United States of America v. FRANCISCO SANTO a/k/a FRANKIE Francisco Santo

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-1542
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UNITED STATES OF AMERICA,
v.
FRANCISCO SANTO
a/k/a
FRANKIE
Francisco Santo
Appellant
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 94-cr-00497-2)
District Court Judge: Hon. Thomas J. O’Neill, Jr.
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2004
Before: ALITO, CHERTOFF and BECKER, Circuit Judges
(Opinion Filed: February 13, 2004)
______________________
OPINION OF THE COURT
______________________

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ALITO, Circuit Judge:
This appeal requires us to decide whether the District Court erred as a matter of
law and fact when it did not grant Appellant Francisco Santo a two-level downward
adjustment, pursuant to U.S.S.G. § 3B1.2, based on the extent of his participation in a
drug distribution conspiracy. Santo claims that because his participation as a street seller
of heroin in the instant criminal conspiracy was minor, he was substantially less culpable
than the average participant in the conspiracy. The District Court disagreed and denied
the two-level downward adjustment. Because we agree with the District Court’s
conclusion that Santo’s contribution to this conspiracy as a street seller does not qualify
him for entitlement to a two-level downward adjustment, we will affirm.
I.
Between February 1992 and March 1994, Santo and many others participated in
the Nissan Heroin Organization, a narcotics distribution organization that sold heroin
from a street corner in Philadelphia. Santo participated in some of these drug sales during
a three-month period early in the conspiracy. By pleading guilty to participation in this
conspiracy, Santo accepted responsibility for selling approximately 735 grams of heroin
on the corner during the day shift during the three-month period of his participation.
There is no dispute that Santo’s participation in this conspiracy was rather limited,
and that his role was less important than the government originally believed. Because
Santo played a more limited role in this rather large conspiracy, the Probation Officer did

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not seek an enhancement under U.S.S.G. § 3B1.1 for an aggravating role as an
“organizer, leader, manager, or supervisor.”
Insofar as Santo’s plea agreement obligated him to render substantial assistance to
the government, he adhered to that condition. According to the government, he provided
useful cooperation. However, Santo violated the conditions of bail twice by leaving the
jurisdiction and returning home to the Dominican Republic. When last arrested on March
19, 2002 in St. Croix, U.S. Virgin Islands, he had been a fugitive for approximately five
years. Charges of illegal entry are pending against him in that jurisdiction.
Santo originally agreed to cooperate with the authorities. However, he forfeited
his chances of being considered for a motion for a downward departure for substantial
assistance to authorities, under U.S.S.G. § 5K1.1, by becoming a fugitive from justice.
Due to Santo’s unusual combination of cooperation and absconding, the Probation
Officer and the government recommended both a three-level reduction in offense level
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, and a two-level increase
for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. Prior to sentencing, defense
counsel proposed an additional two-level downward adjustment pursuant to U.S.S.G. §
3B1.2, arguing that Santo’s role in the offense was minor. Denial of that motion is the
issue on appeal.
II.
Contrary to Santo’s contention, the District Court did not conclude that Santo was

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ineligible for the adjustment for being a minor participant in the criminal conspiracy as a
matter of law. Instead, the District Court properly considered Santo’s participation under
U.S.S.G. § 3B1.2. In particular, the District Court noted that the guidelines “provide[] a
range of adjustments for a defendant who plays a part in committing the offense that
makes him substantially less culpable than the average participant,” and made a factual
determination on that basis. See U.S.S.G. § 3B1.2 Application Note 3. Prior to deciding
whether Santo was entitled to a downward adjustment in his offense level pursuant to
U.S.S.G. § 3B1.2, the District Court entertained argument on the issue from both defense
counsel and counsel for the government. After evaluating Santo’s participation in the
conspiracy, the District Court concluded: “I just don’t think that fits this defendant, who
was a street seller. So I will not honor the defense request on this matter.” App. 198a.
III.
Where the District Court has denied a downward adjustment under U.S.S.G. §
3B1.2 based primarily upon a legal interpretation of the sentencing guidelines, we
exercise plenary review. Where the sentencing court’s decision is based upon a factual
determination, our review is for clear error. United States v. Isaza-Zapata, 148 F.3d 236,
237 (3d Cir. 1998) (“We employ a mixed standard of review when considering whether a
defendant was entitled to a downward adjustment as a minor participant.”).
IV.
The Sentencing Guidelines afford sentencing courts discretion to adjust a

