# United States v. Isabel Rodriguez De Varon > Court of Appeals for the Eleventh Circuit · May 14, 1999 · 175 F.3d 930 URL: https://www.frixlaw.com/law-library/cases/9492136 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Isabel RODRIGUEZ DE VARON, Defendant-Appellant - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** May 14, 1999 - **Citations:** 175 F.3d 930; 1999 U.S. App. LEXIS 9093; 1999 WL 303794 - **Precedential status:** Published - **Opinion:** Concurrence by Carnes - **Judges:** Hatchett, Tjoflat, Anderson, Edmondson, Cox, Birch, Dubina, Black, Carnes, Barkett, Hull, Marcus, Godbold - **Cited by:** 752 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492136 ## How later opinions describe it (automated extraction) - holding that when determining if a defendant is a minor participant, the district court “must measure the defendant’s role against the relevant conduct for which [he] was held accountable at sentencing . . . [and] may also measure the defendant’s role against the other partici… - holding that a “bare record” establishing “no more than that [the defendant] was hired by someone (Nancy) to smuggle one-half kilogram of heroin into the United States, and to deliver the drugs to someone else” did not “compel the conclusion that Nancy was sufficiently more cu… - stating that, for drug couriers, the amount of drugs involved is a material consideration in deciding whether minor-role reduction is warranted, and courier’s possession of very-large quantity of drugs “may be the best indication of the magnitude of the courier’s participation… - holding that “the district court must measure the defendant’s role against . . . the conduct for which she has been held accountable” and “may also measure the defendant’s conduct against that of other participants in the criminal scheme attributed to the defendant” if “the re… - explaining that “[o]nly if the defendant can establish that [he] played a relatively minor role in the conduct for which [he] has already been held accountable — not a minor role in any larger criminal conspiracy — should the district court grant a downward adjustment for mino… ## Opinion text CARNES, Circuit Judge, concurring specially: The Court’s opinion does a good job of surveying the law relating to role reductions for drug couriers, employs correct reasoning, and reaches the right result. I join all of the opinion and write separately only to point out the flaws in one part of the dissenting opinion. By focusing on that one part, I do not mean to imply that I agree with the remainder of the dissenting opinion. There are other parts of it with which I disagree, but given the time limitations peculiar to issuance of a decision in this case, I will confine my reply to one issue. That issue is whether a drug courier, who is convicted of importation and whose base offense level is calculated using only those drugs she personally brings into this country, may ever qualify for a minor role reduction. In other words, if the relevant conduct used to determine a courier’s sentence is no broader than her personal importation offense conduct, may she ever be granted a role reduction? The Court does not reach that issue because it is -not necessary to decide this case, see Op. at 945 n.8, but the dissenting opinion does. Speaking only for herself, the dissenting judge asserts that a role reduction is permissible in some circumstances even where a courier is sentenced only for the drugs she brings into this country. I disagree. Couriers, like De Varón, who are convicted solely of the crime of importing drugs and whose base offense levels reflect only those drugs they personally brought into this country, are not eligible for a role reduction of any kind. It wül always be clear error for district courts to grant a courier a role reduction in such circumstances. See United States v. Lampkins, 47 F.3d 175, 181 (7th Cir.1995)(“it makes no sense to claim that one is a minor participant in one’s own conduct”); United States v. Burnett, 66 F.3d 137, 140 (7th Cir.1995)(“When a courier is held accountable for only the amounts he carries, he plays a significant rather than a minor role in that offense.”) (emphasis omitted). This conclusion necessarily follows from the guidelines, from principles recognized in the Court’s opinion in this case, and from common sense. Importation is a simple crime consisting of nothing more than the act of bringing *948 drugs into this country. See 21 U.S.C. § 952 (a). Once the drugs enter this country from outside, the crime has been committed. Because the act of bringing drugs into this country is the central element of the crime, the courier plays the central role in the crime. She is every bit as important to a drug courier crime as a hit man is to a murder for hire. Others may orchestrate or finance the crimes, furnish weapons or drugs, or profit more from the nefarious undertakings, but the drug courier and the hit man are the ones who actually carry out their respective crimes. Neither is entitled to a role reduction of any kind insofar as the crime they personally commit is concerned. The guideline and its commentary support this conclusion. The guideline considers role in the offense and nothing else, beginning “Based on the defendant’s role in the offense ...” U.S.S.G. § 3B1.2. It does not concern itself with risk assumed or with whether the defendant herself (as distinguished from the role she plays) is indispensable to the criminal organization. Role is the sole criterion and it alone defines relative culpability. The commentary says the four-level minimal role reduction is intended to cover defendants “who are plainly among the least culpable of those involved in the conduct of a group” and whose “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.” U.S.S.G. § 3B1.2, comment, (n.l) (Nov.1998). One who actually brings drugs into this country cannot be among the least culpable of those responsible for bringing those particular drugs into this country. Her role in the crime is of equal or greater importance to the role anyone else plays. In addition, because she actually commits the act of importing the drugs, the courier necessarily knows