                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-1998

United States v. Isaza-Zapata
Precedential or Non-Precedential:

Docket 97-5443




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Recommended Citation
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Filed June 8, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5443

UNITED STATES OF AMERICA

v.

OSCAR IVAN ISAZA-ZAPATA,
       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 97-66)

Argued March 20, 1998

BEFORE: BECKER, Chief Judge, RENDELL, and
HEANEY,* Circuit Judges

(Filed: June 8, 1998)

Kevin F. Carlucci, Esq. (argued)
Office of Federal Public Defender
972 Broad Street
Newark, New Jersey 07102
 Counsel for Appellant



_________________________________________________________________

*Hon. Gerald W. Heaney, Senior United States Circuit Judge for the
Eighth Circuit, sitting by designation.
       George S. Leone, Esq.
       Elizabeth S. Ferguson, Esq. (argued)
       Office of United States Attorney
       970 Broad Street
       Room 502
       Newark, New Jersey 07102
        Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

This case requires us to review the factors a district court
should consider in deciding whether a drug courier or
"mule" convicted of importation may be characterized as a
minor participant in the offense, such that a downward
adjustment in sentencing pursuant to S 3B1.2 of the United
States Sentencing Guidelines may be warranted. The
district court concluded that, as a courier, the defendant's
role was "essential" and he was not a minor participant.
Because we cannot determine whether this conclusion was
a factual finding, or was based on an interpretation of the
sentencing guidelines, we will vacate and remand for
resentencing consistent with this opinion. See United States
v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994); United States
v. Colletti, 984 F.2d 1339, 1348 (3d Cir. 1992).

I.

While in Colombia on a vacation, Oscar Ivan Isaza-Zapata
was approached by two men, Carlos and Tyson, in a park.
The men offered to pay him $16,000 to transport 800
grams of heroin to the United States. In need of money for
a foot operation, Isaza-Zapata agreed. He later met Carlos
and Tyson at a hotel in Perriera, Colombia, where they gave
him 100 pellets of heroin to swallow. They provided him
with a ticket to Newark, where he was to meet another man
named Carlos.

Upon his arrival at Newark International Airport, Isaza-
Zapata was subjected to a routine customs examination.
After his demeanor aroused suspicion, Isaza-Zapata was

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asked to consent to an X-ray examination. Isaza-Zapata
signed the consent form and was transported to Bayonne
Medical Center, where he passed approximately 100 pellets
containing heroin. He advised the customs agents that he
had been paid to bring narcotics into the United States.
Isaza-Zapata attempted to cooperate with Customs officials
by placing a call to his United States contact, but was
unsuccessful.

In a one count indictment, the grand jury charged Isaza-
Zapata with knowingly and intentionally importing into the
United States more than 100 grams of heroin in violation of
21 U.S.C. SS 952(a) & 960(a)(1), and 18 U.S.C. S 2. Isaza-
Zapata subsequently pled guilty. At sentencing, he
requested a two-point downward adjustment in his offense
level as a minor participant. The government agreed that
Isaza-Zapata was entitled to the downward adjustment. The
district court, however, declined to grant the adjustment.
The court sentenced Isaza-Zapata to 60 months
imprisonment, four years supervised release, a $1,000 fine,
and a special assessment of $100. This appeal followed.

II.

The district court had jurisdiction pursuant to 18 U.S.C.
S 3231, and we have jurisdiction pursuant to 28 U.S.C.
S 1291 and 18 U.S.C. S 3742. We employ a mixed standard
of review when considering whether a defendant was
entitled to a downward adjustment as a minor participant.
See United States v. Carr, 25 F.3d 1194, 1207 (3d Cir.
1994). We exercise plenary review where the district court's
denial of a downward adjustment is based primarily on a
legal interpretation of the Sentencing Guidelines. See
United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir.
1990). However, where the district court's decision rests on
factual determinations, we review for clear error. See id.

