
USCA1 Opinion

	




          October 16, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                              ____________________        No. 95-1208                                     UNITED STATES,                                      Appellee,                                          v.                                NANCY VALDES-BRETONES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                                Lynch, Circuit Judge,                                       _____________                             and Watson,* Senior Judge.                                           ____________                                 ____________________            Benicio  Sanchez  Rivera,  Federal   Public  Defender,  and  Laura            ________________________                                     _____        Maldonado Rodriguez,  Assistant Federal Public Defender,  on brief for        ___________________        appellant.            Guillermo  Gil,   United  States   Attorney,  Nelson   Perez-Sosa,            ______________                                ___________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                                ________________        *Senior Judge, U.S. Court of International Trade, sitting by          designation.                      Per  Curiam.    Appellant   Nancy  Valdes-Bretones,                      ___________            having  pled guilty to  possession of cocaine  with intent to            distribute, 21  U.S.C.   841(a)(1),1  challenges the district            court's denial of a downward adjustment in her offense  level            due to her alleged "minor  participant" status.  See U.S.S.G.                                                             ___              3B1.2.  We affirm.                                          I.                      We recount  only those  facts necessary to  a basic            understanding  of the  issue  on appeal.2   Additional  facts            will be incorporated as necessary.                        After a trip to Aruba, appellant returned to Puerto            Rico  on  the morning  of July  5,  1994, aboard  an American            Airlines  flight.    She  wore  an  American  Eagle  uniform.            American  Airlines security  personnel observed  her approach            from the  aircrew elevator area.  She  told them that she was            leaving later that  day to go  to New York  and asked if  she            could  leave a suitcase with them until then, when either she            or  her cousin  would  pick it  up  prior to  boarding  their            connecting flight.                                              ____________________            1.  Appellant  was charged  with  violating 21  U.S.C.    841            (a)(1)  and 21  U.S.C.     952(a).    Pursuant  to  the  plea            agreement, the latter charge was dropped.              2.  Since  this conviction  resulted from  a guilty  plea, we            draw  the   facts  from  the  uncontested   portions  of  the            presentence report ("PSR") and the transcript of the hearing.            U.S. v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).              _____________                                         -2-                      The  security  personnel   X-rayed  the   suitcase,            observed what they believed to be narcotics, and notified the            U.S.  Customs service.  A  K-9 dog indicated  the presence of            narcotics.   Search of  the  bag revealed  9.85 kilograms  of            cocaine,3 later determined  to be 93% pure,  and $8,390.00 in            U.S. currency.                       Later that afternoon, appellant boarded an airplane            for Newark.  She  was detained on board  by a Customs  agent.            She was questioned and  ultimately arrested.  At the  time of            her arrest she  was not wearing  the American Eagle  uniform.            She was  carrying  a cellular  phone  and $2,896.00  in  U.S.            currency.   A subsequent  search of  her apartment  turned up            $5,000.00 in U.S. currency, and an American Eagle uniform.4                       Based on  the quantity and type  of drugs involved,            appellant was  given a base offense level  of 30.  U.S.S.G.              2D1.1.    This was  reduced by  three  levels because  of her            guilty  plea and  her  timely acceptance  of  responsibility.            U.S.S.G.    3E1.1.  With a  total offense level of  27, and a            criminal history category of I, the  guidelines called for 70            to 87 months of imprisonment, with a fine range of $12,500.00                                            ____________________            3.  For  purposes of  sentencing, the  amount of  cocaine was            stipulated at 4.92 kilograms.            4.  Investigation revealed that while appellant had once been            an American Airlines  employee, she  had not  worked for  the            airline since May, 1993.  Prior to that time, she  had worked            with the Wackenhut Security  Company at the American Airlines            terminal and with the U.S. Immigration Service in New York.                                           -3-            to $2,000,000.00 plus supervised  release.  The court imposed            a  70   month  sentence   and  a  $50.00   "special  monetary            assessment."                  II.                      The Sentencing Guidelines provide for a decrease of            two  levels  when  a  defendant is  a  minor  participant  in            criminal activity.   Application Note  3 to U.S.S.G.    3B1.2            explains that "a minor  participant means any participant who            is less culpable than most other participants, but whose role            could not be described as minimal."                         Role-in-the-offense  determinations  are  "innately            fact specific."  U.S. v. Rostoff,  53 F.3d 398, 413 (1st Cir.                             _______________            1995).  "[O]ur standard of oversight is deferential:  `absent            mistake of law, we review such determinations only for  clear            error.'"  Id. (internal quotation  omitted).  We will reverse                      ___            the  district  court's  decision  not  to  grant  a  downward            adjustment  "only if the evidence overwhelmingly demonstrates            that the defendant played a part that makes him substantially            less  culpable than  the  average participant...."   U.S.  v.                                                                 ________            Brandon, 17 F.3d 409, 460 (1st Cir.), cert. denied, 115 S.Ct.            _______                               _____ ______            80 (1994).                      A criminal  defendant has the burden  of proving an            entitlement to a downward adjustment.  U.S. v. Lopez-Gil, 965                                                   _________________            F.2d 1124  (1st Cir.),  cert. denied,  113 S.Ct.  483 (1992).                                    _____ ______            The question  whether a criminal  defendant is entitled  to a            downward  adjustment  is  based  ultimately  on  the  court's                                         -4-            consideration of the facts of each particular case.  U.S.S.G.              3B1.2, comment. (backg'd.).                        The  probation  officer  observed  in  his  report,            adopted  by the district court,  that no role  in the offense            adjustment   was   warranted   because   of   the   lack   of            substantiating  evidence to  establish a  criminal hierarchy.            In response  to appellant's  objection that there  were other            people  involved  and  she played  only  a  minor  role as  a            courier, the report noted that the facts of this case did not            reflect  that appellant  was  a typical  courier with  little            knowledge  and understanding of  the nature and  scope of the            criminal activity.  A. 3-4.  The officer detailed his reasons            for  this conclusion:  appellant,  who had not  for some time            been an  American Eagle  employee, nonetheless  brought along            her  uniform on a business  and pleasure trip  to Aruba; once            the plane  returned to  Puerto Rico,  she separated from  the            people  she  had  traveled  with  and  circumvented   several            inspection points.  The officer considered as well the amount            of drugs involved and the high degree of purity.  Id.                                                                ___                      Appellant  reiterates  before this  court arguments            rejected  by  the   district  court.5    They   are  no  more                                            ____________________            5.  We  have  reviewed appellant's  claim  that the  district            court may  not ever have seen certain documents purporting to            show that there was at least one other person involved in the            smuggling  scheme.    Assuming  that appellant  had  in  fact            provided certain documents to the probation officer which the            probation officer  neglected  to hand  to  the court  at  the            hearing  - an assumption not wholly supported by the record -                                         -5-            persuasive here.  We  have specifically rejected the argument            that status  as  a drug  courier,  without more,  entitles  a            defendant to a reduction of the offense level as a minimal or            minor  participant.  Lopez-Gil, 965 F.2d at 1131; U.S. v. Paz                                 _________                    ___________            Uribe, 891 F.2d 396,  399 (1st Cir. 1989), cert.  denied, 495            _____                                      _____  ______            U.S. 951 (1990).   See U.S. v. Garcia, 920  F.2d 153, 155 (2d                               ___ ______________            Cir.  1990)  ("[w]hile in  certain  cases  and on  particular            facts,  a  district court  might  conclude  that a  defendant            courier was  `substantially  less culpable  than the  average            participant' and thus make  a downward adjustment pursuant to              3B1.2,  this  conclusion  is  by  no  means  mandated.  ...            Couriers are  indispensable to the smuggling  and delivery of            drugs and their proceeds.").                      Balanced against  appellant's  claim that  she  was            only  a minor  part  of a  larger  enterprise is  the  record            evidence as found  or adopted6  by the district  court:   the                                            ____________________            we are not  convinced that  appellant has been  harmed.   The            court permitted  testimony at  the sentencing hearing  to the            effect  that defendant  had consistently  claimed there  were            others involved.   A. 38-39.   The government  indicated that            defendant, when arrested, alleged that a  person in Aruba had            provided her with  the drugs.  A. 41.   Whether in fact there            were others involved,  the court did not find  that appellant            was substantially less culpable than they.  Given the details            of  the scheme, the weight and  purity of the cocaine and the            amount of  money  involved, the  court had  ample grounds  on            which to deny appellant a downward adjustment.                6.  Appellant claims  that the district court  failed to make            findings  in  support of  its rejection  of  her role  in the            offense   adjustment.  We have already observed that the PSR,            adopted by the district court, sets out sufficient reasons in            support  of the denial of the role in the offense adjustment.                                         -6-            considerable amount of  cocaine involved; the cocaine's  high            degree of purity,  see U.S.S.G.   2D1.1, comment.  (n.9); the                               ___            planning  involved in  the  smuggling scheme;  and the  large            amount of cash  found with the  drugs, on appellant's  person            and in her home.                        We have  not been  shown that the  district court's            failure  to grant appellant a  downward adjustment was in any            way  erroneous.    On  this record,  oral  argument  will not            advance appellant's case.  Accordingly, the  district court's            decision is affirmed.  Loc. R. 27.1.                          ________                                            ____________________            We find appellant's argument untenable in light of our recent            decision  in U.S.  v. Catano,  ___F.3d___, ___,  No. 94-1502,                         _______________            slip op. at 26 (1st Cir. Sept. 18, 1995)("in a case where the            PSR  findings themselves  adequately set  forth a  meaningful            rationale  for the sentence, a district judge does not err in            adopting such findings.").                                                 -7-
