Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1989)

MEMORANDUM^* 

Jorge Garcia-Elizondo ("Garcia") appeals from his sentence for conspiracy to possess heroin with intent to distribute. Garcia contends that the district court erred in refusing to adjust downward his base offense level under the Sentencing Guidelines. We affirm the district court's decision.

* On October 28, 1988, following an undercover police investigation and drug transaction, Garcia was arrested along with two other people. The arresting agents seized approximately 276.8 grams of heroin during the course of the arrest.

After waiving his Miranda rights, Garcia informed the agents that he had become involved in the drug transaction only by happenstance. As Garcia explained it, he had been on his way from the San Diego area to Los Angeles to buy clothes and, before leaving, went to see a friend. While at his friend's residence, Garcia alleged, he heard one Romeo Jesus Priego-Gallegos ("Priego") and a certain Jose Estrada-Lopez ("Estrada") discussing a heroin deal. Garcia stated that he had thought it would be an "adventure" to follow along on a drug deal and see how it was done. Garcia claims to have suggested to Priego and Estrada that they not conduct the drug transaction.

At the time of his arrest, Garcia gave the police the false name of Miguel Tello-Jimenez as his own. A subsequent search of a residence at which Garcia had been observed yielded a passport and airline ticket in Garcia's true name. Agents also found approximately $3,300 in cash on Garcia's person at the time of his arrest.

On November 2, 1988, a federal grand jury indicted Garcia for possession of heroin with intent to distribute and conspiracy to possess heroin with intent to distribute, both in violation of Title 18 of the United States Code. On February 6, 1989, pursuant to a plea bargaining agreement, Garcia pleaded guilty to the conspiracy charge. In exchange, the prosecution agreed to move to dismiss the remaining count at the time of sentencing, to recommend that Garcia receive credit for acceptance of responsibility, and not to oppose a minimum sentence within Garcia's applicable Sentencing Guidelines range.

In pleading guilty, Garcia stated that he had agreed with Priego and Estrada to act, and did in fact act, as a "lookout" and advisor while the heroin transaction was being conducted. Garcia also stated that he had agreed to give Estrada a ride after the exchange of heroin for money was completed.

In Garcia's oral statements to his probation officer and written statement to the district court after his guilty plea hearing, however, Garcia changed his story. He did not say that he had agreed to act as a "lookout" or advisor for the transaction or to give Estrada a ride after the transaction. He stated that he knew Estrada because they were from the same area of Mexico and that he happened to be at a friend's house when he overheard Estrada and Priego talking about a drug transaction. Garcia claimed that he tried, without success, to dissuade Estrada and Priego from going through with the heroin transaction. When his efforts so to dissuade failed, Garcia again related, he went along with Priego and Estrada out of "curiosity." Garcia also indicated to the probation officer that he pleaded guilty because his attorney had advised him to do so.

In the presentence report, the probation officer recommended no reduction in Garcia's base offense level under section 3E1.1 of the Guidelines for acceptance of responsibility or under section 3B1.2 for his having been a minor or minimal participant in the crime. Garcia filed written objections to the presentence report. At Garcia's sentencing hearing on April 17, 1989, the district court declined to reduce Garcia's base offense level under either section 3E1.1 or section 3B1.2. The court then sentenced Garcia to seventy-two months of imprisonment and a consecutive three-year term of supervised release.

Garcia timely appeals from the district court's ruling. We have jurisdiction under 18 U.S.C. § 3742(a).

II

Garcia argues that the district court erred in refusing to reduce his base offense level for acceptance of responsibility or for his having been a minor or minimal participant in the crime. We find both arguments meritless.

* A district court must reduce a defendant's base offense level under the Sentencing Guidelines if "the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." United States Sentencing Commission, Guidelines Manual Sec. 3E1.1(a), at 3.23 (1989) [hereinafter "Guidelines Manual "]. A district court's ruling on acceptance of responsibility is a factual determination which we review only for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). We therefore must uphold the district court's decision unless, after reviewing the record, we are "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

The district court set forth at length the reasons for its determination that Garcia should not get credit for acceptance of responsibility:

Insofar as the two-point reduction for an early acceptance of responsibility, I realize that counsel negotiated for that, but I cannot go along with that. Basically, according to the guidelines, you get the two-point acceptance of responsibility [adjustment] for a full and complete statement of your involvement that indicates that the Defendant has truly accepted responsibility for his or her conduct. It's not to be given because a defendant pleads guilty, or not to be withheld if the defendant goes to trial, but it clearly is something more than saying, "Yes, I did it," or pleading guilty.... And I certainly feel the probation officer is absolutely correct in [recommending that Garcia not get a reduction for accpetance of responsibility].

Basically, I will accept your version--I mean, the attorney expanded the reason, that the Defendant said he would plead guilty in the factual objection statement of his probation report. It's basically saying the same thing that the probation officer said, except, perhaps, a little bit nicer. The bottom line is, he was saying he pled guilty because, through consulting with his attorney, he felt that it was in his best interest to do so, but he certainly is, essentially, denying that he is guilty, and he was present there, out of a sense of curiosity, and he tried to talk Estrada out of it.

