§443 Cases Finding Mitigating Role
11th Circuit reverses where denial of minor role reduction may have been based solely on drug quantity. (443) The Coast Guard recovered 171 kilograms of cocaine from a vessel in international waters. Defendant, one of the two men aboard the vessel, was later convicted of various drug charges. He argued that the district court erred in denying him a minor role reduction under §3B1.2(b). The Eleventh Circuit vacated and remanded, because the court may have improperly relied on drug quantity as the sole factor in denying the reduction. Many of the factors discussed by the district court were proper, but the court also suggested that the quantity of cocaine being transported was so large that no participant could be eligible for a minor role reduction. While the court could consider the drug quantity as an indicator of defendant’s role, it was legal error for the district court to say that this is the only factor to be considered in a case like this one. U.S. v. Cruickshank, __ F.3d __ (11th Cir. Sept. 20, 2016) No. 14-13754.
9th Circuit, in amended opinion, says false testimony should have led to obstruction enhancement. (443) At defendant’s trial for production and possession of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B), defendant testified that he did not know the victim was a minor. After a bench trial, the district court convicted defendant of these offenses, finding his testimony incredible and untruthful. At sentencing, the district court declined to impose an enhancement under § 3C1.1 for obstruction of justice because the court was not misled. On the government’s appeal, the Ninth Circuit held on May 28, 2014, that the court erred in failing to impose the enhancement. In an amended opinion issued on July 29, 2015, the court repeated this holding. U.S. v. Sullivan, __ F.3d __ (9th Cir. July 29, 2015) No. 12-10196. XE “U.S. v. Sullivan, __ F.3d __ (9th Cir. July 29, 2015) No. 12-10196.”
1st Circuit reverses denial of minor role reduction. (443) Defendant argued for the first time on appeal that he deserved a minor role reduction. The First Circuit ruled that the district court’s findings did not support the denial of the reduction and the error was plain. The judge made few findings at the sentencing hearing, adopting the PSR in toto. The PSR, however, judged defendant a minor participant in the conspiracy. In calculating the sentence, this finding somehow did not translate into a minor role reduction. The record, therefore, did not provide an adequate factual basis for the court’s denial of the reduction. The error was clear, obvious, and potentially affected defendant’s substantial rights. U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996).
1st Circuit upholds three level role reduction for defendant who acted as “lookout.” (443) Defendant and his co-conspirators attempted to rob an armored car. The 1st Circuit upheld a three level reduction under § 3B1.2 for a defendant whose held between a minimal and a minor role in an offense. The district court plausibly inferred from the evidence that defendant played a limited part in planning the offense, and was less involved than most defendants convicted of conspiring and attempting to rob banks with the aid of firearms. Defendant attended only one of the surveillance meetings, and only served as a lookout for the attempted robbery. U.S. v. DeMasi, 40 F.3d 1306 (1st Cir. 1994).
2nd Circuit says court cannot deny minor role solely because defendant was a steerer. (443) Defendant met a confidential informant, instructed him to follow him to certain location, and led him to a restaurant which belonged to his drug supplier. He then told the informant to follow him to a convenience store. Five minutes later, the supplier arrived and sold cocaine base to the informant. This routine was repeated three days later. Defendant argued that his limited role in the drug sales as compared to others entitled him to a minor or minimal role reduction. The district court found that defendant was not entitled to the reduction because he was a “steerer,” i.e. a go-between who steers customers to the supplier. The Second Circuit held that the district court erred in refusing to make a § 3B1.2(b) minor role reduction solely because defendant was a steerer. The court was fully justified in concluding that defendant’s participation was not minimal under § 3B1.2(a). In a normal street transaction, a steerer will normally not be so minimally involved as to be entitled to a downward adjustment under § 3B1.2(a). However, the district court is required to make a factual determination as to whether the steerer’s role in the crime is minor. The court’s failure to inquire further into defendant’s role and make that determination required resentencing. U.S. v. Neils, 156 F.3d 382 (2d Cir. 1998).
2nd Circuit finds “insider” in an armored car robbery was a minor participant. (443) Defendant acted as an inside man in an armored car robbery, providing information on the scheduled movements of an armored car. Additionally, defendant rented a car to be used in the robbery and knew the activities of other defendants. Based on these facts, the 2nd Circuit held that the district court properly decided that he was a “minor participant” in the offense and thus entitled to only a two point reduction for his role in the offense. U.S. v. Parker, 903 F.2d 91 (2nd Cir. 1990).
