                   United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-2058
                                ________________

Ramon P. Ponce,                          *
                                         *
      Appellant,                         *
                                         *     Appeal from the United States
      v.                                 *     District Court for the Western
                                         *     District of Missouri
United States of America,                *
                                         *
      Appellee.                          *

                                ________________

                            Submitted: November 5, 2002
                              Filed: November 29, 2002
                                 ________________

Before McMILLIAN and SMITH, Circuit Judges, and LONGSTAFF1, District Judge.

                                ________________

LONGSTAFF, District Judge.


      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District
Court for the Southern District of Iowa, sitting by designation.
       From 1996 through the beginning of 2001, a large-scale drug organization
operating out of Amarillo, Texas, smuggled enormous amounts of cocaine,
methamphetamine and marijuana to the Kansas City area, and unknown quantities of
drugs to Arizona, California and Oklahoma. The organization was headed by
Roberto Castillo and his wife, Irma Carassco. Defendant, Ramon Ponce, was a
courier for the Castillo Organization from August of 1999 until January of 2001.
During that time, he delivered at least 27 kilograms of methamphetamine to various
locations and returned to Amarillo with the cash proceeds from the sale of those
drugs.

       Ponce pled guilty to conspiracy to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. At the
April 4, 2002 sentencing hearing, Ponce sought a “minor participant” reduction
pursuant to § 3B1.2(b) of the Federal Sentencing Guidelines. The government
objected, arguing that the uncontested information in the presentence investigation
report (PSR) did not support Ponce’s request for the two-level reduction. The
government called Detective Jeff Seever of the Jackson County Drug Task Force to
testify regarding Ponce’s role in the conspiracy. After considering the PSR and
hearing the testimony of Detective Seever, the district court found that Ponce was not
a minor participant and sentenced him to 235 months of imprisonment.2

       Several individuals, in addition to Ponce, were charged with drug crimes in
connection with the Castillo Organization. Two of the Organization’s chief
distributors were co-defendants James Fagan and Debra Haynes. Fagan received and
distributed at least 950 kilograms of cocaine; Haynes received and distributed at least


      2
       Ponce’s total offense level was determined to be a level 36, and his Criminal
History Category was Category III. The resulting sentencing guideline range was
235-293 months.
                                          2
463 kilograms of methamphetamine and 24 kilograms of cocaine. Both pled guilty
to conspiracy to distribute methamphetamine and received 180-month sentences. A
related defendant, Cheryl West, helped unload 44 kilograms of methamphetamine,
at least 86 kilograms of marijuana and 4 kilograms of cocaine. West also pled guilty
to conspiracy to distribute methamphetamine and was sentenced to 100 months of
imprisonment. Co-defendant Antonio Lara-Beltran pled guilty to conspiring to
distribute a mixture or substance containing cocaine, in an amount of five kilograms
or more. He was sentenced to 99 months of imprisonment.

       On appeal, Ponce contends that the district court erred in denying his request
for a minor role reduction under § 3B1.2(b) of the Federal Sentencing Guidelines.
He argues that he is less culpable than the other criminals that participated in the
Castillo Organization; that the district court failed to assess his relative culpability
before denying his request for a minor role reduction under § 3B1.2(b); and that as
a result, his sentence is disproportionately higher than that imposed upon more
culpable participants. We review the district court’s3 denial of the § 3B1.2(b)
reduction for clear error. United States v. Lopez-Arce, 267 F.3d 775, 784 (8th Cir.
2001).

DISCUSSION
       Section 3B1.2(b) of the Federal Sentencing Guidelines authorizes a sentencing
court to decrease a defendant’s offense level by two levels if the court finds that the
defendant was a “minor participant” in the criminal activity. U.S.S.G. § 3B1.2(b).
“Minor participant” is defined as one “who is less culpable than most other
participants, but whose role could not be described as minimal.” Id., Comment, Note
5. The defendant bears the burden of proving that he is entitled to a downward
departure under § 3B1.2(b). Lopez-Arce, 267 F.3d at 784.


      3
       The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
                                           3
      Ponce argues that he should be assigned “minor participant” status, because he
received a disproportionately higher sentence than more culpable individuals
involved in the offense. However, in discussing § 3B1.2(b) of the Federal Sentencing
Guidelines, this Court has stated:

      The mere fact that a defendant is less culpable than his co-defendants
      does not entitle defendant to ‘minor participant’ status. Whether a
      downward adjustment is warranted is determined not only by comparing
      the acts of each participant in relation to the relevant conduct for which
      the participant is held accountable, but also by measuring each
      participant’s individual acts and relative culpability against the elements
      of the offense.
United States v. Snoddy, 139 F.3d 1224, 1228 (8th Cir. 1998) (internal citations
omitted).