At the sentencing hearing, the district court denied the
two-point downward adjustment, stating only that"I find
that his role is essential for the commission of the crime
and that he is not a minor participant." The district court
did not set forth any other reasons for its determination,
and it is not clear whether the district court assessed the
relative culpability of Isaza-Zapata as compared to others

                               3
and considered the factors we have outlined in United
States v. Headley, 923 F.2d 1079 (3d Cir. 1990), in relation
to the other participants, or whether the court had adopted
a practice whereby mules or couriers do not qualify for a
minor role adjustment because they are "essential." With
respect to the latter, we note that because the
determination of whether a defendant is entitled to a minor
role adjustment is highly dependent on the facts of
particular cases, see U.S. Sentencing Guidelines Manual
S 3B1.2, Background Commentary, a mechanical
application of the guidelines by which a court always denies
minor role adjustments to couriers because they are
"essential," regardless of the particular facts or
circumstances, would be inconsistent with this guidance.
See United States v. King, 53 F.3d 589, 591-92 (3d Cir.
1995) (finding that sentencing "practices" are proscribed
under S 5K1.1 of the Guidelines).

We do not hold that the district court erred in refusing to
grant Isaza-Zapata a minor role adjustment. We are simply
unable to determine the basis of the district court's ruling
from the record. Since our standard of review turns on
whether the court denied the downward adjustment based
on a proper legal interpretation of the mitigating role
provision based on the facts of this particular case, see
Carr, 25 F.3d at 1207, we conclude that the appropriate
course of action is to remand to allow the district court to
state the basis for its ruling, and we take this opportunity
to review the proper standards if the court wishes to clarify
or reconsider its ruling in light of this opinion. See
Mummert, 34 F.3d at 205.

III.

The Sentencing Guidelines permit adjustments to a
defendant's offense level based on the role that he played in
committing the offense. Section 3B1.2 affords a reduction
in the offense level if the defendant was either a minimal or
a minor participant:

       Based on the defendant's role in the offense, decrease
       the offense level as follows:

       (a) If the defendant was a minimal participant in any
       criminal activity, decrease by 4 levels.

                               4
       (b) If the defendant was a minor participant in an y
       criminal activity, decrease by 2 levels.

       In cases falling between (a) and (b), decrease by 3
       levels.

U.S. Sentencing Guidelines Manual S 3B1.2. The district
courts are allowed broad discretion in applying this section,
and their rulings are left largely undisturbed by the courts
of appeal. See United States Sentencing Commission, 1996
Sourcebook of Federal Sentencing Statistics (1996) (stating
that the affirmance rate under S 3B1.2 is 99.3%).

The background commentary to this provision indicates
that its application is heavily dependent on the facts of a
particular case, and that the reduction is available for a
defendant whose role in the offense makes him
substantially less culpable than the average participant.
See U.S. Sentencing Guidelines Manual S 3B1.2,
Background Commentary. Section 3B1.2 does not itself
define the term "participant," but an application note to
S 3B1.1, which addresses a defendant's aggravating role in
the offense, defines a participant as "a person who is
criminally responsible for the commission of the offense,
but need not have been convicted. A person who is not
criminally responsible for the commission of the offense
(e.g., an undercover law enforcement officer) is not a
participant." U.S. Sentencing Guidelines ManualS 3B1.1,
Application Note 1. That same definition of "participant"
should also apply to the mitigating role provision. See
United States v. Katora, 981 F.2d 1398, 1402 (3d Cir.
1992).

It is clear that the adjustments for a defendant's role in
the offense apply where there has been concerted activity
involving one or more participants. The application notes
indicate that "a minor participant means any participant
who is less culpable than most other participants, but
whose role could not be described as minimal." U.S.
Sentencing Guidelines Manual S 3B1.2, Application Note 3.
The notes further explain that a defendant who plays a
minimal role in concerted activity is one who is among the
least culpable of those involved in the group conduct. Such
factors as a defendant's lack of knowledge or understanding

                               5
of the overall enterprise and of others' activities are
evidence of a minimal role in the offense. See U.S.
Sentencing Guidelines Manual S 3B1.2, Application Note 1.
Thus, the two prerequisites to the application ofS 3B1.2 are
multiple participants and a differentiation in levels of
culpability. See Katora, 981 F.2d at 1405. The Guideline
provides little additional guidance, however, to district
courts attempting to determine whether a particular
defendant played a minor role.

