§445 Cases Rejecting Minimal or Minor Role
(U.S.S.G. § 3B1.2)
3d Circuit rejects minor role for defendant convicted of 23 drug counts. (445) Defendant was convicted of drug trafficking. At sentencing, the district court denied a minor role reduction under § 3B1.2, finding that although defendant had a lesser role than other conspirators, he had a large role in the conspiracy, and was arrested with two firearms. On appeal, the Third Circuit affirmed, noting that defendant had been convicted of 23 counts and coconspirators testified at trial that he was intimately involved in the conspiracy. U.S. v. Womack, __ F.4th __ (3d Cir. Nov. 29, 2022) No. 16-1682.
5th Circuit says defendant played major role in kidnapping; drug role was irrelevant. (445) Defendant was convicted of racketeering and kidnapping a man for a drug dealer. At sentencing, defendant sought a minor role adjustment because there was no evidence that he was involved in drug trafficking. The Fifth Circuit found no error, noting that defendant’s offense level was based on the kidnapping guideline. Any involvement in drug trafficking was irrelevant. U.S. v. Lott, __ F.4th __ (5th Cir. Nov. 14, 2022) No. 21-11163.
6th Circuit denies role reduction even though defendant may not have known full conspiracy. (445) At defendant’s sentencing for drug trafficking, the district court denied a minor role reduction under § 3B1.2(b), observing that defendant had bought large quantities of cocaine from another participant in the conspiracy. The Sixth Circuit affirmed, finding no error even though defendant may not have known the full extent of the drug conspiracy. U.S. v. Mosley, __ F.4th __ (6th Cir. Nov. 18, 2022) No. 21-1136.
8th Circuit affirms denial of minor role reduction for drug defendant. (445) At defendant’s sentencing for distributing drugs, the district court denied a reduction for minor role under § 3B1.2. Defendant argued that he only bought the drugs from Mexicans and sent the money back to Mexico. The Eighth Circuit found no clear error, noting that defendant had multiple contacts with sellers, a large quantity of drugs at his house, and he knew the workings of the drug distribution network. U.S. v. Hernandez-Lopez, __ F.4th __ (8th Cir. Jan. 31, 2022) No. 20-3468.
2d Circuit affirms denial of role reduction for boat pilots. (445) Defendants piloted a boat with 450 kilos of cocaine bound for the U.S. At sentencing, the district court denied a two-level reduction for minor role under § 3B1.2(b), finding that defendants were not “minor participants” in the smuggling operation. The court relied on the amount of money that defendants were paid and noted that they were recidivists who understood the scope of the conspiracy. The Second Circuit affirmed, finding that even given defendants’ limited role in the smuggling operation as a whole, the district court did not err in denying the reduction. U.S. v. Solis, __ F.4th __ (2d Cir. Nov. 17, 2021) No. 19-4208.
8th Circuit says having a lesser role than codefendant does not justify minor role adjustment. (445) Defendant pleaded guilty to drug trafficking. At sentencing, the district court denied a two-level minor role reduction under § 3B1.2(b). The Eighth Circuit affirmed because defendant’s role in the conspiracy was to distribute drugs and that is enough to show “deep involvement” in the offense. Even if defendant had a lesser role than her codefendant, she was nevertheless deeply involved. U.S. v. Campbell-Martin, __ F.4th __ (8th Cir. Nov. 8, 2021) No. 20-3054.
11th Circuit finds drug courier was not entitled to role reduction. (445) Defendant was convicted of drug distribution. At sentencing the district court declined to grant a two-level minor role reduction under § 3B1.2, even though defendant’s role in the enterprise was as a drug courier. The Eleventh Circuit affirmed, noting that defendant’s role as a courier did not require a reduction, and the district court properly focused on defendant’s actual conduct. U.S. v. Perry, __ F.4th __ (11th Cir. Sept. 29, 2021) No. 16-11358.
1st Circuit affirms three-level reduction for minimal participant instead of four. (445) At defendant’s sentencing for drug trafficking, the district court subtracted three levels under § 3B1.1 for being a minor participant in drug dealing. Defendant argued that the court should have subtracted four levels because she served as a drug courier in a single transaction. The First Circuit affirmed, finding that defendant was not a mere courier but instead drove her boyfriend to two drug transactions and referred to her boyfriend as her “boss.” U.S. v. Ruiz, __ F.3d __ (1st Cir. June 4, 2021) No. 20-1156.
1st Circuit denies minor role for crew member smuggling 900 kilograms of cocaine. (445) Defendant pleaded guilty to trying to smuggle cocaine into the U.S. on a boat that contained 900 kilograms of cocaine. At sentencing, the district court denied a reduction for minor role under § 3B1.2(b). The First Circuit affirmed, noting that defendant was one of only three crew members on the boat and the amount of cocaine was significant. U.S. v. Castillo-Vazquez, __ F.3d __ (1st Cir. Apr. 16, 2021) No. 19-1152.
5th Circuit does not require findings in denying role reduction, unless defendant asks. (445) At defendant’s sentencing for conspiracy to possess methamphetamine with intent to distribute, the district court denied defendant a role reduction under § 3B1.2 without making any findings. The Fifth Circuit found that no findings were required absent a request, noting that in any event, defendant exercised decision-making authority and financially benefitted from the conspiracy, indicating that his role was not minor. U.S. v. Pike, __ F.3d __ (5th Cir. Nov. 2, 2020) No. 20-10168.
11th Circuit denies minor role for transporting cocaine on the high seas. (445) Defendants were convicted of transporting 614 kilograms of cocaine on the high seas. At sentencing, the district court denied defendants a two-level minor role reduction under § 3B1.2(b). The Eleventh Circuit affirmed, noting that all three defendants knowingly participated in the illegal transportation of a large quantity of high-purity and high-value cocaine, that they and their transportation roles were important to that scheme, and that they were held accountable for that conduct only. U.S. v. Cabezas-Montano, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.
8th Circuit rejects minor role for drug dealer who handled the money and benefitted financially. (445) Defendant participated in a methamphetamine distribution ring, but he pleaded guilty to a single drug-trafficking count based on his sale of methamphetamine to an undercover officer. At sentencing, defendant argued for a minor role adjustment under § 3B1.2 because he was substantially less culpable than his codefendant. The district court declined a role reduction, and the Eighth Circuit affirmed. The panel found that although there was no evidence that defendant planned the transaction, defendant handled the money and benefitted financially. U.S. v. Garcia, __ F.3d __ (8th Cir. Dec. 26, 2019) No. 18-3040.
5th Circuit denies mitigating role adjustment to drug trafficker. (445) Defendant pleaded guilty to methamphetamine trafficking. At sentencing, the district court declined to give him a “minor participant” reduction under § 3B1.2(b), because defendant had purchased and sold methamphetamine. The Fifth Circuit upheld the district court’s refusal to give the adjustment. U.S. v. Kearby, __ F.3d __ (5th Cir. Nov. 25, 2019) No. 18-10874.
11th Circuit upholds denial of minor-role adjustment to crew of drug-trafficking boat. (445) Defendants were convicted of trafficking 460 kilograms of cocaine in international waters, in violation of the Maritime Drug Law Enforcement Act. One defendant was the captain of the vessel where the drugs were found; the other two defendants were crew members. All three defendants sought a reduction in offense level for minor role under § 3B1.2(b) because they did not own the cocaine or share in the profits of the cocaine when it was sold. At sentencing the district court denied a minor-role adjustment to all three defendants. The Eleventh Circuit found no clear error, finding that defendants’ participation in the illegal transportation of a large quantity of cocaine supported the district court’s decision. U.S. v. Valois, __ F.3d __ (11th Cir. Feb. 12, 2019) No. 17-13535.
7th Circuit says court need not make findings to deny mitigating role adjustment. (445) At defendants’ sentencing for drug-trafficking offenses, the district court denied defendants a mitigating role adjustment under § 3B1.2. In the commentary to § 3B1.2, the guidelines provide a non-exhaustive list of factors to consider. At defendants’ sentencing, the district court did not make explicit findings on each of the factors. The Seventh Circuit affirmed the denial of the adjustment. It noted that the parties argued the applicability of the adjustment in their sentencing papers and during the sentencing hearing, and the district court used the words of the enhancement in denying the adjustment. U.S. v. Campuzano-Benitez, __ F.3d __ (7th Cir. Dec. 13, 2018) No. 18-1236.
1st Circuit finds any error in failing to consider minor role amendment was harmless. (192)(197)(445) Defendant was convicted of Hobbs Act robbery and firearms charges. On three previous occasions, for various reasons, the case was reversed and remanded for resentencing. In his fourth appeal, defendant argued that the 2015 Minor Role Amendment 794, which modified the commentary to guideline § 3B1.2, after his third appeal, entitled him to a mitigating role reduction. He argued that the a was a significant change that permitted the district court to recalculate his offense level, even though this exceeded the scope of remand. The First Circuit found it unnecessary to address the issue because any error was harmless. The district court stated that even if it were to consider a minor role reduction, the case did not warrant it. There was no dispute that defendant participated in a crime that resulted in a death, and defendant sustained a bullet wound in his back. There were no co-defendants against which defendant’s culpability could be compared. U.S. v. García–Ortiz, __ F.3d __ (1st Cir. Sept. 17, 2018) No. 16-1405.
1st Circuit finds no error in comparing defendant only to others on drug-smuggling boat. (445) Defendant was one of three men arrested by the Coast Guard in a boat carrying 72.5 kilograms of cocaine. Defendant challenged the district court’s denial of a § 3B1.2 minor role reduction, complaining that the court compared his conduct only to that of the other two men on the boar, rather than the co-conspirators in the broader drug-smuggling enterprise. The First Circuit found no error. Defendant was held accountable only for the cocaine on the boat, so it was proper for the court to limit its comparison only to those persons directly involved in this particular drug-smuggle. The record contained references to unindicted and unidentified persons linked to the broader criminal organization, but this did not alter the conclusion. U.S. v. Arias-Mercedes, __ F.3d __ (1st Cir. Aug. 16, 2018) No. 17-1229.
1st Circuit says defendant on drug-smuggling boat did not play minor role. (445) Defendant was one of three men arrested by the Coast Guard in a boat carrying 72.5 kilograms of cocaine. Defendant argued that the district court erred in denying him a § 3B1.2 minor role reduction, but the First Circuit disagreed. The district court found that defendant “was not substantially less culpable than the average participant” in the drug smuggle. Defendant understood the scope and structure of the criminal activity and knew that he was transporting narcotics. He worked with the captain to assure the success of the voyage. Although defendant did not participate in planning or organizing the criminal activity, he exercised a modicum of decision-making authority in steering and navigating the vessel toward its destination. Moreover, the district court supportably found that the defendant stood to benefit from the criminal activity. U.S. v. Arias-Mercedes, __ F.3d __ (1st Cir. Aug. 16, 2018) No. 17-1229.
1st Circuit holds that career offender not entitled to minor role reduction. (445) Defendant argued on appeal that the district court wrongly denied him a minimal participant reduction under § 3B1.2(a). The First Circuit disagreed, noting that defendant was sentenced under the career offender guidelines, which did not “countenance role reductions.” Guideline § 4B1.1(b) provides that where, as here, “the offense level for a career offender … is greater than the offense level otherwise applicable, the [career offender] offense level … shall apply.” Accordingly, a minimal participant designation would not have helped defendant. U.S. v. Reid, __ F.3d __ (1st Cir. Aug. 10, 2018) No. 17-2021.
2nd Circuit says police officer who acted as armed driver for drug dealer did not have minor role. (445) Defendant, a New York City police officer, served as an armed driver for his childhood friend, Reyes, who sold marijuana, cocaine, and MDMA. Defendant was convicted of drug charges. The Second Circuit upheld the court’s refusal to grant defendant a minor role reduction. At sentencing, the district court reasonably rejected the contention that defendant “was less culpable than his confederates” in light of his “status as a police officer, as an armed enforcer, and as what the government aptly described as a law enforcement spy.” Although defendant did not procure or sell drugs himself, he nonetheless played a critical part in Reyes’s operations. The district court properly found that defendant’s role was not minor. U.S. v. Alston, __ F.3d __ (2d Cir. Aug. 9, 2018) No. 17-2405-cr.
5th Circuit allows comparing defendant’s participation to that of co-defendants in boat carrying drugs. (445) Defendant was stopped by the Coast Guard in a boat transporting cocaine to the United States. He contended that he should have received a two-level minor role reduction, and that the district court erred by comparing him only to the co-defendants who played the same role he did, rather than comparing him to all of the other participants in the conspiracy. The Fifth Circuit upheld the denial of the minor role reduction. The district court meticulously compared defendant’s participation to that of his co-defendants – the only members of the conspiracy about whom it had concrete knowledge. Defendant and his co-defendants all played similar roles by accepting money to complete a portion of this drug transaction and by captaining multiple boats to transport very substantial amounts of cocaine. None was the “mastermind” behind the operation. Accordingly, there was no clear error in finding that defendant was not a minor participant. U.S. v. Anchundia-Espinoza, __ F.3d __ (5th Cir. July 27, 2018) No. 17-40584.
11th Circuit upholds denial of minor role reduction. (445) Defendant was convicted of possession and conspiracy to possess 15 or more unauthorized access devices, and aggravated identity theft. She challenged the court’s denial of a § 3B1.2 minor role reduction, contending that she was “merely a passive observer to the conduct” and her involvement was “substantially less material than the other defendants.” The Eleventh Circuit upheld the denial of the reduction, agreeing with the district court’s finding that she was a “full, equal participant” with her co-conspirator Smith. U.S. v. Maitre, __ F.3d __ (11th Cir. Aug. 7, 2018) No. 17-12166.