3rd Circuit agrees that defendants were minimal participants in arson scheme. (443) Defendants’ mother was the officer of a company that owned and operated a bar. The mother and another officer burned the bar in order to collect insurance proceeds. Both defendants were present and participated at family meetings at the bar at which the arson was discussed. At the direction of the mother, one defendant removed some items from the bar prior to the fire. The Third Circuit upheld minimal participant reductions for both defendants. Neither defendant took an active role in the actual fire. They had no financial interest in the bar and did not benefit financially from the fire. The district court concluded that in comparison to the mother and the other officer involved, defendants were among the least culpable of the conspiracy. The district court’s finding may have been generous to defendants, but it was not clearly erroneous. U.S. v. Haut, 107 F.3d 213 (3rd Cir. 1997).
5th Circuit upholds minimal role reduction for inadequate understanding of bribery scheme. (443) Defendant, a state official, was involved in a conspiracy to commit bribery and misapply state funds stemming from the “award” of sham contracts to political consultants. The Fifth Circuit agreed that defendant was a minimal participant in the scheme. He clearly had an inadequate understanding of the contracts‑for‑politics scheme, as compared to his superiors. His inability to grasp the finer points of the conspiracy was probably the reason he was selected for the role he played. A defendant’s lack of understanding or knowledge about the scope and structure of the criminal enterprise is indicative of a minor or minimal role in the offense. U.S. v. Moeller, 80 F.3d 1053 (5th Cir. 1996).
5th Circuit upholds minor role for defendant who distributed travel money and was passenger in drug smuggling vehicle. (443) Defendant was involved in a drug smuggling conspiracy. The 5th Circuit upheld a minor role reduction under § 3B1.2(b). Defendant distributed travel money to organization drivers and was a passenger in one of the drug smuggling vehicles. The district judge was entitled to conclude that defendant was less culpable than most other participants in this large operation. U.S. v. Brown, 29 F.3d 953 (5th Cir. 1994).
5th Circuit holds drug smuggler’s role was “minor,” but not “minimal.” (443) A drug smuggler was arrested because he stayed behind to conceal the marijuana after two of his cohorts fled to avoid apprehension. His offense level was reduced two levels due to his “minor” involvement (§ 3B1.2). The 5th Circuit affirmed the sentence, rejecting his argument that his sentence should have been reduced two additional levels for “minimal” involvement. Although his conduct may have been minimal compared to the leaders of the conspiracy, it was not “minimal” under the facts of the case. He was not entitled to a four point reduction in offense level (§ 3B1.2). The district court’s finding that he was a “minor” participant was not clearly erroneous, given the circumstances surrounding his arrest. U.S. v. Mora-Estrada, 867 F.2d 213 (5th Cir. 1989).
6th Circuit upholds defendant’s minor role despite stipulation to the contrary in plea agreement. (443) A bank officer, through his sister, solicited defendant’s help in embezzling funds from the bank. Defendant, in turn, recruited the help of two others who established a bank account to funnel the funds back to the officer. At defendant’s direction, the two also set up a phony company and bank account, purchased $100,000 in gold coins, and delivered to the bank officer a number of signed blank checks for his use. Nonetheless, and despite a stipulation to the contrary, the 6th Circuit upheld the district court’s finding that defendant and the bank officer’s sister both had minor roles in the offense. They both recruited someone else to carry through the offense, both committed wire fraud to relay messages, and both expected compensation for their services. The two who did most of the work could be considered more culpable than defendant since their participation was greater than his. U.S. v. Ivery, 999 F.2d 1043 (6th Cir. 1993).
7th Circuit says drug conspirator who merely “went along for the ride” deserved mitigating role reduction. (443) Defendant decided to accompany her boyfriend Richards, a known drug dealer, on a trip to California with Gonzalez. The purpose of the trip was to purchase and bring back a load of drugs. Richards supplied a minivan. Gonzalez was to be paid marijuana for help driving the van. Defendant stood to gain nothing and merely went along for the ride. The Seventh Circuit held that the district court erred in denying defendant a § 3B1.2 reduction—she was less culpable than most other participants and may in fact have been a minimal participant. Defendant provided nothing “necessary” or “essential” to the operation. Although minor is not necessarily synonymous with “nonessential,” her participation fell well below the threshold established by the comments and the cases interpreting § 3B1.2. Defendant helped hide the group’s activities in a motel room by closing the blinds and she registered for the hotel room. However, she was in no sense a courier nor did she help load or unload the drugs. U.S. v. Hunte, 196 F.3d 687 (7th Cir. 1999).