In Headley, we adopted the following principles, as
enunciated by the Second Circuit, as relevant to the
determination of whether a courier is a minor participant:
"`[t]he culpability of a defendant courier must depend
necessarily on such factors as 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."' 923 F.2d at 1084 (quoting United
States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990)).
Although both Headley and Garcia involved defendant drug
couriers, it should be noted that the relevance of these
factors is not necessarily limited to couriers. Rather, these
considerations are directed generally towards a defendant's
involvement, knowledge, and culpability, and should
provide guidance in any case. See United States v. Price, 13
F.3d 711, 735 (3d Cir. 1994) (referring to Headley factors in
discussion of non-courier defendant's role in offense).

Since S 3B1.2 is ultimately concerned with the
defendant's relative culpability, a district court should
consider the defendant's conduct under the Headley factors
in relation to the other participants. See Bierley, 922 F.2d
at 1065 ("[T]he adjustments authorized by the role in the
offense adjustments are directed to the relative culpability
of participants in group conduct."). By the express terms of
the application notes, the other participants must be
criminally responsible. However, they need not have been
charged with any offense. See id. (noting that there may be
more than one participant even where there is only one
defendant). The other participants "[do] not have to be
guilty of [the offense charged] in connection with [the]
scheme so long as their own criminal conduct made it

                               6
possible." United States v. Inigo, 925 F.2d 641, 659 (3d Cir.
1991); see also United States v. Belletiere, 971 F.2d 961,
969-70 (3d Cir. 1992).

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 ofS 1B1.3
-- and not simply on the basis of the elements and acts
referenced in the count of conviction.1 See U.S. Sentencing
Guidelines Manual, Ch. 3, Pt. B, intro. comment; see also
Headley, 923 F.2d at 1084 n. 2; United States v. Murillo,
933 F.2d 195, 198 n.1 (3d Cir. 1991). Accordingly, the
appropriateness of a minor role adjustment turns on"the
relativity of [the defendant's] conduct to the total [relevant
conduct] . . . ." Headley, 923 F.2d at 1085.

Although some of the courts considering this issue have
_________________________________________________________________

1. Section 1B1.3(a) defines relevant conduct as:

(1)(A) all acts and omissions committed, aided, ab etted, counseled,
commanded, induced, procured, or willfully caused by the defendant;
and

(B) in the case of a jointly undertaken criminal a ctivity (a criminal
plan,
scheme, endeavor, or enterprise undertaken by the defendant in concert
with others, whether or not charged as a conspiracy), all reasonably
foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course
of
attempting to avoid detection or responsibility for that offense;

(2) solely with respect to offenses of a character for which S 3D1.2(d)
would require grouping of multiple counts, all acts and omissions
described in subdivisions (1)(A) and (1)(B) above that were part of the
same course of conduct or common scheme or plan as the offense of
conviction;

(3) all harm that resulted from the acts and omiss ions specified in
subsections (a)(1) and (a)(2) above, and all harm that was the object of
such acts and omissions; and

(4) any other information specified in the appli cable guideline

                               7
noted the centrality or essential nature of the courier's role,
they have done so in pointed response to the defendants'
contentions that a courier should automatically qualify for
a minor role adjustment, and have proceeded then to
engage in an analysis of the defendant's conduct in relation
to others. See United States v. Walker, 1 F.3d 423, 427-28
(6th Cir. 1993) (finding mere fact that defendant courier
was less culpable than organizers, leaders, managers, or
supervisors does not itself establish that she was minor
participant); United States v. Buenrostro, 868 F.2d 135, 138
(5th Cir. 1989) (rejecting the argument that minimal
participant status may be inferred as a matter of law from
courier status). These cases do not stand for the
proposition that the minor role adjustment never applies to
couriers, or that the court should forego an analysis of the
defendant's relative role.

The defendant bears the burden of demonstrating that
other participants were involved and that, under the
standards set forth above and the facts of his particular
case, the minor role adjustment should apply. See Price, 13
F.3d at 735 (citing United States v. McDowell, 888 F.2d
285, 291 (3d Cir. 1989)). In the instant case, the record
indicates that Isaza-Zapata was approached by Carlos and
Tyson to transport heroin to the United States. Isaza-
Zapata knew no one else involved in the scheme, and had
no knowledge of the scope of the conspiracy. Carlos and
Tyson provided Isaza-Zapata with pre-packaged heroin,
showed him how to swallow the packages and how to
travel, and provided him with a plane ticket.

