§440 Mitigating Role: Minimal or Minor Participant
(U.S.S.G. § 3B1.2)
1st Circuit remands for minor participant finding in light of retroactive amendment. (192)(440) Defendant was found on a small boat loaded with cocaine. He pleaded guilty to conspiring to possess with intent to distribute cocaine on a vessel subject to the jurisdiction of the U.S. At sentencing, the district court found that he was not a “minor participant” under § 3B1.2(b). On appeal, the First Circuit reversed because the district court had not considered the factors in Application Note 3(C) to § 3B1.2, which became effective after defendant’s sentencing, but which, according to a prior First Circuit case, applied retroactively to defendant. U.S. v. Aybar-Ulloa, __ F.3d __ (1st Cir. Jan. 9, 2019) No. 15-2377.
9th Circuit applies minor role amendment retroactively. (192)(440) At defendant’s sentencing for drug trafficking, the court denied a minor role reduction because defendant was not “substantially less culpable than the average participant.” After defendant was sentenced, but during his appeal, the Sentencing Commission amended the minor role provision, §3B1.2, to add commentary stating that a defendant should be compared with other participants in the offense, not with a hypothetical average participant, and that a court should consider a reduction if defendant “is simply being paid” to participate in the offense. The amendment resolved a circuit split and also provided a list of factors to consider. The Ninth Circuit held that the amendment should be applied retroactively to direct appeals, and remanded to consider the factors in §3B1.2. U.S. v. Quintero-Leyva, __ F.3d __ (9th Cir. May 17, 2016) No. 14-50509.
Commission encourages more frequent and consistent use of mitigating role adjustment. (440) Section 3B1.2 provides an adjustment of 2, 3, or 4 levels if the defendant is “substantially less culpable than the average participant.” The Commission amended the commentary to agree with the Seventh and Ninth Circuits that the defendant is to be compared with the other participants “in the criminal activity,” see, e.g., U.S. v. Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); U.S. v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006); U.S. v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 1993), thus abrogating cases that compare to persons participating in similar crimes. See U.S. v. Santos, 357 F.3d 136, 142 (1st Cir. 2004) and U.S. v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999). The Commission also amended the commentary to provide that “the fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative” and does not bar a mitigating role adjustment, thus abrogating U.S. v. Skinner, 690 F.3d 772, 783-84 (6th Cir. 2012), U.S. v. Panaigua-Verdugo, 537 F.3d 722, 725 (7th Cir. 2008), U.S. v. Deans, 590 F.3d 907, 910 (8th Cir. 2010), and U.S. v. Carter, 971 F.2d 597, 600 (10th Cir. 1992). The amendment also revised two paragraphs in Note 3(A) that illustrate how mitigating role interacts with relevant conduct principles in §1B1.3, and provided a non-exhaustive list of factors to consider. Proposed Amendment 5, effective November 1, 2015.
1st Circuit says defendant who requested minimal role reduction below also raised issue of minor role. (440) Defendant argued on appeal that the court erred in refusing to grant him a minor role reduction. The government argued that review should be for plain error because defendant only sought a four-level minimal role adjustment before the district court, but argued on appeal for a two-level minor role adjustment. The First Circuit found that defendant sufficiently raised the issue below. The two subsections involve separate inquiries, and to avoid confusion, it would be better if the terms were not used interchangeably, as they were by defendant’s counsel before the court. However, judges faced with a request for a four-level reduction for a minimal role could reasonably consider whether a lesser two-level reduction for a minor role had been made out. Here, because the district court stated that it was considering the issue of “minor or minimal participation,” defendant’s argument was properly before the appellate court. U.S. v. Olivero, 552 F.3d 34 (1st Cir. 2009).
1st Circuit denies minimal participant reduction for driver of large cache of narcotics. (440) The district court awarded defendant a two-level downward adjustment for being a minor participant but denied his request for a four-level adjustment for being a minimal participant. The 1st Circuit upheld the district court’s decision. Defendant was one of the drivers in a caravan seeking to carry a large cache of narcotics. As such, his role was greater than those in the examples of defendants who should receive the minor participant reduction. U.S. v. De La Cruz, 996 F.2d 1307 (1st Cir. 1993).
1st Circuit rules defendant waived minor participant issue by failing to present it to sentencing court. (440) The 1st Circuit refused to consider defendant’s claim that he was a minor participant in a drug smuggling offense because he failed to raise the issue in the district court. Defendant was offered ample opportunity to challenge the computation of his offense level and to raise any question regarding his alleged role as a minor participant. Defendant’s failure to assert this claim at his sentencing hearing foreclosed him from raising it here. U.S. v. Uricoechea-Casallas, 946 F.2d 162 (1st Cir. 1991).
1st Circuit reviews role in the offense adjustment under the clearly erroneous standard. (440) The 1st Circuit held that the determination of whether defendant was a minimal or minor participant was subject to the clearly erroneous standard of review. The district court’s determination that defendant was not a minor or minimal participant was not clearly erroneous. There was evidence that defendant (a) was one of only three charged co-defendants in a conspiracy to distribute cocaine, (b) initially introduced one co-defendant to the other, (c) accompanied one co-defendant to the site where the delivery of the cocaine was to take place, (d) vouched for the quality of the cocaine to the government informant, and (e) was to receive $300 from the transaction. The district court did sentence at the bottom of the guideline range, which demonstrated that the district court did consider defendant’s role in the offense. U.S. v. Osorio, 929 F.2d 753 (1st Cir. 1991).
1st Circuit determines that defendant was a minor, rather than a minimal participant. (440) Defendant, acting on behalf of a drug dealer, met with an undercover agent attempting to buy cocaine and advised the agent that the dealer would be able to provide the cocaine as soon as the person who had the keys to the apartment where the cocaine was stored returned to town. When the purchase finally took place, defendant stayed with the agent while the dealer obtained the drugs. While they waited for the dealer to return with the drugs, defendant advised the agent that if a nearby individual who looked like a policeman approached them, defendant would shoot the individual. Based on these facts, the 1st Circuit upheld the district court’s determination that defendant was a minor participant rather than a minor participant. The court noted that “[t]here is a thin line between a minor and a minor participant, and at times, it is difficult to determine just where to draw it.” U.S. v. Vega-Encarnacion, 914 F.2d 20 (1st Cir. 1990).
2nd Circuit remands where it was unclear why court denied minimal role reduction. (440) In a “Sentencing Opinion” issued prior to sentencing, the district judge opined that defendant was entitled to a minimal role reduction. The memo concluded that defendant was “hereby sentenced” to a term of 57 months. The government objected to the contemplated four-level reduction, and at sentencing, the judge declined to grant the reduction. Defendant challenged the denial of the reduction, contending that the court’s change from the sentencing opinion was not supported by adequate findings. The Second Circuit remanded for resentencing. It was unclear whether the judge (a) attributed to defendant more misconduct that he had originally found, and if so, what misconduct, or (b) was interpreting the relevant guideline differently than before, or (c) was simply reassessing the significance of defendant’s misconduct. Under these circumstances, the Second Circuit remanded to permit the court to conduct a new sentencing hearing, and give defendant and his counsel—now alerted to the judge’s inclination not to grant the role reduction—a full opportunity to argue for the adjustment. U.S. v. Labbe, 588 F.3d 139 (2d Cir. 2009).
2nd Circuit says amendment capping offense level for drug defendants receiving role reduction is not retroactive. (440) Amendment 640 to the Guidelines, which took effect on November 1, 2002, after defendant was sentenced, caps the maximum base offense level under § 2D1.1 at 30 for any defendant who received a mitigating role adjustment under U.S.S.G. § 3B1.2. The Second Circuit held that Amendment 640 is not to be applied retroactively. It is not listed in U.S.S.G. § 1B1.10(c) as an amendment that is to have retroactive effect. Amendment 640 did not make defendant’s sentence “by definition … excessive.” U.S. v. Garcia, 339 F.3d 116 (2d Cir. 2003).
2nd Circuit says career offenders cannot receive minor role reduction if it would result in offense level below career-offender minimum. (440) All the circuit court that have reached the question have agreed that career offenders cannot receive a minor role downward adjustment, to the extent that such an adjustment would result in an offense level that falls below the career offender minimum established by U.S.S.G. § 4B1.1(b). See, e.g. U.S. v. Beltran, 122 F.3d 1156 (8th Cir. 1997); U.S. v. Griffin, 109 F.3d 706 (11th Cir. 1997); U.S. v. Johnson, 155 F.3d 682 (3d Cir. 1998). In sentencing defendant, the district court stated its agreement with this interpretation. The Second Circuit held that the district court was correct, substantially for the reasons given in these opinions. U.S. v. Perez, 328 F.3d 96 (2d Cir. 2003).
