1 Brown's co-defendant, Earl, was tried and convicted on the

original indictment. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-30195

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROY BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

(May 30, 1995)

Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Roy Bro wn (Brown), a Jamaican national, was originally

i ndicted, along with Steve Earl (Earl), for conspiracy to imp ort

marijuana into the United States, in violation of 21 U.S.C. §§

952(a), 960, and 963. On September 15, 1993, after reaching a plea

agreement with the government, Brown plea ded guilty to a

superseding bill of information charging the same offense but

specifying a lesser quantity of marijuana. 1 On March 16, 1994,

Brown was sentenced to a 46 month imprisonment term and a three2

year term of supervised release. Brown now appeals this sentence.

For the reasons stated below, we affirm the district court.

BACKGROUND

The basic facts are undisputed. Brown was involved in a

conspiracy to import marijuana from Jamaica into Gramercy,

Louisiana. On August 23, 1993, the M/V GULF TRIDENT (TRIDENT) left

Port Rhoades, Jamaica with two metal cylinders attached to the

bottom of its hull. These cylinders contained 281 pounds of

marijuana. On August 26, having been alerted to the possibility

that the TRIDENT cont ained contraband, the U.S. Customs Service

established surveillance on the v essel upon its arrival into the

Port of Gramercy.

Approximately two days later, federal agents observed Brown,

in the compan y of Earl and an unidentified SCUBA diver, near the

river and in the vicinity of the TRIDENT. The diver entered the

Mississippi River and floated downstream to the TRIDENT. Shortly

before reaching the lighted area of the dock, the diver submerged,

detached the cylinders from the hull of the vessel, and then

secured the contraband to the bottom of the dock. After re-joining

Brown and Earl at the river's bank, the three men left the area.

The next evening, an unidentified dri ver left Stanford Reed

(Reed), Earl, and Brown on River Road, close to the dock. Reed,

dressed in SCUBA gear, entered the river. Before the individuals

had an opportunity to retrieve the cylinders from the dock, federal

agents swooped in to make the arrests. Earl was quickly

apprehended, but both Reed and Brown evaded the agents. After2 Pursuant to U.S.S.G § 4A1.1(d), a defendant is to receive two

additional criminal history points if he or she "committed the

instant offense while under any criminal justice sentence,

including probation, parole, supervised release, imprisonment, work

release, or escape status."

3 several hours, Brown wa s arrested while attempting to leave a

wooded area near the river. Reed, however, was not captured and

currently remains at large.

After his indictment, Brown sang like a lark in exchange for

the gover nment's promise to recommend a lighter sentence. After

receiving Brown's guilty plea, the United States fulfilled its

promise by requesting that the district court not depart upwardly

from the Sentencing Guidelines and select a sentence at the lowest

end of the applicable guidelines range, i.e., 37 months. The

district court, however, refused the government's request and

sentenced Brown to a maximum incarceration term of 46 months.

DISCUSSION

In the presentence report (PSR), the Probation Office

calculated Brown's offense level at 17 and his criminal history

category at IV, resulting in a guideline range of imprisonment from

37 to 46 months. Brown raised three objections to the PSR which he

now pursues on appeal.

I.

First, Brown objects to receiving two criminal history points

u nder U.S.S.G. § 4A1.1(d) 2 for being on supervised release at t h e

time of his arrest. Brown's term of supervised release commenced

on October 1, 1990, but he argues that it was ext inguished on

October 31, 1990. Brown asserts that district courts may not allow4

defendants to serve their terms of supervised release out side of

t he United States. Thus, he argues that a term of supervised

release is effective only while the defendant remains in the United

States. Because Brown was deported from the United States by order

of the Immigration and Na turalization Service (INS), he asserts

that his term of supervised release was extinguished. Therefore,

Brown contends th at he was not on supervised release when he was

arrested on August 29, 1993.