Transcript of Disposition Hearing, Apr. 17, 1989, at 19-21 (emphasis added). The district court found particularly incredible Garcia's claims that he had tried to dissuade Priego and Estrada from going forward with the drug transaction and that he had accompanied them only out of a sense of adventure. The court noted:

As I have indicated to you, that just defies any logic, that he was trying to talk him out of it, and that he would be brought along out of curiosity to watch a drug transaction. And he said out of curiosity, because he'd never seen a drug transaction, Garcia decided to follow Estrada and Priego. Now, I'm sure, if he's coming in, like the moral white knight, which he indicates to in his statement to the probation officer, to Estrada and Priego, they certainly would have taken great pains to make certain that he didn't follow them to any drug deal going down, and if they saw him, they would have tried to get him away from there. They certainly wouldn't have had these signals and nods, and obvious contact that was going on. He was a peril.

Id. at 21.

The district court concluded its statement on Garcia's request for adjustment downward of his base level offense for acceptance of responsibility by stating as follows:

And, of course, remember, he was seen at the scene, then, they went back to the house, and then, he's back on the scene again in his own car. I mean, that guy would not have been allowed to come back, if he is out there out of a sense of curiosity. For one thing, these are dangerous transactions, and they just--he would have been a terrible liability. So, I think his statements to the probation officer are such that they clearly do not deserve the acceptance of responsibility points, and I agree with the probation officer on that.

Id. at 21-22.

The district court did not clearly err in finding that Garcia was not entitled to a reduction in his base offense level for acceptance of responsibility. After entering his guilty plea, Garcia reverted to his original story, first told to the arresting agents, that he was merely a curious observer of and not a participant in the crime. For instance, in his written presentencing statement to the court, Garcia stated:

In your investigation, you will find that I am a poor man of humble origins, which will prove that at no time have I ever considered getting involved in drug trafficking.... I believe, Your Honor with all respect, you ought to consider my probation [sic ], given that I am telling the truth about not having any culpability in the case in which I have been involved, but for that of having approached the men because I had met/known one of them from the same region I come from.

Statement of Jorge Garcia E. (Feb. 17, 1989) (translation) (emphasis added). Garcia's post-plea and presentencing statements to his probation officer, which we recounted above, see supra page 3, similarly belie any claim that he accepted responsibility for his crime. After reviewing the record, we are scarcely "left with the definite and firm conviction that a mistake has been committed." United States Gypsum Co., 333 U.S. at 395. The district court's ruling therefore must be upheld. See Gonzalez, 897 F.2d at 1019.¹ 

B

Garcia also contends that the district court erred in refusing to adjust downward his base offense level under section 3B1.2 of the Guidelines, which provides for such an adjustment for "minimal" or "minor" participants in criminal activity. See Guidelines Manual Sec. 3B1.2, at 3.6. We reject the contention.

The "minimal participant" provision "is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group." Id., Commentary, Application Note 1. " [T]he defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant." Id. A "minor" participant, on the other hand, is one who is "less culpable than most other participants, but whose role could not be described as minimal." Id., Commentary, Application Note 3. A district court's ruling on "minor" or "minimal" participation under section 3B1.2 is reviewed under the clearly-erroneous standard. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989).

The district court provided the following rationale for its refusal to find that Garcia had been only a minor or minimal participant in the conspiracy to possess heroin:

Under the facts of this case, I find that it's inappropriate for the Defendant to get minimal participant points, or minor participant points. Mr. Harrigan [i.e., the Assistant U.S. Attorney] did a good job of outlining the observations that were made of the Defendant on the day of the transaction. I incorporate that factual summary in this ruling. And basically, I think that it's very telling, that on the day the heroin transaction was to go down, there were several stages of it. It wasn't just that it went right away. I mean, they were transported to a certain place, they meet, there's some kind of dialogue. Then, they go back to the residence, and then, they come back. And there's, of course, this--the heroin is ultimately found in a diaper bag.

There is a rather elaborate, lengthy last stage to his transaction, and as Mr. Harrigan mentioned, the Defendant was present at each of these transactions. The exchange between this Defendant and his co-Defendant, Estrada, that was seen before Estrada walked back to the car--or when he walked back to his car, he nodded. Then, they all went back to the house, came out, the heroin is later found in the baby bag, Defendant is present. Under the circumstances, I cannot say he's a minimal or minor participant, and I deny those points.

Transcript of Disposition Hearing, Apr. 17, 1989, at 22-23.

Garcia contends that this finding is flawed because the district court failed to resolve the disputed question as to whether he was the source of the drugs or merely a lookout or driver. But, as the above-quoted statement demonstrates, the district court did not base its finding on the notion that Garcia was the source. The district court based the finding on, among other things, the fact that Garcia was present at every crucial stage of a multi-stage transaction, a fact which Garcia does not dispute.

Garcia's only other argument as to why the district court's finding here was clear error is the court's alleged failure to consider Garcia's statements at his guilty plea. Yet the district court set forth detailed reasons for its refusal to consider Garcia a minor or minimal participant. There was no requirement that the district court explicitly discuss the statements that Garcia made at the guilty plea hearing.

In short, our review of the record again does not leave us with the "definite and firm conviction that a mistake has been committed." United States Gypsum Co., 333 U.S. at 395. We therefore must uphold the district court's ruling. See Sanchez-Lopez, 879 F.2d at 557.

AFFIRMED.