Although this offense involving several participants with
different roles is exactly the type of situation in which a
minor role adjustment should be considered, two
arguments are commonly advanced to discourage the
application of the minor role adjustment in this type of
case. First, the government contends that a courier like
Isaza-Zapata, who is not charged with conspiracy, does not
play a minor role in the importation with which he is
charged. However, the fact that no conspiracy is charged
does not preclude consideration of the minor role
adjustment as long as other participants were involved in
the relevant conduct. Even if the defendant is charged only

                               8
with, for example, importation or receiving stolen goods, if
the evidence demonstrates that other participants were
involved, the district court can consider whether the
defendant played a minor role in the relevant conduct. See
Bierley, 922 F.2d at 1069-70. It is the nature of the
relevant conduct shown, and all the participants' roles in it,
that is determinative -- not the nature or name of the
offense charged as such. Relevant conduct includes acts
and omissions "that occurred during the commission of the
offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility
for that offense . . . ." U.S. Sentencing Guidelines Manual
S 1B1.3(a)(1). Accordingly, consideration of a downward
adjustment requires only other participants in the conduct
relevant to the offense of conviction, with differing levels of
culpability.

Second, the government argues that no minor role
adjustment is available where the defendant is charged only
with the amount of drugs or money with which he was
involved, or which he, in this instance, carried. The scope
of the relevant conduct that a court should consider in
assessing the applicability of the minor role adjustment,
however, is broader than merely the conduct required by
the elements of the offense of conviction. Even if a courier
is charged with importing only the quantity of drugs that he
actually carried, there may still be other participants
involved in the conduct relevant to that small amount or
that one transaction. See United States v. Rodriguez De
Varon, 136 F.3d 740, 745 (11th Cir. 1998).

The Seventh Circuit has expressed skepticism as to a
defendant's entitlement to a minor role adjustment in such
a situation. In United States v. Lampkins, the court stated
that where a defendant is sentenced only for the quantity of
drugs that he himself handled, "it makes no sense to claim
that [he] is a minor participant in [his] own conduct." 47
F.3d 175, 181. In that case, the district court could have
based the defendant's original offense level and sentence on
amounts in his co-conspirators transactions with which he
was not personally involved but which were reasonably
foreseeable to him. See id. at 180. Because the defendant
already received a lower sentence based only on his own

                               9
acts, the court found that a further minor role reduction
was not required. See id. at 181. Thereafter, in United
States v. Burnett, the court stated that "[w]hen a courier is
held accountable only for the amounts he carries, he plays
a significant rather than a minor role in that offense." 66
F.3d 137, 140 (7th Cir. 1995). The court recognized that
the defendant was a small cog in the overall scheme, but
read S 3B1.2 as requiring the district court to determine
whether the defendant played a minor role in relation to the
conduct for which he has been held accountable. See id.
The court evaluated the defendant's role, and affirmed the
district court's denial of a minor role adjustment. See id. at
141.

We disagree with Burnett. The district court must
examine all relevant conduct, not merely the defendant's, in
assessing his relative culpability. The Eleventh Circuit
shares this view. In Rodriguez De Varon, the Eleventh
Circuit expressly stated that "[w]e reject [the] rationale [of
Burnett and Lampkins]." See 136 F.3d at 745.2 Rather, the
court recognized that the argument that a defendant
cannot be a minor participant in his own conduct
"overlooks the fact that the `relevant conduct' a court must
consider in an importation scheme includes much more
than the lone acts of the actual courier." Id.

Accordingly, although the amount of drugs with which
the defendant is charged may be an important factor which
weighs heavily in the court's view of the defendant's relative
culpability, it does not necessarily preclude a minor role
adjustment with one exception. Application Note 4 to
S 3B1.2 indicates that a downward adjustment as a minor
participant is not available to a defendant who has already
received a lower offense level by virtue of being convicted of
a substantially less serious offense than warranted by his
actual conduct. See U.S. Sentencing Guidelines Manual
_________________________________________________________________

2. We note that it is not entirely clear that the holding of Burnett would
preclude a minor role adjustment every time a defendant is sentenced on
the basis only of the amount of drugs with which he was directly
involved. The court, although affirming the district court's denial of the
minor role adjustment, emphasized the discretion of the district court
and specifically stated that it would not have disturbed the decision even
if the district court had ruled the other way. See 66 F.3d at 141.

