United States of America v. Rafael Rodriguez

PRECEDENTIAL
Filed September 4, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3679
UNITED STATES OF AMERICA
Appellee
v.
RAFAEL RODRIGUEZ
Appellant
On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 02-cr-00092)
District Judge: Honorable Alfred M. Wolin
Argued: July 23, 2003
Before: ALITO, FUENTES, and BECKER, Circuit Judges
(Filed September 4, 2003)
CHRISTOPHER J. CHRISTIE
United States Attorney
GEORGE S. LEONE
Chief, Appeals Division
RICARDO SOLANO, JR. (ARGUED)
Assistant U.S. Attorney
970 Broad Street
Newark, New Jersey 07102
Counsel for Appellee

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JOHN H. YAUCH (ARGUED)
LISA M. MACK
Federal Public Defender
972 Broad Street
Newark, New Jersey 07102
Counsel for Appellant
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal by Rafael Rodriguez (“Rodriguez”), a
“mule,” who was convicted of drug importation from
Panama pursuant to a plea agreement in which the
Government agreed not to oppose a two level downward
Sentencing Guidelines adjustment for minor role. Although
the Probation Office recommended that Rodriguez be
afforded the adjustment, the District Court declined to
grant it to him reasoning that, while there were plainly
several people involved in the importation scheme
(including at least the man who induced Rodriguez to carry
the drugs and the man he was supposed to call when he
got to Newark), in the absence of evidence as to the relative
roles of the others, Rodriguez had failed to meet his burden
of establishing entitlement to the adjustment.
We acknowledge the considerable discretion afforded the
District Court in making the minor role determination, a
decision to which we give deference. In this case, however,
it appears that the Court was making not a discretionary
evaluation of the situation based on credibility based fact
findings but a legal ruling about the quantum of evidence
necessary to justify the adjustment, a ruling with which we
disagree. Accordingly, we will vacate the judgment of
sentence and remand for a new sentencing hearing.
I.
On February 6, 2002, Rodriguez arrived at Newark’s
Liberty International Airport on a flight originating from
Panama and was selected for a routine customs
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examination. The agents examined Rodriguez’ luggage and
discovered a brown, powdery substance at the bottom of his
suitcase that later tested positive for heroin. Rodriguez was
immediately placed under arrest and admitted to knowing
that the bag contained an illegal drug though he was not
sure whether it was heroin or cocaine. He explained that he
worked as a taxi driver in Panama and that a passenger he
had not previously encountered asked him if he knew
anyone who would be interested in taking some drugs to
America for a five thousand dollar fee. Rodriguez
volunteered for the job. The passenger, a Columbian
national by the name of “El Mono,” purchased the plane
ticket for Rodriguez in cash and gave him the drugs to
transport. He also gave Rodriguez two cell phone numbers
for a certain “Jose,” whom Rodriguez was to contact one
day after his arrival in the United States.
Rodriguez was charged with importing more than 100
grams of heroin into the United States, in violation of 21
U.S.C. §§ 952(a) and 960(b)(2).1 He pled guilty pursuant to
a plea agreement. In the agreement, the government
represented that it would not oppose Rodriguez’ claim that
he was a minor participant entitled to a two level decrease
under U.S.S.G. § 3B1.2. At sentencing, the government
once again expressed its willingness to see Rodriguez
awarded the minor participant two level downward
adjustment; it also agreed that Rodriguez had met the
criteria for the “safety-valve” limitation on applicability of
statutory minimum sentences pursuant to U.S.S.G. § 5C1.2.2
1. The laboratory test revealed that Rodriguez was carrying heroin with
a 93% purity level, though there was initial disagreement among the
parties as to the amount of heroin found in the suitcase. At the
sentencing hearing the parties agreed that the amount of heroin found
in Rodriguez’ suitcase was more than seven hundred grams but less
than one thousand grams, giving Rodriguez a base offense level of 30.
See U.S.S.G. § 2D1.1.
2. The “safety-valve” may be granted when, among other things, the
defendant has “truthfully provided to the Government all information
and evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme or plan.
. . .” U.S.S.G. § 5C1.2. As the District Court correctly noted, it is not
necessarily inconsistent to grant the safety-valve departure while
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At sentencing, the District Court gave effect to the safety-
valve, but denied the downward adjustment for being a
minor participant.
