
USCA1 Opinion

	




        August 11, 1992         [NOT FOR PUBLICATION]                                 ____________________        No. 91-2299                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JUAN GUILLERMO BRAND,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Luis Rafael Rivera on brief for appellant.            __________________            Daniel  F. Lopez  Romo,  United States  Attorney,  and  Antonio R.            ______________________                                  __________        Bazan, Assistant United States Attorney, on brief for appellee.        _____                                 ____________________                                 ____________________                      Per Curiam.  Appellant pled guilty  to one count of                      __________          possession of cocaine with intent to distribute in violation of          21  U.S.C.    841(a)(1) and  18 U.S.C.    2,  and one  count of          possession  of cocaine  on board  a vessel  in violation  of 21          U.S.C.   955 and 18  U.S.C.   2.  The district  court sentenced          him to  fifty-one  months  in  prison.   He  now  appeals  that          sentence, arguing that  the court erred by  not granting him  a          two-level reduction as a minor participant and by not departing          downward for his substantial assistance to the government under          the  United  States  Sentencing  Guidelines  (USSG).    Because          appellant's assignments of error are without merit, we affirm.                      1.   Under  USSG    3B1.2(b) a  defendant's offense          level is decreased by  two levels if the defendant was a "minor          participant"  in  the  charged  criminal  activity.    A  minor          participant is "any participant who is less culpable  than most          other participants, but  whose role could  not be described  as          minimal."   USSG   3B1.2(b) (Application  Note 3).  In order to          merit this reduction, a defendant must have been "substantially          less culpable  than the average participant"  in committing the          offense.  Id. (Background).                    ___                      Our prior  cases make  clear  that, in  determining          whether  a  defendant  was  a  minor  participant  in  criminal          activity, we analyze  both the relative conduct  of the persons          involved in the criminal activity, as the Sentencing Guidelines          suggest, and  the defendant's own conduct  measured against the          elements of the offense with  which the defendant was  charged.                                        -2-          United  States v. Gregorio, 956 F.2d  341, 344 (1st Cir. 1992);          ______________    ________          see also United  States v.  Cepeda, 907 F.2d  11, 12 (1st  Cir.          _______________________     ______          1990).   The defendant  bears the burden of  proof in seeking a          sentencing adjustment as a minor participant.  United States v.                                                         _____________          Rosado-Sierra, 938 F.2d 1, 1 (1st  Cir. 1991).  To prevail upon          _____________          appeal,  the  defendant must  show  that  the district  court's          determination that defendant  was not a  minor participant  was          "clearly erroneous."  Id. at 1-2.   Under this standard we will                                ___          reverse  a  lower  court  decision  if,  after  reviewing   the          evidence,  we  have "the  definite and  firm conviction  that a          mistake  has  been   committed."    United   States  v.   Vega-                                              _______________       _____          Encarnacion,  914 F.2d  20, 24  (1st Cir.  1990) (quoting  from          ___________          Anderson  v. Bessemer  City, 470 U.S.  564, 573  (1984)), cert.          ________     ______________                               _____          denied sub nom.  Cruz-Rosario v. United States, 111 S. Ct. 1626          _____________________________    _____________          (1991).                      Appellant incorrectly alleges  that the court  made          no findings to  support its decision that the appellant was not          a minor participant  in the drug trafficking scheme to which he          pled  guilty.    The  district  court stated  its  reasons  for          concluding  that appellant was  not a minor  participant at the          sentencing  hearing,  as the  hearing  transcript makes  clear.          Moreover, the court  also adopted the  factual recitals of  the          presentence  report, as  the official  judgment entered  in the          case clearly indicates.   Thus, the findings on which the court          relied were as  follows.  By his  own admissions appellant  had          entered  into a drug  trafficking scheme with  an individual in                                        -3-          Venezuela whom  he had  met while on  a trip  to that  country.          Pursuant  to that scheme appellant would receive in Puerto Rico          cocaine-carrying  crew members  from  luxury liners  travelling          from  Venezuela to  Puerto  Rico.   He would  then  forward the          cocaine to the continental United  States.  The specific events          that led  to his arrest  and indictment for  possessing cocaine          with intent to  distribute confirm that scheme.   On March  11,          1991,  customs officials  detained and  searched a  crew member          from  a  ship  that  had  just  arrived  in  Puerto  Rico  from          Venezuela.  They  found cocaine in one  of the seaman's  shoes.          After  his arrest, he  agreed to cooperate  with the government          and participated  in a  controlled delivery  of the  cocaine to          appellant and  another co-defendant.    Appellant and  his  co-          defendant,  who was  to provide appellant  with transportation,          were arrested  after  receiving  the  cocaine.    