
USCA1 Opinion

	




          June 14, 1995                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2142                                    UNITED STATES,                                      Appellee,                                          v.                                    ARGERMIRO AYA,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion  of this court issued  on June 8,  1995 is amended  as        follows:            On  page 5, second line  from the bottom, change  the word "minor"        to "minimal".        June 8, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                              ____________________        No. 94-2142                                    UNITED STATES,                                      Appellee,                                          v.                                    ARGERMIRO AYA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Lynch, Circuit Judges.                                            ______________                                 ____________________            Elfrick Mendez Morales on brief for appellant.            ______________________            Guillermo  Gil, United  States Attorney,  Jacabed  Rodriguez-Coss,            ______________                            _______________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Argermiro  Aya  pleaded  guilty  to                      ___________            possession with intent to distribute cocaine, in violation of            21 U.S.C.   841(a)(1).   The district court sentenced  him to            57 months imprisonment.   On appeal  from this sentence,  Aya            raises only one issue.  He contends that the sentencing court            erred in reducing his  offense level by only two  levels, for            his  role in the offense as a "minor" participant, instead of            by four levels,  in recognition  of his role  as a  "minimal"            participant.   See   United  States   Sentencing  Commission,                           ___            Guidelines  Manual,    3B1.2  (November,  1993)  ("Sentencing            __________________            Guidelines").  We affirm.                                    I. Background                                       __________                      The  following  facts  are derived  from  the  pre-            sentence report ("PSR") to which neither party objected.  Aya            arrived in Puerto Rico at the Luis Munoz  Marin International            airport  on May  14, 1994  on a  flight from Panama  City, en            route  to   Madrid,  Spain.    U.S.   Customs  officials  had            identified  Aya  and  two  other passengers  as  fitting  the            profile of a narcotics  trafficker.  Custom agents separately            stopped both  Aya and another passenger,  later identified as            Hector R. Zamora-Velez, at  the airport in Puerto Rico.   Pat            downs and  subsequent searches  revealed that Aya  and Zamora            were each  wearing vests with pockets  containing packages of            cocaine.  The cocaine found on  Aya had a net weight of 4,503            grams or 4.5 kilograms and an average purity strength of 81%.            The  cocaine found on Zamora had  a net weight of 4,339 grams            and an average purity strength of 77%.                      According to  the PSR, Zamora waived  his rights at            the  time  of his  arrest  and stated  that  he and  Aya were            travelling together.  He said that a few weeks earlier he had            been approached in Colombia by an (unnamed) person  who asked            him if he wanted  to earn $5,000.   That person provided  Aya            and Zamora with passports, airline tickets and a small amount            of cash.  The two allegedly obtained the cocaine and vests in            Panama, where they  boarded the plane  for Spain, via  Puerto            Rico.  Aya, in a later conversation with a probation officer,            also stated  that he was  going to  be paid  $5,000 upon  the            delivery  of the  drugs in  Spain.   He  claimed that  he had            agreed  to smuggle the drugs  because he needed  the money to            pay his father's medical bills.                      A  two-count indictment charged Aya with possession            with  intent to  distribute  approximately 5.1  kilograms  of            cocaine  (Count  One)  and  importing the  same  quantity  of            cocaine (Count  Two).   After initially pleading  not guilty,            Aya  changed his plea  to guilty on Count  One, pursuant to a            plea  agreement  entered  on  July 26,  1994,  in  which  the            government  agreed to move for  dismissal of Count  Two.  The            parties  also agreed  to  stipulate that  Aya was  personally            responsible for  the possession with intent  to distribute of            4.5 kilograms of cocaine.                                         -4-                      A  PSR  was prepared,  recommending a  base offense            level of 30 and a reduction of three levels for acceptance of            responsibility and two  levels for Aya's role  in the offense            as a  "courier". See  U.S.S.G.    3B1.2(b)  (providing for  a                             ___            decrease  of  two levels  where  the  defendant is  a  "minor            participant").   The total offense level of 25 and a criminal            history category of I yielded a guideline sentencing range of            57 to 71 months.  There were no objections to the PSR.                      At  the  sentencing  hearing,  the  district  court            denied defendant's request for a four-level reduction for his            role  as a "minimal" participant in the offense.  The reasons            given,  if any,  are  not included  as  part of  the  record.            (Apparently, a  transcript of the sentencing  hearing was not            prepared.)  The sentencing court adopted the factual findings            and guideline application in the PSR, however, which included            a finding  that Aya's  role was as  a courier.   