United States v. Luis Pelayo-Munoz, 905 F.2d 1429, 10th Cir. (1990)

905 F.
2d 1429
UNITED STATES of America, Plaintiff-Appellee,

v.
Luis PELAYO-MUNOZ, Defendant-Appellant.
No. 89-2194.
United States Court of Appeals,

Tenth Circuit.
June 15, 1990.
Mario A. Esparza, Las Cruces, N.M., for defendant-appellant.

Mary Higgins, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Robert J.
Gorence, Asst. U.S. Atty., on the brief), Albuquerque, N.M., for plaintiffappellee.
Before HOLLOWAY, Chief Judge, LOGAN and ANDERSON, Circuit
Judges.
LOGAN, Circuit Judge.
Defendant Luis Pelayo-Munoz appeals from a sentence imposed following his

plea of guilty to one count of possession with intent to distribute more than fifty
kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)
(C). He asserts that the district court erred in failing to reduce his base offense
level under the Sentencing Guidelines because of his status as a minor
participant in the criminal activity and because of his acceptance of
responsibility for the offense. We affirm.
* Defendant was stopped by United States Border Patrol Agents on March 1,

1989, while traveling northbound on Interstate 25 near Hatch, New Mexico. A
search of defendant's van revealed what was later determined to be 128 pounds
of marijuana. After finding the marijuana, the agents realized that a vehicle that
they had stopped just before stopping defendant might have been a "scout" for
him. They radioed ahead to other agents, and the suspected scout vehicle was
stopped again. A search of the two individuals inside the vehicle revealed
defendant's wallet on one of their persons. For unrevealed reasons, it was
determined that no action should be taken against these individuals, and they
were released.
3
Defendant was indicted on one count of possession with intent to distribute

more than fifty kilograms of marijuana. At the arraignment he entered a plea of
not guilty. Later, however, he appeared before the court and entered a plea of
guilty pursuant to a Memorandum of Understanding Regarding Guilty Plea. In
pertinent part, this Memorandum states:
"2. The United States and the defendant stipulate as follows pursuant to the
Sentencing Guidelines:
(a) that pursuant to Section 3E1.1 of the Sentencing Guidelines, the defendant
has clearly demonstrated a recognition and affirmative acceptance of personal
responsibility for his criminal conduct.
(b) that pursuant to Section 3B1.2(b), the defendant was a minor participant in
the criminal activity alleged in the indictment herein.
(c) that based upon the foregoing stipulations, the defendant is entitled to a
reduction of four (4) offense levels.
3. The defendant and the United States understand that this stipulation is not
binding on the Court and that whether or not the Court accepts this stipulation
is solely in the discretion of the Court after it has reviewed the pre-sentence
report."
I R. tab 13 pp 2-3.
10
The court did not accept the stipulation. The pre-sentence report indicated a
criminal history category of I and a base offense level, based on the amount of
marijuana involved, of 20. Thus, under the Guidelines the sentencing range was
33 to 41 months. The court noted that the amount of marijuana "was at the
upper end of the drug table establishing the offense level," and accordingly
entered a sentence of 41 months. II R. at 11.
II
11
Defendant argues that he was entitled to a two point offense level decrease
because the facts showed that he acted as a mere courier under the control and
supervision of the two individuals in the "scout vehicle" who were detained and
subsequently released by the Border Patrol. We disagree.
12
We have held that "the quantum of proof required for factual determinations
under the Sentencing Guidelines is a preponderance of the evidence and the
burden of proof generally is allocated ... to the defendant for sentence
decreases." United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.1990).
Defendant did not offer any evidence to the district court except his own
assertion that he was merely the underling of the "scouts." The presence of the
scout vehicle does not a fortiori render his participation minor. Further,
defendant "concedes that the sentencing court is [in] no way bound by the
stipulations agreed to by the government and defense counsel." DefendantAppellant's Corrected Brief-in-Chief at 8. Defendant's assertion that "a courier
whose sole function is to drive the marijuana from point A to point B, can be a
minor participant," id., is true but unavailing. The fact that a defendant is a
courier does not necessarily mean that he is a minor participant under section
3B1.2 of the Guidelines. See, e.g., United States v. Gordon, 895 F.2d 932, 935
(4th Cir.1990); United States v. Williams, 890 F.2d 102, 104 (8th Cir.1989);
United States v. Buenrostro, 68 F.2d 135, 138 (5th Cir.1989). We agree with
Buenrostro that
13 3B1.2 turns upon culpability, not courier status. The background note to the
"Sec.
section states that the section 'provides 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.' [Defendant] may be a courier without being
substantially less culpable than the average participant. Culpability is a
determination requiring sensitivity to a variety of factors."
14
Id. (emphasis in original).
15
Defendant points out that the sole reason given by the district court for refusing
to treat him as a minor participant was that there was no indication that any one
else was involved in the crime. See II R. at 8-9. This conclusion was incorrect,
defendant argues, because the individuals in the scout vehicle were obviously
associated with him. The court's determination that he was not a minor
participant, however, is a finding of fact reviewed under the clearly erroneous
standard. Cf. United States v. Mays, 902 F.2d 1501, 1503 (10th Cir.1990). We
reverse such findings only if they are without factual support in the record or if,
after reviewing all the evidence, we are left with the definite and firm
conviction that the finding was mistaken. United States v. Beaulieu, 893 F.2d
1177, 1182 (10th Cir.1990). We will not assume that the district court, in this
brief sentencing hearing, rested its decision entirely upon the basis that no one
else was charged as a participant in the smuggling operation. Reviewing the