8th Circuit rejects role reduction where defendant distributed 113 grams of meth over 5 months. (445) Defendant was a low-level methamphetamine distributor operating under Bent, the primary distributor in the drug conspiracy. Defendant pled guilty to meth conspiracy charges. He argued that he was entitled to a two-level mitigating role reduction under § 3B1.2(b), asserting that he was only involved in the conspiracy for five months and that one of his primary functions in the scheme was to deliver drugs between Bent and his customers. The Eighth Circuit upheld the denial of the mitigating role reduction. Defendant failed to acknowledge that during this five-month period, he distributed at least 113 grams of methamphetamine, which averaged out to nearly one ounce per month. Defendant therefore failed to show he was a “minor participant … by comparison with the offense for which he or she was held accountable.” U.S. v. Sharkey, __ F.3d __ (8th Cir. July 18, 2018) No. 17-1480.
8th Circuit denies mitigating role in firearm export conspiracy. (445) Defendant pled guilty to multiple charges based on a scheme to export firearms to Lebanon. She argued that the district court should have given her a § 3B1.2 three-level mitigating role adjustment because she did not participate in planning or organizing of the offense, and acted only at the direction of her husband. The Eighth Circuit upheld the denial of mitigating role adjustment. Although defendant played a lesser role than did her husband or the other conspirator, the district court did not err in determining that she was aware of the scope and structure of the offense conduct and actively participated in what the district court described as a well-planned, coordinated scheme. Defendant falsely claimed to be a United States citizen so that she could open a bank account in furtherance of the conspiracy. She also procured a permit to purchase firearms, purchased firearms to be sold, assisted with preparing shipments, and traveled to Lebanon when the firearms were shipped. U.S. v. Zeaiter, __ F.3d __ (8th Cir. June 11, 2018) No. 16-4066.
11th Circuit holds that defendant did not play minimal role in conspiracy to export defense items. (445) Between 2011 and 2013, defendant participated in a series of discussions with Zhang, a Chinese operative; Liu, an undercover agent with the Department of Homeland Security, and an unnamed, unindicted person about how to export to China military aircraft engines, a military drone, and related technical data. She was convicted of conspiracy to export defense articles without a license or written approval, in violation of the Arms Control Export Act, 22 U.S.C. § 2778. The Eleventh Circuit upheld the district court’s denial of a § 3B1.2(a) minimal participant reduction. Defendant played “an important or essential role” in the conspiracy. She put Liu in touch with Zhang, discussed prices and terms with Liu, and even explained that she was a necessary figure because she was “in the [United States]” and Zhang was “physically in China.” Defendant also played a meaningful role in planning or organizing the crime, and understood the scope and structure of the criminal activity. U.S. v. Wenxia Man, __ F.3d __ (11th Cir. June 6, 2018) No. 16-15635.
5th Circuit upholds denial of minor role reduction for drug courier. (445) Defendant and a passenger were arrested for transporting six bricks of heroin in their vehicle. The district court held that defendant did not meet her burden to show that she was a minor participant under §3B1.2. Defendant argued that the district court did not consider the factors listed in Amendment 794, and incorrectly focused on whether she played an integral role in the offense. The Fifth Circuit found it unnecessary to decide whether Amendment 794 applied retroactively, because the district court’s conclusion that defendant’s role was “integral” to the offense was still part of the §3B1.2 analysis. The court considered defendant’s arguments, but was not persuaded. Defendant was only entitled to a mitigating role adjustment if she showed: (1) the culpability of the average participant in the criminal activity; and (2) that she was substantially less culpable than that participant. Defendant did not make either showing. U.S. v. Castro, 843 F.3d 608 (5th Cir. 2016).
2nd Circuit denies minor role reduction in food stamp fraud scheme. (445) Two defendants, who worked at a small grocery store, were convicted of offenses concerning the misuse of benefits under the Supplemental Nutrition Assistance Program. Defendant Algahaim contended that the district court erred by denying him a mitigating role adjustment. The Second Circuit agreed with the district court that no adjustment was warranted. Although Algahaim’s role in managing the store might have been less than that of his co-defendant, Algahaim’s role in committing the charged offenses was virtually identical to the co-defendant’s role. Algahaim was not substantially less culpable than the average participant. U.S. v. Algahaim, 842 F.3d 796 (2d Cir. 2016).
5th Circuit denies minor role for defendant held accountable for drugs carried by other smugglers. (445) Defendant was one of several men arrested crossing the river with a backpack of marijuana. He was held accountable at sentencing for the full 95 kilograms that the four smugglers were jointly carrying. He argued that under Amendment 794, which went into effect a month before sentencing, he was a mere courier who deserved a §3B1.2 minor role reduction, noting that there was no evidence that he possessed a radio or map, he did not know the ultimate destination of the drugs, and did not have any authority to decide or influence the destination of the drugs. The Fifth Circuit upheld the denial of the reduction. The amendment did not impose any concrete requirements as to whether and when drug couriers and mules like defendant should receive the reduction. The only evidence regarding the participation of others related to the other individuals who had transported the drugs on their backs. Defendant was no more or less culpable than these other transporters, and did not offer any evidence that the others were involved in the growing, further transportation, or intended sale of this marijuana. U.S. v. Torres-Hernandez, 843 F.3d 203 (5th Cir. 2016).
8th Circuit finds defendant did not have minor role in meth conspiracy. (445) Defendant pled guilty to conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §841(b). He challenged the district court’s denial of a §3B1.2 minor role reduction, claiming that he was less culpable than the average participant because he was caught selling meth only twice, and two co-defendants were responsible for significantly greater amounts of meth. The Eighth Circuit upheld the denial of the minor role reduction. Defendant admitted to involvement in the conspiracy for over two and a half years. According to the PSR, defendant was operating with and for Ortega, who admitted distributing 45 pounds of meth. Defendant told the undercover agent that he typically did not sell smaller amounts (like what he sold the agent), and tests showed defendant’s meth was very pure. While the plea agreement held defendant responsible for only the meth in the two controlled buys, he was not “a minor dealer at the bottom level” during his two and a half years in the conspiracy. Defendant did not meet his burden to show less culpability than the average participant. U.S. v. Hunt, 840 F.3d 554 (8th Cir. 2016).
8th Circuit upholds considering role adjustment objection as part of §3553(a) factors. (445)(765) Defendant objected to the probation office’s finding that she was not entitled to a minor or minimal participation reduction. In response, the probation office distributed a revised PSR responding to the objection. Defendant argued on appeal that the district court did not explicitly rule on her objection, but the Eighth Circuit disagreed. At sentencing, defense counsel asked the district court to “recognize [defendant’s] lesser involvement” either by giving her a minor role reduction, or by considering a variance. Immediately after this request, the district court indicated that it would consider the lesser-involvement argument as part of the §3553(a) factors. The court noted that the PSR’s addendum addressed many of defendant’s objections, and included the probation officer’s renewed conclusion that a minor-role reduction was not warranted. The record suggested that defense counsel made a strategic decision to push the contention that defendant played a less substantial role as part of the argument for a variance. U.S. v. Durham, 836 F.3d 903 (8th Cir. 2016).
8th Circuit finds defendant did not have a mitigating role in robbery of drug dealer. (445) Defendant pled guilty to charges related to his involvement in a scheme to rob a drug dealer. The district court rejected his request for a mitigating role adjustment, and the Eighth Circuit found no clear error. Defendant was the purported “buyer” of methamphetamine from the victim in a ruse to lure the victim into a false sense of security. Defendant’s presence as an enforcer intimidated the victim, and defendant personally carried the proceeds of the robbery to his apartment. Although defendant did not concoct the criminal scheme, he understood the scope and structure of the robbery, participated in planning it, and committed important acts. Although defendant did not exercise decision-making authority, share in the proceeds, or physically assault the victim, he was not “substantially less culpable” than the average participant. U.S. v. Waddell, __ F.3d __ (8th Cir. Aug. 2, 2016) No. 15-2011.
5th Circuit denies minor role reduction for defendant who concealed aliens at “stash house.” (445) Defendant concealed undocumented aliens at a “stash house” in Texas, while the aliens awaited transportation to other cities. He pled guilty to harboring undocumented aliens for financial gain. The district court denied his request for a minor role reduction under §3B1.2. Amendment 794, which went into affect while his appeal was pending, changed the commentary to §3B1.2, stating that when determining a mitigating role, the defendant is to be compared with other participants “in the criminal activity.” The commentary specified that “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative …” The Fifth Circuit upheld the denial of the reduction, finding that Amendment 794 did not affect the outcome of the case. The district court did not reject the adjustment “solely” on the basis that defendant’s conduct was “integral” to the offense. The court assessed defendant’s responsibilities, observing that he fed the aliens only once or twice a day, and that the aliens were kept “in horrible conditions” at the stash house. Defendant’s suggestion that he was unaware of the scope of the operation was not well taken. He transported aliens on two separate occasions and had knowledge that the aliens were in the country illegally. He hid aliens at his stash house, and he knew they were scheduled to be taken to other cities. The district court did not clearly err in finding that defendant was an average participant in the human smuggling activity. U.S. v. Gomez-Valle, __ F.3d __ (5th Cir. July 5, 2016) No. 15-41115.
2nd Circuit says defendant did not play minor role in fraud scheme. (218)(445)(450) Defendant was convicted of wire fraud charges based on his involvement in a Ponzi investment scheme and a related fraudulent real estate scheme. He contended that he played a minor role in the fraud, and lacked knowledge of the overarching scheme. Therefore, he argued that enhancements based on his co-conspirator’s use of sophisticated means, number of victims and abuse of trust were inappropriate. The Second Circuit found no error. Defendant admitted soliciting money for the fraudulent investment program using material misrepresentations and omissions. He also admitted participating in a real estate conspiracy that deceived lenders and making material misrepresentations and omissions to borrowers. Moreover, emails between defendant and his co-conspirator showed that defendant acted as a partner, regardless of the formal business arrangement. The district court did not err in rejecting defendant’s characterization of himself as a mere salesperson. U.S. v. Rivernider, __ F.3d __ (2d Cir. July 7, 2016) No. 14-4865.
11th Circuit rejects minor role reduction for defendant’s sham tax preparation scheme. (445) Defendant participated in a sham tax preparation business to file fraudulent income tax returns. The majority of the fraudulent tax returns contained the names of Florida prison inmates and caused the IRS to issue about $1.9 million in tax refunds. Defendant sought a minor role reduction, claiming she had no decision-making authority, did not recruit anyone, and did not prepare any fraudulent tax returns. The Eleventh Circuit upheld the denial of the reduction. Defendant played a vital role in the conspiracy by signing and paying for office leasing space for sham businesses. She also recruited and paid Henry to secure SSNs for inmates, which was vital to the successful operation of the conspiracy. Defendant profited from the conspiracy by purchasing items, withdrawing cash, and obtaining money orders with the fraudulent debit cards. U.S. v. Pierre, __ F.3d __ (11th Cir. June 14, 2015) No. 14-10589.
1st Circuit holds defendant did not have minor role in kidnapping. (445) Defendant pled guilty to conspiring to kidnap Doe and hold him for ransom. The First Circuit upheld the denial of a minor role reduction, agreeing with the district court that there was nothing “minor” about driving the abduction vehicle. That was a fair comment on defendant’s undisputed actions in driving co-conspirators to the scene of the seizure and transporting the abductors and victim to the hideaway, all of which made him a central actor in the elements of the crime charged. U.S. v. Acevedo, __ F.3d __ (1st Cir. June 2, 2016) No. 15-1378.
1st Circuit denies minor role where defendant drove accomplice to scene of robbery. (445) Defendant drove Soto to the scene where he robbed a postal worker at gunpoint. Defendant pled guilty to aiding and abetting the robbery of a postal worker. He challenged on appeal the denial of a §3B1.1 minor role reduction, arguing that he was not involved in planning the crime. The First Circuit rejected his argument. During the sentencing hearing, the court implied that defendant “scope[d] out the place” prior to the robbery. In subsequent statements, however, the court indicated that it understood defendant’s more limited role in the offense. The court clarified that the minor role reduction was precluded by defendant’s act of driving his accomplice to the scene of the crime, with full knowledge of what was to ensue. U.S. v. Montes-Fosse, __ F.3d __ (1st Cir. May 31, 2016) No. 15-1779.
5th Circuit denies minor role where defendant was held accountable only for small part of funds. (445) Defendant argued that the district court erred by not giving him a two-level minor role reduction for a money laundering conspiracy under §3B1.2. He claimed that because the offense level for money laundering was based on his underlying drug offense from which the funds were derived, his sentence was based on laundering the total proceeds. The Fifth Circuit disagreed. There was nothing to indicate that the district court held defendant responsible for laundering all of the funds from the drug distribution scheme. Instead, the court found that he was responsible for laundering only $143,000 and explicitly declined to hold him liable for laundering the full $4,202,332 derived from drug proceeds. Additionally, the court specifically referred to the application notes to §2S1.1, which explain that the decision to grant a reduction under §3B1.2(b) remains tied to the actual laundering of funds, not “the underlying offense from which the laundered funds were derived.” See Note 2(C). The fact that defendant received a minor-role reduction for the drug distribution offense did not mean that he automatically should have received a minor-role reduction for the money-laundering offense. U.S. v. Stanford, __ F.3d __ (5th Cir. May 18, 2016) No. 15-40127.
1st Circuit says amendment to minor role commentary did not warrant remand. (445) Defendant, a former director of a public housing agency, was convicted of fraud charges based on his involvement in rigging inspections of federally-funded low-income housing. The judge rejected defendant’s request for a two-level minor role reduction under §3B1.2, finding that defendant “play[ed] the role of a high-level functionary” who took “relevant information” from co-conspirator Morosco, the agency’s paid inspector, “and pass[ed] it on.” The judge also called defendant’s actions “necessary,” stressing that he “did not think that this undertaking could have been successful without” the “activity” defendant “chose” to perform. After the judge’s ruling, the federal sentencing commission amended the commentary to §3B1.2, saying that judges should not deny a minor-role adjustment “solely” because the defendant was “integral” or “indispensable” without considering whether he was substantially less culpable than the average participant in the criminal activity. Notwithstanding this amendment, the First Circuit upheld the denial of the minor role reduction. The judge did consider (as the amendment requires) defendant’s culpability in relation to his co-defendants, finding that they all “shared the same level of significance, core significance to the activity.” U.S. v. Morosco, __ F.3d __ (1st Cir. May 12, 2016) No. 15-1802.