Although there is no direct legal impedim ent to prohibit a

court from allowing a defendant to serve his supervised release

abroad, we have found no case in which a court has authorized a

defendant to serve this term outside of the United States. On the

contrary, at least two cases have held that the defendants had to

serve their supervised release in the United States due to the

practical difficulties inherent in supervising their release

abroad. S ee United States v. Porat

, 17 F.3d 660, 671 (3rd Cir.

1994)("[T]he court and the probation office have the responsibility

to see that [defendant] complies with the terms of his sentence.

In order to maintain the required supervision, we hold that

[defendant] must serve his complete sen tence in the United

States.")

, p etition for cert. filed

, 63 U.S.L.W. 3067 (U.S. July

12, 1994) (No. 94-140); United States v. Pugliese

, 960 F.2d 913,

(10th Cir. 1992)("the district court's order and its remarks

. . .

mean that the stru cture needed to support defendant's

rehabilit ative supervision is absent outside the United States,

[more specifically, in Thailand], and we agree with that3 Brown cites two cases which allegedly support his contention

that supervised release is extinguished upon de portation. These

5 assessment."). Assuming arguendo that district courts do not have

the authority to allow defendants to serve their terms of

supervised release abroad, it does not necessarily follow that

supervised release is extinguished upon deportation.

To begin with, we are unaware of any court which has held that

deportation extinguishes a term of supervised release. Moreover,

Congress has provided that:

If an alien defendant is subject to deportation, t he

court may provide, as a condition of supervised release,

that he be deported and remain outside the United States

, and may order that he be delivered to a duly authorized

immigration official for deportation.

18 U.S.C. § 3583(d). Congress has also mandated the following:

An alien sentenced to imprisonment shall not be deported

until such imprisonment has been terminated by the

release o f the alien from confinement. Parole,

supervised release, probation, or possibility of rearrest

or further confi nement in respect of the same offense

shall not be ground for deferral of deportation.

8 U.S.C. § 1252(h). A plain reading of these two sections supports

the governmen t's position that deportation does not extinguish

supervised release. Otherwise, Congress would not require that a

defendant be deported despite a term of supervised release and at

the same time allow for supervised release to be conditioned on the

defendant not reentering the United States illegally. If Congress

intended for deportation to terminate this sentence, it could have

specifically provided for such to occur. However, Congress has not

done so and viewing the legislation above, it has no such intent.

In addition, and contrary to Brown's argument, 3 the courtscases support nothing o f the sort, they merely recognize the

impossibility of imposing an effective program of supervised

release on a defendant who is to be deported. For example, in

United States v. Ceja-Hernandez

, 895 F.2d 544 (9th Cir. 1990), the

district court justified an upward departure on the defendant's

sentence on the ground that the defendant would be immediately

deported following his release from prison, preclud ing the court

from effectiv ely imposing a program of supervised release. The

Ninth Circuit, having held that the district court's basis for the

departure was impermissible, reversed the sentence. In U nited

States v. Chavez-Botello

, 905 F.2d 279 (9th Cir. 1990) (per

curiam), the district court stated, among oth er things, that the

Sentencing Guidelines failed to take into account the fact that the

defendant would avoid being placed on super vised release after

being deported. Therefore, it departed upwards on the defendant's

sentence. Again, the Ninth Circuit reversed on the basis that a

"departure based upon the ground that a defendant would be

immediately deported following release is not permissible." I d. at

281. Again, not even by the farthest stretch of the imagination do

these cases s upport the notion that deportation extinguishes

supervised release.

6 recognize that a term of supervised release remains intact after an

alien's deportation. For example, in U nited States v. Soto-Olivas

,

44 F.3d 788 (9th Cir.1995), petition for cert. filed

, (U.S. May 8,

1995) (No. 94-9173), the defendant was sentenced to prison for 36

months, to be followed by six years of supervised release. As one

of the conditions of his supervised release, the district court

ordered the defendant to "comply with the rules and regulations of

the [INS] and if deported from this country under any

circumstances, not to reenter the United States illegally." After

completing his prison term, the defendant was deported. However,

several months later, during his term of supervised release, he was

arrested on auto theft charges in the Los Angeles area. During a

subsequent revocation hearing, the defendant was sentenced to seven

months incarceration for violating the condition in his supervised

release that he not reenter the United States. Although the7

question of whether deportation e nded his term of supervised

release was not at issue in t he case, the Ninth Circuit affirmed

the sentence. The facts and holding from this case indicate that

a term of supervised release is not extinguished upon deportation.

