UNITED STATES OF AMERICA vs. RAFAEL RODRIGUEZ v. Soberon, 929 F.2d 935, 940 3d Cir. 1991 . We review a district court’s decision…

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1450
___________
UNITED STATES OF AMERICA
vs.
RAFAEL RODRIGUEZ
Appellant.
___________
ON APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
(D.C. Criminal No. 01-cr-00032-4)
District Judge: The Honorable Raymond L. Finch, Chief Judge
___________
Submitted Under Third Circuit LAR 34.1(a)
December 8, 2003
BEFORE: NYGAARD, BECKER, and STAPLETON, Circuit Judges.
(Filed March 1, 2004)
___________

-- 1 of 4 --

2
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
In this appeal, Rafael Rodriguez challenges the District Court’s denial of
his motion to dismiss for prosecutorial misconduct. He also challenges the District
Court’s denial of his motion for a downward adjustment in his offense level under
U.S.S.G. § 3B1.2. We have jurisdiction under 28 U.S.C. § 1291 and will affirm.
I.
Because we write for the parties we will summarize only those facts
relevant to this appeal. Rodriguez was charged with various drug-related offenses to
which he pleaded guilty to two counts of possession with intent to distribute controlled
substances. 21 U.S.C. § 841(a)(1). Prior to pleading guilty to these offenses, Rodriguez
filed a motion to dismiss his indictment based on prosecutorial misconduct. In support of
this motion, Rodriguez alleged that two grand jury witnesses gave perjured testimony
upon which the grand jury relied in issuing the indictment. The District Court found there
was no evidence that either of these witness offered perjured testimony and denied
Rodriguez’s motion.
At sentencing, Rodriguez sought a downward adjustment in his offense
level under U.S.S.G. § 3B1.2. He alleged that he was only a minor or minimal participant
in the overall scheme to which he pleaded guilty and, therefore, qualified for a downward

-- 2 of 4 --

3
adjustment. The District Court disagreed and refused to adjust his sentence downward
under § 3B1.2.
II.
We review a district court’s factual findings on a motion to dismiss for clear
error. United States v. Soberon, 929 F.2d 935, 940 (3d Cir. 1991). We review a district
court’s decision denying a downward adjustment in sentencing for clear error when that
decision is based on factual findings. 18 U.S.C. § 3742(e). In general, “[a district
court’s] rulings [regarding downward adjustments] are left largely undisturbed by the
courts of appeal” United States v. Isaza-Zapata, 148 F.3d 236, 238 (3d Cir. 1998).
In support of his motion to dismiss, Rodriguez asserts that two witnesses
offered perjured testimony to the grand jury. Appellant’s Brief at 17 (citing for support,
United States v. Basurto, 497 F.2d 781, 784-87 (9th Cir. 1974)). The District Court
disagreed and found that neither of the witnesses identified by Rodriguez perjured
themselves during the grand jury proceeding. This finding is well supported in the record
and is not clearly erroneous. Specifically, both witnesses testified that they lied to
officers after they were arrested but that subsequent to those initial statements they told
the truth. In the face of this testimony, Rodriguez offered no evidence to show that either
of these witnesses lied to the grand jury. Accordingly, the District Court’s finding that
these witnesses did not offer perjured testimony to the grand jury is not clearly erroneous
and we will affirm its denial of Rodriguez’s motion to dismiss.

-- 3 of 4 --

The District Court was also not clearly erroneous in denying Rodriguez’s
request for a downward adjustment. Under U.S.S.G. § 3B1.2, a defendant qualifies for
anywhere from a two to four point reduction in his offense level if his role in an offense is
“minor” or “minimal.” The District Court’s refusal to grant this adjustment is well
supported by the record and, given the high level of deference afforded to district court
decisions in this area, we will affirm.
III.
For the foregoing reasons, we will affirm the District Court’s order denying
Rodriguez’s motion to dismiss, and the sentence imposed by the District Court.

-- 4 of 4 --