## Facts

- Ana Marin de Velasquez arrived at John F. Kennedy International Airport from Colombia and appeared extremely nervous during customs inspection.
- Agents discovered 167.8 grams of heroin concealed in the soles of her shoes and 636.3 grams carried internally, totaling 804.1 grams.
- After arrest, she admitted transporting narcotics internally but claimed she did not know heroin was hidden in her shoes, asserting the shoes were provided only to identify her to a contact.
- She pleaded guilty in the Eastern District of New York to importing heroin in violation of 21 U.S.C. § 952(a), admitting she knew she was importing narcotics though not the specific type.
- At sentencing, the district court included both the internally carried heroin and the shoe-sole heroin in the quantity calculation, set the base offense level at 30, applied reductions for minimal role and acceptance of responsibility, and imposed a 46-month sentence.
- On a Rule 35 motion, she argued the shoe-sole heroin should be excluded due to lack of knowledge; the court denied the motion without resolving whether she was actually ignorant, concluding existing circuit law required counting the total quantity possessed.
- She appealed, challenging inclusion of the shoe-sole heroin in the Guidelines drug-quantity calculation.

## Issues

1. Whether the Sentencing Guidelines require limiting drug quantity to the amount a defendant actually knew she possessed when convicted of importing narcotics.
2. Whether drug quantity found in a defendant’s physical possession may be counted only if the amount was reasonably foreseeable to the defendant.

## Decision

- The Second Circuit affirmed the judgment and sentence.
- The court held that a defendant convicted of importing narcotics may be sentenced based on the entire quantity of drugs actually in her possession, even if she claims ignorance of part of that quantity.
- The court further held that foreseeability is not required to include drug amounts physically possessed by the defendant in the quantity calculation.
- Because the legal rule controlled, the district court did not need to decide whether Velasquez was truthful about her claimed lack of knowledge of the heroin in her shoes.

## Legal Principles

- For drug importation offenses, Guidelines sentencing may be based on the total quantity of drugs actually possessed in connection with the offense, not the quantity the defendant believed she possessed.
- When drugs are in the defendant’s own physical possession, the Guidelines do not impose an additional requirement that the quantity be reasonably foreseeable for inclusion at sentencing.
- Foreseeability limits in relevant-conduct analysis generally concern accountability for others’ acts (e.g., jointly undertaken activity) and do not restrict counting drugs personally possessed by the defendant.
- Due process does not require a separate “knowledge of quantity” element for Guidelines quantity calculations beyond the mens rea needed to sustain the underlying importation conviction.

## Conclusion

The Second Circuit upheld a drug-importation sentence that included heroin concealed in the defendant’s shoes, ruling that sentencing properly turns on the full amount of drugs in the defendant’s possession even if she lacked knowledge of part of the quantity and even if that quantity was not foreseeable.


United States v. de Velasquez, 28 F.3d 2 (2d Cir. 1994)