In United States v. Valdez-Gon zalez , 957 F.2d 643 (9th Cir.

1992), the defendants served their prison terms and were deported.

The Ninth Circuit indicated that if either of the defendants were

rearrested in the United States during their terms of supervised

release , their supervised release time would be converted into

incarceration time. Again, this is a clear indication that

deportation does not extinguish a term of supervised release.

T his Court has also recognized that a term of supervi sed

release does not terminate after a defendant is deported. S ee

,

e.g.

, United States v. Tuangmaneeratmun

, 925 F.2d 797, 802 n.6 (5th

Cir. 1991) (standard conditions of supervised release which should

be explained to a defendant include, among other things, that if

deported he is not to return to the United States while on

su pervised release); U nited States v. Osiemi

, 980 F.2d 344 (5th

C ir. 1993) (district court conditioned supervised release on the

condition that if deported, defendant would not illegally reenter

the United States); United States v. Cardenas-Alva rez , 987 F.2d

1129 (5th Cir. 1993) (district court sentenced defendant to a term

of imprisonment o f 100 months and ordered him not to reenter the

United States illegally during a three year term of supervised

release); see also United States v. Ramirez

, 948 F.2d 66 (1st Cir.

1991) (as a condition of supervised release, if ordered deported,4 But see United States v. Biyaga

, 9 F.3d 204 (1st Cir. 1993),

where the reviewi ng court approved of the district court's

p ractice, when sentencing illegal aliens, to suspend superv ised

release from the time the defendant was deported until, and if, he

returned to the United States.

8 defendant shall remain outside the United States during that time).

Section 3583(d) expressly provides, as a condition of

supervised release, that the defendant be deported and remain

outside the United States. As discussed above, several cases have

incorporated this section into their sentence of supervised

release, i.e., that, if the defendant is deported, he remain

outside of the United States during his term of supervised release.

This is a clear indication that a term of supervised release

rem a ins in effect after the defendant is deported. 4 In fact, the

Probation Manual supports this conclusion because it directs that:

Officers should provide supervision to offenders subject

to deportation until the person actually leaves the

United States. Officers should then verify deportation

through the [INS] before making the case inactive until

the scheduled expiration date

. . . . A n offender

reentering the country prior to expiration of supervision

should be supervised.

X P ROBATION M ANUAL

, G UIDE TO J UDICIARY P OLICI ES AND P ROCEDURES IV, § 18

(emphasis added). It is doubtful that Congress intended for one

branch of the government to extinguish a lawfully imposed sentence

of another branch without specifically so providing. Therefore, we

hold that Brown's three year term of supervised release was not

extinguished when he was deported.

II.

Brown next argues that the district court erred in assessing

him three criminal history points under the applicable section of9

the Sentencing Guidelines, which mandates that a defendant receive

three criminal history points for "each prior sentence of

imprisonment exceeding one year and one month." U.S.S.G. §

4A1.1(a). On October 14, 1986, Brown received two five year terms

of probation after pleading guilty in Texas state court to separate

counts of forgery and possession of marijuana. On January 21,

1987, he was arre sted for illegal possession of a firearm. As a

result of this arrest, Brown's probation was revoked on April 16,

1987 and he was ordered t o serve a two year prison sentence. On

April 27, 1987, Brown was sentenced to prison for 45 days for the

firearm offense itself. Brown was eventually released from custody

on June 19, 1987. Brown contends that his immediate release from

custody after completing the firearm sent ence proves that he did

not serve any time for his 1986 convictions. Otherwise, he argues

that he would not have been released on June 19, 1987, only two

months after his probation was revoked. Therefore, Brown maintains

that he has not served a prior term of incarceration exceeding one

year and one month and contests the three points assessed against

him.

