Alice McCabe v. Michael Parker

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2185
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United States of America, *
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Appellee, *
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v. *
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Timothy J. Adamson, *
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Appellant. *
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Appeals from the United States
No. 09-2582 District Court for the
___________ District of Minnesota.
United States of America, *
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Appellee, *
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v. *
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Galo Eric Quintero, *
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Appellant. *
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No. 09-2606
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United States of America, *
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Appellee, *
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1The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
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v. *
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Jerry Joe Larson, *
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Appellant. *
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No. 09-2666
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United States of America, *
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Appellee, *
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v. *
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Marshall Thomas Bakken, *
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Appellant. *
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Submitted: March 12, 2010
Filed: June 24, 2010
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Before RILEY, Chief Judge,1 BRIGHT, and WOLLMAN, Circuit Judges.
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WOLLMAN, Circuit Judge.
Timothy J. Adamson, Marshall Thomas Bakken, and Jerry Joe Larson pleaded
guilty to one count of conspiracy to distribute and possession with intent to distribute
500 grams or more of methamphetamine and five kilograms or more of cocaine, in

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2The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
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violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The district court 2 sentenced
them to sixty, thirty-six, and twenty-four months’ imprisonment respectively. On
appeal, Adamson, Bakken, and Larson argue that the district court erred in applying
the advisory guidelines when it denied them each a two-level minor role reduction.
A jury convicted Galo Eric Quintero of conspiracy to distribute and possess
with intent to distribute 500 grams or more of methamphetamine and five kilograms
or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 851.
He was sentenced to 300 months’ imprisonment. He argues on appeal that the district
court (1) committed plain error when it admitted evidence of firearms possession and
an alleged drive-by shooting and (2) erred in sentencing Quintero as a manager or
supervisor of five or more participants during the course of the offense. We affirm.
I.
The defendants were involved in a drug trafficking organization that moved 2.5
metric tons (more than 5500 pounds) of cocaine from Columbia to Mexico for
eventual importation into the United States between January 2005 and September
2007. Roman Garcia facilitated the shipment of cocaine in the United States. He
employed couriers to transport the cocaine to high volume customers in New York,
New Jersey, Pennsylvania, Massachusetts, Illinois, Ohio, Michigan, and Minnesota.
Garcia used fourteen different couriers during the conspiracy, twelve of whom were
recruited by co-conspirator Manny Valdez. Typically recruiters referred couriers to
the drug trafficking organization and the recruiters and the courier would then travel
to California or Mexico so that the organization could screen the potential courier.
The organization usually paid its couriers between $600 and $700 per kilogram of
controlled substance transported.

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Couriers were provided with automobiles retrofitted with hidden compartments,
known as “traps,” that were capable of holding multiple kilograms of drugs or
packages of currency. Loads of controlled substances were transported east and the
couriers returned to California or traveled to New York with loads of currency. To
avoid reporting requirements, couriers were instructed to make multiple cash deposits
under $10,000 to various bank accounts. The organization utilized partially legitimate
businesses and shell corporations to launder the drug proceeds.
Adamson, Bakken, and Larson served as couriers for the organization.
Adamson transported 225 kilograms of cocaine, 10 pounds of methamphetamine, and
approximately $1,745,000 in cash. The organization provided Adamson with multiple
vehicles, which he helped license with Minnesota plates. Adamson also received wire
transfers and deposited money into bank accounts at the request of the organization.
Larson transported 18 kilograms of cocaine and $90,000 in drug proceeds. He also
made deposits at the direction of the organization and obtained pre-paid cellular
telephones, which he shipped to a member of the organization. Bakken transported
approximately 66 kilograms of cocaine and $220,000 in drug proceeds. Bakken
traveled to Mexico to meet the leaders of the organization and also traveled to
Massachusetts, New York, Michigan, Pennsylvania, and Illinois while working for the
organization. He obtained Minnesota license plates for the vehicle he used.
Quintero had a more extensive role in the organization. He operated a major
receiving destination for cocaine on Staten Island, New York. To reach Quintero,
couriers phoned him at a phone number provided by Valdez or Garcia once they were
nearing Staten Island. Quintero would then meet the courier at a nearby hotel, store,
or restaurant and then lead the courier to the delivery location, typically his mother’s
home. The courier would park the vehicle in the home’s garage and unload the drug
packages.
In August 2007, law enforcement officials obtained a warrant to search
Quintero’s mother’s home. Firearms were discovered in a vehicle that was parked in

