REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-20983

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee-Cross-Appellant,

versus

REYNALDO MARMOLEJO,

Defendant-Appellant-Cross-Appellee.

 

Appeal from the United States District Court

for the Southern District of Texas

 

February 21, 1997

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

HIGGINBOTHAM, Circuit Judge:

Reynaldo Marmolejo appeals his convictions under 21 U.S.C. §

846, 18 U.S.C. § 371, and 18 U.S.C. §§ 201(b)(2) & 2, urging that

they are not supported by sufficient evidence. The government

cross-appeals the sentence given to Marmolejo claiming that the

district court erred in failing to enhance Marmolejo’s sentence for

possession of a firearm and in reducing his sentence for acceptance

of responsibility and being a minor participant. We reject

Marmolejo’s contentions and, finding merit in the government’s

contentions, vacate Marmolejo’s sentence and remand to the district

court for sentencing consistent with this opinion. 
2

I.

Reynaldo Marmolejo, a former INS agent, was indicted and

convicted for his role in transporting drugs for the Juan Garcia

Abrego organization. In 1986, the Ortiz cell of the Abrego

organization began transporting drugs across the border in INS

buses and vans used to transport undocumented aliens detained in

Bayview, Texas to Houston for deportation hearings. The INS

vehicles were not searched at the immigration checkpoint in Sarita,

Texas and were manned by armed INS agents. This was therefore an

easy way to transport the drugs, if there were INS agents willing

to stop their vehicle for loading and unloading of the contraband.

Joe Polanco and Mario Santana, former INS agents, admitted to

transporting marijuana and cocaine in INS vehicles. As part of

their plea bargains with the government, they agreed to testify

against Marmolejo at his trial. They both testified that he knew

that drugs were being transported in the INS vehicles and that he

agreed to transport drugs for a cash payment. Specifically, they

testified that Marmolejo was present at and assisted in the

transport of approximately 200 kilograms of cocaine on January 26,

1990. Santana originally implicated Marmolejo in a statement given

to FBI Special Agent Kim Woxman. When Marmolejo discovered that

Santana had confessed, he suggested that Santana get a lawyer and

feign mental illness in order to suppress his statement to Agent

Woxman.

The jury found Marmolejo guilty of conspiracy to possess with

intent to distribute cocaine and marijuana, in violation of 21
3

U.S.C. § 846, conspiracy to commit money laundering, in violation

of 18 U.S.C. § 371, and aiding and abetting in the bribing of a

public official, in violation of 18 U.S.C. §§ 201(b)(2) and 2. The

presentence investigation report found that Marmolejo had

transported 200 kilograms of cocaine and gave Marmolejo a base

offense level of 38. The report recommended increasing the base

level because Marmolejo: 1) carried a gun during the transport;

2) abused his position of public trust; and 3) obstructed justice

by trying to persuade Santana to lie.

Marmolejo objected to the enhancement based on obstruction of

justice and possession of a firearm. He further claimed that he

should be entitled to a reduction of his base offense level because

he admitted involvement in the crimes to the probation officer and

he was only a minor participant in the conspiracy. The district

court declined to enhance Marmolejo’s sentence based on possession

of a firearm and reduced his sentence for acceptance of

responsibility and minor participation. The district court also

found that Marmolejo obstructed justice and abused his position of

trust and enhanced his sentence based on those provisions.

Marmolejo’s total offense level was 38 and he was sentenced (within

a range of 235-293 months) to 238 months in prison.

II.

Marmolejo challenges the sufficiency of the evidence against

him. The government claims that the evidence was sufficient and

that the district court failed to enhance Marmolejo’s sentence for

possession of a firearm and erroneously reduced Marmolejo’s
4

sentence for acceptance of responsibility and participation in a

minor role. We will consider Marmolejo’s argument first and then

turn to the government’s contentions.

A.