enough about the scope and structure of the crime, which is her act, and about its central participant, whom she is, to rule out any role reduction based on lack of knowledge. When she is an internal carrier, as De Varón was, she is intimately familiar with the scope and structure of the importation crime. The guidelines commentary advises that a four-level minimal role reduction would be appropriate “in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment. (n.2) That illustration applies to, and makes sense for, cases in which the relevant criminal conduct that determines the courier’s base offense level is a larger mul-ti-courier smuggling enterprise. In other words, the courier could be entitled to a role reduction if her base offense level reflects drugs that she did not personally bring into this country. Her role conceivably could be minimal if the amount of drugs the courier brought in is truly small compared to the total amount brought in by the whole enterprise and attributed to her. But that commentary illustration makes no sense in the context of, and was not intended to apply to, the typical case in which the only drugs attributed to the courier are those she herself brought into this country. In that situation, her role in the relevant conduct which is used to define her base offense level — the actual act of bringing in those particular drugs— cannot be described as minimal. As for the two-level minor role adjustment, the commentary simply says that it is intended for “any participant who is less culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment, (n.3). A courier who commits the essential act that defines the importation crime, like the hit man who commits the actual murder for hire, cannot be less culpable than most other participants in that discrete crime. The situation might be different where the relevant conduct attributed to the courier for purposes of calculating the base offense level is broader than her personal act of bringing drugs into this country, but that is not what we are talking about. What *949 we are talking about are importation cases, like this one, where the relevant conduct is coterminous with the courier’s personal act of bringing drugs into this country on or in her body, her luggage, or her personal effects. In this case, as in so many others, the courier was sentenced as though the only drugs she or anyone involved -with her had imported were those she alone was carrying when arrested. In such circumstances, a role reduction is clearly inappropriate. The Court’s opinion does not address whether a role reduction could ever be appropriate for a courier sentenced for only those drugs she personally brought into this country, see Op. 945 n.8, but I think the Court’s reasoning compels the conclusion I reach. The Court recognizes two controlling principles that district courts should follow in deciding role reduction issues. “First and foremost,” its opinion says, the defendant’s role must be measured against the relevant conduct for which she has been held accountable in the calculation of her base offense level. See Op. at 941. Where the defendant has been held responsible only for her own conduct, that first and foremost principle will always lead to the conclusion she is not entitled to a role reduction, because a defendant can never be a minor participant in her own conduct. She is the central actor involved in her own conduct, and thus plays the most important role in that conduct, never just a minor role. The second principle the Court’s opinion instructs district courts to follow in deciding role reduction issues is that the defendant’s role in the relevant conduct should be compared to that of other participants in the relevant conduct. See Op. at 940-41, 944-45. Again, where the relevant conduct consists of nothing more than the defendant’s own transportation of drugs into this country, it is illogical to conclude that she played a less important role than those who did not personally transport those drugs into this country. The Court’s refinement of the second principle to mean that the defendant must have played a role “less culpable than most other participants in her relevant conduct,” Op. at 944, solidifies my conclusion. How can most other participants play roles more important to the transportation of drugs into this country than the role played by the transporter? An example the Court borrows from Judge Wilkins of the Fourth Circuit will illustrate my point. That example involves three bank robbers, one of whom serves as a lookout, one of whom sprays paint on the surveillance camera, and one of whom actually takes the money from a teller’s cage. See Op. at 945, quoting United States v. Daughtrey, 874 F.2d 218, 216-17 (4th Cir.1989). Judge Wilkins concluded that a role reduction would not be appropriate for any of the three, and the Court endorses that conclusion. So do I, and my point is this: Given that a role reduction would be inappropriate in a bank robbery case for one who merely served as a lookout, how could a role reduction ever be appropriate in a drug importation case for the drug courier? If a lookout is not less culpable than most other participants in a bank robbery, then a drug courier certainly is not less culpable than most other participants in a drug importation crime. The Court says the district court was within its discretion to conclude that De Varon’s participation was central to the importation scheme, see Op. at 947; I believe the district court lacked discretion to reach any other conclusion. The Court says the record does not compel the conclusion that Nancy, another participant, was sufficiently more culpable than De Varón, see Op. at 947; I believe the record not only fails to compel that conclusion, but in fact would not permit it, either. The Court concludes that the district court’s determination De Varón was not entitled to a downward adjustment for her role in the offense was not clearly erroneous, see Op. at 947; I believe that a contrary determination by the district court would have been clearly erroneous. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492136. Public record. Not legal advice.