The government, when seeking to adjust a defendant's sentence

level, has the burden of proving by a preponderance of the evidence

the facts necessary to support the adjustment. U nited States v.

Kim

, 963 F.2d 65, 69 (5th Cir. 1992). "In resolving any reasonable

dispute concerning a factor important to the sentencing

determination, the court may consider relevant information without

regard to its admissibility under the rules of evidence applicable10

at trial, provided that the information has sufficient indicia of

reliability to support its probable a ccuracy." U.S.S.G. §

6A1.3(a).

The Sentencing Guidelines define "sentence of imprisonment" as

"a sentence of incarcerat ion and refers to the maximum sentence

imposed." I d

. § 4A1.2(b)(1). "If part of a sentence of

imprisonment was suspended, `sentence of imprisonment' refers only

to the portion that was not suspended." I d. § 4A1.2( b)(2). The

commentary to this section clarifies that "to qualify as a sentence

of imprisonment, the defendant must have actually served a period

of imprisonment on such sentence (or, if the defendant escaped,

would have served time) . . . . That is, criminal history points

are based on the sentence pronounced, not the length of time

actually served." Clearly, the Sentencing Guidelines require that

(1) a sentence exceed one year and one month and (2) that some time

actually be served on that sentence before as sessing three

additional points to a defen dant's criminal history. Brown has

satisfied the first req uirement because the sentence of

imprisonment pronounced was for two years. Thus, the question is

whether any time was actually served on that sentence.

Brown was taken into custody on January 21, 1987 and was

relea sed from prison on June 19, 1987. During that five month

period, Brown served his weapon's sentence, i.e., from April 27 to

June 11, but he argues that no jail time was served on the two year5 The "pen pack," issued by the Texas Department of

Corrections, detailed the reasons for Brown's incarceration and the

term to be served.

11 prison sentence. However, the "pen pack," 5 which was int roduced

into evidence without objection, clearly states that on April 16,

1 987 Brown was given a 53 day credit on his two year sentence of

imprisonment for time already served. Thus, it is clear that Brown

served at least 53 days from the two year term. However, a

discrepancy exists between the days credited to Brown (53) and the

days he spent in jail before being sentenced (85). The record does

not shed a ny light on the 32 days (85 - 53) apparently spent in

jail and to which Brown was presumably entitled to as a credit.

Outside of conclusory allegations, neither of the parties attempt

to account for these 32 days and this Court will not speculate as

to the reasons why those 32 days are unaccounted for. Nonetheless,

this discrepancy is inapposite because the government conclusively

established by a preponderance of the evidence that 53 days were

served on the sentence of imprisonment.

Finally, the PSR explains that Brown was released from prison

because he was paroled on June 19, 1987 and finally discharged on

February 23, 1989 (two years from April 16, 1987 with a 53 day

credit). Contrary to Brown's assertion, the execution or

imposition of the two year sentence was not suspended. The

district court did not err in imposing the assessment.

III.

Brown also argues that he should receive a two point reduction

in his offense level under U.S.S.G. § 3B1.2(b) given that he was12

allegedly a "minor part icipant" in the drug conspiracy. Both

parties characterize the marijuana shipment as involving a multilevel international smuggling scheme, consisting of peripheral

participants and higher level partici pants, such as the scheme's

organizer s. Brown alleges that his involvement in the operation

was merely peripheral as it was limited to he lping Reed and Earl

transport the marijuana from the dock; he denies complete knowledge

or understanding of the scope of the conspiracy. Accordingly,

Brown seeks a downward ad justment to reflect this supposed minor

participation.

This Court will uphold a defendant's sen tence unless it was

imposed contrary to law, as a result of an incorrect application of

the Sentencing Guidelines, or is outside of the range of the

Sentencing Gu idelines and is unreasonable. U nited States v.

