USCA1 Opinion

October 16, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1208

UNITED STATES,
Appellee,

v.

NANCY VALDES-BRETONES,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Lynch, Circuit Judge,
_____________
and Watson,* Senior Judge.
____________
____________________

Benicio Sanchez Rivera,

________________________
Maldonado Rodriguez,
___________________

Federal

Public

Defender,

Assistant Federal Public Defender,

and

La
__

on brief

appellant.
Guillermo Gil,
______________

United

States

Assistant United States Attorney,

Attorney,

Nelson
Perez-So
_________________

and Jose A. Quiles-Espinosa, Sen

_______________________
Litigation Counsel, on brief for appellee.

____________________

____________________

________________
*Senior Judge, U.S. Court of International Trade, sitting by
designation.

Per Curiam.
___________

having

pled guilty to

distribute, 21

Appellant

Nancy

Valdes-Bretones,

possession of cocaine

U.S.C.

841(a)(1),1

with intent to

challenges the district

court's denial of a downward adjustment in her offense

due to her alleged "minor

3B1.2.

participant" status.

We affirm.

I.

level

See U.S.S.G.
___

We recount

understanding

only those

of the

issue

facts necessary to

on appeal.2

a basic

Additional

facts

will be incorporated as necessary.

After a trip to Aruba, appellant returned to Puerto

Rico

on

the morning

of July

Airlines

flight.

American

Airlines security

from the

aircrew elevator area.

leaving later that

could

or

She

wore

5,

1994, aboard

an

American

Eagle

personnel observed

day to go

She

an American

uniform.

her approach

told them that she was

to New York

and asked if

she

leave a suitcase with them until then, when either she

her cousin

would

connecting flight.

pick it

up

prior to

boarding

their

____________________

1.

Appellant

(a)(1)

and 21

was charged
U.S.C.

with
952(a).

violating 21
Pursuant

U.S.C.
to

841

the

plea

agreement, the latter charge was dropped.

2.
draw

Since
the

this conviction
facts

from

the

resulted from
uncontested

a guilty
portions

plea, we
of

the

presentence report ("PSR") and the transcript of the hearing.

U.S. v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
_____________

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The

security

personnel

X-rayed

the

suitcase,

observed what they believed to be narcotics, and notified the

U.S.

Customs service.

narcotics.

Search of

K-9 dog indicated

the

cocaine,3 later determined

bag revealed

the presence of

9.85 kilograms

to be 93% pure,

of

and $8,390.00 in

U.S. currency.

Later that afternoon, appellant boarded an airplane

for Newark.

She

was detained on board

She was questioned and

her arrest she

She was

currency.

ultimately arrested.

was not wearing

carrying

a cellular

A subsequent

by a Customs

At the

the American Eagle

phone

search of

and $2,896.00

her apartment

agent.

time of

uniform.

in

U.S.

turned up

$5,000.00 in U.S. currency, and an American Eagle uniform.4

Based on

the quantity and type

of drugs involved,

appellant was

2D1.1.

guilty

U.S.S.G.

given a base offense level

This was

plea and

reduced by

her

3E1.1.

three

of

of her

responsibility.

total offense level of

criminal history category of I, the

U.S.S.G.

levels because

timely acceptance

With a

of 30.

27, and a

guidelines called for 70

to 87 months of imprisonment, with a fine range of $12,500.00

____________________

3.

For

purposes of

sentencing, the

amount of

cocaine was

stipulated at 4.92 kilograms.

4.

Investigation revealed that while appellant had once been

an American Airlines

employee, she

airline since May, 1993.

had not

worked for

Prior to that time, she

with the Wackenhut Security

the

had worked

Company at the American Airlines

terminal and with the U.S. Immigration Service in New York.

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to $2,000,000.00 plus supervised

release.

$50.00

70

month

sentence

assessment."

and

The court imposed

"special

monetary

II.

The Sentencing Guidelines provide for a decrease of

two

levels

when

criminal activity.

defendant is

Application Note

explains that "a minor

minor

participant

3 to U.S.S.G.

in

3B1.2

participant means any participant who

is less culpable than most other participants, but whose role

could not be described as minimal."

Role-in-the-offense

fact specific."

1995).

determinations

U.S. v. Rostoff,
_______________

are

"innately

53 F.3d 398, 413 (1st Cir.

"[O]ur standard of oversight is deferential:

`absent

mistake of law, we review such determinations only for

error.'"

the

Id. (internal quotation

___

district

adjustment

court's

decision

omitted).

not

to

clear

We will reverse

grant

downward

"only if the evidence overwhelmingly demonstrates

that the defendant played a part that makes him substantially

less

culpable than

the

average participant...."