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the garage. Although the vehicle was registered to Quintero’s brother, Quintero had
been observed in the vehicle.
At Quintero’s trial, eight couriers, including Adamson and Bakken, testified
that they had made deliveries to Quintero. The couriers described delivering hundreds
of kilograms of cocaine to Quintero and delivering and receiving millions of dollars
in drug proceeds. Couriers would bring money from other locations to New York,
which would be used to purchase more drugs or to pay off prior purchases. Adamson
testified that he would deliver loads of currency to Quintero and would then count the
money with Quintero. On occasion, Quintero gave couriers money for their expenses
returning to the west coast. Two New York City police officers testified about two
occasions on which they observed Quintero deliver hundreds of thousands of dollars
while they were conducting surveillance regarding money laundering. Drug
Enforcement Agency agent John Francolla testified regarding the firearms seized from
the garage. Additionally, Francolla testified that Quintero told him that he had “shot
up” a house belonging to a member of a crime family who had failed to pay him for
some unknown debt.
In accordance with its plea agreements with them, the government requested
that Adamson, Bakken, and Larson receive a two-level downward adjustment in
offense level because of their role as minor participants. Although the district court
denied the requests, it nonetheless sentenced each of the three defendants below the
advisory guidelines range after taking into account the sentencing factors and the
government’s downward departure motion for substantial assistance.
The district court determined that Quintero was a manager or supervisor of
criminal activity and imposed a three-level enhancement. After calculating an
advisory guidelines range of 360 months to life imprisonment, and noting the twenty-
year mandatory minimum, the district court granted a sixty-month variance and
sentenced Quintero as set forth above.

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3While this provision was changed to § 2D1.1(a)(5) in the 2009 edition of the
U.S.S.G., we refer to it as § 2D1.1(a)(3), based on the guidelines that were in effect
when these defendants were sentenced.
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II.
A. Adamson, Bakken, and Larson
Adamson, Larson, and Bakken argue that the district court committed
procedural error when it declined to grant them a two-level adjustment in offense level
for having a minor role in the offense and in turn not applying U.S. Sentencing
Guidelines Manual (U.S.S.G.) § 2D1.1(a)(3)3 to further reduce the offense level. This
adjustment applies to a defendant who is “less culpable than most other participants,
but whose role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5.
A defendant’s role in the offense is measured by the relevant conduct for
which he is held responsible. Once the district court has determined the
relevant conduct, each participant’s actions should be compared against
the other participants, and each participant’s culpability should be
evaluated in relation to the elements of the offense.
United States v. Johnston, 353 F.3d 617, 626 (8th Cir. 2003) (per curiam) (citations
and internal quotation marks omitted). Whether a defendant played a minor role is a
question of fact that we review for clear error. United States v. Deans, 590 F.3d 907,
909 (8th Cir. 2010).
In declining to grant Adamson a two-level minor role adjustment, the district
court explained:
During the course of his involvement in this conspiracy, [Adamson]
transported approximately 225 kilograms of cocaine, 10 pounds of
methamphetamine and $1,745,000 on behalf of the organization. . . .
Now he was a courier. There is no question about that. It is also

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disclosed, I think, in the facts portion of the case, of the investigation,
that he earned something in the neighborhood of $120,000 of cash
money for his labors. That is not in my view a minor or minimal
participant, and I simply cannot do that.
The district court continued, “[Adamson] is lower than some, but you could then make
the argument that General Noriega’s chief distributing lieutenants who distributed
thousands of kilos are in fact minor or minimal vis-a-vis the leader of the
organization.”
At Bakken’s sentencing the district court explained that the amount of drugs
that Bakken had transported and the amount he had earned were too great for a minor
role reduction. The district court commented that in the six months that Bakken was
involved in the conspiracy he earned approximately “more or less what a federal judge
gets to take home after a year’s pay.” The district court commented on Larson’s
knowing participation in a distribution scheme and the amount of money that Larson
earned from the transactions and concluded that it was different from the participation
of individuals that engage in body packing (internal concealment) of drugs or
lookouts, whose roles may be very minor.
Adamson, Bakken, and Larson first argue that instead of comparing their
culpability with other participants in the drug trafficking organization, the district
court improperly compared their conduct with others outside the organization or failed
to make any comparison. In comparing Adamson’s conduct with that of General
Noriega’s distributors, the district court was illustrating the point that being less
culpable than some other member of the organization does not entitle the defendant
to a minor role adjustment. See United States v. Bush, 352 F.3d 1177, 1182 (8th Cir.
2003). The district court properly considered the relevant conduct for which
Adamson was responsible in comparison to other members of the organization and did
not commit clear error in its factual determination that Adamson’s role was not minor.
Similarly, although a comparison of Bakken’s illicit earnings with a federal judge’s