7th Circuit orders court to reconsider whether street dealers could foresee scope of conspiracy. (443) Defendants were street dealers in a large cocaine conspiracy. The district court held them accountable for all of the cocaine distributed by the conspiracy because they knew they were part of a big organization and saw that there were many other fellow dealers. Thus one dealer who handled only 4-6 kilograms was held responsible for 214 kilograms of cocaine. The Seventh Circuit ordered the district court to reconsider this issue, doubting that these inner city street dealers selling $20 bags recognized that the conspiracy’s leader was also selling kilogram quantities in the suburbs. Although it might be proper to impute the whole street crew’s sales to each member, it was “highly questionable to leap from one person’s knowledge that the organization is big to knowledge of its full scope.” On remand, if the judge adheres to his conclusion that the dealers understood the extent of the operation, then he should grant the dealers a minor role reduction under § 3B1.2(b). U.S. v. Willis, 49 F.3d 1271 (7th Cir. 1995).
8th Circuit upholds mitigating role for bank officers involved in collapse of S & L. (443) Defendants were convicted of bank fraud and RICO charges stemming from the collapse of the saving and loan association of which they were officers. The 8th Circuit upheld a minor role reduction for one defendant and a minimal role reduction for a second defendant. After presiding over a six-month trial, the district court found the bank’s president was the major participant in the criminal activity, and the remaining defendants played lesser roles as the president’s “soldiers.” These findings were not clearly erroneous. U.S. v. Olson, 22 F.3d 783 (8th Cir. 1994).
8th Circuit reverses district court’s refusal to find defendant was a “minimal” participant. (443) A woman falsely reported a burglary in order to receive insurance proceeds. She then hired her brother to set her house on fire so that she could collect on her fire insurance policy. After two unsuccessful attempts, she arranged for a third attempt by her brother and her cousin. They recruited defendant to drive the truck so that they both could enter the house and spread gasoline. Defendant pled guilty to one count of mail fraud. The district court refused to find that defendant was a minimal participant, instead granting him only a two-level minor role reduction. The 8th Circuit reversed, finding that defendant was only a minimal participant in the mail fraud. For purpose of determining defendant’s role in the offense under section 3B1.2, the district court was obligated to measure defendant’s relative culpability in the context of the overall mail fraud conspiracy to which he pled, not just the arson conspiracy in which he took an active role. Judge Hansen dissented. U.S. v. Westerman, 973 F.2d 1422 (8th Cir. 1992).
9th Circuit finds that false testimony should have led to obstruction enhancement. (443) At defendant’s trial for production and possession of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B), defendant testified that he did not know the victim was a minor. After a bench trial, the district court convicted defendant of these offenses, finding his testimony incredible and untruthful. At sentencing, the district court declined to impose an enhancement under § 3C1.1 for obstruction of justice because the court was not misled. On the government’s appeal, the Ninth Circuit held that the court erred in failing to impose the enhancement. U.S. v. Sullivan, __ F.3d __ (9th Cir. May 28, 2014) No. 12-10196.
9th Circuit finds no error in rejection of minimal role for eco-terrorist who committed arson. (443) Defendant participated in an arson at a building owned by a lumber company. Defendant and her accomplices went to the building, and defendant served as a lookout while her accomplice placed incendiary devices. The devices failed to detonate, and defendant and her accomplices later went back to the building. Defendant waited in the car with her accomplice’s young child while the accomplice installed timing mechanisms that resulted in the successful detonation of the incendiary devices. Defendant pleaded guilty to participating in the arson of the building. At sentencing, the district court rejected the parties’ recommendation that defendant receive a four-level downward adjustment for a minimal role and instead gave a two-level downward adjustment for a minor role. The Ninth Circuit held that in light of the district court’s presiding over sentencing of ten individuals involved in defendant’s eco-terrorism scheme, and its careful effort to gauge the relative culpability of all the participants, the court did not err in finding that defendant did not play a minimal role in the offense. U.S. v. Tankersley, 537 F.3d 1100 (9th Cir. 2008).