Buenrostro

, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied

, 495

U.S. 923 (1990) (citations omitted). The district court's factual

findings regarding sentencing matters are entitled to substantial

deference; we w ill not disturb those findings unless they are

clearly erroneous. U nited States v. Gadison

, 8 F.3d 186, 193 (5th

Cir. 1993). A factual finding is not clearly erroneous if it is

plausible in light of the record read as a whole. Id. We review

the district court's interpretation of the Sentencing Guidelines de

novo

. Id.

The Sentencing Guidelines provide that a district court must

reduce a defendant's offense level by two levels if the defendant

was a "minor participant" in the criminal activity. U.S.S.G. §6 The following exchange occurred during sentencing:

ATTORNEY: Well, I won't take up much time as long as it's clear

that our position is that . . . there should be a two

point reduction in Mr. Brown's minor role in the

offense.

THE COURT: I obviously don't agree with that.

13 3B1.2(b). A minor participant is a defendant who is "less culpable

than most other participants, but whose role could not be described

as minimal." I d.

, Application note 3. A downward adjustment under

section 3B1.2 is generally appropriate only where a defendant was

"` substantially less culpable than the average participant.'"

Buenrostro

, 868 F.2d at 138 (emphasis in original) (quoting

U.S.S.G. § 3B1.2, Background). Brown bears the burden of proving

his minor role in the offense by a preponderance of the evidence.

United States v. Zuniga

, 18 F.3d 1254 (5th Cir.), cert. denied

, ---

U.S.---, 115 S.Ct. 214 (1994).

At sentencing, the di strict court disagreed with the

characterization of Brown's role in the offense as minor. 6 Indeed,

the evidence suggests that Brown was not "substantially less

culpable" than the average participant. For instance, he traveled

from Texas to Louisiana to participate in the conspiracy; stayed at

a motel in Gonzalez, Louisiana while his confederates stayed in

Laplace, Louisiana

- a move designed to mask their drug activities

an d avoid being captured in case they were discovered; assisted

accomplice Earl, the diver, and others on two occasions in an

attempt to st ealthily retrieve 281 pounds of marijuana from the

TRIDENT; and would have aided in transporting it to points unknown

if not intercepted by federal agents. In light of these facts, the7 "[E]ven if the defendan t were purely a courier having no

knowledge of the other aspects of the drug-dealing operation, the

defendant might nonetheless be a highly culpable participant in the

operation. A courier who willingly undertakes illegal transit

without asking may questions is especially valuable to a criminal

organization. When police apprehend a studiously ignorant,

courier, the organization can rest comfortably, knowi ng that its

other operations remain hidden from the law." Buenrostro

, 868 F.2d

at 138. B ut see United S tates v. Valdez-Gonzalez , 957 F.2d 643,

647 (9th Cir. 1992) (role in drug trade played by "mules" may

constitute a mitigating circumstance justifying a downward

departure under § 3B1.2).

14 district judge was not bound to accept Brow n's self-serving

declarations, made with the purpose of reducing his sentence, about

his role in the crime. Buenrostro , 868 F.2d at 138.

Moreover, because most offenses are committed by participants

of roughly equal culpability, the adjustment is intended to be used

infrequently. U nited States v. Allibhai

, 939 F.2d 244, 254 (5th

Cir. 1991), cert. denied

, 507 U.S. 1072 (1992). As the B uenrostro

court note d, Brown may be a courier without being substantially

less culpable than the average participant. 7 I d. "Culpability is

a determination requi ring sensitivity to a variety of factors."

Id. Based on the evidence before us, we find no error in the

district court's conclusion that Brown did not prove that he was a

minor participant; he was just as culpable as the other criminal

participants.

IV.

Alternati vely, Brown argues that if we cannot conclude that

Brown was substantially less culpable than other members of the

conspiracy, that the issue be remanded to the district court for a

more complete articulation of the factual basis of its conclusion15

that he was not a minor participant.