1st Circuit finds that defendant did not have mitigating role in drug smuggling conspiracy. (445) Defendant was convicted of a variety of charges based on his involvement in a drug smuggling conspiracy. The First Circuit rejected his claim that he was entitled to a §3B1.2(b) minor role reduction. The district court found that the two participants in the smuggling operation (defendant and Rodríguez) were “equally culpable.” This finding was not clearly erroneous: the two men traveled first to Colombia and then to Venezuela, specifically to undertake the unlawful voyage; they shared the work at sea en route to Puerto Rico; and defendant’s skill as a mechanic was essential to the success of the venture. The fact that Rodríguez was deemed the “captain” of the craft did not undermine the court’s finding that they were equal partners in the criminal activity. The fact that there might have been unknown individuals who “owned” the drugs and were prepared to distribute them in the U.S. did not matter. U.S. v. Perez, __ F.3d __ (1st Cir. Apr. 22, 2016) No. 15-1234.
8th Circuit holds that defendant did not have minor role in extortion conspiracy. (445) Defendant was convicted of charges related to his participation in an extortion conspiracy. He argued that he was entitled to a minor role reduction, because he did not actively participate in the actual extortions and was not present during any of the three collection trips. The Eighth Circuit disagreed, finding defendant’s role in the scheme was substantial. Defendant was the party initially contacted by co-conspirator Dziuban for help in collecting some debts. Defendant then recruited co-conspirators Carparelli and Brown to collect the money, and arranged the initial meeting between all four men. This initial meeting was not only necessary, but pivotal in launching the entire conspiracy. Defendant’s role was not akin to that of some faceless drug courier. He had personal connections to organized crime figures, and he leveraged those connections to recruit men to participate in the actual extortions. Further, defendant actively participated in the conspiracy by serving as a middleman between Dziuban and the others. Defendant remained active in the conspiracy from its inception until its conclusion, and even participated in a cover-up attempt. U.S. v. Orlando, __ F.3d __ (8th Cir. Apr. 21, 2015) No. 15-1862.
10th Circuit refuses to grant mitigating role reduction to drug middleman. (445) Defendant was convicted of charges related to his involvement in a drug conspiracy. He argued that because he was only a middleman in the drug conspiracy, the district court clearly erred in failing to provide for a mitigating role adjustment under §3B1.2. The Tenth Circuit disagreed, noting that being a middleman does not necessarily entitle a defendant to a sentence reduction. Here, the court found that defendant’s conduct warranted an aggravating role adjustment, finding that he had the authority to negotiate a price for the drugs. There was no clear error. U.S. v. Llantada, __ F.3d __ (10th Cir. Mar. 8, 2016) No. 15-2082.
1st Circuit agrees that defendant did not have minor role in drug smuggling scheme. (445) Defendant was convicted of drug charges stemming from his involvement in a drug smuggling operation. The district court rejected his request for a minor role reduction because it relied on evidence that defendant admitted to driving a red “guagua” involved in the offense. According to defendant, because there was no English language evidence that supported a finding that defendant drove the red Ford Excursion, his sentence was unreasonable. The First Circuit disagreed. Defendant’s involvement in the offenses did not depend on driving the Ford Excursion. Defendant admitted to loading the cocaine onto a vehicle and transporting the cocaine. He also admitted that he had been hired to refuel the vessel that was transporting narcotics. Defendant failed to show that he was less culpable than the other participants in the offense, or indeed that he was less culpable than similarly situated offenders. A lack of profit or success in the criminal enterprise does not trigger a downward adjustment for a minor role. U.S. v. Carela, __ F.3d __ (1st Cir. Nov. 4, 2015) No. 14-1194.
11th Circuit denies minor role in mortgage fraud scheme. (445) Defendant was convicted of multiple counts of bank and wire fraud. She argued that the district court clearly erred by refusing to grant her a minimal or minor role reduction under §3B1.2. The Eleventh Circuit ruled that the district court did not clearly err in finding that defendant played more than a minor role in the mortgage fraud conspiracy. Although the conspiracy itself involved seven properties, defendant was held accountable for only three of them. In those three transactions, however, the court found by a preponderance of the evidence that defendant recruited her father to serve as a straw buyer; she grossly misstated material information that enabled her to purchase a $1.55 million home; and she provided false documents and deposit money that enabled her father to purchase two other properties for a total sum of nearly $1 million. The district court did not clearly err in finding that defendant’s involvement in these transactions, even if less serious than her ex-husband’s, was serious enough to place her outside the scope of §3B1.2. U.S. v. Martin, __ F.3d __ (11th Cir. Oct. 5, 2015) No. 14-11019.
6th Circuit says defendant did not hold minimal role in money laundering conspiracy. (445) Defendant was convicted of drug and money laundering conspiracy charges. He contended that he was substantially less culpable than the other participants in the conspiracy, and his minimal role of holding drug dealer Gentry’s money required a finding that he was substantially less culpable than the other co-conspirators. Although the Sixth Circuit reversed defendant’s drug conspiracy conviction, it held that the district court did not clearly err in declining to find that defendant was a minimal participant. Defendant was convicted of the money laundering conspiracy. He knew that Gentry was a drug dealer who had never held a job, yet he continued to receive money from Gentry on a regular basis, hiding the money for him. Defendant’s knowledge of the scope and structure of the enterprise weighed against him. Given this knowledge, the district court did not clearly err in declining to find that defendant was a minimal participant under § 3B1.2. U.S. v. Randolph, __ F.3d __ (6th Cir. July 24, 2015) No. 13-5477.
5th Circuit denies minor role reduction where defendant only charged and convicted of his own participation in Ponzi scheme. (445) Defendant worked for an investment company operated by Stanford, who used the company to run a multi-billion dollar Ponzi scheme. Defendant actively helped Stanford hide his fraud for over a decade. The district court adopted the PSR’s finding that defendant had an “average,” rather than a “minor,” role in the scheme, and denied him a §3B1.2(b) minor role reduction. Defendant argued that he did not receive compensation for his role in the fraud beyond his salary and bonus, and that much of the fraud was intentionally withheld from him. The Fifth Circuit found no error in the denial of the reduction. Whether defendant was compensated directly for the fraud was not dispositive. Because much of the fraud, such as the bribery of financial officials, was withheld from defendant, he was not charged in connection with the entire fraud. He was only charged and convicted based upon his participation. U.S. v. Kuhrt, __ F.3d __ (5th Cir. June 5, 2015) No. 13-20115.
1st Circuit holds that defendant waived claim that he played minor role in other side of conspiracy. (445) (855) Defendant participated in a drug trafficking and money laundering conspiracy. At sentencing, defendant unsuccessfully argued that he should be granted a reduction for his minor role in the drug conspiracy. On appeal, Defendant alleged for the first time that his minor role should be considered in terms of the money laundering conspiracy and not of the drug conspiracy. The First Circuit held that defendant waived any argument that he was entitled to a reduction based on his role in the money laundering side of the conspiracy. First, defendant’s PSR recommended no minor role reduction, and defendant did not object to this. Then, two months later, he argued in his sentencing memorandum and at sentencing that he had a minor role in the drug conspiracy, and all his discussion as to this issue was centered on the drug conspiracy. After that argument proved unsuccessful, he then shifted focus to the money laundering conspiracy. “Having switched tactics this way so late in the game, [defendant] has waived the argument that he now seeks to pursue.” U.S. v. Torres-Landrua, __ F.3d __ (1st Cir. Apr. 10, 2015) No. 13-1674.
1st Circuit rejects minor role for defendant who was present for planning of smuggling scheme and was “deeply involved” in its execution. (445) Defendant pled guilty to conspiracy to import over five kilograms of cocaine into United States, and conspiracy to distribute over five kilograms of cocaine. The First Circuit termed as “fatuous” defendant’s claim that he deserved a minor role reduction. Defendant was present when the plot was hatched; he and Delgado delivered the van in which the drugs were to be transported; and, after the van was loaded with what defendant thought were drugs, he drove it away. Even if Delgado was the “decision maker,” this did not mean defendant held a minor role. Defendant was present for the planning of the scheme and “deeply involved” in its execution. U.S. v. Melendez-Rivera, __ F.3d __ (1st Cir. Apr. 1, 2015) No. 13-2136.
8th Circuit rejects minimal role for defendant who was “deeply involved” in criminal activity. (445) Defendant and his brother were convicted of drug conspiracy and related charges. Defendant argued that he should have received a four-level minimal role reduction because his conduct was less culpable than his brother, and he was only along “to assist [his brother] in his operation.” The Eighth Circuit upheld the denial of the reduction. The district court found the “degree of sophistication involved in this offense,” the large quantity of drugs recovered, and “the elaborate nature in which the drugs were hidden and protected” indicated “both defendants … were deeply involved” in criminal activity. There was no clear error in the district court’s findings. U.S. v. Corrales-Portillo, __ F.3d __ (8th Cir. Mar. 9, 2015) No. 14-1769.
8th Circuit says rejecting minor participant reduction was not upward departure. (445)(761) Defendant pled guilty to drug conspiracy charges. His PSR included in its offense level calculations a two-level reduction under §3B1.2(b) for being a minor participant. Nonetheless, at sentencing, the district court rejected a minor participant reduction. Defendant characterized the court’s decision not to grant him the minor role reduction as an “upward departure” and claimed the court procedurally erred by not giving notice as required by Federal Rule of Criminal Procedure 32(h). The Eighth Circuit disagreed, holding that the court’s rejection of the minor participation reduction did not constitute an upward departure requiring notice. Departure is a term of art under the guidelines and refers only to non-guidelines sentence imposed under the framework set out in the guidelines. The court did not “depart” when it assessed defendant’s role in the conspiracy and decided to forego the minor participant reduction. Defendant bore the burden of persuading the court to apply the reduction. His claim that he was “blindsided” by the court’s decision did not absolve him of this burden. U.S. v. Soto, __ F.3d __ (8th Cir. Feb. 24, 2015) No. 14-2545.
11th Circuit says defendants did not hold minor role in health care fraud. (445) Defendants, who worked for and operated a health center, participated in a complex Medicare fraud scheme. The Eleventh Circuit held that the district court did not clearly err in rejecting minor role reductions for defendants Alalu, Alexander, and Roberts. Alalu played a significant role in the fraud by falsifying group therapy notes, directing others to falsify notes, and instructing staff to make it appear as though certain patients were eligible for certain treatment. Though Alalu may have been less culpable in the overall health care fraud than the leaders, he was not less culpable than most other participants, particularly during the period he, as the health center’s clinical director, directed and managed other therapists at the center. Defendants Alexander and Roberts’s conduct in recruiting Medicare patients was also central to the kickback scheme. Although they contended their roles were minor compared to the members of the overall conspiracy, the conduct of the participants in the larger criminal conspiracy was irrelevant to their roles in the kickback scheme. U.S. v. Moran, __ F.3d __ (11th Cir. Feb. 17, 2015) No. 12-16056.
1st Circuit denies minor role reduction to “classic middleman.” (445) Defendant argued that the district court should have granted him a two-or three-level reduction in offense level for his limited role in a drug conspiracy. He contended that the evidence “at most supported a finding that [he] was a regular customer who sold on the side to support his addiction.” The district court rejected his request, emphasizing the following facts: defendant’s participation in the conspiracy extend¬ed throughout the entire time of the charged conspiracy; defendant was not a mere user, but rather was “a classic middleman” who “got drugs from the conspiracy [and] sold them to local customers” while using some of those drugs himself; defendant traded a firearm for ten bags of crack; defendant, with his girlfriend, actually moved into, and was living, at the headquarters of the conspiracy; defendant was trusted by his co-conspirators to deposit drug proceeds into a bank account, or assisted in making those deposits; and defendant approached a customer so that she would buy a firearm for the conspiracy, which she did. The First Circuit upheld the district court’s denial of a role reduction. Defendant failed to establish that the district court err in its determination of his role in the offense. U.S. v. Trinidad-Acosta, __ F.3d __ (1st Cir. Dec. 5, 2014) No. 13-1830.
1st Circuit holds that defendant did not hold minor role in beating death of citizen in police custody. (445)Defendant was one of four former police officers involved in the excessive use of force against a citizen who was violently beaten to death while in police custody. He argued that he was a minor participant in the assault and should have received a reduction under § 3B1.2 (b). The district court concluded that although defendant may have had a lesser role as compared to certain defendants, it could not ignore the fact that he had kicked the victim with his booted foot, nor could defendant prove that his kicks had caused less injury to the victim than the kicks of others. Moreover, the cooperating defendants had accepted responsibility in a timely manner and provided valuable cooperation to the government. The First Circuit held that the district court properly rejected defendant’s claim that he merited a reduction because he “only” kicked the victim two or three times, and did not continue the assault at the station house. It also clearly explained why defendant’s sentence should not be compared to those of cooperating co-defendants who accepted responsibility. U.S. v. Pagan-Ferrer, 736 F.3d 573 (1st Cir. 2013).
