Before: Becker, Chief Judge, Rendell, and HEANEY,*fn* Circuit Judges
The opinion of the court was delivered by: Rendell, Circuit Judge.
On Appeal from the United States District Court for the District of New Jersey
(D.C. Criminal No. 97-66)
This case requires us to review the factors a district court should consider in deciding whether a drug courier or "mule" convicted of importation may be characterized as a minor participant in the offense, such that a downward adjustment in sentencing pursuant to § 3B1.2 of the United States Sentencing Guidelines may be warranted. The district court concluded that, as a courier, the defendant's role was "essential" and he was not a minor participant. Because we cannot determine whether this Conclusion was a factual finding, or was based on an interpretation of the sentencing guidelines, we will vacate and remand for resentencing consistent with this opinion. See United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994); United States v. Colletti, 984 F.2d 1339, 1348 (3d Cir. 1992).
While in Colombia on a vacation, Oscar Ivan Isaza-Zapata was approached by two men, Carlos and Tyson, in a park. The men offered to pay him $16,000 to transport 800 grams of heroin to the United States. In need of money for a foot operation, Isaza-Zapata agreed. He later met Carlos and Tyson at a hotel in Perriera, Colombia, where they gave him 100 pellets of heroin to swallow. They provided him with a ticket to Newark, where he was to meet another man named Carlos.
Upon his arrival at Newark International Airport, Isaza- Zapata was subjected to a routine customs examination. After his demeanor aroused suspicion, Isaza-Zapata was asked to consent to an X-ray examination. Isaza-Zapata signed the consent form and was transported to Bayonne Medical Center, where he passed approximately 100 pellets containing heroin. He advised the customs agents that he had been paid to bring narcotics into the United States. Isaza-Zapata attempted to cooperate with Customs officials by placing a call to his United States contact, but was unsuccessful.
In a one count indictment, the grand jury charged Isaza- Zapata with knowingly and intentionally importing into the United States more than 100 grams of heroin in violation of 21 U.S.C. §§ 952(a) & 960(a)(1), and 18 U.S.C. § 2. Isaza- Zapata subsequently pled guilty. At sentencing, he requested a two-point downward adjustment in his offense level as a minor participant. The government agreed that Isaza-Zapata was entitled to the downward adjustment. The district court, however, declined to grant the adjustment. The court sentenced Isaza-Zapata to 60 months imprisonment, four years supervised release, a $1,000 fine, and a special assessment of $100. This appeal followed.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We employ a mixed standard of review when considering whether a defendant was entitled to a downward adjustment as a minor participant. See United States v. Carr, 25 F.3d 1194, 1207 (3d Cir. 1994). We exercise plenary review where the district court's denial of a downward adjustment is based primarily on a legal interpretation of the Sentencing Guidelines. See United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990). However, where the district court's decision rests on factual determinations, we review for clear error. See id.
At the sentencing hearing, the district court denied the two-point downward adjustment, stating only that"I find that his role is essential for the commission of the crime and that he is not a minor participant." The district court did not set forth any other reasons for its determination, and it is not clear whether the district court assessed the relative culpability of Isaza-Zapata as compared to others and considered the factors we have outlined in United States v. Headley, 923 F.2d 1079 (3d Cir. 1990), in relation to the other participants, or whether the court had adopted a practice whereby mules or couriers do not qualify for a minor role adjustment because they are "essential." With respect to the latter, we note that because the determination of whether a defendant is entitled to a minor role adjustment is highly dependent on the facts of particular cases, see U.S. Sentencing Guidelines Manual § 3B1.2, Background Commentary, a mechanical application of the guidelines by which a court always denies minor role adjustments to couriers because ...