United States of America v. ANGEL ROSARIO a/k/a TITO Angel Rosario

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3906
UNITED STATES OF AMERICA
v.
ANGEL ROSARIO
a/k/a TITO
Angel Rosario,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 01-cr-00292)
District Court Judge: Honorable Eduardo C. Robreno
Submitted Under Third Circuit LAR 34.1(a)
December 19, 2002
Before: NYGAARD, ALITO, and RENDELL, Circuit Judges.
(Opinion Filed: December 20, 2002)
OPINION OF THE COURT
PER CURIAM:

-- 1 of 4 --

-2-
Appellant Angel Rosario pled guilty to conspiring to distribute marijuana in
violation of 21 U.S.C. § 846. The District Court diminished his offense level under the
sentencing guidelines based on his lack of a prior record, his acknowledgment of
responsibility, his honesty with investigators, and his minor role in the offense. Rosario
appeals the judgment, contending that he merits a four-level reduction for “minimal”
participation instead of the two-level reduction for “minor” participation. We disagree and
affirm the District Court’s judgment.
FBI agents intercepted a shipment of 1,500 pounds of marijuana in January of 2000.
They decided to follow through with the planned transaction in an undercover operation at
the shipment’s destination in Philadelphia, making arrangements to deliver the drugs to
conspirator Joaquin Rosa-Pagan. On one occasion, Rosa-Pagan used Rosario as an
intermediary when speaking with the undercover agents. Rosario also accompanied Rosa-
Pagan on a “counter-surveillance” monitoring of the truck with which the conspirators
intended to transport the marijuana. When a driver arrived with the loaded truck at the
designated location, agents arrested Rosa-Pagan and two other conspirators. Rosario was
not present at this scene, but he held the $75,000 “transportation fee,” most of which he
returned to an intimate acquaintance of Rosa-Pagan’s following the arrests, but $5,000 of
which he kept in satisfaction of a legitimate and unrelated debt.
The District Court noted during Rosario’s sentencing hearing that he “kn[e]w[] the
major players,” “was entrusted to . . . answer the telephone” and communicate with other
participants, and passed on directions in furtherance of the conspiracy. It contrasted this

-- 2 of 4 --

-3-
with the archetypal minimal participant, the “mule” who merely delivers drugs ignorant of
the actual people in charge. We review the District Court’s evaluation of Rosario’s role for
clear error but give plenary review to interpretations of the sentencing guidelines. See
United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990).
“Such factors as a defendant’s lack of knowledge or understanding of the overall
enterprise and of others’ activities are evidence of a minimal role in the offense.” United
States v. Isaza-Zapata, 148 F.3d 236, 238–39 (citing U.S. Sentencing Guidelines Manual §
3B1.2, Application Note 1). We have also held that a defendant’s “economic gain and the
extent of physical participation” may inform findings regarding minimal-participant status.
United States v. Haut, 107 F.3d 213, 217 (3d Cir. 1997). We have declined to adjust a
defendant’s level of participation from minor to minimal given findings that he actually
promoted the criminal activity to the undercover officer. United States v. Salmon, 944
F.2d 1106, 1127 (3d Cir. 1991).
Rosario points to no clear error in the District Court’s factual findings and argues
for the downward departure based on a set of facts on which the prosecution and defense
substantially agree. Although Rosario understood less of the scheme than Rosa-Pagan, the
facts do not evince the real “lack of knowledge or understanding” that distinguish a minor
participant from an even more minimal one. Accompanying a significant player on a
“counter-surveillance” operation surely constitutes “physical participation” in the more
central operations of the conspiracy even if one’s presence is not necessary. Rosario’s
communication with the undercover agent may fall short of the active promotion discussed

-- 3 of 4 --

-4-
in Salmon, but his diminished responsibility is amply reflected in the District Court’s
categorization of him as a minor participant. We have no trouble affirming the District
Court’s judgment that a further departure was not warranted based on the facts given.

-- 4 of 4 --