United States District Court, S.D. New York
March 30, 2004.
UNITED STATES OF AMERICA, -against- JUAN JOSE VICENTE FERNANDEZ, aka "JUAN JOSE VICENTE FERRANDEZ,", Defendant
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Juan Jose Vicente Ferrandez ("Ferrandez"), who plead guilty to a
narcotics conspiracy offense, moves this Court to adjust the otherwise
applicable sentencing guidelines offense level to account for the fact
that he was a mere drug courier. The Court finds that Ferrandez qualifies
as a "minor" participant in the drug conspiracy, but not a "minimal"
participant, and therefore his offense level will be reduced by two
levels. The motion is granted in part, and denied in part.
Ferrandez, a native of Spain, was traveling in Colombia with a
companion. After a few months, he ran out of funds. In a conversation
with an acquaintance of his companion, he made known that he was looking
for gainful employment. At that time or soon after, he was offered
$5,000 to deliver a suitcase of drugs to the United States. He flew from
Colombia to Miami, and then took a train to New York City, where he
suitcase to Yahaira Diaz ("Diaz"), a co-defendant in this case, at
a hotel in midtown Manhattan. Diaz paid Ferrandez $3,500 and promised to
arrange for him to receive the balance later. Shortly after leaving
Ferrandez's hotel room, the police arrested Diaz, who then directed them
to Ferrandez. The suitcase contained 1.4 kilograms of heroin hidden in
Ferrandez pled guilty to one count of conspiracy to distribute, and
possess with intent to distribute, over one kilogram of heroin. See
21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A). The probation office has
calculated that Ferrandez's sentence should be based on an adjusted
offense level of 27, which, given his lack of criminal history, would
subject Ferrandez to a presumptive sentence of 70 to 87 months in
prison. Ferrandez agrees with the probation office's calculation, except
that he contends he should be eligible for either a two-or four-level
reduction in the offense level based upon his "minor" or "minimal" role
in the conspiracy.
Under Sentencing Guideline § 3B1.2, a defendant who was a "minor
participant" in the charged criminal activity is entitled to a two-level
reduction in the otherwise applicable offense level, and a "minimal
participant" is entitled, to a four-level reduction. See United States
Manual § 3B1.2 (2003) ("U.S.S.G."). The defendant bears the burden to
prove by a preponderance of the evidence that he is entitled to a §
3B1.2 adjustment. See United States v. Carpenter, 252 F.3d 230, 235 (2d
These adjustments are intended for a defendant "who plays a part in
committing the offense that makes him substantially less culpable than
the average participant." U.S.S.G. § 3B1.2 cmt. 3(A). A "minimal
participant" is a defendant who is "plainly among the least culpable of
those involved"; the Sentencing Commission contemplated that this
adjustment would "be used infrequently." Id. cmt. 4. A "minor
participant" is one "who is less culpable than most other participants,
but whose role could not be described as minimal." cmt. 5.
In a drug conspiracy case such as the instant one, the Court must
evaluate "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." United States v. Garcia, 920 F.2d 153, 155 (2d
Cir. 1990). The Court then must consider whether, taking these factors
into account, the defendant is substantially less culpable than the
average participant in a similar conspiracy of the magnitude that
determines the base offense level. See United States v. Ruiz,
246 F. Supp.2d 263, 270 (S.D.N.Y.
2002); see also United States v. Aimal, 67 F.3d 12, 18 (2d Cir. 1995)
(holding that relevant inquiry is whether defendant "played a minor role
in comparison to the average participant in such a drug crime"). In other
words, the issue here is not whether Ferrandez's role was minor or
minimal in relation to the particular drug trafficking organization
involved here and all of its potential criminal activity; it is whether
his role was minor or minimal in a more general comparative context in
relation to a typical conspiracy to distribute and possess with intent to
distribute between one and three kilograms of heroin (the amount of drugs
determining the base level of his offense).
Ferrandez emphasizes that he was a mere courier and that S 3B1.2
explicitly employs the example of "a defendant who is convicted of a drug
trafficking offense, whose role in that offense was limited to
transporting or storing drugs." U.S.S.G. § 3B1.2 cmt. 3(A) (emphasis
added). Ferrandez also points out that he had virtually no prior
knowledge of or other relationship to the drug conspiracy, nor even of
the type or quantity of drugs he was transporting, and that he was paid a
mere fraction of the street Value of the drugs.