2nd Circuit upholds refusal to depart even where role adjustment is unavailable to sole participant. (440) In a prior appeal, 990 F.2d 72 (2nd Cir. 1993), the 2nd Circuit ruled that a mitigating role adjustment under § 3B1.2 is not available where the defendant is technically the only participant in the offense because the other person was an undercover agent. However, it ruled that the judge had discretion to depart downward based on defendant’s role in the offense. On remand, the district court declined to depart. The 2nd Circuit found that the normal rule barring review of discretionary refusals to depart applied. The prior decision did not require a court to depart under these circumstances. U.S. v. Speenburgh, 13 F.3d 39 (2nd Cir. 1993).
2nd Circuit remands where court made no findings on role. (440) Over defendants’ objections, the district court imposed a four level leadership enhancement under section 3B1.1(a) on one defendant and a two level minor role reduction under section 3B1.2(b) on another defendant. The 2nd Circuit remanded, because in both cases, the district court made no factual findings. U.S. v. Rosa, 11 F.3d 315 (2nd Cir. 1993).
2nd Circuit rules reconsideration of role in offense violated “law of the case” doctrine. (440) The district court originally rejected defendant’s claim that he was a minor or minimal participant in a murder. The 2nd Circuit affirmed this ruling, although it remanded on other grounds. At resentencing, the district court granted defendant a two level reduction based on his minor role in the murder. The 2nd Circuit reversed, holding that the district court’s reconsideration of defendant’s role violated the “law of the case” doctrine. U.S. v. Minicone, 994 F.2d 86 (2nd Cir. 1993).
2nd Circuit suggests downward role departure for where other party in crime is government agent. (440) Defendant sold several sawed-off shotguns to a government informant. The 2nd Circuit affirmed that a section 3B1.2 mitigating role adjustment could not apply to defendant as a matter of law because his offense did not involve another criminally responsible person. Adjustments under section 3B1.1 and 3B1.1 apply only when an offense is committed by more than one participant, who must be criminally responsible for the commission of the offense. Even if the undercover agent entrapped defendant, the agent was not criminally responsible. However, a downward departure may be available. If the district court would have decreased the defendant’s offense level under section 3B1.2 had the other person involved in the offense been criminally responsible, it has the discretion to depart downward between two and four levels, based on defendant’s culpability relative to that of the government agent. U.S. v. Speenburgh, 990 F.2d 72 (2nd Cir. 1993).
2nd Circuit holds that steerer or facilitator may, in some cases, be minor participant. (440) The district court denied defendant a minor role reduction because he was a steerer or facilitator of the drug sales. The 2nd Circuit remanded because the court never determined whether defendant’s role as a steerer or a facilitator made him “substantially less culpable than” his co-defendants. Prior case law does not hold that a steerer or facilitator may never receive a section 3B1.2 reduction; in an appropriate case such a defendant can receive the reduction. U.S. v. LaValley, 999 F.2d 663 (2nd Cir. 1993).
2nd Circuit remands based on judge’s confusion of the categories of “minor” and “minimal” participant. (440) Defendant was denied any reduction for role in the offense. The 2nd Circuit remanded because the trial court apparently confused the categories of “minor” and “minimal” role in the offense. Although the government argued that the district court applied the correct standard, the 2nd Circuit concluded that it could not be certain that the judge had applied the rule properly. U.S. v. Friedman, 998 F.2d 53 (2nd Cir. 1993).
2nd Circuit does not review propriety of one-level reduction for mitigating role in the offense. (440) The district court reduced defendant’s offense level by one based upon his mitigating role in the offense. The 2nd Circuit noted that section 3B1.2 only authorizes a two, three or four-level reduction to account for a defendant’s mitigating role. However, on appeal, neither defendant nor the government challenged the one-level reduction. In addition, defendant did not seek a two-level reduction, claiming instead that he should have received a three or four-level reduction. Therefore, the court did not address whether a one-level reduction could be proper. U.S. v. Pitre, 960 F.2d 1112 (2nd Cir. 1992).
3rd Circuit holds career offenders are not eligible for minor role reductions. (440) Defendant was convicted of drug conspiracy charges. In the plea agreement, the parties stipulated that defendant’s minor role in the conspiracy warranted a minor role reduction under § 3B1.2. However, the PSR concluded that defendant was a career offender. The district court agreed that defendant’s minor role would ordinarily warrant a downward adjustment, but held that the minor role adjustment did not apply to career offenders. The Third Circuit agreed, ruling that career offenders are not eligible for minor role reductions. The sequence of the Sentencing Guideline Application Instructions in § 1B1.1 indicates that after career offender status is imposed, downward adjustments are allowed only for acceptance of responsibility. If the sequence in § 1B1.1 was arbitrary, the additional provision for an acceptance of responsibility reduction would have been unnecessary. U.S. v. Johnson, 155 F.3d 682 (3d Cir. 1998).
2nd Circuit affirms four-level downward departure based upon minimal role of defendants in money laundering scheme. (440) Based on their minimal role in a money laundering offense, defendants received both a four-level offense level reduction for minimal role under guideline § 3B1.2 and a four-level downward departure. The 2nd Circuit affirmed, holding that such a departure beyond the adjustments in § 3B1.2 is authorized where the minimal role is “extraordinary.” Defendants’ case presented such a situation. As a result of the large amount of cash involved, defendants received a nine-level increase in offense level. This single factor raised defendants’ guideline range from 33-41 months to 87 to 108 months. The sentencing commission apparently contemplated some connection between the quantity of money implicated and the extent of a defendant’s role in the offense. No such correlation was involved here. Defendants’ sole role in the offense was to load boxes of money in a warehouse on one particular date. U.S. v. Restrepo, 936 F.2d 661 (2nd Cir. 1991).
3rd Circuit says courier can have minor role even if only charged with drugs he actually carried. (440) Defendant was arrested smuggling 100 pellets of heroin into the U.S. At sentencing, he requested and the government agreed to a minor participant reduction. The district court, however, denied the reduction, finding defendant’s role as a courier was “essential for the commission of the crime.” The Third Circuit remanded because it was unable to determine the basis of the court’s ruling. Under U.S. v. Headley, 923 F.2d 1079 (3d Cir. 1990), the culpability of a courier depends 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. Although some courts have noted the essential nature of the courier’s role, these cases do not stand for the proposition that a courier can never qualify for a § 3B1.2 reduction, or that a court should forego an analysis of the defendant’s relative role. The court rejected cases holding that the § 3B1.2 reduction is not available where a defendant is only charged with the amount of drugs or money with which he was involved. A district court must examine all relevant conduct, not merely the defendant’s, in assessing his relative culpability. A defendant may play a minor role in importing the amount of drugs that he himself carried. U.S. v. Isaza-Zapata, 148 F.3d 236 (3d Cir. 1998).
3rd Circuit rejects departure by analogy to role in one-man pornography case. (440) Defendant received child pornography from a company taken over by postal inspectors. He pled guilty to possessing child pornography. In U.S. v. Bierley, 922 F.2d 1061 (3d Cir. 1990), the Third Circuit upheld a downward departure by analogy to § 3B1.2 because the defendant would have been entitled to the adjustment if the supplier, an undercover postal inspector, had been a criminally culpable participant. But the defendant in Bierley was convicted of receiving child pornography, which can involve concerted activity, while the defendant here was convicted of possession, a single‑person offense. The Third Circuit reversed a downward departure based on Bierley, because defendant would not have been entitled to an adjustment under § 3B1.2 even if the person that delivered the pornography had been criminally responsible. Moreover, possessing child pornography is significantly less serious than Bierley’s offense of receiving child pornography. Note 4 to § 3B1.2 says the § 3B1.2 reduction is not available where a defendant has already received a reduced offense level by virtue of being convicted of a offense less serious than his actual criminal conduct. U.S. v. Romualdi, 101 F.3d 971 (3d Cir. 1996).