1st Circuit says drug courier is not automatically entitled to minimal role reduction. (445) Defendant was convicted of charges based on his role in a drug conspiracy. He argued that he played a minimal role in the scheme, characterizing himself as a seaman turned mere courier, and the real masterminds of the crime were big-time underworld bosses. The First Circuit found no error, ruling that defendant did not meet his burden of showing that he was a minimal participant. Although defendant may not have orchestrated the drug deal, he did not establish that he was any less culpable than his fellow so-called couriers. In fact, defendant was the only one that an undercover agent could affirmatively identify as passing him the kilos of cocaine. And even if defendant was a mere courier, this did not automatically entitle him to a minimal role reduction. Moreover, there was a very large amount of drugs, which militated against a finding that defendant’s role was minimal. U.S. v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012).
1st Circuit denies minor role where defendant participated in armed robbery and gun fight. (445) Defendant and several confederates assaulted and robbed two employees of a food warehouse. In an ensuing gun fight, one of the robbers was killed and defendant was wounded. The First Circuit upheld the district court’s finding that defendant was not entitled to a minor role reduction. The district court found that defendant was not entitled to the reduction because he was a “direct participant” in the robbery. The panel was not persuaded by defendant’s attempt to minimize his role by comparing himself to the ringleader of the gang. The fact that some other accomplices were more culpable than defendant did not necessarily mean that defendant’s role was minor. U.S. v. Garcia-Ortiz, 657 F.3d 25 (1st Cir. 2011).
1st Circuit agrees that defendant did not hold minor role in cocaine importation scheme. (445) Defendant participated in a large, international conspiracy to import by sea more than five kilograms of cocaine from nations in the Caribbean. The First Circuit upheld the district court’s denial of a two-level minor role reduction. The wiretap recordings and trial testimony supported the district court’s assessment that defendant was not at all on the periphery of the conspiracy. Defendant did more than provide private beach access for a drug landing point. Co-conspirator Jimenez repeatedly called defendant to discuss delivery plans. Defendant expected two kilograms as payment and demanded more if the shipment was larger; he also asked for another kilogram to sell himself. When the boat bringing the drugs initially had trouble, Jimenez turned to defendant to help find another boat. And, after agents seized a 300-kilogram delivery, Jimenez asked defendant to explain why two bales were missing. The district court could easily conclude that defendant was at least as involved as his co-defendants who worked with Jimenez, and that his participation was similar to that of other drug conspirators. U.S. v. Rosa-Carino, 615 F.3d 75 (1st Cir. 2010).
1st Circuit denies role reduction to defendant who supplied gun for robbery and shared in proceeds. (445) Defendant was convicted of counts relating to his involvement in an armored car robbery in which a security guard was killed. He argued that he was a minor participant when contrasted with the other participants who were “organizers, supervisors, and physically participated in the robbery and shootout.” However, defendant was in telephonic contact with the other defendants who were physically participating in the robbery, was supposed to pick up the defendants after the robbery, supplied the gun that was used to shoot a security guard in the hand, and enjoyed a share of the stolen money. Based on the record, the district court found that defendant’s role “outstripped the … ‘minor’ rungs on the hierarchical ladder of blameworthiness.” The First Circuit found no error in the denial of a minor role reduction. U.S. v. Morales-Machuca, 546 F.3d 13 (1st Cir. 2008).
1st Circuit upholds denial of minor role reductions to crew members of drug-smuggling ship. (445) Defendants were crew members of a ship smuggling drugs. They argued that they deserved a reduction in offense level because of their minor participation in the offense, as compared to the captain of the vessel. The First Circuit found no clear error in the denial of the minor role adjustment. Although the record indicated that another man was the captain of the vessel, and that defendants were crew members, this did not mean the court erred in denying the adjustment. Defendants failed to demonstrate that any of them were less culpable than the others. U.S. v. Bravo, 489 F.3d 1 (1st Cir. 2007).
1st Circuit holds that defendant waived right to request minor participant reduction. (445) Defendant argued for the first time on appeal that he should have received a two-level minor participant reduction. § 3B1.2(b). He never asserted he was entitled to this reduction at sentencing, even though his counsel was invited by the court to offer corrections and objections to the PSR’s sentencing calculations, which did not include this reduction. The First Circuit found that defendant waived the right to insist upon receiving this benefit. Moreover, even if the failure to raise the claim was a forfeiture and not a waiver, it would fail on plain error analysis. Defendant was more than a street pusher for a drug conspiracy. For a lengthy period, he was also the co-owner of a drug point. He purchased and prepared drugs for resale, supplied drugs to other co-conspirators, and decided the price scheme for the sale of drugs. He then kept the proceeds from the transactions. Thus, it was scarcely error, let alone plain error, for the court not to give a downward adjustment on minor participant grounds. U.S. v. Escobar-Figueroa, 454 F.3d 40 (1st Cir. 2006).
1st Circuit denies minor participant status to driver who also weighed and packaged cocaine. (445) The government made nine undercover drug purchases. For each purchase, the government’s undercover agent would negotiate the deal over the phone with either Gonzalez or Hidalgo. Then, either Gonzalez or Hidalgo would be driven to meet the agent at a predetermined location. In all of the transactions, Gonzalez or Hidalgo would exit the car they arrived in, enter the agent’s car, and then sell cocaine to the agent. In the first six transactions, the undercover agent was unable to identify who drove Gonzalez or Hidalgo to the meeting, but in each of the last three, the agent identified defendant as the driver. Defendant was also the driver for a proposed tenth transaction, which was never completed because the conspirators were arrested. The First Circuit held that the district court did not clearly err in denying defendant a minor role reduction. Even if defendant’s role were limited to that of a driver, that would not necessarily entitle him to the reduction. However, defendant also admitted that he had weighed and packaged cocaine, and that he had used hidden compartments located in at least two different cars to conceal and transport drugs and money. U.S. v. Gonzalez, 363 F.3d 15 (1st Cir. 2004).
1st Circuit says drug courier who inspected cocaine and helped repackage it was not minimal participant. (445) Drug traffickers paid defendant at least $2000 to act as courier for 35 kilograms of cocaine that they were purchasing from undercover federal agents. The First Circuit rejected defendant’s claim that he deserved a minimal role reduction. His absence from the pre-sale negotiations, the fact that he was to be paid a flat fee rather than a share of anticipated profits, and his inability to open the secret compartment in which he was to hide the cocaine supported his claim, but only told a part of the story. The facts suggested that defendant should have foreseen that the transaction involved a large quantity of cocaine. Moreover, he did more than merely serve as a courier – for example, he inspected the cocaine for quality and assisted in repackaging it for transportation. Even those who serve purely and simply as drug couriers are not automatically guaranteed mitigating role reductions. U.S. v. Santos, 357 F.3d 136 (1st Cir. 2004).
1st Circuit says defendants did not play minor role in carjacking resulting in death. (445) Defendants participated in a carjacking that resulted in the murder of the two occupants of the car. The First Circuit held that neither defendant Sanchez nor defendant Anderson deserved minor role reductions. Sanchez admitted that he furnished the car used in committing the crimes, drove his comrades around town in search of victims, held himself available as a “getaway driver” should the attempted carjacking go awry, suggested where to take the victims following their abductions, searched the carjacked vehicle for valuables, and used some of the appropriated cash. Moreover, he urged one of his companions to shoot the victims and offered to kill them himself. Although the district court found that Anderson lacked an intent to kill, this did not mean he was less culpable than the average felon convicted of carjacking resulting in death. The record supported a finding that Anderson recruited an accomplice who made available the car used in committing the crime, accompanied his co-conspirators on their prowl through downtown as they hunted for potential victims, served as a lookout while the grouped abducted two innocent people, ordered the victims to exit the carjacked vehicle once the caravan reached the murder site, removed jewelry from one victim prior to her execution, and expressed no disapproval when the conspirators discussed murdering the victims. U.S. v. Sanchez, 354 F.3d 70 (1st Cir. 2004).
1st Circuit denies minor role reduction to “integral link” in drug transactions. (445) Despite the fact that defendant was the only party who was involved in all of the drug transactions, he argued that the court erred in refusing to grant him a minor role reduction. However, the sentencing judge characterized defendant as the “hub of the wheel” in eight separate drug transactions, who was the major, or primary, participant in the conspiracy. Since defendant was an integral link in all eight drug transactions, the First Circuit found no clear error in the sentencing judge’s decision to deny him a minor role reduction. U.S. v. Capelton, 350 F.3d 231 (1st Cir. 2003).
1st Circuit rejects reduction where defendant did not object to PSR’s failure to make recommendation. (445) Defendant argued that the district court erred in failing to consider a two-level minor role reduction. However, defendant did not argue for this adjustment at sentencing and did not object to its omission from the PSR. Therefore, the argument was abandoned. Moreover, even if defendant had preserved his objection, his argument would fail. The district court could reasonably have concluded that defendant was not a minor participant. An FBI agent testified that defendant was the right-hand man of the leader of the drug conspiracy. This testimony was confirmed by the wiretaps which showed defendant discussing the price of 20 kilograms of cocaine, planning to collect a $30,000 debt for another conspirator, determining the price for 625 grams of heroin from the Dominican Republic, and making travel arrangements to the Dominican Republic to purchase heroin. The First Circuit affirmed the denial of the reduction. U.S. v. Morales-Madera, 352 F.3d 1 (1st Cir. 2003).
1st Circuit holds that defendant who brokered drug transaction was not minor participant. (445) Defendant was convicted of drug conspiracy charges. The First Circuit ruled that the evidence supported the district court’s finding that defendant was not a minor participant in the two counts on which he was convicted. First, the evidence showed that it was defendant who brokered the drug transaction. Only defendant knew both parties, and it was defendant who reached out for the seller to provide crack to the buyer. Defendant ordered the crack for the buyer from the seller and discussed the price with the seller in the buyer’s presence. Second, defendant went to meet the seller while the buyer sat in his minivan. Defendant vouched for the quality of the crack, the weight of the crack, and for the seller generally. Third, it was because of defendant that the buyer was able to purchase more crack, whether through the original seller or through others to whom the seller had introduced the buyer. Moreover, defendant did not show that he was less culpable than the other participants in the drug conspiracy or less culpable than most other defendants convicted of comparable crimes. U.S. v. Tom, 330 F.3d 83 (1st Cir. 2003).
1st Circuit rejects minimal role reduction. (445) Defendant received a two-level minor role reduction, but argued that he deserved a four-level minimal role reduction because did not do anything more than off-load drugs from another vessel. However, defendant did not present evidence that he had a minimal role in the offense. In fact, during his testimony at trial, he denied having any role at all, for the most part repeating a fishing-trip story he told investigators upon his arrest. The district court found that, because of the size of the cocaine shipment, the size of the boat used, and the number of defendants involved in its transport, the offense involved more than minimal planning, and was not likely to involve “strangers” to the transaction who had no role in the enterprise. Despite these conclusions, the court gave defendant the benefit of a two-level reduction. The First Circuit found no clear error. U.S. v. Downs-Moses, 329 F.3d 253 (1st Cir. 2003).
1st Circuit says defendant did not play minor role in carjacking. (445) Defendant was convicted of committing and aiding and abetting others in the commission of a carjacking resulting in a death, and using a firearm in connection with the carjacking. He argued that he was entitled to a minor role reduction, pointing to evidence that he refused one carjacker’s directive to kill the female passenger, returned her jewelry to her, and told her to run. Defendant also contended that he was not the one giving orders or driving the car. The First Circuit found no error in the denial of a minor participant reduction. There was evidence that defendant was the one who proposed the carjacking, secured the gun used to take the car, held the revolver to the driver’s head after possession of the car was wrested from him, shot the driver in the head at point-blank range, and ultimately decided that the female passenger would be spared. Defendant’s claim “border[ed] on the specious.” U.S. v. Lebron-Cepeda, 324 F.3d 52 (1st Cir. 2003).
1st Circuit says defendant did not show he was minor participant. (445) Defendant discussed with his co-conspirators not only the sale of drugs but also the need to find people to transport these drugs. Importantly, defendant also supplied co-defendant Cruz with heroin and expressed worry about the loss of two kilograms of heroin transported by the conspiracy. Even without a co-conspirator’s testimony about defendant’s asserted role in transporting 300-350 kilograms of cocaine, the First Circuit ruled that defendant did not show clear error in the district court’s finding that he was not a minor participant in the drug conspiracy. U.S. v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003).
1st Circuit rejects minor role reduction where defendant admitted conspiring to buy five kilograms of cocaine. (445) Defendant argued for the first time on appeal that the district court erred in failing to grant him a two-level minor role reduction. The First Circuit found no plain error. There was no credible evidence in the record to suggest that defendant was less culpable than the mine-run of felons involved in similar drug crimes. To the contrary, he admitted during the change of plea colloquy that he conspired with Correa to buy five kilograms of cocaine; that he intended to distribute the cocaine after it was acquired; and that he and Correa went together to the scene of the planned transaction. His self-serving statement that he was only to receive $300 for his efforts was not supported by anything in the record and conflicted with his admissions at the change of plea hearing. U.S. v. Martinez-Vargas, 321 F.3d 245 (1st Cir. 2003).
1st Circuit rejects minor participant reduction for defendant who participated in planning meetings. (445) The testimony at trial showed that defendant participated in several meetings in which the conspirators planned the importation of 700 kilograms of cocaine. Defendant was also responsible for testing the radio equipment that would be used. Finally, defendant told one informant that he had been part of the drug trafficking team for many years. The First Circuit found it “entirely reasonable” for the district court to conclude that defendant was not minor participant. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit says court did not err in refusing to grant minor role reduction. (445) Defendant and a number of associates were involved in a highly structured and meticulous conspiracy to rob an armored truck at a bank branch. The planning was done during the week before the event. At least eight people were involved. The district court refused to grant defendant a minor reduction, viewing each conspirator’s assigned role (surveillance, confrontation, seizing currency, and driving getaway vehicles) as vital to the success of the enterprise, so that defendant could be deemed substantially as culpable as his partners. The First Circuit found that the district court did not clearly err in finding that defendant did not play a minor role in the offense. U.S. v. Molina-Marrero, 320 F.3d 64 (1st Cir. 2003).