record, it is clear that defendant did not establish by a preponderance of the
evidence that he was a minor participant. The downward adjustment is to be
used "infrequently," United States Sentencing Commission, Guidelines Manual,
Sec. 3B1.2 comment. (n.2) at 3.6 (Nov.1989) (hereinafter U.S.S.G.). Defendant
entered the country illegally, transporting a large amount of drugs.
Accordingly, the district court's refusal to give a downward adjustment was not
error.
III
16
At the sentencing hearing defendant expressed sorrow for what he had done and
promised that it would not happen again. II R. 10-11. He claims that this
acceptance of responsibility, coupled with his guilty plea, entitled him to a base
offense level reduction. In his interview with the probation officer who
prepared his presentence report, however, defendant claimed that he had not
been aware that there was marijuana in his van, and that he had pleaded guilty
upon the advice of his lawyer, and because he believed there was no possibility
of his winning the case. The presentence report therefore concluded that
"pursuant to 3E1.1, defendant does not qualify for a two offense level
reduction." III R. 3-4 p 10.
17
The court found that defendant's professed acceptance of responsibility was

untimely, and thus refused to use it as the basis of an adjustment. See U.S.S.G.,
Sec. 3E1.1 comment. (n.1) at 3.23 (including "the timeliness of the defendant's
conduct in manifesting acceptance of responsibility" in a non-exhaustive list of
factors for the sentencing court to consider in determining whether defendant
has accepted responsibility); Gordon, 895 F.2d at 937. The sentencing court's
determination with respect to a defendant's acceptance of responsibility "is
entitled to great deference on review and should not be disturbed unless it is
without foundation." United States v. Spraggins, 868 F.2d 1541, 1543 (11th
Cir.1989) (quoting what is now U.S.S.G. Sec. 3E1.1 comment. (n.5) at 3.24).
The court's conclusion in this case was manifestly not without foundation.
18
AFFIRMED.

United States v. Luis Pelayo-Munoz, 905 F.2d 1429, 10th Cir. (1990)

Uploaded by

Copyright:

Available Formats

United States v. Luis Pelayo-Munoz, 905 F.2d 1429, 10th Cir. (1990)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Luis Pelayo-Munoz, 905 F.2d 1429, 10th Cir. (1990)

Uploaded by

Copyright:

Available Formats

905 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

Mario A. Esparza, Las Cruces, N.M., for defendant-appellant.

Defendant Luis Pelayo-Munoz appeals from a sentence imposed following his

* Defendant was stopped by United States Border Patrol Agents on March 1,

Defendant was indicted on one count of possession with intent to distribute

Id. (emphasis in original).

else was charged as a participant in the smuggling operation. Reviewing the

The court found that defendant's professed acceptance of responsibility was

You might also like