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net pay may not have been the most apt point of reference, the court’s statement
contextualized the scale of Bakken’s criminal endeavor. Lastly, Larson’s contention
that the district court failed to consider his culpability compared with other
participants in the organization is also without merit. During Larson’s sentencing the
district court explained that the denial of the minor role reduction was a “continuing
theme throughout these cases,” indicating that it had compared Larson’s conduct with
other participants in the organization.
Second, Adamson, Bakken, and Larson contend that they are less culpable than
other co-conspirators and therefore they are entitled to a minor-role reduction. We
have routinely rejected this argument, and our case law is clear that “merely showing
the defendant was less culpable than other participants is not enough to entitle the
defendant to the adjustment if the defendant was ‘deeply involved’ in the offense.”
Bush, 352 F.3d at 1182; see, e.g., United States v. Cubillos, 474 F.3d 1114, 1120 (8th
Cir. 2007). All three men were active, necessary, and well-compensated members of
this conspiracy. Their roles as couriers do not necessarily entitle them to the minor
role adjustment. United States v. Alverez, 235 F.3d 1086, 1090 (8th Cir. 2000).
Transportation is an important component of an illegal drug distribution organization,
and Adamson’s, Larson’s, and Bakken’s roles were such that the district court did not
clearly err in its determination that their roles were not minor. See United States v.
Martinez, 168 F.3d 1043, 1048 (8th Cir. 1999) (“Transportation is a necessary part of
illegal drug distribution, and the facts of the case are critical in considering a reduction
for minor role.”).
Next, Bakken and Larson argue that the district court impermissibly created
sentencing disparities and failed to address “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.” 18 U.S.C. § 3553(a)(6). Bakken points to another courier who
transported a larger quantity of drugs and was granted a minor role reduction. Larson
points to two other participants who both transported more drugs and recruited
couriers, yet they were treated, like Larson, as average participants. The district court

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had no obligation to consider the § 3553 factors in its determination that these
defendants were average participants.
Finally, Bakken argues that it would be contrary to § 2D1.1(a)(3) to allow drug
quantity to affect the availability of a § 3B1.2 minor role reduction. Once a defendant
is granted a minor role reduction, he is entitled to a further offense-level reduction
under § 2D1.1(a)(3) if his base offense level from the drug quantity table is 32 or
higher. As the defendant’s base offense level rises, the additional reduction in offense
level increases. For example, if a defendant receives a mitigation role adjustment and
the base offense level from the drug quantity table is 32, his offense level is decreased
by two levels, whereas if the base offense level is 38, his offense level is decreased by
four levels. U.S.S.G. § 2D1.1(a)(3). Although Bakken has aptly described the
function that drug quantity plays under § 2D1.1(a)(3), we reject his contention that
§ 2D1.1(a)(3) limits the consideration of drug quantity when deciding the availability
of a minor role reduction. We have routinely considered drug quantity when
reviewing the denial of a minor role reduction. See United States v. Carpenter, 487
F.3d 623, 626 (8th Cir. 2007) (no minor role reduction warranted when defendant
distributed three pounds of methamphetamine during the conspiracy); United States
v. Tinajero, 469 F.3d 722, 726 (8th Cir. 2006) (no minor role reduction when the
defendant was trusted with more than a pound of drugs).
We conclude that the district court did not clearly err in denying a § 3B1.2
offense-level adjustment to Adamson, Bakken, and Larson. Accordingly, we need not
separately consider their contention that the district court should have applied the
§ 2D1.1(a)(3) reduction in offense level, because it is dependent upon application of
the § 3B1.2 reduction.