1st Circuit finds that defendant who answered page was not minor participant in drug sale. (445) An undercover officer paged defendant’s brother to confirm her purchase of an ounce of crack later that day. Defendant, rather than his brother, returned the page. Defendant told the agent that he could get “it,” and that either he or his brother would be at the meeting. Defendant’s brother actually met the undercover agents and consummated the drug deal. The Sixth Circuit rejected defendant’s claim that he was a minor participant in the deal. The telephone call defendant made to the undercover agent in response to her page demonstrated that defendant was both aware of and a willing participant in his brother’s drug dealing. During that call, when the agent said the brother was supposed to get her an ounce, defendant responded, “I can get that.” Defendant indicated that for the purposes of the transaction, he was interchangeable with his brother. After the agent questioned whether defendant, rather than his brother, would get the crack, defendant said, “Yeah. Whatever, me or him. He’ll be there too.” Defendant also told the agent that she should ask for him if his brother was not there and he would get the ounce. These facts were sufficient to establish that defendant was a significant, if not equal, participant in the transaction. U.S. v. Melendez, 301 F.3d 27 (1st Cir. 2002).
1st Circuit rules defendant did not have minor role in boyfriend’s attacks and kidnapping of estranged wife. (445) Defendant traveled to Maine with Brown, her boyfriend, and aided and abetting him in kidnapping his estranged wife, and murdering the wife’s brother and current boyfriend. The First Circuit rejected defendant’s claim that she deserved a minor or mitigating role reduction. Defendant facilitated Brown’s travel plans, went with him to Maine, lured the first murder victim from a trailer to a deserted location, knowing Brown intended to incapacitate him, lured the second victim after seeing Brown attack the first victim, and aided and abetted Brown in abducting and holding hostage his estranged wife. U.S. v. Teeter, 257 F.3d 14 (1st Cir. 2001).
1st Circuit denies minor role reduction to defendant who recruited others to help drug transaction. (445) Defendant was a member of the Diablos Motorcycle Club. When an informant who had infiltrated the club asked for volunteers to assist him in a drug deal, defendant voiced his support for the plan, met with the informant outside the meeting to see how many members had volunteered to participate, and offered to recruit additional help. As promised, defendant talked to two other members who later got in contact with the informant, and eventually participated in the transaction. Defendant himself never directly participated in the transaction, but the informant paid defendant $250 for his recruiting efforts. The First Circuit found no error in the court’s refusal to grant defendant a minor role reduction. The record demonstrated that defendant was a “player” rather than a “dabbler.” He (1) participated in the initial planning of the heroin-trafficking conspiracy, (2) knew the scope of the activity, and (3) took the initiative of recruiting two club members to provide security for the transaction. U.S. v. Baltas, 236 F.3d 27 (1st Cir. 2001).
1st Circuit rejects § 3B1.2 reduction where defendant only held accountable for part of conspiracy’s losses. (445) The FBI arrested the owner of Crazy Bob’s, a computer products store that sold stolen merchandise. The owner was able to remove at least 8000 stolen Microsoft Office discs from the store and offered to sell them to another computer store. Defendant, a friend of Crazy Bob’s owner, agreed to handle the transaction for $10 per disc. Defendant argued that he deserved a minimal or minor role reduction because he participated in only this one transaction during the two-year conspiracy. Regardless of defendant’s role in the overall conspiracy, the First Circuit held that defendant did not deserve the reduction because he was not a minimal or minor participant in the conduct that formed the basis of his sentence. Defendant’s offense level was not based on the broad two-year conspiracy; it was based only on the single transaction in which he engaged. He received a 15-level increase for his participation in the attempted sale of $3.9 million worth of stolen Office discs. Other defendants received a 17-level increase for selling $17 million worth of stolen property. Defendant played a critical role in the sale of the 8000 Office discs, which was the largest single sale attempted by Crazy Bob’s. U.S. v. Coviello, 225 F.3d 54 (1st Cir. 2000).
1st Circuit holds that accessory after the fact not entitled to minor role reduction. (445) Defendant pled guilty to being an accessory after the fact to a robbery. She argued that she should have received a reduction under § 3B1.2 for being only a minor participant in the robbery. The First Circuit disagreed, since defendant only pled guilty to being an accessory after the fact. If defendant were charged with conspiracy, then the situation might be different. But defendant only faced one count of acting as an accessory after the fact, and under § 3B1.2, the relevant inquiry is whether she was culpable with respect to this particular offense. Even if defendant was less blameworthy than those who committed the robbery, she was as much of an accessory after the fact as the others charged with that offense. In addition to helping the robbers secret the robbery proceeds, defendant also used a false identity to obtain three hotel rooms for the robbers. U.S. v. Vega-Coreano, 229 F.3d 288 (1st Cir. 2000).
1st Circuit rejects role reduction to drug defendant who acted once as stevedore and once as lookout. (445) Defendant argued that he played either a minimal or a minor role in a large drug-smuggling enterprise, since he acted only once as a stevedore and once as a lookout. In view of defendant’s “on-the-scene involvement in two large scale smuggles,” the First Circuit had no trouble concluding that defendant was not entitled to a minimal role reduction. Defendant’s claim of being a minor participant was a closer question, given that he performed only menial tasks. Nonetheless, the district court did not clearly err in finding that defendant was not entitled to the minor role reduction. Defendant unloaded a sizable drug shipment and conducted surveillance as a member of the conspiracy. The district court concluded that this was enough to categorize defendant as a “player” rather than a “dabbler.” This view was supported by the fact that the government did not charge defendant with anything near the full drug quantity attributable to the conspiracy. U.S. v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000).
1st Circuit says knowledge of scope of conspiracy irrelevant for defendants convicted of possession. (445) Defendants were crewmen on a boat that attempted to smuggle bales of cocaine into the U.S. They argued that they were minor participants because they (1) lacked knowledge of the scope and structure of the offense; (2) performed only unsophisticated tasks; (3) did not make any decisions that were material to the offense; and (4) possessed little, if any, supervisory responsibilities. The First Circuit found these matters irrelevant because defendants were not convicted of conspiracy offenses; they were convicted of possession with intent to distribute. Thus, it mattered little whether defendants knew the structure of or substantially participated in the overall drug conspiracy. The fact that defendants may or may not have been a smaller part of a larger conspiracy did not diminish their role in the charged cocaine possession offense. Defendants were the only three individuals aboard the vessel that carried the cocaine, and there was little or no evidence that one of the defendants was less culpable than the other two. U.S. v. Rosario-Peralta, 199 F.3d 552 (1st Cir. 1999).
1st Circuit denies minor role reduction to lawyer who acted as middleman in extortion scheme. (445) Defendant, a criminal defense lawyer, was convicted of participating in an extortion scheme with two Boston police detectives. He argued that the district court denied him a § 3B1.2 minor role reduction based on the mistaken premise that middlemen in extortion schemes are automatically disqualified from minor or minimal role adjustments. The First Circuit found that the district court did not make such a categorical exclusion. Instead the district court stated only that defendant, as the middle man, played a central part in the extortion scheme. The court did not express a per se rule disqualifying every middle man in an extortion scheme from showing that his role was minor or minimal. Given the knowing and important role played by defendant here, it was not clear error to deny him the reduction. U.S. v. Murphy, 193 F.3d 1 (1st Cir. 1999).
1st Circuit bases reduction on defendant’s role in perjury rather than underlying offense. (445) Defendant, a Boston police officer, was present when Cox, a plain clothes Boston police officer, was allegedly mistaken for a fleeing suspect and beaten by unknown police officers. Defendant was convicted of perjury and obstruction of justice after he told a grand jury that he did not see Cox chase the fleeing suspect and did not see the Cox being beaten. Defendant argued that he was entitled to a § 3B1.2 reduction based on his minimal role in the underlying offenses, the aggravated assault on Cox. The First Circuit held that the relevant criminal activity for purposes of § 3B1.2 was defendant’s perjury and obstruction of justice. The district court’s characterization of the underlying offense as an aggravated assault was for the limited purpose of measuring the gravity of defendant’s perjury and obstruction of justice offenses. For all other purposes, defendant’s offenses of conviction remained perjury and obstruction of justice. U.S. v. Conley, 186 F.3d 7 (1st Cir. 1999).
1st Circuit upholds managerial role for giving addresses for shipments and recruiting receivers. (445) Defendant was involved in a conspiracy that shipped marijuana from San Diego to Massachusetts. The First Circuit affirmed a three-level enhancement for being the manager of a scheme involving at least five participants. Defendant supplied addresses to the San Diego sellers, recruited others as receivers for the falsely addressed packages, and supervised their efforts. Moreover, because the court upheld the managerial role enhancement, defendant’s participation in the offense was not substantially less culpable than the average participant. U.S. v. Conley, 156 F.3d 78 (1st Cir. 1998).
1st Circuit denies minor role for crew of boat carrying cocaine from Colombia to Puerto Rico. (445) Customs pilots tracked a boat traveling towards Puerto Rico with no lights. The boat stopped three miles outside Puerto Rico and dumped overboard what turned out to be 543 kilograms of cocaine. After a chase, customs agents apprehended the boat and arrested all four members of the crew¾the three defendants and the boat’s captain, who is now deceased. Defendants contended they were mere transporters of cocaine, less responsible than other, unnamed participants. The First Circuit affirmed the denial of minor role reductions. All were aboard a boat transporting cocaine from Colombia to Puerto Rico. There was little evidence of their specific duties. The fact that there was a captain did not indicate that the others had a less significant function in the criminal scheme. U.S. v. Coneo-Guerrero, 148 F.3d 44 (1st Cir. 1998).
1st Circuit denies minor role where defendant was more than mere courier. (445) Defendant sought a minor participant reduction, claiming he was a mere courier of money and narcotics. The First Circuit upheld the denial of the § 3B1.2 reduction because defendant’s role was not limited to being a courier. Although the judge at one point referred to defendant as a money courier, this did not mean the judge viewed defendant’s role as limited. The judge also stated that defendant was a “regular drug dealer” who arranged transactions like the others involved. Moreover, even if defendant was no more than a courier, he would not automatically be entitled to a reduction. U.S. v. Gonzalez-Soberal, 109 F.3d 64 (1st Cir. 1997).
1st Circuit holds that defendant did not have mitigating role in school’s student aid fraud. (445) Defendant worked for a distributorship that recruited students for a correspondence school. The school and the distributorship committed numerous frauds involving student financial aid programs. The First Circuit held that defendant did not have a minor or minimal role in the fraud. Defendant’s role in the operation was integral. He recruited students for a program for which the distributor, and in turn defendant, would receive commissions. Defendant falsified information on school applications and federal student loan applications. He was responsible for obtaining student signatures endorsing student loan checks. Defendant even misled some students into believing that by endorsing the check they would be relieved of any indebtedness. Defendant had knowledge of and intent to further the scope and all aspects of the conspiracy. U.S. v. Royal, 100 F.3d 1019 (1st Cir. 1996).
1st Circuit rules defendant did not play minor role in carjacking. (445) Defendant and several others made plans to free two prisoners from jail. They searched out a vehicle bearing government license plates, defendant and a co‑conspirator approached the car, and the co‑conspirator shot and killed the driver. Following the murder, defendant drove the vehicle to his housing development. The First Circuit held that defendant did not play a minor role in the carjacking. Defendant voluntarily participated in planning the jail break‑out, witnessed the delivery of a revolver to be used in the carjacking, drove around with two co‑conspirators for several hours searching for an appropriate vehicle, approached the victim with an armed associate, and drove the vehicle from the carjacking scene, despite having heard the fatal shots. Defendant played a more active role in the carjacking‑murder that at least one associate, who merely waited in the car while the shooter and defendant approached the victim. U.S. v. Nunez-Rodriguez, 92 F.3d 14 (1st Cir. 1996).
1st Circuit says “lookout” was not minimal participant. (445) Defendant drove his brother 100 miles to a hotel for a drug transaction with an undercover agent. Defendant served as the “lookout,” registering in a separate room from his brother and requesting a room overlooking the parking lot from where he surveyed the crime scene before the drugs arrived. Based on these facts, the First Circuit rejected his claim that he was a minimal participant in the transaction. Defendant had already received a two level minor participant reduction. U.S. v. DiMarzo, 80 F.3d 656 (1st Cir. 1996).
1st Circuit says defendant was not a minor participant in drug organization. (445) Defendant was involved in a deal to sell two kilograms of cocaine to a confidential informant. The First Circuit held that defendant was not a minor participant in the transaction. He and the supplier arrived at the seller’s house together with kilogram quantities of cocaine. They left together to sell a kilogram to someone else and returned together. When the transaction with the informant failed, defendant drove the supplier away. He then led agents in a car chase and fled the law. U.S. v. Cartagena-Carrasquillo, 70 F.3d 706 (1st Cir. 1995).
1st Circuit rejects minor role for defendant whose house was used to plan drug smuggling. (445) Defendant was involved in a scheme to smuggle 232.8 kilograms of cocaine into Puerto Rico from Colombia. The First Circuit denied a minor role reduction because defendant was at the beach to assist in the offloading, his house was used regularly to plan the drug smuggling, weapons were shown and discussed at his house, and a communications radio was hidden and used in his backyard. U.S. v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir. 1995).
1st Circuit denies minor reduction to defendant who supplied ships in smuggling operation. (445) Defendant was involved in a scheme to smuggle 232.8 kilograms of cocaine into Puerto Rico from Colombia. The First Circuit denied a minor role reduction because defendant supplied the yawls used to transport the cocaine from a mother ship to the beach, he sailed one of the yawls to the mother ship, helped to unload the drugs from the boat, sailed the drugs to shore and helped unload them on land. U.S. v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir. 1995).