3rd Circuit finds counsel ineffective in failing to argue that defendant was a minor participant. (440) Although the presentence report indicated that defendant’s role in an extensive cocaine conspiracy may have been limited to being a courier on several occasions, defendant’s counsel did not argue for an adjustment based upon defendant’s role in the offense. The 3rd Circuit found that this failure constituted ineffective assistance of counsel, and remanded the case for the district court to consider this argument. The statement in the presentence report put counsel on notice that it might have been fruitful to seek a downward adjustment. There was “no rational basis to believe that [defendant’s] trial counsel’s failure to argue adjustment was a strategic choice.” U.S. v. Headley, 923 F.2d 1079 (3rd Cir. 1991).
3rd Circuit holds there must be more than one participant in offense for any reduction based on mitigating role. (440) The district court refused to reduce defendant’s offense level for his minimal role because he “was the only [d]efendant in this crime.” The 3rd Circuit ruled that a sole defendant may be the subject of a role adjustment, either upward or downward, if there are other persons criminally responsible, even though they have not been apprehended or charged. However, relying on guideline commentary, it held that there must be more than one participant in the crime for any role adjustment to be applicable. In this case, since the only other individual involved in the crime was a government agent and thus not criminally responsible, defendant was the sole participant and not eligible for a reduction. U.S. v. Bierley, 922 F.2d 1061 (3rd Cir. 1990).
3rd Circuit permits downward departure for minimal role where 3B1.2 was inapplicable because other participant was government agent. (440) Defendant purchased child pornography from an undercover postal inspector. Since the postal inspector was not criminally responsible for the crime, defendant was the sole participant in his offense and thus not eligible for a “minimal role” reduction under guideline § 3B1.2. The district court stated that it would like to depart downward, but felt that the totality of the mitigating circumstances were not sufficient to permit the court to make the departure. The 3rd Circuit held that when an adjustment for mitigating role is not available, a court may depart downward if the departure is based on conduct similar to that encompassed § 3B1.2. A departure is appropriate where there has been concerted activity, but only one participant. The case was remanded for the district court to determine whether defendant’s conduct would qualify as minor or minimal had the government agent been a participant. U.S. v. Bierley, 922 F.2d 1061 (3rd Cir. 1990).
5th Circuit rules career offenders are not eligible for minor role adjustments. (440) Defendant pled guilty to drug charges, and was sentenced to 290 months as a career offender. The district court rejected defendant’s request for a minor role reduction even though he was a minor participant, because the career offender provision precludes any mitigating role adjustments. The Fifth Circuit agreed. The step-by-step “Application Instructions” in § 1B1.1 govern application of the Guidelines, “except as specifically directed.” Applying the Chapter Three minor participant adjustment after the Chapter Four career offender provision would disrupt the sequence mandated by § 1B1.1. The only Chapter Three adjustment explicitly permitted by § 4B1.1(b) is the acceptance of responsibility adjustment. U.S. v. Cashaw, 625 F.3d 271 (5th Cir. 2010).
5th Circuit rules district court must articulate why defendant did not merit minor participant reduction. (440) Defendant argued that he was a minor participant in a drug sale because he was not involved in the negotiations and did not know the amount of contraband involved. He claimed his agreement to purchase some of the marijuana and permit the use of his truck constituted only a minor role in the offense. The district court had rejected this contention, finding that defendant was an “average participant.” The court refused defense counsel’s request to give reasons for refusing the minor participant reduction. The 5th Circuit ruled that “[t]he sentencing court must state for the record the factual basis upon which it concludes that a requested reduction for minor participation is, or is not, appropriate.” The case was remanded for the district court to articulate the factual basis for the ruling. U.S. v. Melton, 930 F.2d 1096 (5th Cir. 1991).
5th Circuit upholds ruling that drug “mules” were minor rather than minimal participants. (440) In these seven unrelated cases, drug couriers (“mules”) appealed their sentences, claiming that as a matter of law they were minimal rather than minor participants under guidelines § 3B1.2. The 5th Circuit rejected the argument, holding that a courier is not per se a minimal participant. Given the importance of the courier’s role in drug trafficking he may be neither a minimal nor a minor participant (see § 3B1.1 “minimal participant adjustments should be used infrequently”). The essential factor to be used in determining the defendant’s level of participation is his culpability. Culpability is a complex factual determination rather than a conclusion of law. Thus, it is reviewable under the “clearly erroneous” standard of 18 U.S.C. § 3553. Since the guidelines were correctly applied to findings of fact which were not “clearly erroneous,” the sentences were affirmed. U.S. v. Buenrostro, 868 F.2d 135 (5th Cir. 1989);; U.S. v. Gallegos, 868 F.2d 711 (5th Cir. 1989);; U.S. v. Velasquez, 868 F.2d 714 (5th Cir. 1989); U.S. v. Rojas, 868 F.2d 1409 (5th Cir. 1989); U.S. v. Betancourt, 868 F.2d 1410 (5th Cir. 1989); U.S. v. Sarasti, 869 F.2d 805 (5th Cir. 1989); U.S. v. Franco-Torres, 869 F.2d 797 (5th Cir. 1989).
7th Circuit remands where court did not adequately explain reasons for rejecting role reduction. (440) Defendant pled guilty to trafficking in a “considerable quantity” of cocaine. Before the district court, both the government and defendant supported a two-level minor role reduction. The district judge, however, denied the reduction without discussing or even acknowledging any factor relevant to § 3B1.2 apart from the drug quantity. The Seventh Circuit held that the district court did not adequately explain its ruling not to apply the reduction, and remanded. The court found that “defendant knew what he was doing and was not the victim of manipulation by more sophisticated entrepreneurs.” However, the court said nothing about defendant’s role relative to the other participants, a point that the prosecutor had discussed. On remand, the court might still deny the reduction, but the appellate court noted there was “significant evidence” indicating defendant was “substantially less culpable than the average participant.” If the information supplied by the parties was credited, then defendant participated in drug trafficking on one occasion only, and his role was limited to exchanging money for an unknown quantity of drugs. The other participants seemed substantially more culpable. U.S. v. Diaz-Rios, 706 F.3d 795 (7th Cir. 2013).
7th Circuit says defendant’s role can be minor even if “necessary” to offense. (440) Defendant, a participant in a major mortgage fraud scheme, was convicted of wire fraud. The district court denied defendant a minor role reduction, noting that he had played a necessary role in the offense and had been involved in seven transactions. The Seventh Circuit held that the court misinterpreted § 3B1.2 in two ways. First, the fact that defendant played a necessary role does not mean his role is not minor. A drug courier, for example, might qualify as a minor participant even though his role is necessary to the drug distribution. Second, the fact that the minor act is repeated is not dispositive. A defendant’s repeated, negligible participation in a fraud scheme does not, by itself, bar a minor role adjustment. U.S. v. Leiskunas, 656 F.3d 732 (7th Cir. 2011).
7th Circuit remands for court to reconsider whether defendant should receive minor role reduction. (440) Defendant, a long-haul truck driver, was convicted of drug conspiracy charges based on a single occasion when he transported drug money. The district court sentenced defendant to 293 months’ imprisonment, the high end of the advisory guideline. Defendant appealed, arguing that in light of his limited involvement in the large-scale conspiracy, the district court erred when it found that he did not qualify for a minor participant reduction under § 3B1.2. Since there was no evidence in the record of any involvement beyond the single transport of money, the Seventh Circuit remanded for the district court to reconsider whether defendant should receive the minor role adjustment. The district court twice stated that it was clear that defendant was far more than a courier, and that the evidence established a much wider participation in the conspiracy. However, there was no evidence in the record that defendant was involved in this conspiracy on more than one solitary occasion, or that his involvement was anything other than merely transporting money. U.S. v. Saenz, 623 F.3d 461 (7th Cir. 2010).
7th Circuit says manager can be a minor participant. (440) Defendant argued that the court erred in ruling that because defendant received an managerial role increase under § 3B1.1, he was not eligible for a mitigating role reduction under § 3B1.2. Defendant based this argument on U.S. v. Jackson, 207 F.3d 910 (7th Cir. 2000) rev’d on other grounds, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000), where the court commented that “Section 3B1.2 does not say that a manager or supervisor cannot be a minor participant; all that is required is that he be less culpable than most of the other participants.” Based on Jackson, the Seventh Circuit held that the district court erred in categorically excluding him from eligibility for a role reduction under § 3B1.2. However, the panel held that the error was harmless, because defendant was not a minimal or minor participant in the scheme; in fact, he was significantly involved. Even if defendant were correct that the other conspirators were more involved, that alone did not entitle him to a reduction because he was an essential component in the conspiracy. U.S. v. Doe, 613 F.3d 681 (7th Cir. 2010).