U.S. v.
________

Brandon, 17 F.3d 409, 460 (1st Cir.), cert. denied, 115 S.Ct.
_______
_____ ______

80 (1994).

A criminal

defendant has the burden

of proving an

entitlement to a downward adjustment.

U.S. v. Lopez-Gil, 965

_________________

F.2d 1124

113 S.Ct.

(1st Cir.),

The question

downward

cert. denied,
_____ ______

whether a criminal

adjustment

is

based

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483 (1992).

defendant is entitled

ultimately

on

the

to a

court's

consideration of the facts of each particular case.

U.S.S.G.

3B1.2, comment. (backg'd.).

The

adopted

probation

by the district court,

adjustment

was

substantiating

In response

people

officer

warranted

evidence to

to appellant's

involved

and

observed

in

that no role

because

of

establish a

his

in the offense

the

only

lack

of

criminal hierarchy.

objection that there

she played

report,

minor

were other

role as

courier, the report noted that the facts of this case did not

reflect

knowledge

that appellant

was

a typical

and understanding of

criminal activity.

A. 3-4.

courier with

the nature and

little

scope of the

The officer detailed his reasons

for

this conclusion:

been an

her

appellant,

American Eagle

who had not

for some time

employee, nonetheless

brought along

uniform on a business

the plane

people

returned to

she

had

Puerto Rico,

traveled

inspection points.

and pleasure trip

with

to Aruba; once

she separated from

and

circumvented

Appellant

by

several

The officer considered as well the amount

of drugs involved and the high degree of purity.

rejected

the

reiterates

the

district

before this

court.5

They

Id.
___

court arguments

are

no

more

____________________

5.

We

have

court may

reviewed appellant's

claim

that the

district

not ever have seen certain documents purporting to

show that there was at least one other person involved in the
smuggling

scheme.

Assuming

that appellant

had

in

fact

provided certain documents to the probation officer which the

probation officer

neglected

to hand

to

the court

at

the

hearing

- an assumption not wholly supported by the record -

-5-

persuasive here.

that status

as

We

have specifically rejected the argument

a drug

courier,

without more,

entitles

defendant to a reduction of the offense level as a minimal or

minor

participant.

Uribe, 891 F.2d 396,

_____

Lopez-Gil, 965 F.2d at 1131; U.S. v. Paz

_________
___________

399 (1st Cir. 1989), cert.

_____

denied, 495
______

U.S. 951 (1990).

Cir.

1990)

facts,

See U.S. v. Garcia, 920

___ ______________

("[w]hile in

district court

courier was

certain

might

`substantially

this

Couriers are

and on

conclude

less culpable

participant' and thus make

3B1.2,

cases

F.2d 153, 155 (2d

particular

that a

defendant

than the

average

a downward adjustment pursuant to

conclusion

is

by

no

means

indispensable to the smuggling

mandated.

...

and delivery of

drugs and their proceeds.").

Balanced against

only

a minor

part

evidence as found

of a

appellant's

larger

or adopted6

claim that

enterprise is

by the district

she

the

was

record

court:

the

harmed.

The

____________________

we are not

convinced that

appellant has been

court permitted
effect

testimony at

that defendant

others involved.

the sentencing hearing

had consistently

A. 38-39.

claimed there

The government

defendant, when arrested, alleged that a

provided her with

the drugs.

were others involved,

A. 41.

amount of

money

indicated that

Whether in fact there

the court did not find

the scheme, the weight and

involved, the

were

person in Aruba had

was substantially less culpable than they.

of

to the

that appellant

Given the details

purity of the cocaine and the

court had

ample grounds

on

which to deny appellant a downward adjustment.

6.

Appellant claims

findings

in

offense

adjustment.

that the district court

support of

its rejection

of

failed to make
her role

in the

We have already observed that the PSR,

adopted by the district court, sets out sufficient reasons in

support

of the denial of the role in the offense adjustment.

-6-

considerable amount of

degree of purity,

planning

see U.S.S.G.
___

involved in

amount of cash

cocaine involved; the cocaine's

the

2D1.1, comment.

smuggling scheme;

found with the

high

(n.9); the

and the

drugs, on appellant's

large

person

and in her home.

We have

failure

way

not been

shown that the

to grant appellant a

erroneous.

On

decision is affirmed.
________

downward adjustment was in any

this record,

advance appellant's case.

district court's

oral

Accordingly, the

Loc. R. 27.1.

argument

will not

district court's

____________________

We find appellant's argument untenable in light of our recent

decision

in U.S. v. Catano,
_______________

___F.3d___, ___,

No. 94-1502,

slip op. at 26 (1st Cir. Sept. 18, 1995)("in a case where the
PSR

findings themselves

rationale

adequately set

forth a

meaningful

for the sentence, a district judge does not err in

adopting such findings.").

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