1st Circuit rejects minimal role for defendant who was actively involved with substantial amount of laundered funds. (445) Defendant argued that he was a minimal, rather than a minor, participant in a money laundering operation. Defendant participated for only a few months in the conspiracy and was held responsible for only $3.9 million of the $136 million involved. The First Circuit upheld the rejection of a minimal role reduction, since defendant participated actively in several roles over a significant period and was involved with a substantial amount of laundered funds. U.S. v. Hurley, 63 F.3d 1 (1st Cir. 1995).
1st Circuit agrees that defendant held minor, and not minimal, role in cocaine conspiracy. (445) Defendant was a member of a conspiracy that sold a total of 896.2 grams of cocaine base to an undercover agent on six different occasions. He argued that he was a minimal, rather than just a minor, participant in the conspiracy, stressing his unfamiliarity with English and his absence at the group’s largest transaction. The 1st Circuit sustained the district court’s finding that defendant was not a minimal participant. He was involved in at least four cocaine transactions and performed a number of different functions, including guarding the drugs, conducting countersurveillance, and delivering cocaine base to the agent. U.S. v. Munoz, 36 F.3d 1229 (1st Cir. 1994).
1st Circuit denies minor role to defendant who funded fraudulent buyer down payments. (445) Defendant was involved in a scheme to obtain bank loans by fraudulently representing the existence of down payments. Defendant actually funded $470,000 in buyer down payments, which were returned to him when the deals closed. The 1st Circuit upheld the denial of a minor role reduction. The $470,000 defendant provided to fund buyer down payments was a significant contribution to the fraudulent scheme. Defendant was not less culpable than most of the other defendants, let alone substantially less culpable than the average defendant. U.S. v. Brandon, 17 F.3d 409 (1st Cir. 1994).
1st Circuit refuses to review minor participant claim that would not affect mandatory minimum sentence. (445) Defendant argued that she should have received a reduction for role in the offense under section 3B1.2. The 1st Circuit refused to consider the claim, since even if the reduction were granted, it would have no effect on her sentence due to the “overriding force” of the mandatory minimum sentence required by 21 U.S.C. section 841(b)(1)(B). U.S. v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993).
1st Circuit rejects minimal role for bodyguard of “money man” in drug deal. (445) Defendant guarded the man who held the money for a drug transaction. The 1st Circuit rejected defendant’s claim that he was entitled to a minimal role reduction. In his role as a guard for the money, defendant occupied a position integral to the completion of the deal. Indeed, a co-defendant testified that such protection was necessary because the “money man” had “lost money” in prior transactions. U.S. v. Mena-Robles, 4 F.3d 1026 (1st Cir. 1993).
1st Circuit finds appraiser was not minor participant in mortgage fraud scheme. (445) Defendant was involved in a fraud scheme under which real property was purchased for a low price, immediately sold at a much higher price to a straw buyer, and the higher resale price is used as the basis for obtaining a mortgage loan. Defendant was the real estate appraiser, whose appraisals of the properties were relied on by the mortgage lenders in making their loans. The 1st Circuit upheld the denial of a minor role reduction. The lenders relied on defendant’s inflated appraisals in making their mortgage loans, and without those appraisals the scheme might not have succeeded. Although the lawyers involved were more culpable than defendant, the straw buyers were the relatively minor cog in the scheme to defraud the lenders. Thus, defendant was not less culpable than most other participants. U.S. v. Cassiere, 4 F.3d 1006 (1st Cir. 1993).
1st Circuit refuses reduction where defendant offered nothing but denial to prove mitigating role. (445) Defendant was convicted of drug charges after police discovered cocaine hidden in bedroom that she shared with a co-defendant. The 1st Circuit found defendant failed to prove she was entitled to a mitigating role adjustment. The co-defendant testified that neither defendant was involved with drugs, and that the drugs might have belonged to his brother. However, neither the jury nor the sentencing judge credited these contentions, and defendant offered nothing else to meet her burden of proving that she acted in a lesser capacity. U.S. v. Jackson, 3 F.3d 506 (1st Cir. 1993).
1st Circuit rejects mitigating role adjustment to “major customer” of drug conspiracy. (445) The 1st Circuit upheld the denial of a mitigating role adjustment to a defendant who was a “major purchaser” of cocaine from a drug conspiracy. The district court was justified in concluding that defendant’s monthly purchases of cocaine helped keep the conspiracy in operation. Only two of the nine other conspirators had more cocaine attributed to them. U.S. v. Innamorati, 996 F.2d 456 (1st Cir. 1993).
1st Circuit denies minimal participant status to defendant who provided services to drug distributor. (445) Although not personally involved in drug transactions, defendant provided various services to a drug distributor, including setting up his communications network and running license plate registry checks on prospective customers. The 1st Circuit affirmed that defendant was not a minor participant in the drug conspiracy in light of his substantial assistance to and close association with the distributor. However, the district court found that defendant played a limited role in the distributor’s overall distribution activities, and was not shown to have cocaine himself or to have shared in the profits. It was “reasonable, indeed generous” to award defendant a three-level reduction for persons falling in between the minimal and minor participant categories. U.S. v. Innamorati, 996 F.2d 456 (1st Cir. 1993).
1st Circuit affirms denial of minimal role adjustment for defendant who off-loaded several drug shipments. (445) Defendant argued that he should have been given a minimal role reduction because he merely off-loaded drug shipments. The 1st Circuit disagreed. The commentary indicates that the minimal participant reduction is to be used sparingly, as for a defendant who engages in a single off-loading. Because there was credible evidence that defendant engaged in a number of off-loadings, the district court’s decision was affirmed. The court assumed that the sentencing judge had made appropriate findings in light of defendant’s failure to supply a transcript of the sentencing proceeding. U.S. v. Ortiz-Arrigoitia, 996 F.2d 436 (1st Cir. 1993).
1st Circuit uses relevant conduct to reject claim that defendant was minor participant. (445) The 1st Circuit rejected defendant’s claim that he was a minor participant based in part on his role in a drug transaction that was the subject of a dismissed count. It was clear from this transaction that defendant and his co-defendant were roughly equal partners, sharing risks, responsibilities and rewards. Evidence of prior conduct related to a defunct count is relevant and admissible “to complete the story of the charged crime and the context in which the crime occurred.” The particular transaction involved a sample for the larger transaction that the parties were contemplating. It was therefore reasonable for the judge to extrapolate from the events of the smaller transaction to determine defendant’s place within, and relationship to, the charged conspiracy. U.S. v. Ocasio-Rivera, 991 F.2d 1 (1st Cir. 1993).
1st Circuit rejects mitigating role for late-comer involved in 10 of 124 fraudulent claims. (445) Defendant was involved in a conspiracy which made 124 fraudulent insurance claims amounting to $620,000. Defendant joined the conspiracy 18 months after it began, and was only involved in 10 of the fraudulent claims. The 1st Circuit affirmed the denial of a mitigating role adjustment under section 3B1.2. Although defendant joined the conspiracy late, his involvement was active for a year until his arrest. He was directly involved in at least 10 fraudulent claims, and the district court could conclude that defendant was an integral part of the conspiracy. U.S. v. Balogun, 989 F.2d 20 (1st Cir. 1993).
1st Circuit affirms that by carrying forged instruments, defendant was not a minor participant. (445) Defendant was arrested at the airport in possession of forged cashier’s checks and demand drafts with a total face value of more than $18 million. Defendant testified that he hoped to get 80 percent of the face amount of the checks, but that he might accept as little as 40 percent of face value. The 1st Circuit affirmed that defendant was not a minor participant under section 3B1.2(b). Given the letters found in defendant’s briefcase and the above evidence, the district court could have found that defendant was “no mere mule,” but a “critical player in a wide-ranging fraud scheme.” U.S. v. Resurreccion, 978 F.2d 759 (1st Cir. 1992).
1st Circuit affirms that defendant who showed cash to informant was not a minimal participant. (445) The 1st Circuit rejected defendant’s request for a four-level reduction as a minimal participant. There was evidence that defendant was a passenger in the car used to deliver the money to purchase two kilograms of cocaine from a government informant, that she pulled the money bag from under the car seat, and showed the cash to the informant. Moreover, defendant told the informant that there was $30,000 in the bag, which was correct. U.S. v. Figueroa, 976 F.2d 1446 (1st Cir. 1992).
1st Circuit affirms that defendant who checked on whereabouts of arrested co-conspirator was not a minor participant. (445) One defendant sold drugs to an undercover agent on three occasions. After the third sale, the defendant was arrested. About 90 minutes after the sale, a second defendant called the undercover agent to check on the first defendant’s whereabouts, since she had not returned home with the drugs or the money. The 1st Circuit affirmed that neither defendant was a minor participant. Each played a critical role in the conspiracy. For the first defendant, it was as the telephone point of contact and the actual transfer agent for the drugs and money. For the second defendant, it was his “attentive follow up for a significant transaction the conspirators had undertaken.” U.S. v. O’Campo, 973 F.2d 1015 (1st Cir. 1992).
1st Circuit rules that drug “steerer” was not minor participant. (445) Defendant contended that he deserved a minor role reduction because he was merely a “steerer” in the drug sale, i.e. one who makes the arrangements for a drug sale. The 1st Circuit affirmed that defendant was not entitled to the reduction. Defendant made the initial contact with the drug source, revealed both the price and quantity of drugs to be sold, used his house for the transaction, and remained present during the transaction. U.S. v. Sostre, 967 F.2d 728 (1st Cir. 1992).
1st Circuit rules that defendant failed to demonstrate right to mitigating role adjustment. (445) The 1st Circuit rejected defendant’s claim that he was entitled to a minor role reduction for two reasons. First, the record did not reflect that he raised the point with sufficient clarity at the time of sentencing, and therefore the question was waived. Second, defendant did not come close to demonstrating an entitlement to a reduction. A defendant has the burden of proving that he merits a downward adjustment in the offense level. Considering that role-in-the-offense determinations are ordinarily fact bound, and that defendant was charged only with aiding and abetting a sale at which he was culpably present, the sentencing court was not legally required to label him a minor or minimal participant in that offense. U.S. v. Ortiz, 966 F.2d 707 (1st Cir. 1992).
1st Circuit rejects minor role for defendant who made arrangements for cocaine to be transported. (445) The 1st Circuit rejected defendant’s contention that he was a minor participant in a drug transaction. The government’s proffer regarding defendant’s role in the offense indicated that he made the initial contacts to have the cocaine brought into Florida; contacted the informant to arrange transportation of the cocaine; actively participated in several meetings; made the contacts and arrangements to bring the cocaine to several meetings; and agreed to pay $1700 per kilogram upon delivery. U.S. v. Daniel, 962 F.2d 100 (1st Cir. 1992).
1st Circuit affirms that defendant was minor rather than minimal participant in drug conspiracy. (445) The 1st Circuit affirmed the district court’s determination that defendant was a minor, rather than a minimal, participant in a drug conspiracy. Defendant was not a supplier nor was he directly involved in the distribution of the cocaine. However, his role was supportive in nature. Based upon the amount of money he was to collect, the purity of the cocaine and the amount of the cocaine, the district court concluded defendant was a minor participant. Defendant’s claim that he was a mere traveling companion for his more culpable co-conspirator was not supported by the jury’s verdict. The jury clearly believed that defendant attempted to collect the first installment payment on a 26 kilogram delivery of cocaine. U.S. v. Cortes, 949 F.2d 532 (1st Cir. 1991).
1st Circuit denies mitigating role adjustment despite conflicting testimony as to defendant’s involvement. (445) Three police officers testified that when they entered defendant’s house, she and her husband were down in the basement next to a table where the cocaine was located. Defendant denied this. She contended that she was entitled to a mitigating role adjustment, emphasizing the testimony of her son-in-law to the effect that she was not involved in the drug operation. The 1st Circuit affirmed the enhancement, since the refusal to grant the enhancement was supported by the plausible testimony of the police officers. Although defendant was acquitted of conspiracy, this did not automatically entitle her to a reduction under section 3B1.2. The district court took account of the acquittal, reasoning that defendant “was much less than a full participant because she wasn’t found guilty of conspiracy, but she was certainly guilty of possession with intent to distribute as the jury found, not just a minimal, or minor participant.” U.S. v. Brum, 948 F.2d 817 (1st Cir. 1991).
1st Circuit rejects claim that the district court failed to consider defendant’s mitigating role in the offense. (445) In defendant’s first appeal, the 1st Circuit remanded because the district court improperly imposed a four level leadership enhancement. On remand, the district court found that defendant did not act in any supervisory capacity, but rather was the “in between man,” “the messenger.” Accordingly, the court did not apply any enhancement under guideline section 3B1.1. The 1st Circuit rejected defendant’s claim that the district court failed to consider his minimal role in the offense. The court specifically found defendant to be a messenger, and then determined his total offense level without any reduction for a mitigating role under section 3B1.2. The district court’s finding did not inevitably lead to the conclusion that defendant played a minor or minimal role in the offense. U.S. v. McDowell, 957 F.2d 36 (1st Cir. 1992).
1st Circuit rejects four-level reduction for defendant who was “loyal lieutenant” in boyfriend’s drug activity. (445) Defendant contended that she should have received a four level, rather than three level, reduction in offense level based upon her minimal role in her boyfriend’s drug activities. The 1st Circuit affirmed the denial of the four level reduction. Although defendant was clearly less culpable than her boyfriend, she acted as a “loyal lieutenant” in the drug deals. Defendant was well aware that her boyfriend hoped to arrange additional transactions of cocaine on a weekly basis. She also expressed a fear that the undercover agents might be cops, and suggested that future transactions be moved to an establishment known for cocaine trafficking. She also appeared at a meeting at which the agents paid for the drugs, and she counted the money. All of this belied any claim that she was unaware of the scope and structure of the boyfriend’s activities. U.S. v. DiIorio, 948 F.2d 1 (1st Cir. 1991).
