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
Before: Alito, Fuentes, and Becker, Circuit Judges
The opinion of the court was delivered by: 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.
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 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).*fn1 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.*fn2
At sentencing, the District Court gave effect to the safetyvalve, 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).
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)).*fn3 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 ...