                               10
S 3B1.2, Application Note 4. If this provision applies, the
adjustment is not warranted. Courts have consistently
applied this provision to preclude a minor role adjustment
to defendants convicted of offenses less serious than
warranted by their actual conduct. For example, where a
larger conspiracy in which the defendant was involved is
not taken into account in the charged offense that sets the
defendant's base offense level, the defendant is not entitled
to a reduction for his minor role in that conspiracy. See
United States v. Gomez, 31 F.3d 28, 31 (2d Cir. 1994);
United States v. Lucht, 18 F.3d 541, 555-56 (8th Cir. 1993);
United States v. Olibrices, 979 F.2d 1557, 1560 (D.C. Cir.
1992). In this case, Isaza-Zapata was sentenced on the
basis only of the amount of drugs which he carried, but
there is no indication that he was convicted of an offense
less serious than warranted by his actual conduct, and
Application Note 4 should not preclude a minor role
adjustment.

There may be some crimes which by their nature will
normally involve only the defendant as the sole participant
in the offense of conviction. See United States v. Romualdi,
101 F.3d 971, 975 (3d Cir. 1996) (noting that possession is
a crime that on its face requires no concerted activity).
However, the court should resist generalizations as to
offenses by their assumed nature, and look rather to the
facts of each case. If the defendant proves that there were
other participants in the relevant conduct, which by
definition includes the acts and omissions of others and is
not limited to the elements of the offense charged, the
potential exists for a role adjustment. See U.S. Sentencing
Guidelines Manual S 1B1.3(a)(1)(B); see also Rodriguez De
Varon, 136 F.3d at 745 (rejecting the argument that a
defendant cannot be a minor participant in his own
conduct); United States v. Webster, 996 F.2d 209, 212 (9th
Cir. 1993) (considering the minor role adjustment for a
defendant convicted of possession with intent to distribute);
United States v. Caballero, 936 F.2d 1292, 1298-99 (D.C.
Cir. 1991), cert. denied, 502 U.S. 1061 (1992) (same). For
example, we recognized in Romualdi that the offense of
receipt of child pornography -- which on its face focuses
solely on the defendant recipient -- can involve concerted
relevant conduct between the sender and the defendant.

                               11
See 101 F.3d at 975. We likewise recognize that a
defendant may play a minor role in importing the amount
of drugs that he himself carried. As the Eleventh Circuit
has noted, other participants in the conduct relevant to the
importation may include the persons who provided the
drugs, who solicited the courier, who were to receive the
drugs in the United States, and who procured buyers or
distributors for the drugs. See Rodriguez De Varon, 136
F.3d at 745; see also United States v. Calderon-Porras, 911
F.2d 421, 423-24 (10th Cir. 1990) (noting that drug
smuggling operations have many participants and that drug
smuggling is a concerted activity). The district court should
compare the defendant courier's culpability to the
culpability of those other participants.

Accordingly, the mere fact that a courier was not charged
with conspiracy or was charged only with the amount of
drugs in his possession does not necessarily preclude
consideration of a minor role adjustment. By the same
token, a courier is not automatically entitled to a minor role
adjustment. See Headley, 923 F.2d at 1084 (citations
omitted); see also United States v. Rossy, 953 F.2d 321,
326 (7th Cir. 1992); United States v. Cacho, 951 F.2d 308,
310 (11th Cir. 1992); United States v. Buenrostro, 868 F.2d
135, 138 (5th Cir. 1989). A courier's role can vary widely,
and we reject any per se rule regarding the applicability of
the minor role adjustment. Rather, there is no limit to the
extent of a court's factual inquiry and assessment of the
defendant's relative culpability. While a district court does
exercise broad discretion in determining whether a
particular defendant played a minor role, the court must
engage in the appropriate analysis. We cannot determine
whether the district court did so in this case based on the
record before us.

IV.

For the foregoing reasons, we will vacate the sentence
and remand for resentencing consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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