9th Circuit finds no clear error in four level minimal role reduction in marijuana growing case. (443) Defendant and a co-defendant were convicted of growing 4,000 marijuana plants in a national forest. The district court found that defendant had a minimal role in the offense and decreased his offense level by four levels under § 3B1.2. The evidence was conflicting, and the Ninth Circuit found that this was a close case, but the district court did not clearly err in concluding that defendant’s role was minimal. The uncontested physical and surveillance evidence supported this conclusion, and the district court may have believed that the conflicting statements were sufficient to cast doubt on one witness’s statements. Although defendant’s own statement that he hoped to receive 50% of the profits was “troubling,” it was “not enough, in itself, for us to conclude that the district court clearly erred, particularly since [defendant] admitted that there was no formal agreement to share the profits of the enterprise.” U.S. v. Green, 152 F.3d 1202 (9th Cir. 1998).
9th Circuit says minimal role is determined by comparing conduct of co-participants. (443) The district court reduced defendant’s offense level by four levels for minimal role. The government appealed, arguing that the defendant’s conduct should be assessed against a hypothetical “average” participant and not the co-participants in the case. The 9th Circuit rejected the argument, finding the Commentary suggests that the relevant comparison for the four level reduction is to the conduct of the co-participants in the case at hand. In addition, the court upheld the minimal participant finding, even though defendant had “something more than a complete absence of understanding.” U.S. v. Petti, 973 F.2d 1441 (9th Cir. 1992).
10th Circuit affirms 3-level mitigating role reduction for “low-paid” drug broker. (443) The district court found that defendant’s role in a drug conspiracy was that of a low-paid broker and, as such, he was less culpable than the “average participant.” Thus, it granted defendant a 3-level reduction under § 3B1.2 for having a role between that of a minor and minimal participant. The Tenth Circuit affirmed. It was undisputed that others were the leaders of the drug organization. Defendant’s role was limited to facilitating sales. Proceeds of those sales went predominantly to conspirators other than defendant. Furthermore, defendant had no dealings with the conspiracy’s leaders for over 2 years prior to the leader contacting him pursuant to his agreement with the government. U.S. v. Durham, 139 F.3d 1325 (10th Cir. 1998).
D.C. Circuit says failure to seek role reduction was ineffective assistance. (443) Defendant, who had no criminal history and no history of drug abuse, was asked by a drug dealer to take a package of drugs from New York to North Carolina. Having just lost her job and being depressed, she agreed. DEA agents who boarded her train in D.C. found the drugs in her suitcase. At sentencing, defense counsel failed to ask for a mitigating role reduction under § 3B1.2. Instead, he simply sought a downward departure because (1) defendant was a first time offender supporting a disabled child, (2) she played a minor role in the scheme, (3) her conduct was aberrational, (4) she showed remorse and (5) she had no history of drug abuse. On appeal, with new counsel, she argued that trial counsel was ineffective in failing to ask for a § 3B1.2 role reduction. The D.C. Circuit held that counsel’s failure constituted ineffective assistance. Counsel’s reference to § 3B1.2 in his request for a downward departure was not sufficient. The court found it hard to “imagine a defendant better suited for serious consideration under § 3B1.2 or more squarely prejudiced by counsel’s failure to raise it.” U.S. v. Soto, 132 F.3d 56 (D.C. Cir. 1997).
D.C. District Court finds defendant who sold drugs to support her addiction was minimal participant. (443) Defendant was a homeless drug addict arrested for selling crack. Her dealer gave her some crack with instructions to sell as much of it as necessary to realize $1000 for the dealer, and to keep the remainder for her personal use. The D.C. District Court found that defendant was entitled to a four-point reduction for being a minimal participant in the drug ring. Defendant’s minimal role was evidenced by the fact that “she never had any hope or intention of receiving payment in currency for her effort. Her sole remuneration was to be the left-over drugs.” This was the first time defendant had engaged in a drug selling transaction with her dealer. She lacked knowledge and understanding of the scope of the drug enterprise. The court noted that cases denying such a reduction to couriers and street-level dealers do not prohibit such a reduction under appropriate circumstances. U.S. v. Jackson, 756 F.Supp. 23 (D.D.C. 1991).