’s participation in the criminal conspiracy was

integral, and he was fully aware of the various roles of his co-conspirators. As illustrated

below, such active, integral participation in the conspiracy is sufficient to justify the

District Court’s factual finding that Santo did not play a “minor” role as contemplated in

U.S.S.G. § 3B1.2(b).

       Each member of the Nissan Heroin Organization had a separate and distinct role,

each integral to the existence and success of the organization. The leaders or managers of

the organization were responsible for supplying the heroin to the corner and collecting

funds from their shift bosses. The shift bosses were responsible for directing the sellers

to the customers, secreting the heroin held for sale, re-supplying the street sellers, and

receiving money from the sellers, ultimately transferring it to the leaders or managers.

Assistant shift bosses were responsible for secreting the heroin held for sale, re-supplying

the street sellers, and receiving money from the sellers. The street sellers were

responsible for the street level sales of heroin to the organization’s customers. The

conspiracy could not have thrived, as it did for more than two years, without the

contributions of each of these participants. Therefore, in his particular role as a street

seller in this particular conspiracy, Santo played an integral role.

       By analogy, we have previously affirmed a District Court’s denial of a downward

adjustment for a minor role, where the defendant was far less involved in the drug

conspiracy than was Santo. United States v. Carr, 25 F.3d 1194 (3d Cir. 1994) cert.



                                              -6-
denied, 513 U.S. 1086 (1995). In Carr, the defendant repeatedly transported large sums

of proceeds from illegal drug deals to a foreign destination, but claimed to be merely a

traveling companion to the actual courier. During one trip, Carr was stopped, searched,

and found to have $180,000 in marked bills in his possession. The money was hidden in

coffee cans in his carry-on luggage, which was in his possession at all times. Carr was

convicted, and the District Court denied his request for a two-level reduction for being a

minor participant. In affirming the District Court’s denial of Carr’s request, we

reaffirmed our conclusion in United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.

1991), that “[t]he fact that a defendant's participation in a drug operation was limited to

that of courier is not alone indicative of a minor . . . role.”

                                               V.

       After careful review of the record and thorough examination of the parties’

arguments, the sentence imposed by the District Court is affirmed.
United States of America, No. 03-1542

Becker, Circuit Judge, dissenting.

       The majority’s opinion is persuasive that the record would support a finding that Santo

is not entitled to an adjustment for minor role. But the District Court’s ratio decidendi is

encapsulated in its pronouncement that: “I just don’t think that fits this defendant, who was

a street seller.” In my view, the District Court has made a legal determination that a street

seller will never be entitled to a minor role adjustment, which contravenes our opinion in

United States v. Rodriguez, 342 F.3d 296 (3d Cir. 2003), where we held that the District

Court should not make legal determinations that certain categories of criminals (there the

least-knowledgeable mule, here the street seller) are not entitled, as a matter of law, to a

downward adjustment for minor role. I would vacate and remand for further consideration

in light of Rodriguez, which had not yet been decided at the time of Santo’s sentencing.
