USCA1 Opinion

August 11, 1992

[NOT FOR PUBLICATION]

____________________
No. 91-2299
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN GUILLERMO BRAND,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________

Luis Rafael Rivera on brief for appellant.

__________________
Daniel F. Lopez Romo, United States Attorney, and Antonio
______________________
_______
Bazan, Assistant United States Attorney, on brief for appellee.

_____
____________________
____________________

Per Curiam.
__________

Appellant pled guilty

to one count of

possession of cocaine with intent to distribute in violation of

21

U.S.C.

possession
U.S.C.
him to

841(a)(1) and
of cocaine

955 and 18
fifty-one

18 U.S.C.

on board

U.S.C.
months

sentence, arguing that

2.
in

2,

a vessel

and one

in violation

The district

prison.

He

the court erred by

count of

now

of 21

court sentenced
appeals

that

not granting him

two-level reduction as a minor participant and by not departing

downward for his substantial assistance to the government under
the

United

States

Sentencing

Guidelines

(USSG).

Because

appellant's assignments of error are without merit, we affirm.

1.

Under

USSG

3B1.2(b) a

defendant's offense

level is decreased by

two levels if the defendant was a "minor

participant"

charged

in

the

criminal

activity.

participant is "any participant who is less culpable

other participants, but
minimal."

USSG

whose role could

3B1.2(b) (Application

minor

than most

not be described
Note 3).

as

In order to

merit this reduction, a defendant must have been "substantially

less culpable
offense.

whether

than the average participant"

in committing the

Id. (Background).
___

Our prior

cases make

defendant

was

activity, we analyze

clear

minor

that, in

participant

both the relative conduct

determining
in

criminal

of the persons

involved in the criminal activity, as the Sentencing Guidelines

suggest, and

the defendant's own conduct

elements of the offense with

measured against the

which the defendant was

charged.

-2-

United States v. Gregorio, 956 F.2d

______________
________
see also United States v.
_______________________
1990).

The defendant

341, 344 (1st Cir. 1992);

Cepeda, 907 F.2d

______

bears the burden of

11, 12 (1st

Cir.

proof in seeking a

sentencing adjustment as a minor participant.

Rosado-Sierra, 938 F.2d 1, 1 (1st
_____________
appeal,

the

defendant must

determination that defendant

"clearly erroneous."
reverse

lower

evidence,
mistake

we

been

Encarnacion,
___________
Anderson
________

court

decision

that

20, 24

To prevail upon

the district

court's

minor participant

was

Under this standard we will

if,

definite and

committed."

914 F.2d

Cir. 1991).

was not a

Id. at 1-2.
___

have "the

has

show

United States v.
_____________

after

reviewing

firm conviction

United
States
_______________
(1st Cir.

v. Bessemer City, 470 U.S.

______________

the
that a

v.

Vega_____

1990) (quoting

564, 573

from

(1984)), cert.
_____

denied sub nom. Cruz-Rosario v. United States, 111 S. Ct. 1626

_____________________________
_____________
(1991).
Appellant incorrectly alleges
no findings to

guilty.

The

in the drug trafficking scheme to which he

district

concluding

that appellant was

sentencing

hearing,

Moreover, the court

presentence

made

support its decision that the appellant was not

a minor participant
pled

that the court

as the

court stated
not a minor
hearing

also adopted the

report, as

the official

its

reasons

for

participant at the

transcript makes

clear.

factual recitals of
judgment entered

the

in the

case clearly indicates.

Thus, the findings on which the court

relied were as

By his

entered

follows.

into a drug

own admissions appellant

trafficking scheme with

had

an individual in

-3-

Venezuela whom
Pursuant

he had

crew members

Venezuela to

Puerto

from

Rico.

that led

to his arrest

with intent to

from

ship

Venezuela.
After

that

and participated

version

of

just

arrived

The specific events

possessing cocaine

in

agreed to cooperate

in a

receiving

facts prepared

by

the

crew member
Rico

of the

shoes.

his

co-

with transportation,

cocaine.

cocaine.

report concludes that appellant was the

from

cocaine to

Appellant and

the government

for the

11,

with the government

indicates that the appellant

the crew member

On March

Puerto

controlled delivery

to provide appellant

after

travelling

of the seaman's

another co-defendant.

appellant further
$2,000 to

country.

forward the

searched a

found cocaine in one

who was

were arrested

detained and

had

his arrest, he

defendant,

States.

then

distribute confirm that scheme.

