United States of America v. Angel Perdomo

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-1458
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UNITED STATES OF AMERICA
v.
ANGEL PERDOMO,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 99-cr-00457)
District Judge: Honorable Alfred J. Lechner, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
April 18, 2002
Before: NYGAARD and AMBRO, Circuit Judges, and O’NEILL, District Judge.
(Filed April 29, 2002)
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OPINION OF THE COURT
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PER CURIAM
Angel Perdomo appeals from a judgment entered following his plea of
guilty to one count of conspiracy to distribute and possess, with the intent to distribute,
more than five-hundred kilograms of cocaine, contrary to 21 U.S.C.
841(a)(1), in violation of 21 U.S.C. 846. Perdomo argues that the District Court erred
in finding that he was not a minimal participant in the conspiracy pursuant to 3B1.2 of the
Sentencing Guidelines. U.S.S.G. 3B1.2. As a result, according to Perdomo, the District
Court incorrectly failed to reduce his offense level by four points. In the alternative,
Perdomo argues that he should receive a two to three point reduction under 3B1.2
because he was a minor participant in the conspiracy. We disagree. Accordingly, we will
affirm the sentence imposed by the District Court.
I.
The facts underlying this appeal are well known to the parties. We recount,
therefore, only a brief procedural history. On August 10, 1999, Perdomo and a co-
defendant were indicted by a federal grand jury on a single count indictment. On May 24,
2000, Perdomo entered a plea of guilty to the sole count of the indictment. On February
13, 2001, a sentencing hearing was conducted where Perdomo motioned for a downward
departure in sentence pursuant to 3B1.2, claiming that he played only a minor role in the
conspiracy. The District Court declined to grant Perdomo a downward adjustment under
3B1.2. It sentenced him to a 200 month term of imprisonment. This timely appeal
followed.
II.
Perdomo argues that the District Court clearly erred when it found that he
was not a minor player in the conspiracy. When a District Court declines to grant a

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downward adjustment based on its factual determinations we review the District Court’s
decision for clear error. United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001).
Section 3B1.2 of the Sentencing Guidelines provides for a reduction in a defendant’s
offense level if the defendant was either a minimal or minor participant. It provides:
Based on the defendant’s role in the offense, decrease the
offense level as follows: (a) if the defendant was a minimal
participant in any criminal activity, decrease by 4 levels; (b) if
the defendant was a minor participant in any criminal activity,
decrease by 2 levels; In cases falling between (a) and (b),
decrease by 3 levels.
U.S. SENTENCING GUIDELINES MANUAL 3B1.2. The Application Notes
accompanying 3B1.2 provide courts with limited guidance to aid them in determining
whether a defendant’s role in certain conduct was minor. See Application Notes 1, 3. In
addition, our caselaw requires us to consider several factors to determine whether a
defendant’s role in criminal conduct was minor. See Brown, 250 F.3d at 819 (citing
United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991)). In Brown, we observed
that whether a defendant is eligible for minor role status depends on whether the
defendant’s "involvement, knowledge and culpability" were materially less than those of
other participants. Id. Making this determination requires us to consider 1) the
defendant’s awareness of the nature and scope of the criminal enterprise, 2) the nature of
the defendant’s relationship to the other participants, and 3) the importance of the
defendant’s actions to the success of the venture. The District Court should evaluate
these factors in relation to the other participants in the conspiracy. Brown, at 819.
In this case, the District Court found that Perdomo 1) agreed with others to
distribute more than 500 kilograms of cocaine from April ’98 through August ’99; 2) he
agreed to distribute more than 500 kilograms of cocaine on at least three occasions by
facilitating the transportation of the cocaine; 3) he accomplished this by helping to
tranship the cocaine from interstate tractor trailers to trucks and vans for delivery to the
New York metropolitan area; and, 4) he arranged to store the cocaine until the purchasers
of the cocaine were ready to receive it from him. Based on these and other facts, the
District Court concluded that Perdomo "played an important part in this conspiracy that
involved enormous amounts of drugs." In making its factual findings, the District Court
relied extensively on Perdomo’s own sworn testimony at his plea colloquy.
We conclude that the record clearly supports the District Court’s conclusion
that Perdomo was not a "minor player" in the conspiracy. The facts clearly demonstrate
that 1) Perdomo was aware of the nature and scope of the enterprise; 2) for five months
Perdomo worked closely with several members of the conspiracy, such that he had
significant involvement with his coconspirators; and, 3) his involvement was important to
the success of the conspiracy. As a result, the District Court’s conclusion that Perdomo
was not a minor player was not clearly erroneous.
III.
In sum, we conclude that the District Court’s decision denying a downward
adjustment in Perdomo’s offense level was not clearly erroneous. We will therefore
affirm the sentence imposed by the District Court.

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