A  stipulated          version  of  facts prepared  by  the government  and  signed by          appellant further  indicates that the appellant  was to deliver          $2,000 to  the crew member  for the  cocaine.  The  presentence          report concludes that appellant was the  "most culpable" of the          three persons who were arrested because he was "responsible for          obtaining  the  cocaine  and  delivering  same  to  the  United          States."   In contrast, the  crew member  was a "courier",  and          appellant's other co-defendant was  only a "minimal participant          and   the  least  culpable  as  his   role  only  consisted  of          transporting the defendant . . . ."                                           -4-                      These  facts  amply support  the  court's decision.          Moreover,  in light  of appellant's  guilty  plea, there  is no          question  that defendant  committed each  element necessary  to          convict him of the charges for which he was arrested.  Finally,          the court's decision is consistent with other decisions we have          affirmed which arise  out of similar facts.  See, e.g., Rosado-                                                       __________________          Sierra, 938 F.2d at 2, and cases cited therein.  Therefore, the          ______          district  court's  decision that  appellant  did  not merit  an          offense level  reduction as a minor participant was not clearly          erroneous.                      2.  Under  USSG   5K1.1 the  court may depart  from          the sentencing  guidelines  "[u]pon motion  of  the  government          stating that the defendant has provided substantial  assistance          in the investigation  or prosecution of another  person who has          committed  an offense."  The district  court declined to depart          downward because  the government  had  not brought  the  motion          required  by Section 5K1.1.   Upon  appeal appellant  asks this          court to  revisit its decisions holding that a district court's          refusal to depart  downward is not  appealable if the  sentence          imposed  was  within  the  sentencing  guidelines  and  that  a          district court  may not  depart  downward absent  a  government          motion seeking  such departure.1    In support  of his  request          appellant alleges that the prosecutor  did not file the Section                                            ____________________            1.  Appellant  states  in his  brief  on appeal  that  he had            argued  before  the district  court  that  Section 5K1.1  was            unconstitutional because it violated the separation of powers            doctrine.  Appellant does not pursue this argument on appeal.                                        -5-          5K1.1 motion  "simply because of [appellant's] colombian origin          (he was born in Colombian [sic] but raised in Venezuela)."                        We see no reason to  revisit our prior holdings, as          appellant  suggests.    Moreover,  the   question  whether  the          district court  may depart downward absent  a government motion          has been  resolved by the  Supreme Court.   In  Wade v.  United                                                          ____     ______          States,  112 S. Ct. 1840, 1842-43  (1992), the Court affirmed a          ______          decision that a district court may not  depart downward without          a  government  motion, holding  that  Section  5K1.1 gives  the          government "a power, not a duty" to file that motion.  Although          a prosecutor's discretion in bringing a Section 5K1.1 motion is          subject to constitutional limitations, id. at 1843, appellant's                                                 ___          allegation  of  prosecutorial  misconduct  is  misplaced  here.          Appellant's  suggestion that  the prosecutor's decision  not to          bring a Section  5K1.1 motion was based  on animus against  him          because  of his  Colombian origin  is conclusory  and  finds no          support  in  the  record.    See  id.   at  1844  ("generalized                                       ________          allegations of improper motive" do not show prosecutorial abuse          of discretion); United States v. Amparo, 961 F.2d 288, 293 (1st                          _____________    ______          Cir. 1992) (appellant's argument that the government chose  not          to seek  downward departure in  her case because  she exercised          her  constitutional right  to  a  jury  trial was  "[a]  wholly          conclusory allegation, unsupported either by proven facts or by          reasonable  inferences  from  proven  facts,  [and  so]  cannot          suffice to  overcome  the  force  of  the  'government  motion'          requirement").   In  addition, appellant  failed to  raise this                                        -6-          argument before the district court.   His failure precludes him          from  raising the argument  now.  United  States v. Uricoechea-                                            ______________    ___________          Casallas, 946 F.2d 162, 166  (1st Cir. 1991) (the long-standing          ________          rule that this  court will not address issues presented for the          first time  on appeal  applies  to arguments  about  sentencing          guidelines).                      Because  the district  court  properly  found  that          appellant was not a minor participant in  the criminal activity          to which he pled  guilty, and because appellant's assertion  of          prosecutorial misconduct is unsupported by the evidence and was          not made at  the hearing below, we affirm summarily pursuant to                                             ______          1st Cir. Loc. R. 27.1.                                        -7-