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B. Quintero
1. Admissibility of Evidence
Quintero argues that the firearms recovered from his mother’s garage and the
account of his involvement in a drive-by shooting were improperly admitted into
evidence under Federal Rules of Evidence 401 and 403. Because Quintero did not
object in a timely manner to the introduction of this evidence, we review for plain
error. See United States v. Marcus, 2010 WL 2025203, at *3 (May 24, 2010). To
establish plain error Quintero must demonstrate that (1) there was an error that he did
not affirmatively waive, (2) the error was clear and obvious, (3) the error affected his
substantial rights, and (4) the error seriously affected the fairness, integrity or public
reputation of judicial proceedings. Id.
Quintero contends that the firearms seized from his mother’s garage were not
relevant to whether he conspired to distribute cocaine, arguing that the firearms were
in the trunk of a car registered to his brother and that there was no evidence that
Quintero knew that they were there. Evidence is relevant if it “make[s] the existence
of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Fed. R. Evid. 401. There is a
close and well-established connection between firearms and the drug trade, and “we
often have held that evidence of firearms is relevant and admissible in a prosecution
of drug trafficking charges.” United States v. Sherman, 440 F.3d 982, 986 (8th Cir.
2006); see United States v. Ruiz, 412 F.3d 871, 881 (8th Cir. 2005) (“Firearms are
tools of the drug trade due to the dangers inherent in that line of work.”). The
presence of firearms in the garage where Quintero received drugs and dispatched large
sums of money to the west coast made the fact of his involvement in the drug
conspiracy more probable. Moreover, photographs, video footage, and testimony
confirm that Quintero regularly accessed the garage. The evidence was thus properly
admitted.

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Quintero also argues that Agent Franolla’s testimony about Quintero’s account
of a drive-by shooting was irrelevant. Similarly, this testimony was relevant in that it
demonstrated Quintero’s willingness to use violence and made his involvement in the
drug conspiracy more likely. We identify no error, let alone plain error, in the district
court’s failure to exclude this evidence sua sponte based on relevance.
Quintero also argues that the firearm and drive-by shooting evidence should
have been excluded under Federal Rule of Evidence 403. Relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Fed. R. Evid. 403. Quintero did not object to the admission of this
evidence. The district court did not plainly err in failing to exclude the evidence sua
sponte on prejudice grounds.
2. Manager or Supervisor Enhancement
Quintero contends that the district court erred in imposing the three-level
enhancement for his role in the offense. At sentencing, the district court found that
Quintero was in a position of authority and that he directed a large number of people.
Further, the district court considered the nature and scope of Quintero’s criminal
activity that was manifest throughout the record and concluded that Quintero served
as the central depot and transfer point for large quantities of drugs.
We review for clear error the district court’s factual findings underlying the
imposition of a role enhancement. United States v. Rosas, 486 F.3d 374, 376 (8th
Cir. 2007).
A defendant’s offense level may be increased by three levels if he “was a
manager or supervisor . . . and the criminal activity involved five or more participants
. . . .” U.S.S.G. § 3B1.1(b). “We construe the terms ‘manager’ or ‘supervisor’ broadly
under U.S.S.G. § 3B1.1.” United States v. Erhart, 415 F.3d 965, 973 (8th Cir. 2005).
The sentencing court may consider factors such as:

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[T]he exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and scope
of the illegal activity, and the degree of control and authority exercised
over others.
U.S.S.G. § 3B1.1 cmt. n.4; Rosas, 486 F.3d at 376.
We conclude that the district court’s imposition of the three-level enhancement
was not clearly erroneous. Quintero met with couriers, coordinated the receipt of
large quantities of drugs, sent couriers to other locations with instructions, and
coordinated the loading and shipment of millions of dollars in drug proceeds.
Quintero exercised management responsibility over both individuals and significant
assets of the organization. See U.S.S.G. § 3B1.1 cmt. n.2 (“An upward departure may
be warranted . . . in the case of a defendant who did not organize, lead, manage, or
supervise another participant, but who nevertheless exercised management
responsibility over the property, assets, or activities of a criminal organization.”).
III.
Quintero’s conviction is affirmed, as are all of the defendants’ sentences.
BRIGHT, Circuit Judge, concurring.
I concur in the opinion and judgment with the following observation.
Ordinarily computation of the guideline sentence for couriers (often referred to as
“mules”) in drug cases include minor participant role reductions, particularly when,
as here, the probation office and the prosecutor made such a recommendation.
Although the district court in this case rejected those recommendations, the
judge sentenced Adamson, Bakken, and Larson below the advisory guideline range

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upon taking account of the sentencing factors and the government’s downward
departure motion for substantial assistance. As we know, United States v. Booker, 543
U.S. 220 (2005), rendered the guidelines advisory. Here, the sentences reflect the
district court’s careful consideration of section 3553(a)’s purpose, and based on the
record as a whole, the sentences are reasonable.
Accordingly, I join in the affirmance.
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