Marmolejo claims that the evidence was insufficient to support

his conviction because the only witnesses who testified to his

direct involvement in the conspiracy were Polanco and Santana. He

claims that because they were co-conspirators who had cut deals

with the government, their testimony was so suspect that it could

not support his conviction. Marmolejo’s sufficiency argument

fails. A conviction may rest solely upon the uncorroborated

testimony of an accomplice if that testimony is not insubstantial

on its face. United States v. Gibson, 55 F.3d 173, 181 (5th Cir.

1995).

B.

The government claims that Marmolejo’s weapon, carried as a

requirement of his job as an INS agent, should have been the basis

for enhancement under U.S.S.G. § 2D1.1(b)(1). Possession of a

firearm will enhance a defendant’s sentence under U.S.S.G. §

2D1.1(b)(1) where a temporal and spatial relationship exists

between the weapon, the drug-trafficking activity, and the

defendant. United States v. Eastland, 989 F.2d 760, 770 (5th Cir.

1993), cert. denied, 114 S. Ct. 246 (1994)(citing United States v.

Hooten, 942 F.2d 878, 882 (5th Cir. 1991)). This enhancement

provision will not apply where the defendant is able to show that
 

1 In United States v. Davenport, No. 93-1216 (5th Cir. Sept.

6, 1994)(unpublished), a panel rejected two police officers’

contention that their guns could not be the basis for enhancement.

5

it is “clearly improbable” that the weapon was connected with an

offense. U.S.S.G. § 2D1.1 n.3. 

The district court declined to enhance Marmolejo’s sentence

for possession of a firearm because he did not display or brandish

the firearm. However, this circuit has not required active use of

a firearm for enhancement. In United States v. Otero, 868 F.2d

1412 (5th Cir. 1989), this court upheld enhancement where a

defendant had a gun in his van while delivering drugs. The court

found that possession of a gun was sufficient for enhancement under

§ 2D1.1(b)(1). Otero, 868 F.2d at 1414. On appeal, Marmolejo

admits that he possessed a firearm while escorting the cocaine

shipment but claims that because he was required by his job to

carry a firearm, the firearm was not connected to the offense.

The precise question of whether Marmolejo’s sentence can be

enhanced where he possessed a gun as part of his employment as an

INS agent has not been confronted by this circuit in a published

opinion.1 Contrary to Marmolejo’s assertion, the court in United

States v. Siebe, 58 F.3d 161 (5th Cir. 1995), did not consider

whether an officer’s gun can be used to enhance under §

2D.1.(b)(1). The district court in Siebe presumed that the

defendant possessed a gun during the commission of a drug

trafficking crime because he had been issued a firearm in his

position as a law enforcement officer. This court reversed, noting

that there was no evidence that a weapon was found on the officer
6

during the drug trafficking crime. The parties agree that

Marmolejo did possess a gun while he was manning the INS van. The

only question remaining is the effect upon enhancement of the fact

that Marmolejo was required to carry the gun. 

Under the facts of this case, we cannot say that Marmolejo has

borne his burden of proving that it is “clearly improbable” that

his gun was connected to his offense. Transporting drugs under the

watchful eyes of armed INS agents was the ‘perfect cover’ for the

Abrego organization. Marmolejo’s position allowed him to pass

undetected through INS checkpoints. That carrying a gun was an

requirement of his position does not undo the benefit that drug

traffickers received from having an armed guard protect their

goods. Marmolejo used his position to transport drugs and

therefore any incidence of that position which further facilitated

the transport should properly be taken into account at sentencing.

We therefore find that the district court erred in not enhancing

Marmolejo’s sentence under § 2D1.1(b)(1).