1st Circuit rejects minimal role based on drugs in plain sight and readily available cash in defendant’s apartment. (445) Defendant was arrested after police discovered cocaine and large amounts of cash in the apartment she shared with her boyfriend. Although defendant was found to be less culpable than her boyfriend, the district court refused to classify her as a minimal participant based upon the drugs in plain sight and the readily accessible cash found in the apartment. The district court therefore classified defendant’s role as minor. The 1st Circuit affirmed, finding no clear error. U.S. v. Tabares, 951 F.2d 405 (1st Cir. 1991).
1st Circuit rejects minor or minimal role reduction despite “paucity of evidence” linking defendant to crimes. (445) The 1st Circuit found that defendant failed to meet the “heavy burden” of persuading it that the district court erred in denying him a reduction for being a minor or minimal participant. True, there was not a great deal of evidence linking him to the drug trafficking crime for which he was convicted. “But the paucity of evidence [did] not compel the conclusion that [defendant] was only minimally involved in the crimes.” Two judges and two trial juries were convinced that defendant possessed crack and cocaine. U.S. v. Arache, 946 F.2d 129 (1st Cir. 1991).
1st Circuit rejects minor role for defendant who received money and handed drugs to government agent. (445) The 1st Circuit rejected defendant’s contention that he was a minor participant in a drug transaction which took place in the store in which he worked. Defendant’s receipt of the money, his contacts with the drug courier, and his having handed the drugs to the agent, taken together, justified the district court’s denial of the reduction. U.S. v. Torres, 960 F.2d 226 (1st Cir. 1992).
1st Circuit rejects minor role reduction for architect of fraudulent loan transactions. (445) Defendant, a real estate broker, pled guilty to 11 counts of filing false residential mortgage loan documents. The 1st Circuit upheld the district court’s decision to deny defendant a reduction for playing a minor role in the offense. Defendant incorrectly attempted to direct attention to “an extensive web of fraud” which led to the bank’s demise, rather than his own role in the offense of conviction. With respect to all eleven offenses, defendant was the “architect” of the false statements. He was the direct beneficiary of the two of the loans, and brokered the other nine. His criminal activity represented an important contribution to the criminal enterprise. U.S. v. Gregorio, 956 F.2d 341 (1st Cir. 1992).
1st Circuit agrees that defendant who accompanied supplier on drug sale and vouched for cocaine was not minor participant. (445) The 1st Circuit summarily affirmed the district court’s determination that defendant was not a minor participant. Defendant was arrested with four others in connection with an attempted sale of one kilogram of cocaine to an undercover agent. Defendant was to have been paid $600 for his involvement. Defendant worked for the supplier of the cocaine, and accompanied the supplier on the drug sale to the agent. At the supplier’s direction, defendant directed the agent into the supplier’s car to complete the sale. As the agent was shown the cocaine, defendant vouched for its quality and pledged that the agent could exchange it if not satisfied. U.S. v. Rosado-Sierra, 938 F.2d 1 (1st Cir. 1991).
1st Circuit refuses minimal participant status to defendant who was involved in initial planning of drug operation. (445) Defendant was involved in a plan to smuggle cocaine into the United States by dropping the cocaine in coolers from a plane into the ocean, and then retrieving the coolers by boat. Defendant contended he was entitled to minimal participant status because unlike his co-conspirators, he did not drive a boat, was not a mechanic, and did not carry money. The 1st Circuit rejected this argument, noting that it ignored the fact that defendant (a) was involved in the initial planning of the operation, (b) helped ready the boats, (c) travelled in the plane to Colombia to obtain the cocaine, (d) was responsible for throwing the cocaine into the water, and (e) was the one who dealt with customs officials. U.S. v. Valencia-Lucena, 925 F.2d 506 (1st Cir. 1991).
1st Circuit denies reduction for minor role to defendant notwithstanding factual error in presentence report. (445) Defendant contended that a factual error in his presentence report, which erroneously stated that he had handed cocaine to an undercover government agent, prevented him from receiving a reduction for being a minor or minimal participant. The 1st Circuit found that despite the asserted mistake, the record did not support a finding that defendant had a minor or minimal role in the offense. Defendant drove the car containing the cocaine, initiated the contact with the buyers, gave the signal to an accomplice to produce the drug, and accompanied the government agent to his car to receive payment. Moreover, a reduction for his role in the offense would not have helped defendant. As a career offender, his offense level of 34, derived from the table in guideline § 4B1.1, was greater than the offense level that would result if he had received the greatest mitigating role in the offense adjustment. U.S. v. Morales-Diaz, 925 F.2d 535 (1st Cir. 1991).
1st Circuit affirms that crewman on ship carrying cocaine was not a minor or minimal participant. (445) Defendant was one of five crewman on a 70-foot boat found to be carrying 386 kilograms of cocaine hidden in a secret compartment. Defendant contended that he was entitled to a reduction for being either a minor or a minimal participant, pointing to the fact that he had been a fisherman or assistant machinist all his life, and that his name appeared last on the list of crew members. The 1st Circuit found that the district court’s refusal to grant the reduction was not clearly erroneous. U.S. v. Passos-Paternina, 918 F.2d 979 (1st Cir. 1990).
1st Circuit finds that defendant who aided a prisoner’s escape from prison was not a minor participant. (445) The 1st Circuit rejected defendant’s argument that he was a minor participant in another prisoner’s escape from a federal prison. On instructions from a corrupt prison guard who promised him money, defendant passed the prisoner off as someone else to enable him to gain access to a different work detail. Defendant acted as lookout once the attempt was underway, and had a hand in other essential elements of the prisoner’s escape. On these facts, the court found that defendant was not “substantially less culpable” than the “average” person who helped a prisoner escape. U.S. v. Ocasio, 914 F.2d 330 (1st Cir. 1990).
1st Circuit agrees that defendant who assisted in smuggling aliens was not a minor nor a minimal participant. (445) Defendant was a passenger on a boat smuggling illegal aliens into Puerto Rico. The owner of the vessel then hired defendant to assist in operating the boat under the owner’s supervision. When the boat landed in Puerto Rico, defendant remained aboard to make one more smuggling trip, after which he would have remained in Puerto Rico. The probation officer recommended that defendant’s sentence be decreased by three levels for being more than a minimal but less than minor participant. The the district court refused to follow the recommendation, and the 1st Circuit found no plain error. The court noted that the defendant took an active role in the smuggling operation by operating the vessel. U.S. v. Trinidad De La Rosa, 916 F.2d 27 (1st Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Reyes, 927 F.2d 48 (1st Cir. 1991).
1st Circuit upholds denial of minimal participant adjustment for drug courier. (445) Appellant argued that, since he was only a courier for one drug transaction, while his two co-defendants were involved in much more extensive drug activity, the district court should have granted him a reduction as a minimal or minor participant. The 1st Circuit responded that this “ignores the fact that the appellant was only charged with one count of a four-count indictment, and that count described only the one transaction for which he was convicted.” The district court was “not legally required” to consider a minimal or minor participant reduction, for the appellant “did deliver the heroin and did collect the money for it.” U.S. v. Cepeda, 907 F.2d 11 (1st Cir. 1990).
1st Circuit upholds denial of minimal or minor role adjustment even if defendant were only a drug courier. (445) Defendant claimed that he had been tricked into transporting cocaine. However, there was no evidence that there were other participants in the importation, and the 1st Circuit held that even if he were only a courier, he would not have automatically have been entitled to a reduction for minor or minimal role. The sentencing court’s finding was not clearly erroneous. U.S. v. Paz-Uribe, 891 F.2d 396 (1st Cir. 1989).
1st Circuit rules failure to follow recommendation as to minor role was not error. (445) A crew member of a cruise ship pled guilty to unlawfully possessing cocaine on a ship entering the United States. Defendant argued that the failure to grant a 2 point reduction in his base offense level due to his minor role was error, because the Probation Department had recommended it. The 1st Circuit disagreed. Only the sentencing court has the power to impose sentence and refuse to grant an adjustment. There was no error in the court’s refusal to follow the recommendation. U.S. v. Wright, 873 F.2d 437 (1st Cir. 1989).
2nd Circuit holds drug “mule” failed to establish that he was minor participant. (445) Defendant, a Canadian citizen, was arrested driving into the U.S. after customs officials discovered thousands of pills containing 3, 4 methylenedioxymethamphetamine (“MDMA”), a Schedule I controlled substance, in his car. He argued that he was “a onetime drug mule,” and deserved a § 3B1.2 minor role adjustment. The Second Circuit upheld the denial of the reduction. A courier is not automatically entitled to minor role reduction based on that status. It was defendant’s burden to establish that his conduct was minor “as compared to the average participant” in the crime of conviction. This inquiry is highly fact-intensive and, in cases involving drug couriers, necessarily depends on factors like “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.” Defendant did not meet this burden since he failed to present any evidence or arguments addressing these factors. U.S. v. Kerr, 752 F.3d 206 (2d Cir. 2014).
2nd Circuit says defendant did not have minor role in bribery scheme. (445) Defendant was convicted of bribing a New York City Department of Finance official to induce him to eliminate taxes on various parcels of property in the city. The Second Circuit held that defendant was not entitled to a minor role reduction based on evidence that he played a significant and proactive role in the conspiracy: he initiated contact with the official, met with him repeatedly, gave him lists of properties, reached an agreement with him to pay bribes worth 10 percent of the value of the taxes eliminated, and offered and paid bribes to him in exchange for the deletion of tax bills from the city’s computer records. U.S. v. Brunshtein, 344 F.3d 91 (2d Cir. 2003).
2nd Circuit says defendant who stole calling card numbers for others’ fraudulent use was not minor participant. (445) Defendant stole at least 600 calling cards numbers. The numbers were passed on to his associates here and abroad where they were used as part of a scheme involving fraudulent international conference calls, resulting in a loss of over $700,000. He argued that he was entitled to a minor participant reduction because he did not participate in or benefit from the sale of the calling cards once they were relayed overseas. The Second Circuit disagreed, since defendant was the original source of the cards. Given the volume of cards he illicitly procured and his extensive and important role in the trafficking operation, the district court did not err in denying the reduction. U.S. v. Maaraki, 328 F.3d 73 (2d Cir. 2003).
2nd Circuit rejects minor role reduction for defendant who brokered drug deal. (445) Defendant helped broker a drug sale from Au Yong to Ah Chau. When Au Yong expressed reluctance to sell heroin to Ah Chau, defendant contacted Ah Chau, and at his next meeting with Au Yong, assured him there was “no problem” with Ah Chau. Defendant also supplied Au Yong with multiple names and phone numbers and spoke to potential customers on Au Yong’s behalf. Defendant’s vouching for Ah Chau removed an obstacle to the scheme, at least in Au Yong’s eyes. Defendant’s importance relative to the other conspirators was clearly quite high; he was a trusted authority, as it was on his word that the sales to Ah Chau were consummated; he was also aware of the nature and scope of the enterprise, as evidenced by taped conversations in which defendant suggested to Au Yong that successful sales to co-defendant Lawson could lead to a “deluge” of business. The Second Circuit concluded that defendant’s role in the conspiracy was not “minor” so as to warrant a § 3B1.2 reduction in his offense level. U.S. v. Yu, 285 F.3d 192 (2d Cir. 2002).
2nd Circuit holds that court incorrectly compared defendant’s role only to that of co-conspirator. (445) Defendant participated in a conspiracy to steal firearms from a chain of sporting goods stores and resell them. The district court found that defendant’s role was much less culpable than that of Wise, and granted him a three-level mitigating role reduction. The Second Circuit held that the district court incorrectly compared defendant’s role to that of Wise rather than to the average participant in a similar firearm theft conspiracy. Moreover, because the relevant facts were clear from the record, the appellate court choose to decide defendant’s entitlement to a mitigating role adjustment in the first instance, and concluded that he did not have a mitigating role. As a partner in a business that was a federally licensed dealer, defendant was able to regularly purchase and transfer firearms without suspicion. This fact was critical to the success of the conspiracy. Further, defendant falsely executed the ATF forms that were designed to conceal the thefts of the firearms. Thus, he possessed an intimate “knowledge or understanding of the scope and structure of the enterprise” for which he pleaded guilty. U.S. v. Carpenter, 252 F.3d 230 (2d Cir. 2001).
2nd Circuit holds that defendant did not play minor role in murder for hire scheme. (445) A Colombian drug cartel hired Mena to kill a newspaper publisher. Mena hired defendant’s husband. After one aborted attempt, the husband subcontracted the murder to three men, one of whom ultimately shot and killed the victim. Defendant assisted the three men by (1) showing them a photograph of the victim so that they could identify him; (2) identifying the victim at a restaurant on the night of the murder; (3) coordinating the payment of the men; and (4) by receiving money for her participation and that of her husband in the killing. The Second Circuit held that defendant did not play a minor role in the murder for hire scheme. Although defendant did not pull the trigger, neither did anyone else in the conspiracy except for the triggerman. By identifying the victim for the killer, defendant played as large a role in the physical act of murder as the three men, except for the triggerman, and a greater role than her husband, Mena, and the members of the cartel. Moreover, like most of the other participants, she received money for her efforts. U.S. v. Castano, 234 F.3d 111 (2d Cir. 2000).
2nd Circuit rejects minor role where defendant only held accountable for money he laundered. (445) Defendant argued that his role in a money laundering conspiracy was minor because he laundered only $20-25 million of the more than $500 million that passed through the hands of his co-conspirators. The Second Circuit disagreed. Defendant admitted his personal involvement in laundering more than $20 million, and his offense level was increased by ten levels under § 2S1.1(b)(2)(K), not by the 13 levels that would have been required under § 2S1.1(b)(2)(N) if he were held accountable for the full $500 million. Thus, defendant’s personal involvement in less than the total amount laundered by the conspiracy was factored into his sentence. U.S. v. Finkelstein, 229 F.3d 90 (2d Cir. 2000).
