UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-20144

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HECTOR VALENCIA-GONZALES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ April 9, 1999

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Valencia pled guilty to possession of a controlled

substance with intent to distribute under 21 U.S.C. § 841(a)(1) and

841(b)(1)(A)(i) and importation of a controlled substance under 21

U.S.C. § 952(a) and § 960(a)(1) and (b)(1)(A). He challenges his

sentence because he b elieved -- and the government stipulated he

believed

-- tha t he was carrying cocaine, when in fact he was

carrying heroin, for which he received a longer sentence than if he

had been carrying cocaine. We reject all three of Valencia’s

challenges to his sentence.

I.1 Discussing jury instructions that allowed conviction even

w hen a defendant did not know what controlled substance he

possessed, the Gonzalez court observed: “Such an instruction does

not encourage the jury to convict a defendant for possessing some

controlled substance carrying a lesser penalty than heroin when, as

here, the substance found in the car concededly was heroin and

there was no evidence that Gonzalez believed the car contained any

other controlled substance.” 700 F.2d at 201.

2 Valencia’s first argument apparently is that Due Process

requires a mens rea to be imported into sentencing, so that his

subjective belief t hat he was carrying cocaine would control his

sentence, even though the underlying crime required only possession

of a “controlled substance.”

Valencia’s legal challenge to his sentence is reviewed de

novo

. S ee United States v. Shaw

, 920 F.2d 1225, 1228 (5th Cir.

1991).

Valencia does not dispute that he had the mens rea

required for guilt under both statutes; he knew he possessed a

“controlled substance.” For sentencing, however, Valencia invokes

“the fundamental Anglo-American tradition” of calibrating

punishment to culpability. This language comes from a 48-page

opinion by Judge Weinstein holding precisely what Valencia argues.

See United States v. Co rdoba-Hincapie , 825 F. Supp. 485, 488

(E.D.N.Y. 1993). Valencia also appeals to the Model Penal Code,

which allows a mistake of fact to control sentencing, and some

dicta in United States v. Gonzalez

, 700 F.2d 196 (5th Cir. 1983). 1

These authorities are insufficient to outweigh the

Supreme Court’s characterizat ion of the constitutional limits on3

sentencing and the clear decision by Congress to make drug dealers

assume the risk of what kinds and amounts of controlled substances

they carry.

In evaluating an allegedly irrational sentencing scheme

for distribution of LSD, the Supreme Court commented: “a person who

has been ... convicted is eligible for, and the court may impose,

whatever punishment is authorized by statute for his offens e, so

long as that penalty is not cruel and unusual, and so long as the

penalty is not based on an arbitrary distinction that would violate

the Due Process Clause of the Fifth Amendment.” C hapman v. United

States

, 500 U.S. 453, 465, 111 S. Ct. 1919, 1927 (1991) (citations

omitt ed). The C hapman Court found Congress’s LSD sentencing

provisions had a “rational basis.” I d. The Court even went so far

as to hold that a sentencing scheme that fails to “consider[]

individual degree s of culpability ... would clearly be

constitutional,” because “Congress has the power to define criminal

punishments....” Id. at 467, 111 S. Ct. at 1928.

The statutes for possession and importation each

distinguish between the specific intent necessary for the “unlawful

act,” 21 U.S.C. §§ 841(a)(1), 952(a), 960(a ), and a strict

liability punishment based on which controlled substance, and how

much of it, is involved in the offense, 21 U.S.C.

§§ 842(b)(1)(A)(i), 960(b)(1)(A); s ee also U.S.S.G. § 2D1 .1(c)

(drug quantity table). Congress certainly had a rational basis to

“resolve that there is some deterrent value in exposing a drug4

trafficker to liability for the full consequences, both expected

and unexpected, of his own unlawful behavior.” U nited States v.

Strange

, 102 F.2d 356, 361 (8th Cir. 1996). S ee also United States

v. Salazar

, 5 F.3d 445, 446 (9th Cir. 1993 ); United States v.

Collado-Gomez , 834 F.2d 280, 281 (2d Cir. 1987).

The district court did not err in sentencing Valencia

according to the drug he was carrying rather than the drug he

believed he was carrying.

II.

Valencia’ s second argument is that the district court

erred in denying his motion for a downward departure on grounds of

his mistaken belief that he was carrying cocaine.

This court can review a district court’s refusal to

depart from the guidelines “only if the district court based its

decision upon an erroneous belief that it lacked the authority to

depart. Moreover, something in the record must indicate that the

district court held such an erroneous belief.” U nited States v.

Landerman , 167 F.3d 895, 899 (5th Cir. 1999) (citations omitted).

Contrary to Valencia’s assertion, the district court’s summary

denial withou t explanation does not indicate any such erroneous

belief. S ee United States v. Aggarwal

, 17 F.3d 737, 745 (5th Cir.

1994). Thus, this court has no jurisdiction to consider this

argument.5 III.6 Valencia’s third argument on appeal is that the district

court erred in denying a downward adjustment for his being a “minor

participant” under U.S.S.G. § 3B1.2(b).

In the face of silence, there is no reason to presume, as

Valencia does, that the district court relied upon a mistaken legal

rule in denying the adjustment. We review the district court’s

denial for clear error. S ee United States v. Lugman

, 130 F.3d 113,

117 (5th Cir. 1997), cert. denied , 118 S. Ct. 1855 (1998).

A downward adjustment is appropriate “only where a

defendant was ‘ s ubstantially less culpable than the average

participant.’” U nited States v. Brown

, 54 F.3d 234, 241 (5th Cir.

1995) (ultimately quoting U.S.S.G. § 3B1.2 (background)). Valencia

contends he was a mere “mule,” but he admitted that he was to be

paid $14,000 for his role, that he transported the heroin from

Colombia to Houston, that he was supposed to meet a co-conspirator

in San Antonio, and that they were to travel together to New York.

(During a controlled delivery, his co-conspirator did not meet him,

making it possible to infer that Valencia had misrepresented his

role.) Valencia was carrying a non-trivial quantity of heroin

(1005 grams). Furthermore, he was sentenced only for the amount

that he was actually carrying. S ee United States v. Marmolejo

, 106

F.3d 1213, 1217 (5th Cir. 1997); United States v. Flucas , 99 F.3d

177, 181 (5th Cir. 1996). Under the circumstances, the district

court did not clearly err in concluding that Valencia’s role was

not minimal.7 IV.

For the foregoing reasons, Valencia’s appeal of the

district court’s refusal to grant a downward departure is

DISMISSED

. All other aspects of Valencia’s sentence are A FFIRMED

.