The government next urges that the district court erroneously

reduced Marmolejo’s sentence for acceptance of responsibility. To

qualify for sentence reduction under U.S.S.G. § 3E1.1(a), a

defendant must show “recognition and affirmative acceptance of

personal responsibility for his criminal conduct.” A trial court

receives greater deference than usual when reducing a sentence for

acceptance of responsibility under § 3E1.1, because this provision

requires an assessment of credibility. United States v. Rodriguez,

942 F.2d 899, 902-03 (5th Cir. 1991), cert. denied, 502 U.S. 1080
7

(1992)(citing United States v. Mourning, 914 F.2d 699, 705 (5th

Cir. 1990)). However, the notes to 3E1.1 provide guidance for the

exercise of this discretion. Note 2 to 3E1.1 provides that,

although a defendant may receive this reduction even if he

proceeded to trial, the adjustment “is not intended to apply to a

defendant who puts the government to its burden of proof at trial

by denying the essential factual elements of guilt, is convicted,

and only then admits guilt and expresses remorse.” Marmolejo’s

claim to a sentence reduction under this provision hinges on

information he provided to the probation officer after his

conviction and therefore he faces a considerable headwind in

proving that he is entitled to the benefit of § 3E1.1(a).

Note 4 to 3E1.1 further dims Marmolejo’s chance for relief.

It states that where a sentence has been enhanced for obstruction

of justice, very rarely will a defendant be eligible for sentence

reduction under this provision. U.S.S.G. § 3E1.1 n.4 stating that

adjustment under both §§ 3C1.1 and 3F1.1 may be applied in

exceptional cases; see also United States v. Ayala, 47 F.3d 688,

691 (5th Cir. 1995); Rodriguez, 942 F.2d at 902. The sentencing

judge enhanced Marmolejo’s sentence for obstruction of justice

based on Marmolejo’s attempts to convince Santana to lie to the

court in order to suppress Santana’s statement implicating

Marmolejo. 

This case does not present an extraordinary circumstance that

would warrant enhancement for obstruction of justice and reduction

for contrition. The presentence investigation report did not
8

recommend reduction of Marmolejo’s sentence under this provision

and Marmolejo admitted to transporting cocaine only after a trial

and a guilty verdict. Even in his admission of guilt, Marmolejo

was less than frank. He admitted to involvement only in the

January 26th transport, and claimed that Santana paid him around

$9,000, not $19,000 or $13,000 as Santana testified. He also

stated that he did not observe marijuana loaded onto the bus and

was told that he would only be transporting marijuana. We

therefore find that Marmolejo has not shown that his is one of the

unusual cases where a defendant can be found to have obstructed his

prosecution but also shown a sincere acceptance of responsibility

for his acts. 

Finally, the government argues that the district court erred

in finding Marmolejo to be a minor participant under § 3B1.2(b).

Marmolejo bears the burden of showing that his sentence level

should be reduced under this provision. United States v. Atanda,

60 F.3d 196, 198 (5th Cir. 1995). The guidelines define a minor

participant as one who is “less culpable than most other

participants.” § 3B1.2 n.3.

Marmolejo was an integral part of a successful conspiracy to

import large quantities of drugs into the United States. The

shipment that he rode with on January 26, 1990 consisted of 200-300

kilograms of cocaine. The district court calculated his base

offense level using this amount, not the amount of the entire

conspiracy, which the presentence investigation report estimated at

10,000 kilograms. Because only the drugs he actually participated
9

in transporting were attributed to him in calculating his sentence,

he cannot now claim to be a minor participant in relation to his

offense. Atanda, 60 F.3d at 199 (“when a sentence is based on

activity in which a defendant was actually involved, § 3B1.2 does

not require a reduction in the base offense level even though the

defendant’s activity in a larger conspiracy may have been minor or

minimal”). Marmolejo’s role may appear to be small in relation to

the work of the Ortiz cell or the Abrego organization itself,

however, he himself accomplished much in the way of furthering

their goals. So much so that we must deny him the benefit of §

3B1.2(b).

III.

For the foregoing reasons, the sentence imposed by the

district court is vacated and this case remanded to the district

court for sentencing consistent with this opinion.