GILBERTO MEDINA-QUIROGA, PETITIONER V. UNITED STATES OF AMERICA No. 90-5343 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 13-21) is not reported, but the decision is noted at 897 F.2d 526 (Table). JURISDICTION The judgment of the court of appeals was entered on February 16, 1990. A petition for rehearing was denied on March 19, 1990. Pet. App. 27. The petition for a writ of certiorari was filed on May 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the court of appeals properly refused to consider petitioner's challenges to the district court's determination of his sentence under the Sentencing Guidelines because petitioner failed to include the transcript of the sentencing hearing in the record on appeal. 2. Whether the district court erred in refusing to depart downwards from the Sentencing Guidelines range. STATEMENT After a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. 846. He was sentenced under the Sentencing Guidelines to 97 months' imprisonment, to be followed by five years of supervised release. 1. On May 17, 1988, state police officers were conducting surveillance of a warehouse compound in Laredo, Texas, for signs of drug trafficking. A silver Volkswagen Rabbit and several other vehicles were parked in the compound, and a bobtail van was parked with its front portion inside the warehouse. The owner of the warehouse initially arrived around 8:17 a.m., and he stayed for about three minutes. He returned to the warehouse several times that day, but was in the warehouse only briefly each time. When other vehicles arrived at the compound during the day, a man would leave the warehouse, open the front gate, and escort the new arrival to the warehouse. When the person later left the warehouse, he would be escorted out and the front gate secured. Pet. App. 14. Petitioner arrived at the warehouse around 8 a.m. Except for the period between 12:40 and 1:06 p.m., he was at the warehouse continuously until 4:37 p.m. Petitioner, his brother, and Jose Holbrecht Garza were observed taking ceramic pottery into the warehouse throughout the day. Around 4 p.m., petitioner's brother opened the warehouse gate, and an unidentified man drove the bobtail van out. Thirty minutes later, petitioner, his brother and another unidentified man left the compound in the silver Volkswagen Rabbit. Pet. App. 15. After leaving the compound, the driver of the van parked it at the rear of a gas station and walked away. Moments later, Garza got in the van and drove it to another location on San Bernando Street. After parking the van, Garza appeared nervous and evasive as he walked to a nearby motel. When one of the officers stopped Garza, he threw the keys over a wall, but the officers recovered them. Pet. App. 15. One of the surveillance officers then returned the area where the first driver had parked the van. He saw petitioner and his brother leaving a hotel parking lot in the Volkswagen Rabbit and driving in the direction of San Bernando Street. Shortly thereafter, highway patrol officers stopped the car for a vehicle inspection sticker violation, and they found two or three industrial-size boxes of detergent in the car's trunk. Pet. App. 16. In the meantime, other officers had obtained a search warrant for the van. Large ceramic pots were stacked in the rear half of the van. Covered by a green tarpaulin behind the pots were 96 cellophane wrapped bundles of marijuana weighing almost 1400 pounds. Although the bundles were covered with detergent, the odor of marijuana permeated the van. Pet. App. 16. The officers then obtained a search warrant for the warehouse. When they entered, the officers noticed the odor of marijuana. In the area where the van had been parked, the officers found burlap sacks and plastic bags that smelled of marijuana, a bag of cat litter box filler, and packaging materials that matched those found in the van. The officers also found stacks of ceramic pots, black paint, a paintbrush and some plywood. Pet. App. 16. The plywood suggested to the officers the possibility that the van contained a hidden compartment. When they reexamined the van, the officers found a hidden compartment behind some paneling near the cab section. Inside the compartment were 40 more bags of marijuana weighing 607 pounds, cat litter, and black paint streaks. Pet. App. 16-17. 