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defendant’s sentence if his participation in the offense was minor. U.S.S.G. § 3B1.2(b)
(“If the defendant was a minor participant in any criminal activity, decrease by 2 levels.”).
The district courts are allowed broad discretion in applying this section, and their rulings
are left largely undisturbed by the courts of appeal. United States v. Isaza-Zapata, 148
F.3d 236, 238 (3d Cir. 1998).
We have set forth three factors that are relevant to the determination of the
applicability of a minor role adjustment: “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.” United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001) (citation omitted).
Evaluating these factors, aided by defense counsel’s argument, the District Court was not
persuaded that Santo’s role was minor. We are not convinced that the District Court’s
factual finding was clearly erroneous.
There was abundant evidence that Santo was an integral part of the conspiracy.
This conspiracy was responsible for distributing 18.75 kilograms of heroin over a period
spanning two years. For the first three months of the conspiracy, Santo sold 735 grams of
heroin directly to customers, collected their money, and transferred it to other members of
the organization. He also assisted in setting up drug transactions between customers and
other members of the organization. He spoke directly to the customers, obtained the
heroin necessary to complete the transaction, provided the heroin to a seller, and received

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money for the sale. In this capacity, Santo’s participation in the criminal conspiracy was
integral, and he was fully aware of the various roles of his co-conspirators. As illustrated
below, such active, integral participation in the conspiracy is sufficient to justify the
District Court’s factual finding that Santo did not play a “minor” role as contemplated in
U.S.S.G. § 3B1.2(b).
Each member of the Nissan Heroin Organization had a separate and distinct role,
each integral to the existence and success of the organization. The leaders or managers of
the organization were responsible for supplying the heroin to the corner and collecting
funds from their shift bosses. The shift bosses were responsible for directing the sellers
to the customers, secreting the heroin held for sale, re-supplying the street sellers, and
receiving money from the sellers, ultimately transferring it to the leaders or managers.
Assistant shift bosses were responsible for secreting the heroin held for sale, re-supplying
the street sellers, and receiving money from the sellers. The street sellers were
responsible for the street level sales of heroin to the organization’s customers. The
conspiracy could not have thrived, as it did for more than two years, without the
contributions of each of these participants. Therefore, in his particular role as a street
seller in this particular conspiracy, Santo played an integral role.
By analogy, we have previously affirmed a District Court’s denial of a downward
adjustment for a minor role, where the defendant was far less involved in the drug
conspiracy than was Santo. United States v. Carr, 25 F.3d 1194 (3d Cir. 1994) cert.

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denied, 513 U.S. 1086 (1995). In Carr, the defendant repeatedly transported large sums
of proceeds from illegal drug deals to a foreign destination, but claimed to be merely a
traveling companion to the actual courier. During one trip, Carr was stopped, searched,
and found to have $180,000 in marked bills in his possession. The money was hidden in
coffee cans in his carry-on luggage, which was in his possession at all times. Carr was
convicted, and the District Court denied his request for a two-level reduction for being a
minor participant. In affirming the District Court’s denial of Carr’s request, we
reaffirmed our conclusion in United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.
1991), that “[t]he fact that a defendant's participation in a drug operation was limited to
that of courier is not alone indicative of a minor . . . role.”
V.
After careful review of the record and thorough examination of the parties’
arguments, the sentence imposed by the District Court is affirmed.

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United States of America, No. 03-1542
Becker, Circuit Judge, dissenting.
The majority’s opinion is persuasive that the record would support a finding that Santo
is not entitled to an adjustment for minor role. But the District Court’s ratio decidendi is
encapsulated in its pronouncement that: “I just don’t think that fits this defendant, who was
a street seller.” In my view, the District Court has made a legal determination that a street
seller will never be entitled to a minor role adjustment, which contravenes our opinion in
United States v. Rodriguez, 342 F.3d 296 (3d Cir. 2003), where we held that the District
Court should not make legal determinations that certain categories of criminals (there the
least-knowledgeable mule, here the street seller) are not entitled, as a matter of law, to a
downward adjustment for minor role. I would vacate and remand for further consideration
in light of Rodriguez, which had not yet been decided at the time of Santo’s sentencing.

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