                                 United States Court of Appeals,

                                          Fifth Circuit.

                                          No. 91–4848.

                                        Summary Calendar.

                            Arnoldo MOLANO–GARZA, Petitioner,

                                                v.

                          U.S. PAROLE COMMISSION, Respondent.

                                          July 9, 1992.

Appeal from the United States Parole Commission.

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

       E. Grady Jolly, Circuit Judge:

       Arnoldo Molano–Garza was arrested, convicted, and sentenced to nine years imprisonment

in Mexico for participating in a drug smuggling operation. He was transferred to the United States

and the Parole Commission determined that Molano–Garza would serve 91 months in prison and 8

months of supervised release.



       Molano–Garza appeals the Commission's determination. Molano–Garza contends that the

Commission failed to consider his argument that he was a minor participant, warranting a decrease

in the offense level under the sentencing guidelines. Molano–Garza further argues that the

Commission improperly departed downward from a three-year mandatory minimum period of

supervised release in order to accommodate a longer term of imprisonment.



       We hold that the Commission did not clearly err in finding that Molano–Garza was not a

minor participant. We further hold that the Commission did not improperly depart downward from

the statutory mandatory minimum period of supervised release.          We therefore affirm the

Commission's determination.
                                                   I

          Arnoldo Molano–Garza, an American citizen, was arrested and convicted in Mexico for

possession, transportation, and exportation of marijuana.         He was sentenced to nine years

imprisonment. Pursuant to a treaty between the United States and Mexico, he consented to transfer

to serve his term of imprisonment in this country.1



          The treaty obliges each nation to adopt legislative measures and establish procedures which

will give legal effect to the foreign sentence.2 Only the sentencing court has jurisdiction to modify

or set aside the sentence.3 The receiving court, however, is authorized to determine when the

offender can be paroled or released and to impose periods of supervised or conditional release.4

When a prisoner is transferred, Section 4106A(b)(1)(A) directs the Parole Commission to determine

a release date and a period and conditions of supervised release as though the offender were

convicted of a similar offense in a United States district court.        The combined periods of

imprisonment and supervised release that result from the Commission's determination may not exceed

the sentence imposed by the foreign court.5



          The probation officer who prepared Molano–Garza's postsentence report, in order to

reco mmend a release date, determined that the guideline range for a defendant convicted of

possession of marijuana with intent to distribute with Molano–Garza's offense level and criminal

history is 97 to 121 mo nths. Molano–Garza objected to the characterization of his offense in the

postsentence report and requested a downward departure from the recommended guideline range


   1
    Treaty on Executions of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399,
T.I.A.S. No. 8718.
   2
       Executions of Penal Sentences, supra note 1, art. IV(9), 28 U.S.T. at 7405.
   3
       Id., art. VI, 28 U.S.T. at 7406.
   4
       Id., art. V(2), 28 U.S.T. at 7405.
   5
       18 U.S.C. 4106A(b)(1)(C).
because of the torture he allegedly received in Mexico and because of his motive for being in Mexico

when he was arrested—he contends that he was there in order to provide information to the DEA and

the U.S. Border Patrol. Molano–Garza also raised these objections at the hearing before the Parole

Commission. At the close of the hearing, the examiners recommended that Molano–Garza be

released after serving a 91–month term of imprisonment. Following his release, the examiners

recommended that Molano–Garza serve an 8–month term of supervised release.6 After this

recommendation was made, Molano–Garza submitted additional objections to the recommendation.

He argued that the offense level should be based on 220 pounds of marijuana, instead of 720

kilograms, and that he be considered a minor participant. In an addendum to the hearing summary,

the panel found that the offense level was correctly based on 720 kilograms of marijuana and that

Molano–Garza did not have a minimal role warranting a downward departure. The Parole

Commissioner ordered that Molano–Garza serve a 91–month term of imprisonment followed by an

8–month term of supervised release.



       Molano–Garza appeals the Parole Commissioner's release determination.