2. A police officer testified at trial that petitioner made an oral confession after he was arrested. /1/ Petitioner told the officer that the owner of the warehouse, Juan Carrizalez-Ramirez, had called him early on the morning of May 17, 1988, and asked him "to come load some pottery, boxes and some other stuff." Petitioner stated that he and his brother "were considered the loaders, but I knew that we were also loading marijuana. All we wanted was to make some money." Petitioner claimed that he and his brother only loaded pottery into the van because the marijuana was already loaded when they arrived at the warehouse. He also stated that he and his brother drove Carrizalez to a trailer park when they left the warehouse. According to petitioner, he and his brother went to the hotel to look for Garza, who was supposed to pay them, but he was not there. Petitioner admitted that he had known Carrizalez since childhood, but he claimed that this was the only time that he had ever worked for Carrizalez. Pet. App. 17; Gov't C.A. Br. 7-8. 3. Petitioner testified to a different story at trial. He claimed that he arrived at the warehouse compound at 10 a.m. and that the van arrived around noon. He denied having ever entered the warehouse and denied all knowledge of the marijuana. Petitioner testified that he only moved some of the ceramic pots to the sidewalk by the side of the van. Pet. App. 17; Gov't C.A. Br. 8. 4. The presentence report calculated petitioner's offense level based on the 2,114 pounds (958.91 kilograms) of marijuana discovered in the van -- an amount that translated into a base offense level of 30. See United States Sentencing Comm'n, Guidelines Manual Section 2D1.1(a)(3) (Nov. 1, 1990) (Guidelines). No adjustments were made to the offense level. When combined with petitioner's criminal history category I, the resulting Guidelines range was 97-121 months' imprisonment. C.A. R.E. 24-25. Petitioner raised three objections to the presentence report. First, he contended that he should be given a four level decrease in the offense level under Guidelines Section 3B1.2 because he was a "minimal participant" in the conspiracy. /2/ Second, petitioner objected to the presentence report's conclusion that there were no factors warranting a downward departure from the Guidelines range. Third, petitioner argued that his base offense level should be calculated based only on the amount of marijuana that he "could actually see and know about." C.A. R.E. 29-31. The district court overruled petitioner's objections, and it imposed the minimum Guidelines range sentence of 97 months. 5. The court of appeals affirmed. Pet. App. 13-21. It held that the evidence at trial was sufficient to sustain petitioner's conviction. Id. at 18-20. Because petitioner failed to have the transcript of the sentencing hearing included in the record on appeal, the court declined to consider his challenges to the district court's determination of his sentence under the Sentencing Guidelines. It explained that "(i)n the absence of a record we have no way of evaluating the district judge's reasoning and findings with respect to the sentence he imposed, and consequently we have no basis upon which to consider the merits of (petitioner's) arguments." Id. at 21. ARGUMENT 1. Petitioner contends (Pet. 8-9) that the court of appeals' refusal to consider his challenge to his sentence deprived him of due process. The court of appeals correctly concluded, however, that it was "(petitioner's) responsibility to include in the record all of the material upon which he intend(ed) to rely" to attack his sentence. Pet. App. 21. See Fed. R. App. P. 10(b) and 11(a). The court of appeals obviously could not evaluate the merit of petitioner's claims without the transcript of the sentencing hearing at which the district court ruled on and rejected those claims. Given petitioner's failure to include that transcript in the record on appeal, the court of appeals was wholly justified in refusing to consider his challenges to the district court's application of the Sentencing Guidelines in determining his sentence. See United States v. Hart, 729 F.2d 662, 671 (10th Cir. 1984), cert. denied, 469 U.S. 1161 (1985); United States v. Gerald, 624 F.2d 1291, 1296 n.1 (5th Cir. 1980), cert. denied, 450 U.S. 920 (1981). /3/ 2. Contrary to petitioner's contention (Pet. 9), the evidence at trial fully supports the district court's determination of his sentence under the Sentencing Guidelines. Petitioner contends (Pet. 8) that the district court should have departed downward from the Guidelines range under 18 U.S.C. 3553(b) because he was only a minimal or minor participant in the conspiracy. In the first place, however, petitioner's claim of minimal or minor participation in the conspiracy did not provide grounds for a departure. Under 18 U.S.C. 3553(b), a district court is required to impose a sentence within the Guidelines range unless "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result is a sentence different from (one within the guideline range)." In Guidelines Section 3B1.2, the Sentencing Commission expressly took into consideration a defendant's subsidiary role in the offense by providing for a decrease in the offense level if the defendant was a "minimal participant" or a "minor participant." Consequently, since