7th Circuit permits role reduction for defendant only held accountable for his own conduct. (440) Several individuals, not including defendant, burglarized a residence and stole firearms and ammunition. The conspirators then sold the stolen firearms to a confidential informant. Defendant was present at two separate sales, helping to carry the firearms. He pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court ruled that defendant was not entitled to a minor role reduction since he was only being held accountable for his own possession of the weapons. Based on the amended commentary to § 3B1.2, the Seventh Circuit held that the district court committed legal error. Prior to the amendment, many courts held that if a defendant was sentenced solely for his own criminal conduct, then he was ineligible for a mitigating role reduction. In 2001, the Sentencing Commission added a statement to the commentary providing that a defendant who is accountable “only for the conduct in which the defendant personally was involved and who performs a limited function in a concerted criminal activity is not precluded” from receiving the minor role reduction. U.S. v. Hill, 563 F.3d 572 (7th Cir. 2009).
7th Circuit rejects minimal reduction but remands to reconsider minor role reduction. (440) Defendant was arrested driving a car carrying drugs from California to Ohio. He argued that the court erred in refusing to reduce his sentence under § 3B1.2. The Seventh Circuit agreed that a minimal role reduction was not justified, since defendant stipulated that he “knew” what was going on. He understood that his co‑conspirators were buying and selling cocaine and was familiar with the players in the conspiracy and their roles. However, the denial of the minor role reduction was troubling because the district court stated that defendant was not at the higher level of the conspiracy, but did not state what evidence it credited in denying the minor role reduction. It was possible that the court determined that defendant’s role as a courier was not minor because he was only held accountable for the five kilograms he was caught transporting. On remand, the court should more fully consider and articulate its reasons for denying both minor and minimal role reductions. U.S. v. Agee, 83 F.3d 882 (7th Cir. 1996).
7th Circuit refuses to consider minor role where defendant received mandatory minimum sentence. (440) Defendant challenged the district court’s refusal to grant her a minor role reduction under section 3B1.2. The 7th Circuit refused to consider the claim, since defendant received the mandatory minimum sentence required by statute. Therefore, a reduction in offense level would have been irrelevant. U.S. v. Ivory, 11 F.3d 1411 (7th Cir. 1993).
7th Circuit remands because it was unclear whether district court considered minor participant reduction. (440) Defendant permitted his co-conspirators to use his apartment to sell cocaine. The 7th Circuit found that the district court properly denied defendant a reduction for having a minimal role in the transaction. Defendant had some knowledge of the scope of the enterprise, allowed his residence to be used on several occasions for drug transactions and was present for several of those transaction. He also attested to the high quality of the drugs. However, it was unclear whether the district court considered giving defendant a two-level decrease as a minor participant. This failure to articulate reasons for denying the decrease was “troubling” in light of the prosecutor’s acknowledgement that defendant’s participation was more minimal than the other participants. The court itself also indicated that defendant might have had a “peripheral role” in the conspiracy. The sentence was vacated so that the district court could give fuller consideration to defendant’s eligibility for a two-level reduction as a minor participant. U.S. v. Scroggins, 939 F.2d 416 (7th Cir. 1991).
7th Circuit rules defendant waived minor participation issue by failing to raise it in district court. (440) Defendant contended that he was entitled to a reduction based upon his minimal role in a drug conspiracy. In sentencing defendant, the district court noted that defendant was the “least culpable” of the three participants. The 7th Circuit ruled that defendant had waived this issue by failing to present it to the district court. U.S. v. Martinez, 939 F.2d 412 (7th Cir. 1991).
7th Circuit rules defendant waived right to claim reduction for minor role. (440) Although defendant contended that he was entitled to a reduction based upon his minor role, the 7th Circuit found that defendant waived this issue by failing to request such a reduction during sentencing. Defendant did not implicitly request the reduction when he asked the district court to consider the relatively small amount of cocaine that he personally handled. That request was part of defendant’s general plea to the court to exercise “any discretion” left to it by the guidelines. “A defendant cannot claim, merely by reciting to the court a list of mitigating facts, that he has properly invoked any guideline provision to which those facts might be relevant.” Moreover, even if he did raise this issue, the district court’s implicit conclusion that defendant was not a minor participant was not clearly erroneous. Although defendant may have been less culpable than his suppliers, he was more culpable than the other dealers. Defendant was identified by one supplier as his principal distributor, and by another supplier as his second largest customer. U.S. v. Sergio, 934 F.2d 875 (7th Cir. 1991).
8th Circuit says drug quantity may be basis for rejecting minor role reduction. (440) Under § 2D1.1(a)(3), a defendant convicted of a drug-trafficking offense who qualifies for a minor role reduction under § 3B1.2 is entitled to a further offense-level reduction as his base offense level increases based on the quantity of drugs involved in his offense. At defendant’s sentencing for offenses arising out of his role as a courier for a drug-trafficking organization, the district court relied in part on the quantity of cocaine that defendant transported to deny him a reduction for his minor role in the offense. Defendant argued that because the Guidelines take the quantity of drugs into account in determining the extent of the reduction a defendant receives for a minor role in the offense, the district court erred in considering the quantity of drugs involved in his offense. The Eighth Circuit rejected this argument, holding that § 2D1.1(a)(3) does not preclude a district court from considering the quantity of drugs involved in an offense when deciding the availability of a minor role reduction. U.S. v. Adamson, 608 F.3d 1049 (8th Cir. 2010).
8th Circuit says court may not deny mitigating role adjustment based on length of resulting sentence. (440) It was not clear error for the district court to find that defendant did not play a minor role in the drug conspiracy. The court found she was “really involved,” based on subsidiary findings that she allowed her house to be used for the cooking, she bought baking soda to be used in the cooking process, she sold small amounts of crack, and she was paid in crack for her assistance. The PSR also stated that defendant used crack to pay relatives for services. However, the Eighth Circuit ruled that the district court erred in basing its decision to deny the reduction in part of the length of the sentence the adjustment would compel. The district court initially granted the reduction, and only changed its mind after learning that under a recent drug guideline amendment, anyone with a minor role in a offense had their offense level capped at 30. See U.S.S.G. § 2D1.1(a)(3). However, the guidelines require that, in considering an enhancement, the district court may exercise its discretion only in finding whether the facts that trigger the enhancement exist and not in deciding whether application of the enhancement will have a desirable effect on the defendant’s sentence. U.S. v. Bush, 352 F.3d 1177 (8th Cir. 2003).
8th Circuit says minor participant reduction was possible even though defendant was only charged participant. (440) Defendant pled guilty to one count of possessing and attempting to possess methamphetamine. She claimed she was a minor participant in the manufacturing scheme and requested a § 3B1.2 adjustment. The district court refused to grant the adjustment, believing that it was not permissible as a matter of law because defendant was the only participant in the crime as it was alleged in the indictment. The Eighth Circuit reversed. In U.S. v. Snoddy, 139 F.3d 1224 (8th Cir. 1998), the court held that a defendant convicted of a “sole participant” offense may nonetheless be entitled to a mitigating role reduction if (1) defendant’s relevant conduct involved more than one participant, and (2) defendant’s culpability for such conduct was relatively minor compared to that of the other participant. The case was remanded for further proceedings, with the burden on defendant to show by a preponderance of the evidence that both of the requirement of Snoddy are met. U.S. v. Yager, 328 F.3d 1008 (8th Cir. 2003).
8th Circuit says court properly found defendants’ role was minor, not minimal. (440) Defendants Victor and Erika argued that because their only role was to find a driver for the drug delivery, the district court should have reduced their offense levels by three or four points, rather than just two. The Eighth Circuit rejected the argument, noting that Victor and Erika continued to work as a team to supervise Antunovic, and together provided him with money, a map and instructions on an ongoing basis. In so doing they “played the central role of connecting the more culpable supplier, Babiar, with the less culpable delivery person, Antunovic.” Therefore, the district court did not clearly err in sentencing them as minor participants rather than minimal participants. U.S. v. Boksan, 293 F.3d 1056 (8th Cir. 2002).