The Government asserts that this type of conspiracy involves four
players: the buyer, the seller, and the two couriers (Ferrandez and
Diaz). According to the Government, a
courier such as Ferrandez is at least an "average" participant in such a
four-person scheme, and hardly "substantially less culpable" than an
average participant, because Ferrandez personally transported all of the
drugs which were involved in the particular conspiracy in the
The Government's argument ignores the fact that a typical conspiracy to
import over one kilogram of heroin would certainly involve many more than
four persons. Such a conspiracy would undoubtedly involve stakeholders
and long-term participants on both the supply and distribution ends of
the transaction. Ordinarily, it is at these polar ends of the operations
that the bulk of the drug conspiracy would exist, with extensive networks
of necessary participants branching out in the process of financing and
manufacturing the drugs and creating a market for their distribution.
Cf. United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000)
("The Guidelines refer to minor `participants,' not to minor
`defendants.'") (emphasis in original). Between these two central
points, the couriers involved in the shipment play a connecting role, not
infrequently, as Ferrandez here alleges, with little or no knowledge,
participation or link further implicating them at either primary end of
the drug operations. So perceived, Ferrandez's role, as compared to all
of those types of participants, renders the Government's rejoinder to
Ferrandez's motion unpersuasive. Under the applicable factors the Second
Circuit explained in Garcia, Ferrandez's request is well-founded.
First, with respect to "the nature of the defendant's relationship to
other participants," Garcia, 920 F.2d at 155, Ferrandez asserts he did
not know the other participants in the crime, nor did he have any
long-standing relationship or commitment to those persons. He also had no
decision-making authority within the drug trafficking operation, or in
connection with the specific transaction at issue. Nor had he previously
engaged in any other trafficking on behalf of the organization. Second,
with respect to "the importance of the defendant's actions to the success
of the venture," id., Ferrandez's role was essentially fungible. See
Ruiz, 246 F. Supp.2d at 272 ("Virtually anyone could have been inserted
. . . without threatening the success of the enterprise.); United States
v. Sanchez, 925 F. Supp. 1004, 1013 (S.D.N.Y. 1996) (characterizing
defendant as "replaceable*). He was important only "in the trivial sense
in which every cog in the machine has to play its part in order for the
machine to work." Ruiz, 246 F. Supp.2d at 272. Finally, with respect to
"the defendant's awareness of the nature and scope of the criminal
enterprise," Garcia, 920 F.2d at 155, Ferrandez claims he did not know
the type or amount of the drugs, nor
anything about the larger trafficking operation.
The Court finds Ferrandez's arguments persuasive. Accordingly, the
Court concludes that Ferrandez in entitled to a two-level adjustment as a
minor participant. This conclusion accords with comparable cases in this
District. See Ruiz, 246 F. Supp.2d at 264-67 (awarding minor role
adjustment to defendant who imported over 300,000 ecstacy pills to the
New York from Columbia, via Ecuador and Florida); United States v.
Martinez, No. 00 Crim. 1306, 2002 WL 1041318, at *1 (S.D.N.Y. May 22,
2002) (awarding minor participant adjustment to defendant who "had
transported a substantial amount of heroin in five separate trips to
Detroit within a four-month period, and had on at least one occasion
helped handle, prepare, and package the heroin for shipment").
The Court declines to award Ferrandez a four-level "minimal role"
adjustment because the Court concludes that Ferrandez was not among the
least culpable as compared to typical participants in such a conspiracy.
Important to this conclusion is the appropriate frame of reference for
this inquiry. As stated above, the issue here is whether Ferrandez's role
was minimal in relation to a typical conspiracy to distribute and possess
with intent to distribute between one and three kilograms of heroin. In
relation to that type of crime, Ferrandez's role, as the courier for all
drugs involved, cannot be considered so trivial to the conspiracy
as to be deemed "minimal, " even if his role was relatively minor.
Ferrandez was entrusted to move the drugs thousands of miles from the
supply hub to the distribution hub, and he knew he was transporting
drugs. Ferrandez does not cite, nor could the Court find, a case in this
Circuit in which a comparably-situated defendant was awarded a "minimal"
By awarding Ferrandez a "minor participation" adjustment, the Court
triggers a separate provision of the Guidelines which caps his base level
offense at 30, instead of the otherwise applicable 32. See U.S.S.G.
§ 2D1.1(a)(3). Accordingly, the cumulative effect of these provisions
is that Ferrandez's adjusted offense level will be reduced four levels to
For the reasons stated, it is hereby
ORDERED that the motion of defendant Juan Jose Vicente Ferrandez for an
adjustment of the applicable sentencing guidelines offense level is
granted in part, and denied in part; and it is further
ORDERED that, for the purposes of determining the sentence of defendant
Juan Jose Vicente Ferrandez, the adjusted offense level shall be 23.
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