a defendant's subsidiary role in the offense is already taken into account through a downward adjustment in his offense level under Section 3B1.2, it cannot serve as grounds for a downward departure under 18 U.S.C. 3553(b) in the absence of unusual circumstances. /4/ In any event, even assuming that the district court could have departed downward based on petitioner's claimed minimal or minor participation in the conspiracy, the courts of appeals have uniformly held that a district court's discretionary refusal to depart downward from the Guidelines range is not reviewable on appeal. See United States v. Tucker, 892 F.2d 8, 9-11 (1st Cir. 1989); United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.), cert. denied, 110 S. Ct. 553 (1989); United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989); United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990); United States v. Draper, 888 F.2d 1100, 1105 (6th Cir. 1989); United States v. Franz, 886 F.2d 973, 976 (7th Cir. 1989); United States v. Evidente, 894 F.2d 1000, 1003-1005 (8th Cir. 1990); United States v. Morales, 898 F.2d 99, 102-103 (9th Cir. 1990); United States v. Davis, 900 F.2d 1524, 1528-1530 (10th Cir. 1990). See also United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989); United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir. 1989), cert. denied, 110 S. Ct. 1957 (1990); United States V. Wright, 895 F.2d 718, 722 (11th Cir. 1990). Accordingly, petitioner's claim plainly does not warrant further review by this Court. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney NOVEMBER 1990 /1/ Petitioner did not move to suppress or otherwise challenge the admissibility of his oral confession. Pet. App. 17. /2/ Section 3B1.2 provides: Section 3B1.2 Mitigating Role Based on the defendant's role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a minor participant in any criminal activity, decrease by two levels. In cases falling between (a) and (b), decrease by 3 levels. /3/ Petitioner suggests (Pet. 9) that the court of appeals also refused to allow him to supplement the record to include the transcript of the sentencing hearing. Petitioner first sought permission to supplement the record, however, when he filed his petition for rehearing. /4/ Although petitioner does not appear to renew his other two objections to the presentence report, we note that they are likewise without merit. The district court's determinations that petitioner was neither a "minimal participant" nor a "minor participant" entitled to an adjustment of his offense level under Section 3B1.2 are factual findings subject to review under the clearly erroneous standard. See, e.g., United States v. Schetz, 901 F.2d 85, 87 (7th Cir. 1990); United States v. Gordon, 895 F.2d 932, 934-935 (4th Cir. 1990); United States v. Wright, 873 F.2d 437, 443-444 (1st Cir. 1989); United States v. Buenrostro, 868 F.2d 135, 137-138 (5th Cir. 1989), cert. denied, 110 S. Ct. 1957 (1990). The Application Notes in the Commentary to Section 3B1.2 explain that the downward adjustment in the offense level for a "minimal participant" is intende "to cover defendants who are plainly among the least culpable of those involved in the conduct of a group." The Application Notes also provide that the adjustment is intended to "be used infrequently." Here, petitioner's claim that he was a minimal or minor participant was based on nothing more than his own self-serving version of the events. The evidence at trial, however, showed that petitioner was in the warehouse compound with others under tight security for eight hours loading marijuana into the van. Moreover, the same kind of detergent used to mask the presence of marijuana in the van was found in petitioner's car. Given that evidence, the district court's finding that petitioner was neither a minimal nor minor participant is not clearly erroneous. The district court also correctly based petitioner's offense level on the 2,114 pounds of marijuana found in the van. Under Guidelines Section 1B1.3, a base offense level is determined by referring to "all acts and omissions committed * * * by defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense * * *." Application Note 1 to Section 1B1.3 makes clear that in a conspiracy case the conduct "for which the defendant 'would be otherwise accountable' * * * includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant." In light of the evidence that petitioner was in the warehouse compound for eight hours with others loading marijuana into the van, the amount of marijuana loaded by his co-conspirators was reasonably foreseeable by petitioner. Thus, the district court properly rejected petitioner's objection that his offense level should be based only on the amount of marijuana that he "could actually see and know about."