8th Circuit rejects downward departure based on minor role, lack of weapon, and aberrant behavior. (440) Defendant committed perjury before a grand jury investigating a bank robbery committed by two friends. The court sentenced her as an accessory after the fact because she committed perjury “in respect to a criminal offense.” The district court made a three-level downward departure based on (1) defendant’s minimal participation in the crime; (2) the lack of evidence that a weapon was used in the offense; and (3) aberrant behavior. The Eighth Circuit reversed. A defendant’s mitigating role in an offense is already taken into account by USSG § 3B1.2. Moreover, a defendant who commits perjury can never be a minor or minimal participant in the crime of perjury. Although defendant may have only been minimally involved in the bank robbery, the guidelines contemplate that the defendant be sentenced based on the gravity of the underlying crime, less six levels. See § 2X3.1. The court’s reliance on the lack of a weapon was puzzling, given (1) it was undisputed at defendant’s sentencing that weapons were used in the robbery, and (2) the district court applied a five-level increase because defendant either knew, or reasonably should have known, that weapons had been used during the robbery. Finally, defendant’s perjury was not aberrant behavior. Given her criminal record, the perjury could not “be characterized as a marked deviation from an otherwise law-abiding existence.” U.S. v. Jimenez, 282 F.3d 597 (8th Cir. 2002).
8th Circuit says sole participant in crime can receive role reduction based on relevant conduct. (440) Defendant acted as a “mule” transporting a truckload of marijuana from Texas to Nebraska. He pled guilty to possession of marijuana with intent to distribute. In support of his request for a minor role reduction, defendant presented evidence that he was recruited by a co-worker and did not know any of the details of how or from whom the marijuana was purchased nor what the co-worker intended do to with the marijuana in Nebraska. The district court found that defendant was not eligible for the § 3B1.2 reduction because he was charged with and pled guilty to a single participant offense. The Eighth Circuit held that a defendant in a sole participant crime may be entitled to a minor participant reduction if (1) defendant’s relevant conduct involved more than one participant, and (2) defendant’s culpability for such conduct was relatively minor compared to the other participant. The district court recognized that defendant’s role was minor and probably made sufficient findings to satisfy this test. U.S. v. Snoddy, 139 F.3d 1224 (8th Cir. 1998).
8th Circuit says denial of role reduction is not reviewable where sentence was below guideline range. (440) Three defendants argued that the court erred in denying them a mitigating role reduction under § 3B1.2. The Eighth Circuit held that the denial was unreviewable because they received sentences below the guidelines range even with the requested reduction. Although the PSR and plea agreement of two defendants recommended the § 3B1.2 reduction, the district court found that they were not entitled to it. However, it granted the government’s downward departure motion under § 5K1.1, resulting in sentences well below the guideline range that would have resulted if the reduction had been granted. U.S. v. Coleman, 132 F.3d 440 (8th Cir. 1998).
8th Circuit rejects need for notice of intent to deny role reduction. (440) Defendants argued that the court erred in failing to provide notice of its intent to deny them a mitigating role reduction. The Eighth Circuit found that it was bound by U.S. v. Rodamaker, 56 F.3d 898 (8th Cir. 1995), which rejected the argument that a district court is required to give advance notice of its intent to deny a role reduction. U.S. v. Coleman, 132 F.3d 440 (8th Cir. 1998).
8th Circuit holds guilty plea does not automatically entitle one to minor participant reduction. (440) The 8th Circuit without discussion, held that the district court properly refused to grant a request for a reduction under § 3B1.2(b) despite the fact that the defendant pled guilty. The plea was to conspiracy to distribute 150 pounds of marijuana. U.S. v. Walker, 885 F.2d 1353 (8th Cir. 1989).
8th Circuit holds that quantity of drugs may be considered in determining defendant’s role in offense. (440) Defendant argued that the sentencing court erred in considering drug quantity as a factor in determining his role in the offense because it was already a factor in his base offense level. The 8th Circuit rejected the argument, noting that it and the 5th Circuit had upheld a district court’s refusal to grant a minor or minimal participant reduction based solely on the significant amount of drugs involved. The court also noted that the commentary to § 3B1.2 “demonstrated that drug quantity is a relevant factor” in determining role in the offense. U.S. v. Garvey, 905 F.2d 1144 (8th Cir. 1990).
8th Circuit holds that facts outside the offense of conviction may be considered in determining role in offense. (440) The district court adopted the defendant’s interpretation of the guidelines ruling that it could only look to his role in the present offense. It also found that he was merely a “courier.” On appeal however, the 8th Circuit stated that it would have been proper for the district court to consider the defendant’s prior conduct in refusing to grant more than a two level reduction for his mitigating role in the offense. Commentary note 2 to § 3B1.2 “indicates prior conduct is another relevant factor” in determining role in offense. U.S. v. Garvey, 905 F.2d 1144 (8th Cir. 1990).
8th Circuit holds sentencing court may consider the role of the defendant only in the offense charged. (440) Defendant argued that she should have received a decrease in her offense level for minor/minimal status (§ 3B1.2) because her role in the overall events was not a major one. The 8th Circuit rejected her argument and held that § 3B1.2 applies only to the offense of conviction and not to collateral events, even if those collateral events form the basis for an offense-related adjustment. The district court’s finding on the extent of the defendant’s role in the charged offense was not clearly erroneous, and thus the sentence was proper. U.S. v. Williams, 879 F.2d 454 (8th Cir. 1989).
9th Circuit holds that mitigating role “cap” is not retroactive. (440) Amendment 640 to the Guidelines, effective November 1, 2002, set an offense level cap of 30 for individuals receiving a mitigating role adjustment. Defendant, who was sentenced on July 31, 2002, sought to obtain the benefit of that provision. The Ninth Circuit held that Amendment 640 was a substantive, not a clarifying amendment, and that it did not apply retroactively to defendants sentenced before its effective date. U.S. v. Diaz-Cardenas, 351 F.3d 404 (9th Cir. 2003).
9th Circuit says drug courier’s role must be evaluated in relation to supplier and distributor. (440) The circuits are divided over whether a drug courier is eligible for a role reduction. See generally, Comment, Timothy B. Tobin, Drug Couriers: A Call for Action by the U.S. Sentencing Commission, 7 Geo. Mason L. Rev. 1055 (1999). In U.S. v. Klimavicius-Viloria, 144 F.3d 1249, 1267 (9th Cir. 1998), the Ninth Circuit held that in determining whether defendant is eligible for a role reduction, “[t]he relevant comparison is between the defendant’s conduct and that of the other participants in the same offense,” not some hypothetical “average participant” in the type of crime involved. Applying this rule to drug couriers, the Ninth Circuit held that the district court must consider all “participants” in the scheme. Thus, in the present case, if the district court found sufficient evidence of the “existence and participation in the overall scheme” of the “alleged Los Angeles supplier and the Reno distributor,” it should have considered that evidence when evaluating the defendant’s role in the offense. The sentence was vacated and remanded for new findings. U.S. v. Rojas-Millan, 234 F.3d 464 (9th Cir. 2000).
9th Circuit rejects presumption that all three drug manufacturers were equally guilty. (440) Three defendants were arrested as they fled from the scene of a clandestine methamphetamine laboratory. In reversing the sentence of one defendant on other grounds, the Ninth Circuit instructed the district court on remand to make express factual findings as to this defendant’s role in the offense to determine if he is eligible for a reduction in offense level for “minor participation,” under guideline § 3B1.2. It was not sufficient for the court to presume that “all three defendants were equally culpable.” U.S. v. Gutierrez-Hernandez, 94 F.3d 582 (9th Cir. 1996).
9th Circuit says minor participant status depends on comparison with conduct of co-participants. (440) In U.S. v. Petti, 973 F.2d 1441 (9th Cir. 1992), cert denied, 113 S.Ct. 1859 (1993), the 9th Circuit held that , with respect to adjustments for minimal participant status, the relevant comparison was between the defendant’s conduct and the conduct of his co-participants, not some hypothetical “average participant” in the type of crime involved. Although Petti relied in part on commentary discussing adjustments for minimal participant status, the 9th Circuit held that it applied equally when adjusting for “minor” participant status. Here, the district court found that defendant and his co-defendants were equally culpable participants in the crime, and this finding was not clearly erroneous. U.S. v. Benitez, 34 F.3d 1489 (9th Cir. 1994).
