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08-6281-cr

USA v. Vargas

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary

order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of

Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in

a document filed with this court, a party must cite either the Federal Appendix or an

electronic database (with the notation "summary order"). A party citing a summary order

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at

the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New

York, on the twenty-first day of May, two thousand and ten.

PRESENT:

JOSÉ A. CABRANES,

ROBERT A. KATZMANN,

DENNY CHIN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

v. No. 08-6281-cr

TOMAS VARGAS,

Defendant-Appellant.

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FOR DEFENDANT-APPELLANT: BRENDAN WHITE, White & White, New

York, NY.

FOR APPELLEE: KATHERINE POLK FAILLA, Assistant United

States Attorney (Preet Bharara, United States

Attorney, Sarah Y. Lai, Assistant United

States Attorney, on the brief), Office of the

United States Attorney for the Southern

District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Sidney H. Stein, Judge).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-appellant Tomas Vargas (“defendant” or “Vargas”) appeals from a judgment of

conviction entered December 22, 2008. Defendant was convicted, after entering a plea of guilty, of

one count of conspiracy to launder narcotics proceeds in violation of 18 U.S.C. § 1956(a)(1)(B)(i)

and thereafter sentenced principally to 121 months’ imprisonment. On appeal, defendant challenges

only his sentence, arguing that the District Court’s denial of a downward adjustment for his “minor

role” in the offense was clearly erroneous. We assume the parties’ familiarity with the remaining

factual and procedural history of the case.

“We review for clear error a sentencing court’s finding that a defendant did not play a minor

role in the offense.” United States v. Brunshtein, 344 F.3d 91, 102 (2d Cir. 2003) (quoting United States

v. Castano, 234 F.3d 111, 113 (2d Cir. 2000)). A defendant bears the burden of proving by a

preponderance of the evidence that he is entitled to a minor role adjustment. Id.

Section 3B1.2(b) of the United States Sentencing Guidelines (“U.S.S.G.” or the

“Guidelines”) provides that a defendant’s offense level shall be decreased by 2 levels if the

defendant was a “minor participant” in the offense. U.S.S.G. § 3B1.2(b). The commentary to that

Guideline defines “minor participant” as a defendant “who is less culpable than most other

participants, but whose role could not be described as minimal.” Id. cmt. n.5. The commentary

also makes clear that no mitigating role adjustment is appropriate unless a defendant is “substantially

less culpable than the average participant.” Id. cmt. n.3(A) (emphases added); cf. Stinson v. United States,

508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines Manual that interprets or explains a

guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent

with, or a plainly erroneous reading of, that guideline.”).
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We have long recognized that defendants—such as Vargas—whose role in a criminal

enterprise is merely that of courier are not automatically entitled to a “minor role” adjustment. 

United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990). Rather, “[t]he culpability of a defendant

courier must depend necessarily on such factors as 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.” Id.

Applying those factors, we have little trouble concluding that the District Court’s finding

that Vargas was not entitled to a minor role adjustment was not clearly erroneous. First, defendant’s

“relationship to other participants” suggests that he was not a minor participant. See id. Although

Vargas did not personally carry any currency, his girlfriend acted as the primary courier with Vargas

following closely behind in a separate car. The manner in which the criminal activity occurred

suggests that Vargas and his girlfriend acted as partners. At the very least, there is no evidence that

Vargas’s role was subordinate. It was certainly not “clear error” for the District Court to find that

Vargas did not play a subordinate role merely because he rode in a separate car and did not

personally handle any currency. See Brunshtein, 344 F.3d at 102.

Vargas’s “awareness of the nature and scope of the criminal enterprise” also supports the

District Court’s finding that he was not a minor participant. See Garcia, 920 F.2d at 155. By entering

a plea of guilty, Vargas admitted to attempting to conceal the proceeds of narcotics sales. He further

admitted to knowing that approximately $500,000 was being transported and that it was destined for

a foreign country. Finally, Vargas knew of and had been inside the building where the narcotics

proceeds were being stored prior to transport. It was, therefore, not clearly erroneous for the

District Court to find that defendant’s “awareness of the nature and scope of the criminal

enterprise” exceeded that of a “minor participant.” See id.; see also U.S.S.G. § 3B1.2(b) & cmt. n.5.

In sum, we conclude that the District Court did not commit “clear error” in finding that

defendant was not a “minor participant” in the charged offense or in declining to reduce his offense

level accordingly. See Brunshtein, 344 F.3d at 102.

CONCLUSION

We have considered all of defendant’s arguments and find them to be without merit. For

the foregoing reasons, the judgment of the District Court is AFFIRMED.

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk of Court