Although the            statutory  mandatory minimum  sentence  was five  years,  the            district court agreed with  defendant and the government that            Aya  met the criteria under 18 U.S.C.   3553(f).1  Therefore,            the court imposed a prison sentence of 57 months.                                             ____________________            1.  Section 3553(f) provides that a Guideline  sentence below            the  statutory minimum may be imposed  for defendants with no            more than 1 criminal history point, if certain other criteria            are also met.                                         -5-                                   II. Discussion                                         __________                      Section 3B1.2 of the Sentencing Guidelines provides            for reductions in a defendant's  offense level based upon his            role in the offense: a decrease of 4 levels if  the defendant            was a "minimal participant" and a decrease of 2 levels if the            defendant  was  a "minor  participant."    Commentary to  the            Sentencing Guidelines provides that "[t]he determination of a            defendant's role in the offense is to be made on the basis of            all conduct  within the  scope of  1B1.3  (Relevant Conduct),            i.e., all  conduct included under   1B1.3(a)(1)-(4), and  not            ____            solely on the  basis of elements and acts cited  in the count            of conviction." U.S.S.G.   3B1 (introductory commentary).  In            the  commentary  to    3B1.2,  the  four-level reduction  for            minimal participation is explained as follows:                      It  is intended  to cover  defendants who                      are  plainly among the  least culpable of                      those   involved  in  the  conduct  of  a                      group.. . .                       It   is   intended   that  the   downward                      adjustment for a minimal participant will                      be  used  infrequently.    It   would  be                      appropriate, for example, . . . in a case                      where  an individual  was recruited  as a                      courier    for    a   single    smuggling                      transaction involving a  small amount  of                      drugs.            A two-level reduction  for "minimal"  participation is  meant            for  a participant  "who  is less  culpable  than most  other            participants,  but  whose  role  could not  be  described  as            minor." U.S.S.G.   3B1.2 (commentary).                                         -6-                      The defendant has the burden of proving entitlement            to  a downward adjustment pursuant to   3B1.2.  United States                                                            _____________            v. Munoz, 36 F.3d  1229, 1238 (1st Cir. 1994),  cert. denied,               _____                                        _____ ______            __ U.S. __, 115 S. Ct. 1164 (1995).  This  court has recently            emphasized  that  "[r]ole-in-the  offense determinations  are            innately  fact-specific.     The   court  of   appeals  must,            therefore, pay careful heed to the sentencing judge's views."            United  States v. Rostoff, No.  93-1376, slip op.  at 29 (1st            ______________    _______            Cir. April 24, 1995)  (citation omitted).  "Absent a  mistake            of  law, a district court's finding as to whether a defendant            was a minor or  minimal participant will be reversed  only if            clearly erroneous." United States v. Neal, 36 F.3d 1190, 1211                                _____________    ____            (1st Cir. 1994).                        Aya argues that his role in the offense was that of            a  mere  courier,  a  role  that  he  argues  is  necessarily                                                              ___________            "minimal."    This court  has  twice  directly rejected  that            argument.  In United States v. Lopez-Gil, 965 F.2d 1124, 1131                          _____________    _________            (1st Cir.  1992), we  held that "a  defendant who  is a  drug            courier is not  entitled as  of right to  a reduction of  the            offense  level as a minimal or minor participant."  Lopez-Gil            was  arrested at  the same  airport in  Puerto Rico,  also en                                                                       __            route   to  Spain,  carrying  suitcases  containing  cocaine.            _____            Although the district court determined that Lopez-Gil "'acted            as a  courier and apparently  had no proprietary  interest in            the cocaine  as such,'" it refused  to grant him even  a two-                                         -7-            level reduction  for minor involvement. Id.  at 1126 (quoting                                                    ___            sentencing court).    Nonetheless, this  court  affirmed  the            sentence. Id. at 1131.                      ___                      Lopez-Gil cited to this Court's holding to the same                      _________            effect in United  States v. Paz Uribe, 891 F.2d 396, 399 (1st                      ______________    _________            Cir. 1989) ("[E]ven if the court had  found that Paz was only            a courier,  he  would  not automatically  be  entitled  to  a            reduction."), cert. denied, 495 U.S. 951 (1990).  Under these                          _____ ______            circumstances,  the district  court  did not  clearly err  in            sentencing  Aya   as  a  "minor"  rather   than  a  "minimal"            participant.                       Appellant's  sentence is  therefore affirmed.   See                                                          ________    ___            Loc. R. 27.1.                                         -8-