The District Court had jurisdiction under 18 U.S.C.
§ 3231 and this court has jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742. As we view the District
Court’s determination about burden of proof as a question
of law, our review is plenary. See United States v. Isaza-
Zapata, 148 F.3d 236, 237 (3d Cir. 1998).
II.
In making its determination as to whether Rodriguez
would receive the minor participant downward adjustment,
the District Court used United States v. Headley, 923 F.2d
1079 (3d. Cir. 1991), as its frame of reference. In Headley,
we applied a series of factors to facilitate the minor
participant analysis. Those factors are “the nature of the
defendant’s relationship to other participants, the
importance of the defendant’s actions to the success of the
venture, and the defendant’s awareness of the nature and
scope of the criminal enterprise.” Headley at 1084 (quoting
United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990)).3
Although these factors will be highly useful in assessing a
defendant’s relative culpability where a great deal is known
about the drug ring, e.g., the Philadelphia based drug ring
in Headley itself, these factors may be less useful when
agents apprehend a mule-importer with little or no
information about the other actors or the scope of the
criminal enterprise. At all events, it is useful to discuss all
three factors.
denying the minor participant adjustment. We have held that eligibility
for the benefits of one provision of the Sentencing Guidelines does not
automatically entitle the defendant to the benefits of another provision.
See United States v. Sabir, 117 F.3d 750, 754 (3d Cir. 1997) (defendant
entitled to the benefit of the safety-valve provisions not necessarily
entitled to a reduction in his or her offense level for acceptance of
responsibility.)
3. Garcia, the source of the formulation, made clear that the list was not
exclusive, and we assume that the Headley panel did not believe it to be.
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In the case at bar, the District Court focused most of its
analysis on the first Headley factor — the nature of the
defendant’s relationship to other participants. In assessing
Rodriguez’ relationship to the other participants, the
District Court quoted a portion of the presentence report
that stated: “neither the defendant, nor the government,
has provided the probation office with any information to be
considered in a factual analysis of the defendant’s level of
culpability for the instant offense, primarily because there
is no credible information regarding other participants in
the offense conduct.” (PSI para. 13.) Relying on that
determination, the District Court declared: “Based on that
alone, the defendant has failed in its burden of production
to verify his role as a minor role.” The Court’s reasoning
seemed to be that since there was no independent
information that could corroborate Rodriguez’ account,
there was no way to determine his relationship to other
participants, and hence no basis for the downward
adjustment.
Rodriguez argues that it was improper for the District
Court to conclude that he had failed to meet his burden of
proof in relation to the minor role simply because he could
not provide corroboration of his description of his relative
involvement in the criminal enterprise. In response, the
Government submits that the District Court is not bound to
credit the defendant’s statements nor to attribute to them
any particular evidentiary weight. This is, of course,
correct. Note 3(C) to U.S.S.G. § 3B1.2 clearly states:
The determination whether to apply subsection (a)
[minimal participant] or subsection (b) [minor
participant], or an intermediate adjustment, involves a
determination that is heavily dependent upon the facts
of the particular case. As with any other factual issue,
the court, in weighing the totality of the circumstances,
is not required to find, based solely on the defendant’s
bare assertion, that such a role adjustment is
warranted.
Obviously, we are not suggesting that the District Court
must credit the defendant’s statements about his own role
in the criminal enterprise, nor that the Court is bound to
believe the defendant’s own characterization that his role
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was minor. See United States v. Gault, 141 F.3d 1399, 1404
(10th Cir. 1998) (quoting United States v. Badger, 925 F.2d
101, 105 (5th Cir. 1991)) (stating that the district court was
“not bound to accept the defendant’s own declarations
about his level of participation in the crime”). However, as
was acknowledged by the District Court itself, drug couriers
are often small players in the overall drug importation
scheme.4 It stands to reason that these couriers seldom
have much information on the other criminal actors. To
state as a matter of law that a defendant who cannot
provide corroboration for his statements can never meet the
minor participant burden of proof would be tantamount to
saying that those actors with the least knowledge would
never be able to qualify for the minor role downward
departure.5 In this respect, the District Court erred, and the
judgment must be set aside.