9th Circuit considers relevant conduct in deciding minor role. (440) In its original opinion in this case, the 9th Circuit overlooked the earlier opinion in U.S. v. Webster, 996 F.2d 209 (9th Cir. 1993), which held that in sentencing a defendant after November 1, 1990, a district judge must consider all conduct within the scope of section 1B1.3 (relevant conduct) not just conduct cited in the count of conviction. Accordingly, the court withdrew its prior opinion, and published a new opinion adopting the Webster ruling. This did not change the result, however, because the court upheld the district court’s conclusion that the defendant was not a minor participant, as “amply supported under any test.” U.S. v. Hatley, 15 F.3d 856 (9th Cir. 1994).
9th Circuit permits role adjustment even though offense level did not involve group conduct. (440) Effective November 1, 1990, § 3B1.2 was amended to provide that role in the offense should be based on all relevant conduct and not solely on the count of conviction. Here, defendant pleaded guilty to possession of cocaine with intent to distribute in exchange for dismissal of a conspiracy charge. The district court refused to give him a mitigating role adjustment because his base offense level did not involve group conduct. The 9th Circuit reversed, relying on U.S. v. Webster, 996 F.2d 209 (9th Cir. 1993), which held that under the 1990 amendment, role adjustments are not limited to the relevant conduct in the base offense level. Defendant was “entitled to argue for a downward adjustment based on his role in all relevant conduct, charged or uncharged.” On remand the court must determine whether defendant’s role in the larger conspiracy was sufficiently minor to warrant a § 3B1.2 adjustment. U.S. v. Demers, 13 F.3d 1381 (9th Cir. 1994).
9th Circuit upholds adjustment for more than minimal planning and rejects minor role. (440) “More than minimal planning” is defined by guideline section 1B1.1, commentary note 1(f) as “repeated acts over a period of time.” Or, if a single act, “more planning than is typical for commission of the offense in a simple form.” Such planning also “exists if significant affirmative steps were taken to conceal the offense.” In this case, the record supported the adjustment for more than minimal planning. Moreover, “[b]ecause the district court did not err by adjusting [defendant’s] offense level upward by two points, it necessarily follows that it did not err by rejecting [defendant’s] argument that he was entitled to a two- or four-level downward adjustment” for minimal or minor role. U.S. v. Mullins, 992 F.2d 1472 (9th Cir. 1993).
9th Circuit refuses to consider mitigating role reduction not raised at sentencing. (440) Defendant argued for the first time on appeal that she should have received a reduction based on her mitigating role in the bird smuggling offense. The Ninth Circuit refused to consider the argument because defendant never sought the reduction at sentencing, thereby waiving the claim. U.S. v. Parker, 5 F.3d 1322 (9th Cir. 1993).
9th Circuit suggests that sole participant in larger conspiracy can be given role reduction. (440) In its original opinion in this case, the court ruled that there could be no minor role adjustment where the defendant was the sole participant in the count of conviction. After Walker was decided, another panel in U.S. v. Webster, 996 F.2d 209 (9th Cir. 1993), held that the 1992 amendment to the Introductory Commentary to Chapter 3, Part B of the guidelines changed the rule and allowed the court to consider a drug courier’s lesser role in an overall conspiracy. In apparent reliance on Webster, the Walker case was amended to delete the paragraph stating that “any evidence of a larger conspiracy would have been irrelevant.” Instead the court substituted a paragraph stating that “no clarification of his role was needed because no evidence of a larger conspiracy was offered at trial or at sentencing.” U.S. v. Walker, 993 F.2d 196 (9th Cir. 1993).
9th Circuit says 1992 amendment makes drug courier eligible for role adjustment, and ineligible for departure. (440) In U.S. v. Zweber, 913 F.2d 705 (9th Cir. 1990), the 9th Circuit held that a drug courier is not eligible for a mitigating role adjustment under §3B1.2, because he is the only participant in the offense of conviction. As a result, the Ninth Circuit in U.S. v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir. 1992) upheld a downward departure for a drug courier. However, effective November 1, 1990, the Introductory Commentary to Chapter 3 of the Guidelines was amended to state that the “determination of the defendant’s role in the offense is to be made on the basis of all conduct within the scope of §1B1.3 (Relevant Conduct),” and “not solely on the basis of . . . the count of conviction.” The 9th Circuit held that in light of this amendment, couriers are now eligible for mitigating role adjustments. By the same token, “a downward departure on this ground alone is no longer appropriate.” U.S. v. Webster, 996 F.2d 209 (9th Cir. 1993).
9th Circuit says substantial quantity of drugs would not foreclose minor participant reduction. (440) In a footnote, the Ninth Circuit noted that although a finding defendant carried a substantial amount of PCP would foreclose a minimal participant adjustment, it does not prevent an adjustment for minor participation. The amount of contraband may be relevant to whether a defendant is a minimal participant but the court has never held that possession of a large amount of drugs necessarily forecloses the availability of a minor participant adjustment. U.S. v. Webster, 996 F.2d 209 (9th Cir. 1993).
9th Circuit holds that minor participant was not accountable for drugs distributed after arrest. (440) Application note 1 to U.S.S.G. section 1B1.3 notes that “relevant conduct is not necessarily the same for every participant.” Thus even though as a general rule, the fact that a conspirator is taken into custody does not automatically indicate disavowal of the conspiracy, the defendant here was only a “minor” participant. “Once in custody, she was in no position to continue her role as a drug distributor. Thus the 9th Circuit held that it “stretches a legal fiction to the breaking point to hold her accountable for the drugs . . . distributed after May 20, 1989.” U.S. v. Johnson, 956 F.2d 894 (9th Cir. 1992), superseded on other grounds by Guideline as stated in U.S. v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004).
9th Circuit reverses downward departure that was based on lesser culpability and disparity. (440) The district court departed downward from a guideline range of 37-46 months to a 30-month sentence to eliminate the disparity between the co-defendant’s 46-month sentence and to recognize defendant’s lesser culpability. The 9th Circuit reversed because the district court failed to find that the lesser culpability was not adequately taken into consideration by the guidelines. The defendant received a four-level reduction based on his minimal participation. In addition, a district court may not depart downward to correct sentencing disparities between co-defendants sentenced under the Guidelines. U.S. v. Petti, 973 F.2d 1441 (9th Cir. 1992).
9th Circuit rules that court need not make findings of relative culpability in rejecting “minor participant” reduction. (440) The 9th Circuit held that the guidelines do not require a district court to make factual findings as to the culpability of a defendant relative to his codefendants. In addition, the court found it unnecessary to decide whether a “mere courier” was entitled to minor participant status, because “defendant in this case did more than act as a simple courier.” U.S. v. Flores-Payon, 942 F.2d 556 (9th Cir. 1991).
9th Circuit reaffirms that minimal participant analysis applies only to the count of conviction. (440) In U.S. v. Zweber, 913 F.2d 705, 708 (9th Cir. 1990), the 9th Circuit rejected the argument that a defendant may receive a minimal participation reduction for playing a minor role in uncharged or unconvicted counts. Here the defendant was convicted of making available a building for the purpose of narcotics trafficking in violation of 21 U.S.C. § 856(a)(2), “which contemplates violation by an individual.” Accordingly the district court’s denial of the § 3B1.2 reduction was not clear error. U.S. v. Tamez, 941 F.2d 770 (9th Cir. 1991).
9th Circuit holds that agreement that defendant was “less culpable” did not prevent government from arguing against “minor role.” (440) The plea agreement stated that the defendant would “be free to argue” for a two point reduction for “minor role” in the crime. The agreement also stated that defendant was “less culpable” than his codefendants. At sentencing, the government argued against a two point reduction in offense level for minor participant, and the defendant argued that this was a breach of the plea agreement. The 9th Circuit rejected the argument, holding that “being less culpable and obtaining minor participant status are not necessarily synonymous.” The court found that the language of the plea agreement prevented defendant from claiming that he “thought” the government meant to equate “less culpable” with “minor participant.” U.S. v. Andrus, 925 F.2d 335 (9th Cir. 1991).
9th Circuit holds that defendants have burden of showing they were minor participants. (440) The defendants have the burden of showing that they are not minor participants under § 3B1.2, and they “clearly did not satisfy this burden” here. U.S. v. Torres-Rodriguez, 930 F.2d 1375 (9th Cir. 1991).
