                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

USA v. Santos-Almonte
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4520




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-4520


                          UNITED STATES OF AMERICA

                                          v.

                            FELIX SANTOS-ALMONTE,
                                             Appellant


                   On Appeal from the United States District Court
                           for the District of Delaware
                          (D.C. Crim. No. 07-00045-04)
                     Honorable Sue L. Robinson, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 5, 2009

                BEFORE: BARRY and GREENBERG, Circuit Judges,
                       and ACKERMAN, District Judge*

                               (Filed: March 26, 2009)


                             OPINION OF THE COURT


GREENBERG, Circuit Judge.




*The Honorable Harold A. Ackerman, Senior Judge of the United States District Court
for the District of New Jersey, sitting by designation.
       This matter comes on before the Court on Felix Santos-Almonte’s appeal from the

sentence component of a judgment of conviction and sentence entered on November 20,

2007, following his plea of guilty to two counts of an indictment arising from cocaine

offenses. One count charged Santos-Almonte with conspiracy to possess with the intent

to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846 and 21 U.S.C.

§ 841(a)(1) and (b)(1)(B), and the other count charged him with attempted possession

with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846

and 21 U.S.C. § 841(a)(1) and (b)(1)(B). The District Court, after concluding that

Santos-Almonte had a criminal history category of I and a total offense level of 23,

determined that his guidelines range was 46 to 57 months. The offense level took into

account a 3-level downward adjustment for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1(a) and (b) and a 2-level downward adjustment by reason of Santos-

Almonte’s minor participant role pursuant to U.S.S.G. § 3B1.2(b). Santos-Almonte,

however, sought both a variance and a departure from the guideline range, but the District

Court, in determinations that Santos-Almonte does not challenge on this appeal, rejected

these requests and imposed concurrent 46-month custodial sentences to be followed by

concurrent four-year terms of supervised release on each of the two counts. On this

appeal Santos-Almonte challenges the District Court’s refusal to decrease his offense

level by 4 levels under U.S.S.G § 3B1.2(a) rather than 2 levels on the basis of his

contention that his role in the offenses was that of a minimal rather than minor



                                             2
participant.

         The District Court had jurisdiction under 18 U.S.C. § 3231 and we have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). The Government

contends that we review the District Court’s determination that Santos-Almonte was a

minor as opposed to a minimal participant on a clear error standard as the Court

predicated its determination on a factual basis. See United States v. Carr, 25 F.3d 1194,

1207 (3d Cir. 1994). On the other hand, Santos-Almonte contends that his “role in the

offense involves both a legal interpretation of the Sentencing Guidelines and factual

determinations,” appellant’s br. at 13, and that “a mixed standard of review is employed,”

id., meaning plenary review of the legal component and clear error review of the factual

component of the review. See United States v. Isaza-Zapata, 148 F.3d 236, 237 (3d Cir.

1998).

         Regardless of which standard of review is applicable, we will affirm. We agree

with the Government’s description of the case:

         Defendant was not simply a one-time drug courier without any appreciation
         for the scope of the overall drug conspiracy. Rather, over a ten-month
         period, defendant helped facilitate cocaine deliveries in FedEx packages to
         particular addresses in Southern Delaware. He also transported large
         quantities of cocaine on multiple occasions, and he sent large amounts of
         United States currency via FedEx to his co-conspirator’s drug source in
         Laredo, Texas.

Appellee’s br. at 11.

         In these circumstances Santos-Almonte’s role in the offenses, whether viewed



                                              3
from a factual or legal perspective, cannot be regarded as minimal even though other

persons may have played a larger role in the conspiracy. Indeed, it appears that the

District Court’s treatment of Santos-Almonte’s role as minor was, if anything, generous

to him.

       The judgment of conviction and sentences entered November 20, 2007, will be

affirmed.




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