                                                 II

       On January 12, 1989, Molano–Garza was arrested by the Federal Judicial Police in Reynosa,

Mexico, where he and Trevino Cazarez were at a hotel waiting for dark so they could proceed to

Eliseo Lopez's ranch, load marijuana into their car, and transport it to the Mexican border where

others would be waiting to smuggle the marijuana into the United States. Molano–Garza and Trevino

admitted that they had transported 110 pounds of marijuana two days earlier. Molano–Garza then

directed the Mexican officials to Lopez's ranch and showed them secret compartments and a false

ceiling where they discovered 720 kilograms of marijuana.




   6
   The examiners apparently recommended a six-month downward departure because
Molano–Garza had been tortured.
                                                  III

       On appeal, Molano–Garza argues that the Parole Commission erred in refusing to consider

his request for a downward departure because of his minor role in the drug transactions. He argues

that he was basically just a courier hired by the leader, Arnoldo Barrientos, and that he had only been

a part of the smuggling organization for a week. Molano–Garza further argues that the Parole

Commission improperly departed below the mandatory minimum term of supervised release.



                                                  IV

        Molano–Garza was transferred to the United States pursuant to a treaty with Mexico. 18

U.S.C. Section 4106A(b)(1)(A) provides:



       The United States Parole Commissioner shall, without unnecessary delay, determine a release
       date and a period and conditions of supervised release for an offender transferred to the
       United States to serve a sentence of imprisonment, as though the offender were convicted in
       a United States district court of a similar offense.

This court reviews the Commission's release determination as though it had "been a sentence imposed

by the United States district court." Hansen v. U.S. Parole Comm'n, 904 F.2d 306, 309 (5th

Cir.1990), cert. denied, ––– U.S. ––––, 111 S.Ct. 765, 112 L.Ed.2d 784 (1991). Thus, we review

the Parole Board's construction of § 4106A and the Sentencing Guidelines de novo. Id. When

reviewing the Commission's factual findings, this court applies the clearly erroneous standard. U.S.

v. Lara–Velasquez, 919 F.2d 946, 953 (5th Cir.1990).



                                                  V

        Molano–Garza argues that the Commission erred in not awarding him a two level downward

departure because of his minor role in the offense. Section 3B1.2 of the Sentencing Guidelines allows

a four level decrease in the defendant's offense level if the defendant was a minimal participant, and

a two level decrease in the offense level if the defendant was a minor participant. The application

notes define a minimal participant as one "who plays a minimal role in concerted activity," and one

"who is plainly among the least culpable of those involved in the conduct of a group." A defendant's
lack of knowledge of the scope or structure of the enterprise are indicative of his role as a minimal

participant. The application notes define a minor participant as a "participant who is less culpable

than most other participants, but whose role could not be described as minimal."



        Molano–Garza argues that because he had only worked for the operation for one week and

had o nly made one drug run prior to his arrest, he should be considered a minor participant and

receive a two level decrease in his offense level. The Commission disagreed that Molano–Garza



       had a minimal role, and [that] therefore a departure is warranted. [Molano–Garza] had
       knowledge of the smuggling operation, and was aware of his role in the operation to transport
       the marijuana into the U.S. Furthermore, the sentence in Mexican court made a finding that
       [Molano–Garza] is a "serious offender, placing him in the middle category."

       Molano–Garza argues that the Commission addressed whether he was entitled to a minimal

participant reduction, not a minor participant reduction. Thus, he argues that this case should be

remanded so the Commission can determine if he was a minor participant.



       The Commission did, however, make an implicit factual finding that Molano–Garza did not

have a minor role. It adopted a finding by the Mexican court that Molano–Garza was a serious

offender, placing him in the middle category. Clearly, the Commission found that Molano–Garza was

not less culpable than most other participants, and was not, therefore, entitled to a minor participant

reduction.



        A defendant is not a minor participant unless he is substantially less culpable than most other

participants. U.S. v. Rossy, 953 F.2d 321, 326 (7th Cir.1992), cert. denied, ––– U.S. ––––, 112 S.Ct.

1240, 117 L.Ed.2d 473. The Commission found t hat Molano–Garza was aware of the scope and

structure of the operation. Molano–Garza knew where the marijuana was located, he had previously

delivered 110 pounds of marijuana to the border and he had been classified by the Mexican court as

a serious offender. Also, Molano–Garza was convicted of more serious charges than other

participants and received a longer sentence than other participants. The fact that some participants
may be more culpable than Molano–Garza does not entitle Molano–Garza to classification as a minor

participant.   Therefore, we cannot say that the Commission's implicit factual finding that

Molano–Garza was not a minor participant is clearly erroneous.