9th Circuit holds that minor participant adjustment requires comparing defendants with each other and with elements of crime. (440) In U.S. v. Howard, 894 F.2d 1085 (9th Cir. 1990), the court questioned whether “§ 3B1.2 requires a court to compare a defendant’s conduct with the conduct of other codefendants as opposed to comparing defendant’s conduct with the conduct of an average participant in the type of crime in question.” Here, the 9th Circuit resolved the question, agreeing with the 4th Circuit in U.S. v. Daughtrey, 874 F.2d 213 (4th Cir. 1989), that the court should look “at both the relative culpability of the defendants vis a vis each other, and of each in relation to the elements of the offense.” The defendant here had a methamphetamine lab in his basement, with which he was actively involved. The 9th Circuit found that he was not “substantially less culpable” than his codefendants, nor was he a minor participant in terms of the elements of the offense, nor in comparison with the average participant in such a crime. The district court did not clearly err in refusing a minor participant reduction. U.S. v. Andrus, 925 F.2d 335 (9th Cir. 1991).
9th Circuit refuses to consider merits of minor-participant argument where defendant failed to object below. (440) Defendant argued that the sentencing judge erred in not granting him an adjustment for being minor or minimal participant. Judges O’Scannlain, Nelson, and Norris refused to consider the merits of this argument because defendant did not raise the issue before the sentencing judge. No “exceptional circumstances” excused the failure to raise the issue. The issue did not arise on appeal because of a change in the law. And the minor-participant issue is not “purely one of law” the resolution of which would impose no prejudice on the opposing party. U.S. v. Smith, 905 F.2d 1296 (9th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Lavender, 224 F.3d 939 (9th Cir. 2000).
9th Circuit holds that courier status alone does not require a role reduction. (440) Relying on U.S. v. Buenrostro, 869 F.2d 135, 138 (5th Cir. 1989), the 9th Circuit held that “courier status alone does not require a role reduction.” Culpability, not courier status, “is the key.” The court found no clear error in finding that one defendant was not substantially less culpable than the other in the cocaine transaction. U.S. v. Zweber, 913 F.2d 705 (9th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Webster, 996 F.2d 209 (9th Cir. 1993).
9th Circuit suggests that drug courier may not be entitled to minor participant status. (440) Without deciding the issue, the 9th Circuit questioned the assumption that if the defendant had indeed been a drug courier for someone else, the defendant may have been entitled to a lower guideline range as a “minor participant” under U.S.S.G. § 3B1.2(b). The panel noted that other circuits have suggested that a defendant convicted of possession of a controlled substance may not be entitled to minor participant status even if it is demonstrated that his role was purely that of a courier. U.S. v. Rigby, 896 F.2d 392 (9th Cir. 1990).
9th Circuit holds whether defendant is a “minor” or “minimal” participant is a factual question. (440) Agreeing with the Fifth Circuit, the 9th Circuit ruled that whether a defendant is a “minor” or “minimal” participant in the criminal activity is a factual determination subject to the clearly erroneous standard of review. Although judges are encouraged to supply specific factual findings, a simple statement that the defendant was not a minor participant will suffice as a factual finding. There was no clear error in the judge’s findings here. U.S. v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989).
10th Circuit remands where court did not apply amendment capping offense level of minor participant. (440) The government argued that defendant failed to prove he was entitled to the minor participant reduction, and that the evidence pointed to a more significant role in the drug conspiracy. The Tenth Circuit found it unnecessary to resolve the merits of his claim, since several months before defendant’s sentencing, a change in the guidelines provided that the base offense level for a defendant granted a minor-participant reduction on drug charges can be no higher than 30. U.S.S.G. § 2D1.1(a)(3). Defendant was given a minor-participant reduction but sentenced at a base offense level of 38. Although defendant did not challenge the court’s determination of his base offense level at sentencing, the government conceded that the error was plain. Whether or not the court erred in granting the minor-participant adjustment, the sentence was erroneous. Either the court erred in granting the minor participant adjustment, or if not, it erred in failing to cap the base offense level at 30. Resentencing must be conducted in light of the Supreme Court’s recent decision in U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Cano-Silva, 402 F.3d 1031 (10th Cir. 2005).
10th Circuit says more than minimal planning not inconsistent with minimal participant reduction. (440) Defendant argued that his § 2F1.1 enhancement for more than minimal planning was inconsistent with the reduction he received under § 3B1.2 for being a minimal participant. The Tenth Circuit disagreed, because the two provisions address different concerns. The minimal participant inquiry is a measure of the participant’s role in the concerted criminal activity. The more than minimal planning adjustment is a measure of the extent or nature of the criminal activity itself. U.S. v. Schluneger, 184 F.3d 1154 (10th Cir. 1999).
10th Circuit says counsel may have been ineffective in failing to seek minor role reduction. (440) Defendant brought a § 2255 motion contending, in part, that counsel was ineffective for failing to seek a § 3B1.2 minor role reduction. The district court denied the § 2255 motion without addressing the ineffective assistance argument. The Tenth Circuit remanded for an evidentiary hearing. The district judge implied that defendant could not prove that he was a minor participant because he was a courier. However, prior cases have held only that a courier is not necessarily a minor participant, not that a courier is ineligible for the reduction. The district court improperly found no evidence of the relative roles of other participants in the crime. Defendant submitted a statement describing how an acquaintance asked him to take a package to Chicago. The sentencing court must have found this statement truthful because it found defendant eligible for safety valve protection. The district court also incorrectly relied on U.S. v. Burnett, 66 F.3d 137 (7th Cir. 1995) for the proposition that a courier is ineligible for a § 3B1.2 reduction if he is only held accountable for the drugs he actually carried. Burnett conflicts with the law of the Tenth Circuit. The failure to request a § 3B1.2 adjustment for a drug courier who was part of a larger operation can be prejudicial. Whether there was prejudice depends on whether the district court would have granted the request, a matter only the district court could decide. U.S. v. Harfst, 168 F.3d 398 (10th Cir. 1999).
10th Circuit reverses departure for disparity, minor role, coercion, lack of criminal history, and family responsibility. (440) Defendant was convicted of drug charges. The district court departed downward based on five factors: (1) the disparity of sentences between defendant and a co-defendant; (2) defendant’s minor role; (3) the court’s finding that defendant was manipulated by her co-defendant; (4) defendant’s lack of criminal history; (5) defendant’s family responsibilities as the sole support for her six-year old son and partial support for her parents. The Tenth Circuit reversed. A departure based on a disparity between co-defendants is not justified when sentences are dissimilar because of a plea bargain. Defendant’s minor role is accounted for by § 3B1.2. Coercion must involve a threat of physical injury, substantial damage to property or similar injury. The only evidence was defendant’s comment that she refused to testify against her co-defendant because she was scared. Also, coercion must occur at the time of the offense. Defendant’s lack of criminal history was accounted for in criminal history category I. Defendant’s family responsibilities were not extraordinary. U.S. v. Gallegos, 129 F.3d 1140 (10th Cir. 1997).
10th Circuit says failure to make mitigating role finding not error where defendant still subject to mandatory minimum. (440) Although defendant argued that he was a minor or minimal participant, the district court declined to make a finding as to defendant’s role in the offense. The court noted that such a finding would not affect defendant’s sentence because he was required by statute to serve a 60-month mandatory minimum sentence. The court imposed a 60-month sentence. The Tenth Circuit held that under these circumstances the court’s failure to make a § 3B1.2 finding was not error. The reduction sought by defendant would have taken his guideline range below the mandatory minimum. In such cases, § 5G1.1(b) says that the statutorily required sentence “shall be the guideline sentence.” U.S. v. Nieto, 60 F.3d 1464 (10th Cir. 1995).
10th Circuit rejects claim that jury should determine whether defendant had minor or minimal role. (440) The 10th Circuit contended that the district court erred in failing to submit to the jury the question of whether defendant’s role in the offense was a minor or minimal participant. Finding this to be a legal issue to be determined de novo, the court found nothing to suggest that the guidelines were intended to alter the usual rule reserving punishment issues for the district court. Asking a jury to decide such issues would likely “mislead and confuse a jury.” U.S. v. Pena, 930 F.2d 1486 (10th Cir. 1991).