       In the instant case, the evidence demonstrated that Ponce supplied 4.5
kilograms of methamphetamine, along with various quantities of cocaine and heroin,
on at least six separate occasions (supplying a total of 27 kilograms) to known drug
distributors in the Kansas City metropolitan area. The amount may have been greater,
as testimony from a woman within the conspiracy indicated she witnessed Ponce
transport approximately 44 kilograms of methamphetamine. The record also
established that Ponce instructed other members of the distribution scheme to accept
drugs from a particular source in Texas and return to Kansas City. Thus, Ponce
served as a conduit for the narcotics–a necessary link in the drug distribution
chain–and furthered the offense by directing others within the conspiracy. See United
States v. Wright, 873 F.2d 437, 443-44 (1st Cir. 1989) (affirming district court’s
finding that a person who transports drugs is not a minor participant since they are a
necessary link to the introduction of drugs into society). As such, Ponce’s individual
acts significantly contributed to the elements of the offense.




                                          4
        In arguing that he is less culpable than others involved in the offense, appellant
stresses that he was a mere courier. However, even if established, Ponce’s status as
a “mere courier” does not require the district court to declare him a minor participant.
As this Court noted in United States v. Thompson, 60 F.3d 514, 517 (8th Cir. 1995),
if a defendant could rely on his status as a courier to achieve minor participant status,
“every participant in every drug distribution scheme would be presumably entitled to
a minor participant reduction so long as he or she were able to prove the existence of
an upstream drug supplier.” See also United States v. McGrady, 97 F.3d 1042, 1043
(8th Cir. 1996) (holding that although defendant contended he was merely a courier
who played a small role in the drug deals charged, he was not a minor participant
since his role was “significant in carrying out the drug transactions”); United States
v Currazco, 91 F.3d 65, 67 (8th Cir. 1996) (stating that a “defendant’s status as courier
does not necessarily mean he is less culpable than other participants in a drug
operation”).

       Again, assuming Ponce proved that others were relatively more culpable, the
Court notes that a “defendant who is concededly less culpable than his co-defendants
is not entitled to the minor participant reduction if that defendant was ‘deeply
involved’ in the criminal acts.” Id., 60 F.3d at 518 (quoting United States v. West,
942 F.2d 528, 531 (8th Cir. 1991)). The Thompson court, in finding the defendant
“deeply involved,” relied on evidence that the defendant was seized with $16,000
related to drug transactions, and that the defendant admitted to mailing a package
containing 476 grams of cocaine. Id. Similarly, in the instant case police seized
$62,457 in drug currency from Ponce, and he admitted he supplied at least 27
kilograms of methamphetamine to Kansas City. Thus, the district court had ample
support to conclude that Ponce was not a minor participant, but, rather, “a highly
culpable offender who was deeply involved in the drug distribution scheme.”
Thompson, 60 F.3d at 518.



                                            5
        Finally, although not critical to the disposition of this appeal, we feel
compelled to note that there is a logical explanation for the shorter sentences imposed
upon the other criminals involved in the drug conspiracy. Fagan, West, and Haynes
originally faced sentences of 360 months to life, 262 to 327 months, and 324 to 405
months, respectively. Unlike Ponce, these defendants cooperated with the
government. As a result, the government filed downward departure motions on
behalf of these defendants, and they received lower sentences.4 Because the
differences between Ponce’s sentence and the sentences of these defendants arose
from the plea bargaining process, they are not a proper basis for a reduction. See
United States v. Buckendahl, 251 F.3d 753, 758-59 (8th Cir. 2001).5

       In summary, the district court received lengthy testimony as to the involvement
of various participants in the offense and concluded that Ponce was as involved as
any of the other conspirators. As mentioned above, the evidence relied upon by the
court indicated that Ponce was a necessary component of a large-scale drug
distribution conspiracy. The district court’s denial of Ponce’s request for a §
3B1.2(b) reduction was not clearly erroneous.

      The decision of the district court is AFFIRMED.




      4
       After considering their substantial assistance, the district court sentenced
Fagan and Haynes to 180 months and West to 100 months of imprisonment.
      5
         Ponce also complains about the disparity between his sentence and that
received by co-defendant Lara-Beltran. Lara-Beltran’s Criminal History Category
was Category I, and he qualified for the safety valve under § 5C1.2(a) of the
guidelines, which entitled him to an additional two-level reduction. Ponce’s Criminal
History Category was Category III. Lara-Beltran’s base offense level was level 34,
while Ponce’s was level 36. The sentencing disparity between Ponce and Lara-
Beltran largely resulted from the difference in their criminal history and is not a basis
for a § 3B1.2(b) reduction.
                                           6
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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