        Molano–Garza also argues that the Commission did not state specifically the factual basis for

its finding that Molano–Garza was not a minor participant. In United States v. Melton, 930 F.2d

1096, 1099 (5th Cir.1991), this court held that it was error for the district court to deny the defendant

a minor participant reduction without stating the factual basis for its conclusion. This court stated

that the "determination of participant status is a complex fact question, which requires the court to

consider the broad context of the defendant's crime." Id. In Melton, the district court simply

concluded that the defendant was an average participant. Defendant's counsel requested the court

to articulate the factual basis for its finding, but the district court refused. In the instant case, the

Commission summarized the transactions involving Molano–Garza and then concluded that he was

aware of the scope of the operation and his role in it. The Commission further relied on the Mexican

court's classification of Molano–Garza as a serious offender. We hold that the Commission

sufficiently articulated the factual basis upon which it concluded that Molano–Garza was not a minor

participant.



                                                   VI

        Molano–Garza also argues that the Commissioner improperly departed from the statutory

minimum three-year term of supervised release. Molano–Garza contends that the criminal statute

obligated the Commission to impose a minimum three-year period of supervised release, making a

six-year period of imprisonment the maximum he could receive since the combined periods cannot

exceed nine years. Section 4106A(b)(1) directs the Parole Commissioner to determine a release date

and a period of supervised release as though the offender were convicted in a United States district

court of a similar offense. The statute does not permit the Commission to resentence the offender.

In the postsentence report, the officer concluded that the most analogous offense to the Mexican
offense for which Molano–Garza was convicted is possession of marijuana with intent to distribute,

in violation of 21 U.S.C. § 841(b)(1)(C).7 The guideline range for a sentence for an offender with

Molano's criminal history and offense level is 97 to 121 months. The Commission determined that

Molano–Garza should be released after serving a 91–month term of imprisonment and an 8–month

period of supervised relief.8



       Section 5G1.1(c)(2) of the sentencing guidelines provides that the "sentence may be imposed

within the applicable guideline range, provided that the sentence is not less than any statutorily

required minimum sentence." Section 841(b)(1)(C) provides that a defendant convicted of that

offense must be sentenced to a minimum of three years supervised release. Section 4106A(b)(1)(C)

provides that the combined periods of imprisonment and supervised release that result from the

Commission's determination shall not exceed the term of imprisonment imposed by the foreign court.



       Molano–Garza argues that the Commission wrongly departed downward from the statutory

minimum period of supervised release. He argues that he should serve a term of supervised release

of at least three years and a term of imprisonment no more than six years since the combined terms

cannot exceed nine years.



        Molano–Garza's argument misconstrues the Commission's function. The Commission is

authorized to determine a release date, not to sentence the transferred prisoner. Thorpe v. U.S.

Parole Comm'n, 902 F.2d 291, 292 (5th Cir.1990). Since the Commission is only determining a

release date and not sentencing the offender, we hold that the Commission does not have to impose

   7
    The Commission now argues that the most analogous offense is 21 U.S.C. § 841(b)(1)(B) for
which there is a mandatory minimum ten year term of imprisonment. Because the Commission
raises this issue for the first time on appeal and because the Commission made the finding below
that § 841(b)(1)(C) was the most analogous offense, we will not address whether § 841(b)(1)(B)
is more analogous than § 841(b)(1)(C); we will simply assume that § 841(b)(1)(C) is the most
analogous.
   8
   The Commission departed downward by six months from the minimum because of the torture
Molano–Garza allegedly incurred.
the three-year statutory minimum period of supervised release found in 21 U.S.C. Section

841(b)(1)(C). Molano–Garza's 91–month term of imprisonment and 8–month term of supervised

release do not exceed the sentence imposed by the foreign court. Therefore, we affirm the Parole

Commission's determination.



                                                 VII

       The Commission was not clearly erroneous in concluding that Molano–Garza was not a minor

participant. The Commission did not err in failing to impose the three-year mandatory minimum term

of supervised release found in the criminal statute. Therefore, the Commission's release determination

is



       AFFIRMED.