Determining participant status is a c omplex fact question,

which requires a court to consider the broad context of the

defendant's offense. U nited States v. Melton

, 930 F.2d 1096, 1099

(5th Cir. 1991) (citing Mejia-Orosco , 868 F.2d 807, clarifying on

reh'g

, 867 F.2d 216 (5th Cir.), cert. denied

, 492 U.S. 924 (1989)).

In Melton

, the court found the record to be woefully inadequate to

d etermine whether the defendant was entitled to a downwar d

adjustment, a deficiency compounded by the district court's refusal

to articulate his findings after being requested to do so by the

defendant. This court held that

The district court must articulate the factual basis for

the finding that, in this particular offense, [defendant]

was an average participant. The sentencing court must

state for the record the factual basis upon which it

concludes that a requested reduction for minor

participation is, or is not, appropriate.

Id.

In making factual determinations, we note that a district

court may "draw [] inference[s] from a variety of data, including

information in the [PSR ] and the defendant's statements and

demeanor at the sentence hearing." M ejia-Orosco

, 867 F.2d at 220-

21. The PSR generally bears sufficient indicia of reliability to

be considered as evidence by the district c ourt in resolving

disputed facts. U nited States v. Montoya-Ortiz

, 7 F.3d 1171, 1180

(5th Cir. 1993). A district court may thus adopt facts contained

in the PSR without further inquiry if t he facts have an adequate

evidentiary basis and the defendant does not present rebuttal

evidence. U nited States v. Puig-Infante

, 19 F.3d 929, 943 (5th16

Cir.), cert. denied , ---U.S.---, 115 S.Ct. 180 (1994).

The district court stated that due to the "reasons . . . set

forth by the probation department," Brown's objections, including

his objection for not receiving a two point downwar d adjustment

under § 3B1.2(b), were de nied. The judge specifically rejected

Brown's contention that he played a minor role in the offense. At

no point prior to this appeal did Brown request the court to

articulate the factual basis for its finding. Moreover, because we

do not find the sentencing record to be inadequate in this respect,

there is no need for the court to regurgitate the basis for denying

the downward departure after adopting the PSR, which sufficiently

articulates the basis for the denial. For example, after Brown

objected to the PSR's recommendation that he not receive a two

point deduction in his sentence, the Probat ion Department again

reviewed the particular facts of the case in a supplemental

addendum and concluded that

Brown is as culpable as any of the other participants in

this scheme. He was present on the bank of the river to

supervise the SCUBA diver's efforts to retrieve the

canisters from the hull of the ship. He was again

present to supervise the retrieval of the canisters from

the dock. Brown's persistent presence at the site

precludes the possibility that he was a minor participant

in this scheme.

However, Brown further argues that additional facts were

revealed after the PSR was prepared, during his co-defe ndant's

(Ea rl's) trial, which were allegedly not considered by the lower

court; facts allegedly supporting the d ownward adjustment. This

argument is meritless. Not only does the evidence not suggest that

he was "substantially less culpable" than the other members of the8 "In resolving any reasonable dispute concerning a factor

important to the sentencing determination, the court may consider

relevant information without regard to its admissibility under the

rul es of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its

probable accuracy." U.S.S.G. § 6A1.3(a).

17 conspiracy, but even so, his argument that the more complex the

smuggling scheme becomes, the less culpable he becomes is

inconsistent with Buenrostro

. Simply claiming that a complex

scheme is involved an d that he is a mere courier does not

automatically entitle a defendant to the deduction. See Buenrostro

,

868 F.2d at 138. Finally, the sentencing judge presided over

Earl's trial prio r to sentencing Brown. He was aware of all the

facts relating to the conspiracy before ruling that Brown was not

a minor participant. 8 This disposes of the contention that the

judge was not privy to all the facts relating to the conspiracy.

The downward adjustment was properly denied.

CONCLUSION

For the reasons stated, the sentence imposed by the district

court is, in all respects,

AFFIRMED.