10th Circuit remands where judge incorrectly stated difference between minor and minimal participants. (440) After denying defendant’s request for a four level reduction of offense level based on his role as a minimal participant, the sentencing judge stated “the Court is not persuaded that [defendant] was a minimal participant. I think under the definition set forth in the sentencing guidelines, he was a minor participant, which is entirely different from minimal.” The judge then denied defendant a two level reduction. The 10th Circuit remanded the case. It was not clear whether the trial court actually made a finding that defendant was a “minor participant.” In addition, the judge’s statement that a minor participant is “entirely different” from a minimal participant was incorrect. The terms are “not too distant points along a continuum of moderate criminal participation.” U.S. v. Maldonado-Campos, 920 F.2d 714 (10th Cir. 1990).
11th Circuit says fact that amendment is clarifying bears no relevance on retroactivity under § 3583(c)(2). (440) Defendant moved under 18 U.S.C. § 3582(c)(2) to reduce his sentence on the basis of Amendments 599, 600 and 635 to the Sentencing Guidelines. The Eleventh Circuit held that defendant was not entitled to a retroactive sentence reduction based on these amendments. Amendment 600, which revised § 2K2.4 as it applies to career offenders, is not listed in § 1B1.10(c) as one subject to retroactive application. While Amendment 599 is listed in § 1B1.10(c) as having retroactive effect, the amendment did not apply factually to defendant’s case. Amendment 599 clarified under what circumstances defendants sentenced for violations of 18 U.S.C. § 924(c) may receive weapon enhancements contained in the guidelines for other offenses. Defendant did not receive any weapon enhancements. Amendment 635 is also not explicitly listed in § 1B1.10(c). Although Amendment 635 was passed to clarify the commentary to U.S.S.G. § 3B1.2, clarifying amendments have been applied retroactively only in the direct appeal and a 28 U.S.C. § 2255 petition. The fact that an amendment is clarifying bears no relevance in determining retroactivity under § 3582(c)(2). Amendments claimed in § 3582(c)(2) may be retroactively applied solely where expressly listed under § 1B1.10(c). U.S. v. Armstrong, 347 F.3d 905 (11th Cir. 2003).
11th Circuit holds that minor role adjustment are not available to career offenders. (440) Defendant, sentenced as a career offender, argued that the district court erred in denying him a minor role adjustment. Section 4B1.1 indicates that if an acceptance of responsibility adjustment applies, the court must reduce a career offender’s offense level. Defendant argued that under the rule of lenity, the court should have granted him a minor role adjustment. The Eleventh Circuit found nothing about § 4B1.1 to be ambiguous, and thus the rule of lenity was inapplicable. Because § 4B1.1, by its express terms, only authorizes an adjustment based on acceptance of responsibility, and does not mention the minor role adjustment, and since the inclusion of one implies the exclusion of others, the guideline is not ambiguous. Minor role adjustments are not available to defendants sentenced under § 4B1.1. U.S. v. Jeter, 329 F.3d 1229 (11th Cir. 2003).
11th Circuit reaffirms that district court’s role in the offense finding is reviewed for clear error. (440) The Eleventh Circuit has long and repeatedly held that a district court’s determination of a defendant’s role in the offense is a finding of fact to be reviewed only for clear error. See, e.g. U.S. v. Campbell, 139 F.3d 820 (11th Cir. 1998), vacated and superceded by U.S. v. Campbell, 181 F.3d 1263 (11th Cir. 19990. In the present case, the Eleventh Circuit, en banc, reaffirmed this holding, noting that every other circuit has adopted the clear error standard to review the court’s determination of a defendant’s role in the offense. The ultimate determination of a defendant’s role in the offense is a fundamentally factual determination, and the district judge is in the best position to weigh and assess both the defendant’s role in his relevant conduct and the relative degrees of culpability of the other participants in the conduct. Intensely factual inquiries such as these are properly consigned to the experienced discretion of the district judge. U.S. v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc).
11th Circuit, en banc, articulates standard for mitigating role reduction. (440) Defendant carried 70 heroin-filled pellets into the United States from Colombia. In U.S. v. De Varon, 136 F.3d 740 (11th Cir. 1998), vacated on grant of rehearing en banc, 141 F.3d 1468 (11th Cir. 1998), an Eleventh Circuit panel found that the district court improperly denied defendant a § 3B1.2 minor role reduction. On rehearing en banc, the Eleventh Circuit upheld the denial of the reduction, outlining how a district court should determine whether a defendant qualifies for a mitigating role reduction. First and foremost, the district court must measure a defendant’s role in light of the relevant conduct for which he has been held accountable at sentencing. A defendant must establish that he played a relatively minor role in the conduct for which he has already been held accountable, not a minor role in any larger criminal conspiracy. In addition, in the drug courier context, the amount of drugs imported is a material consideration in assessing a defendant’s role. The second factor a court should consider is the defendant’s role in comparison to that of other participants in the relevant conduct. However, the fact that a defendant’s role may be less than that of other participants is not dispositive since it is possible that none are minor or minimal participants. Using this analysis, the district court’s determination that defendant did not play a minor role was not clearly erroneous. U.S. v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc).
11th Circuit says role depends on conspiracy on which offense level is based. (440) The DEA intercepted 308 kilograms of cocaine. A cooperating individual negotiated to deliver the cocaine to others. Defendant was present at one of those meetings, where he told the cooperating individual that he could sell 25 kilograms of the cocaine within two hours. The district court found defendant’s involvement in the conspiracy was limited to 25 kilograms. Defendant argued that his role in the offense was minimal, contending that the relevant conspiracy for determining his role in the offense was the 308‑kilogram conspiracy. The Eleventh Circuit held that the conspiracy on which a defendant’s base offense level is based is the relevant conspiracy for determining role in the offense. Note 4 states that where a defendant has received a lower offense because convicted of an offense significantly less serious than his actual criminal conduct, a reduction for a mitigating role is not warranted because such defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense. Although Note 4 was not applicable because defendant was convicted of conspiracy, its logic controlled the result. U.S. v. Fernandez, 92 F.3d 1121 (11th Cir. 1996).
11th Circuit refuses to consider argument not raised in district court. (440) Defendant failed to object to the denial of a downward adjustment in his base offense level for being a minor participant. Instead, he sought to have his minor role considered in determining his sentence within the applicable guideline range. The 11th Circuit therefore refused to review defendant’s argument that he had been improperly denied a reduction in offense level for being a minor participant. U.S. v. Asseff, 917 F.2d 502 (11th Cir. 1990).
Commission deletes language that may have discouraged role reductions. (440) At present, Application Note 3(C) to § 3B1.2 says that “[a]s with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted.” And Application Note 4 says that “It is intended that the downward adjustment for a minimal participant will be used infrequently.” The Commission deleted these two sentences as unnecessary and also because they may have had the unintended effect of discouraging courts from applying the mitigating role adjustment in otherwise appropriate circumstances. Amendment 755, effective November 1, 2011.
Commission “caps” base offense level at 30 for drug defendants who receive mitigating role adjustment. (440) Overcoming opposition in Congress, the Commission modified § 2D1.1(a) (3) to provide a maximum base offense level of 30 if the defendant receives a mitigating role adjustment under § 3B1.2. In addition, a new Application Note 6 to the mitigating role guideline, § 3B1.2, provides that the defendant whose base offense level is reduced by § 2D1.1(a)(3) “shall” also receive the appropriate role reduction under § 3B1.2. Moreover, a defendant who qualifies for the “safety valve” under 5C1.2 will be free from statutory mandatory minimum sentence requirements, and will receive an additional 2-level reduction under § 2D1.1(b)(6). However, the Commission pointed out in its “reasons for amendment” that aggravating adjustments such as for using a gun “may increase the offense level above level 30,” adding that this role cap “is expected to apply narrowly, affecting approximately six percent of all drug trafficking offenders.” Amendment 640, effective November 1, 2002.
Commission says drug courier is not precluded from mitigating role adjustment. (440) The Commission amended the commentary to § 3B1.2 to strike notes 1-4 and the background and to replace it with new commentary stating in part that “[a] defendant who is accountable under § 1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted activity is not precluded from consideration for an adjustment under this guideline.” The note says that for example, “a defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or storing drugs and who is accountable under § 1B1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.” The amendment is intended to resolve a circuit conflict over whether a drug courier can receive a mitigating role adjustment. Although the conflict arose in the context of a drug offense, the amendment resolves it in a manner that makes the rule applicable to all types of offenses. Amendment 635, effective November 1, 2001.