The second factor adopted in Headley is the importance
of the defendant’s actions to the success of the venture. In
assessing the importance of Rodriguez’ actions to the
success of the venture, the District Court stated that it has
“always maintained that a defendant who served as a
courier and engages in the transport of drugs from one
country to another is very integral to the success of the
4. In addressing Rodriguez at the sentencing, the District Judge said:
“. . . his wife’s admonition should have been a motivating factor not to
become a courier for the drug syndicate because what happens is the
couriers get caught and the people who really make the big money and
are responsible, they never place themselves at risk, and it’s the
individuals in the lesser echelon who end up populating the prisons of
the United States.”
5. This Court has declined to adopt a per se rule about drug couriers,
stating that a “courier’s role can vary widely, and we reject any per se
rule regarding the applicability of the minor role adjustment.” Isaza-
Zapata, at 242. We maintain that the inquiry into whether the minor
participant adjustment is merited remains a factual inquiry and that the
“district courts are allowed broad discretion in applying this section. . . .”
Id. at 238. While, as we have noted, the District Court is under no
obligation to accept as true the defendant’s own characterization of his
role in the criminal scheme, it may, of course, credit the defendant’s
statements as to his involvement in the criminal enterprise and may,
given the totality of the circumstances, make a factual determination
that such statements do meet the defendant’s burden of proof.
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importation of those particular drugs.” Surely, this is a
truism: without the mules, drugs could not be carried into
the United States. In view of this observation, the Headley
“importance” factor may also be of less utility in mule
importation cases. At all events, we need to ensure that an
“integrality” statement does not amount to a set policy as to
the centrality of the drug courier’s role in the criminal
enterprise.
In Isaza-Zapata, the District Court had found that the
defendant drug courier’s role was “essential” and that he
was therefore not entitled to a minor participant downward
departure. Because the panel could not determine whether
that finding had been made on the basis of a factual
analysis or on a legal interpretation of the Sentencing
Guidelines, it vacated the sentence and remanded for
resentencing. See Isaza-Zapata, at 237. Similarly, in the
case at bar, we find it difficult to determine whether the
District Court’s assertion about the integrality of drug
couriers may have trumped, or at least undermined, the
individual factual analysis required by the case-law.
Headley’s third factor is the defendant’s awareness of the
nature and scope of the criminal enterprise. The District
Court made no evaluation of Rodriguez’ awareness of the
nature and scope of the criminal enterprise. In all
likelihood, this was because the only information available
about Rodriguez’ awareness of the nature and scope of the
criminal enterprise came from Rodriguez’ own
uncorroborated statements, as explained above. Had
Rodriguez been involved in a local drug ring in Newark, for
example, there probably would have been a greater number
of arrests and the participants could verify each other’s
roles and knowledge as to the scope of the overall scheme.
III.
For the reasons explained above, the judgment must be
vacated and the case remanded for resentencing. The
question at once arises — what more must the District
Court do on remand in view of the sparse record? A few
things at least suggest themselves. The Court may wish to
consider additional factors, such as whether this drug
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courier occurrence was a repeated activity or an isolated
event. Rodriguez had made a number of prior trips to the
New York area to visit his children living there. The
government concedes that this is the first time Rodriguez
has ever been involved in importation, though perhaps the
record on this issue can be further developed. The Court
may also wish to consider the amount of money the courier
was to receive as an indicator of the importance of the
defendant’s actions to the success of the venture.
Additionally, the Court may wish to delve more deeply into
the defendant’s likely knowledge of the identities and roles
of the other actors in the conspiracy as well as his likely
knowledge of the overall scope of the conspiracy.
One further point bears mention. As explained above, see
supra note 2, the safety-valve turns on the defendant
providing to the government truthful information about the
scheme. Here, the District Court must have believed that
the defendant was truthful in his dealings with the
government in order to grant the safety-valve. Thus, the
District Court’s refusal to credit the defendant’s statements
in the minor participant context may not have been based
on lack of trust in those statements but rather on the mis-
perception that it was not permitted to use uncorroborated
statements as proof. This factor too might be considered. As
suggested above, the Court is not limited to the three
Headley factors if it can come up with other relevant
considerations.
In sum, on remand the District Court must evaluate
whatever information is available to it and make the
findings necessary to support its (discretionary)
determination as to whether Rodriguez met his burden of
establishing minor role. The task is not easy on a sparse
record, but District Courts are accustomed to making
difficult calls.
The judgment of sentence will be vacated and the case
remanded for further proceedings consistent with this
opinion.
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A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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