They

appellant and

luxury liners

and indictment for

customs officials
a

to that

He would

cocaine to the continental United

1991,

a trip

to that scheme appellant would receive in Puerto Rico

cocaine-carrying
from

met while on

stipulated

and

signed by

was to deliver
The

presentence

"most culpable" of the

three persons who were arrested because he was "responsible for

obtaining

the

cocaine

and

States."

In contrast, the

delivering
crew member

appellant's other co-defendant was

and

the

least

culpable

same

as

to

the

United

was a "courier",

and

only a "minimal participant

his

role

only

consisted

of

transporting the defendant . . . ."

-4-

These
Moreover,
question

facts

in light

amply support

of appellant's

that defendant

the

guilty

committed each

court's decision.
plea, there

is no

element necessary

convict him of the charges for which he was arrested.

to

Finally,

the court's decision is consistent with other decisions we have

affirmed which arise

out of similar facts.

See, e.g., Rosado__________________

Sierra, 938 F.2d at 2, and cases cited therein.

______
district

court's

offense level

decision that

appellant

did

Therefore, the
not merit

an

reduction as a minor participant was not clearly

erroneous.
2.
the sentencing

Under

USSG

guidelines

5K1.1 the

court may depart

"[u]pon motion

of

the

from

government

stating that the defendant has provided substantial

in the investigation
committed

or prosecution of another

an offense."

downward because

The district

the government

had

person who has

court declined to depart

not brought

the

by Section 5K1.1.

court to

revisit its decisions holding that a district court's

imposed

was

downward is not

within

the

appeal appellant

motion

required

refusal to depart

Upon

assistance

appealable if the

sentencing

district court

may not

depart

motion seeking

such departure.1

asks this

guidelines

sentence

and

downward absent

In support

of his

appellant alleges that the prosecutor

that

government
request

did not file the Section

____________________
1. Appellant states in his brief on appeal that he had
argued before the district court that Section 5K1.1 was
unconstitutional because it violated the separation of powers
doctrine. Appellant does not pursue this argument on appeal.
-5-

5K1.1 motion

"simply because of [appellant's] colombian origin

(he was born in Colombian [sic] but raised in Venezuela)."

We see no reason to
appellant

suggests.

Moreover,

revisit our prior holdings, as

the

question

whether

the

district court
has been
States,
______

may depart downward absent

resolved by the

Supreme Court.

112 S. Ct. 1840, 1842-43

government

motion, holding

In

Wade v.
____

United
______

(1992), the Court affirmed a

decision that a district court may not

a

a government motion

that

depart downward without

Section

5K1.1 gives

government "a power, not a duty" to file that motion.

the

Although

a prosecutor's discretion in bringing a Section 5K1.1 motion is

subject to constitutional limitations, id. at 1843, appellant's
___
allegation
Appellant's

of

prosecutorial

misconduct

suggestion that

5K1.1 motion was based

because

of his

Colombian origin

support

in

record.

misplaced

the prosecutor's decision

bring a Section

the

is

not to

on animus against

is conclusory

See id.
________

here.

at

1844

and

him

finds no

("generalized

allegations of improper motive" do not show prosecutorial abuse

of discretion); United States v. Amparo, 961 F.2d 288, 293 (1st
_____________
______
Cir. 1992) (appellant's argument that the government chose
to seek
her

downward departure in

constitutional right

to

her case because

a

jury

not

she exercised

trial was

"[a]

wholly

conclusory allegation, unsupported either by proven facts or by

reasonable

inferences

suffice to

overcome

requirement").

In

from
the

proven

force

of

facts,
the

addition, appellant
-6-

[and

so]

'government
failed to

cannot
motion'

raise this

argument before the district court.

from

raising the argument

Casallas, 946 F.2d 162, 166

________
rule that this
first time

now.

His failure precludes him

United States v. Uricoechea______________

___________

(1st Cir. 1991) (the long-standing

court will not address issues presented for the

on appeal

applies

to arguments

about

sentencing

guidelines).
Because

the district

court

appellant was not a minor participant in

to which he pled

properly

found

that

the criminal activity

guilty, and because appellant's assertion

of

prosecutorial misconduct is unsupported by the evidence and was

not made at

the hearing below, we affirm summarily pursuant to

______

1st Cir. Loc. R. 27.1.

-7-