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United States v. Cartagena

United States Court of Appeals, Eighth Circuit

May 18, 2017

United States of America Plaintiff- Appellee
v.
David Cartagena Defendant-Appellant

          Submitted: May 8, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         David Cartagena pled guilty to one count of conspiracy to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The district court[1] sentenced him to 156 months imprisonment. He argues on appeal that the district court failed to consider the Sentencing Guideline factors for minimal-role adjustment to the offense level, erred in denying a minimal-role adjustment, and imposed an unreasonable sentence. We affirm.

         In 2012, Angel Rivera began obtaining heroin for resell from sources in Mexico. In January 2015, Angel Rivera paid Cartagena and Frankie Rivera $10, 000 plus expenses to travel by bus from Reading, Pennsylvania to Los Angeles with over $250, 000[2] in cash. Angel Rivera instructed them to check into a hotel in Los Angeles, where they were contacted by Elisandra Varela and provided bundles of heroin in exchange for the cash. At her instruction, Cartagena and Frankie Rivera removed the cash from their own luggage and replaced it with the bundles of heroin. Cartagena and Frankie Rivera were then instructed by Angel Rivera to return to Reading by bus with the heroin in tow.

         During the return trip Cartagena and Frankie Rivera encountered Kansas City, Missouri Police Department drug interdiction squad officers at the Greyhound Bus Station in Kansas City. The officers' canine alerted on luggage later determined to belong to Cartagena. When questioned, Cartagena explained that he was traveling with his long-time friend Frankie Rivera. Cartagena denied officers permission to search his luggage. He was taken into custody and a search warrant for the luggage was obtained and executed. In the luggage officers found three bundles of heroin later determined to weigh 3, 989 grams.

         While officers were speaking with Cartagena, other officers spoke with Frankie Rivera, who told them that he and Cartagena had just met. Frankie Rivera consented to the officers' search of his luggage in which officers found three bundles of heroin weighing 2, 991 grams in a hidden compartment. Frankie Rivera agreed to cooperate with law enforcement and the ensuing investigation led to the arrest and indictment of Angel Rivera and Varela.

         Prior to sentencing, Cartagena requested a four-level reduction in his Guideline offense level as a minimal participant in the criminal activity pursuant to USSG § 3B1.2(a). The presentence report did not recommend the reduction, and Cartagena objected. The district court-after considering the description of the offense conduct contained in the presentence report, Cartagena's objections to the presentence report, the probation officer's response to Cartagena's objections, and the argument of counsel-denied the minimal-participant reduction.[3]

         Cartagena now contends that the district court committed procedural error in failing to consider the advisory factors set forth in the commentary to USSG § 3B1.2. The commentary provides:

The determination whether to apply subsection (a) or subsection (b), or an intermediate adjustment, is based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.
In determining whether to apply subsection (a) or (b), or an intermediate adjustment, the court should consider the following non-exhaustive list of factors:
(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the ...

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