2nd Circuit upholds denial of minimal participant reduction and full restitution. (445) Defendant noted that in calculating restitution, the court evaluated the damage suffered by victims of the conspiracy as a whole, including counts as to which defendant was acquitted. However, in denying defendant’s motion for a minimal participant reduction, the court evaluated her role in terms of the counts of conviction alone. She argued that if she was financially responsible for the losses caused by the entire conspiracy, then she should be deemed a small cog in the big conspiracy for purposes of determining her role in the offense. The Second Circuit found that any inconsistency between the denial of the minimal participant reduction and the order of full restitution was not plain error. Neither ruling was inconsistent with the authority on which it was based. The restitution statute provides that every member of a conspiracy be liable for full restitution, regardless of the role that each may have performed. See 18 U.S.C. § 2327(b)(4)(A). Guideline § 3B1.2 is just as clear and provides that a minimal participant reduction is rare and should only be based on the particular defendant’s individual acts as they relate to the counts of conviction. Under the plain error approach, it was enough that the sentencing court did not deviate from settled law in either of the two rulings. Error, if any, was not “clear” or “obvious” under current law. U.S. v. Boyd, 222 F.3d 47 (2d Cir. 2000).
2nd Circuit agrees defendant did not play mitigating role in alien smuggling scheme. (445) Defendant and her husband were involved in a conspiracy to smuggle aliens from China into the United States. The Second Circuit held that the district court did not abuse its discretion in refusing to grant defendant a reduction for her role in the conspiracy. The district court referred to specific facts supporting its determination that defendant’s role in the offense was not minor, including her helping to coordinate the smuggling scheme, housing smuggled aliens, and being paid for her participation in the scheme. U.S. v. Colon, 220 F.3d 48 (2d Cir. 2000).
2nd Circuit denies role in the offense reduction where sentence was based on limited role. (445) Defendant, a commodities broker at a securities broker-dealer, helped an investment advisor perpetrate a fraud by sending the advisor’s clients false information about their account balances. Defendant argued that the district court erred when it found that her role in the offense was neither minor nor minimal. The Second Circuit held that defendant was not entitled to the reduction since her sentence was based on her limited involvement in the conspiracy. Defendant was charged and convicted on the basis of her role in fraudulently confirming only one audit verification. Although the scope of her activity was not as extensive as that of other participants, her significant role in accomplishing her portion of the fraud precluded a minor role reduction. U.S. v. Goodman, 165 F.3d 169 (2d Cir. 1999).
2nd Circuit denies middleman a minor role reduction. (445) Defendant pled guilty to various drug related offenses. The Second Circuit upheld the denial of a minor role reduction because there was ample evidence that defendant was a middleman in drug transactions. For example, in a recorded telephone conversation, defendant told a co-conspirator that he had just sold 14 grams of crack for the co-conspirator. U.S. v. Hargrett, 156 F.3d 447 (2d Cir. 1998).
2nd Circuit rejects minor role for defendant who played central role in two gun deals. (445) An undercover agent posing as a drug dealer seeking to sell heroin and to purchase firearms met with defendant and another man. Defendant agreed to sell two pistols to the agent for $700, and told the agent to deal with his associate. The agent handed the money to the associate, who gave two pistols to the agents and the money to defendant. The next day, defendant and the agent discussed the sale of two additional firearms. The agent eventually purchased two additional guns from defendant and another associate. Defendant also discussed purchasing heroin from the agent. Defendant argued that he played a mitigating role in the two gun transactions, because he was neither the buyer nor the seller. The Second Circuit upheld the denial of the reduction. The district court rejected defendant’s argument that he was merely the broker, terming it “arrant nonsense.” The recorded conversations supported a finding that defendant was central to both gun transactions. U.S. v. Gomez, 103 F.3d 249 (2d Cir. 1997).
2nd Circuit rejects minor role reduction where defendant only charged with smaller conspiracy. (445) Defendant employed an accounting firm to prepare his tax returns. The firm orchestrated a tax evasion scheme with more than 20 participants. After rejecting a § 2T1.1(b)(2) sophisticated means enhancement, the district court stated that if the enhancement were applicable, it would grant defendant a minor role reduction, which would, in effect, cancel it out. After finding the § 2T1.1(b)(2) enhancement applicable, the 2nd Circuit held that no minor role adjustment would be appropriate here. Although the accounting firm engaged in a large scale tax evasion conspiracy, defendant was only charged with participating in a small part of that conspiracy. His base offense level was calculated based on that limited role and not his role in the entire conspiracy. A § 3B1.2 reduction would therefore be inappropriate. U.S. v. Lewis, 93 F.3d 1075 (2d Cir. 1996).
2nd Circuit finds defendant was not a minor participant in labor extortion conspiracy. (445) Defendant was a member of a “minority labor coalition” that extorted money, jobs, and subcontracts from construction contractors. The Second Circuit ruled that defendant did not play a minor role in the conspiracy. Defendant led the “shape,” the group of members that would invade a work site and forcibly stop the work if the contractor did not agree to employ a coalition member. U.S. v. Taylor, 92 F.3d 1313 (2d Cir. 1996).
2nd Circuit says firearms dealer did not play minor role in illegal sales. (445) Defendant, a licensed firearms dealer, sold more than 100 guns to three men who resold the guns to drug traffickers in New York City. The Second Circuit held that defendant did not play a minor role in the conspiracy to violate federal firearms laws. Defendant played an important and significant part in the conspiracy. As a federally licensed dealer, he supplied all of the guns involved. Without his participation there would have been no transfer and subsequent sale of the weapons. Moreover, he maintained the false records that were designed to conceal the illegal gun sales. The fact that he did not himself transfer any of the guns to New York City did not make his participation minor. U.S. v. Martin, 78 F.3d 808 (2d Cir. 1996).
2nd Circuit says defendant with extensive knowledge of drug importation scheme was more than courier. (445) Defendant was arrested at the airport attempting to smuggle eight kilograms of heroin into the U.S. The Second Circuit rejected a minor role reduction, finding defendant was more than a courier. Defendant had extensive knowledge of the importation scheme and was connected to it in a variety of ways. U.S. v. Idowu, 74 F.3d 387 (2d Cir. 1996).
2nd Circuit says defendant who received more than $350,000 was not a minor participant. (445) Defendant argued that he played a minor role in a drug conspiracy. The Second Circuit found this argument “frivolous,” since defendant was responsible for at least 132 pounds of marijuana, and received more than $350,000 in proceeds. Given the evidence that defendant might have been responsible for twice the quantity actually attributed to him, defendant clearly was not a minor participant. t authorize the court to sentence a defendant meeting its criteria to a sentence below the guidelines range. U.S. v. Thompson, 76 F.3d 442 (2d Cir. 1996).
2nd Circuit denies minimal role reduction where defendant knew of continuous drug sales at her apartment. (445) Defendant was arrested at her apartment after she accepted a shipment of drugs from a courier. She conceded that she allowed her apartment to be used as a storage and transfer place for drugs and that she received payment for this. However, she claimed she was a minimal participant because her role was limited to letting others use her apartment. The Second Circuit disagreed, since defendant’s role was not so limited. The courier testified that at least twice defendant had met him at the airport to pick up the narcotics herself and on two other occasions he had delivered the drugs directly to her apartment. Moreover, even under defendant’s version of the facts, she would not be a minimal participant because of her admitted knowledge of the continuous drug sales taking place at her apartment and her repeated involvement in the scheme. U.S. v. Dia, 69 F.3d 291 (9th Cir. 1995).
2nd Circuit says court must compare defendant to average participant in offense rather than co-conspirators. (445) The district court granted defendant a § 3B1.2 reduction, stating that defendant’s conduct was “minor in relation to the other defendants.” The Second Circuit held that the court should compare defendant’s conduct to the average participant in his type of drug crime, rather than just to his co-conspirators. To the extent the court based its determination solely upon the relative culpability of defendant and his co-conspirators, it misconstrued the law. U.S. v. Ajmal, 67 F.3d 12 (2d Cir. 1995).
2nd Circuit denies role reduction to defendant who delivered money, received guns, and removed serial numbers. (445) Defendant was convicted of conspiring to deal in firearms and to possess firearms with obliterated serial numbers. The Second Circuit held that defendant did not prove that he was entitled to a minimal role reduction. Defendant was entrusted by a co-conspirator with money for delivery to the gun seller, and he repeatedly picked up guns from the seller and delivered them to or for the co-conspirator. Further, although the seller testified that he never saw defendant deface guns, defendant himself told his girlfriend of his involvement in grinding serial numbers off the guns. U.S. v. Sasso, 59 F.3d 341 (2d Cir. 1995).
2nd Circuit says defendant’s culpability may be measured against “average” defendant. (445) Defendant and a co-defendant robbed a post office. The district court denied a minor role reduction since defendant brandished a weapon and demanded the money. Defendant argued that the court should not examine his culpability relative to the typical offender convicted of the same crime, but should focus exclusively on his culpability relative to his cohorts. The 2nd Circuit held that this interpretation was contrary to the plain language of the commentary to § 3B1.2 and the rationale underlying the guidelines. The background commentary expressly provides that culpability is to be measured against “the average participant.” A defendant’s role is determined not only by comparing the acts of each participant, but also by measuring each participant’s individual acts against the elements of the offense of conviction. U.S. v. Pena, 33 F.3d 2 (2nd Cir. 1994).
2nd Circuit rejects mitigating role reduction for defendant who helped plan robbery and served as “look-out.” (445) Defendant was convicted of conspiring to rob a U.S. Postal truck. The 2nd Circuit denied him a mitigating role reduction, since defendant was involved in planning the robbery and served as a “look-out.” U.S. v. Aponte, 31 F.3d 86 (2nd Cir. 1994).
2nd Circuit rejects minor role where offense level was based only on drug sales made by defendant. (445) Defendant was a “first-level diverter” who purchased legally issued prescription drugs from Medicaid recipients. He repackaged the drugs and sold them to “high-level diverters,” who sold their inventories to other diverters or to pharmacists. The pharmacists then dispensed the drugs at retail prices to unsuspecting customers. Defendant claimed he was entitled to a minor role reduction based on his role in the overall drug diversion scheme. The 2nd Circuit upheld the denial of the reduction, finding the district court properly based defendant’s role in the offense solely on the actions of defendant and his co-defendant. Defendant’s base offense level was predicated on the amounts of drugs involved in the sales defendant and his co-defendant made to the undercover agent, instead of the total amount involved in the entire drug diversion scheme. U.S. v. Gomez, 31 F.3d 28 (2nd Cir. 1994).
2nd Circuit rejects minor role where defendant was not charged with more serious crime. (445) While preparing to board a flight to Colombia, defendant falsely reported that she was not transporting more than $10,000 in currency. In fact, she had $285,000 in currency hidden in her luggage. She pled guilty to conspiring to fail to file a currency report. She argued that she was entitled to a minor role reduction under § 3B1.2(b) because she was a mere cash courier in a larger, uncharged criminal scheme involving narcotics. The 2nd Circuit held that defendant was not entitled to the reduction because she was not convicted of the more serious crimes nor were they used as relevant conduct to enhance her sentence. This result is in accord with U.S. v. Demers, 13 F.3d 1381 (9th Cir. 1994). The point of Demers is that if the offense level is raised because of conduct in which the defendant and others participated, a mitigating role reduction might be warranted if the defendant’s role in the conduct supporting the higher level is minor. Since defendant’s offense level was calculated solely with regard to transporting money, she was not entitled to a minor role adjustment. U.S. v. Marino, 29 F.3d 76 (2nd Cir. 1994).
2nd Circuit says court’s finding that defendant was a supervisor implicitly rejected minor role. (445) Defendant argued that the district court failed to rule on his request for a minor role reduction. The 2nd Circuit found that it did, by finding that defendant was “an important supervisor” in the drug conspiracy, warranting an increase in offense level. Although the court did not state explicitly that defendant was not a minor participant, such a ruling was plainly implicit in its finding that he was an important supervisor — a view that foreclosed any finding that his role was minor. U.S. v. Tracy, 12 F.3d 1186 (2nd Cir. 1993).
2nd Circuit denies minor role reduction to defendant who served as more than “lookout.” (445) The 2nd Circuit upheld the denial of a minor role reduction, rejecting defendant’s contention that his role was limited to that of a “lookout” for a drug transaction. A co-defendant sought defendant out to ascertain the progress and status of the transaction. Defendant and another co-defendant brought the cocaine into the building where the transaction was to be consummated. Defendant was the only one of the suppliers in possession of a firearm. U.S. v. Castano, 999 F.2d 615 (2nd Cir. 1993).
2nd Circuit says defendant caught smuggling heroin into U.S. did not prove he was minor participant. (445) The 2nd Circuit held that a defendant who smuggled 427.4 grams of heroin into the U.S. from Nigeria did not prove he was a minor or minimal participant. Defendant was not a mere courier. He regularly engaged in drug smuggling. Defendant’s pattern of travel (eight trips to Nigeria over a 15-month period), as well as the quantity of drugs he carried, suggested broad knowledge and culpability in the heroin trade. U.S. v. Shonubi, 998 F.2d 84 (2nd Cir. 1993).
2nd Circuit rejects mitigating role adjustment despite defendant’s small financial gain. (445) Defendant argued that he should receive a two-level mitigating role adjustment, in part because he received little money for his role in the offense. Defendant also claimed that his role was limited to arranging an initial contact between two of the conspirators. The 2nd Circuit disagreed, noting that defendant might have received more money for his role if the scheme had not been detected before its conclusion. The court also noted conflicting evidence about the defendant’s role and deferred to the district court’s decision as to which account to credit. U.S. v. Bakhtiar, 994 F.2d 970 (2nd Cir. 1993).
2nd Circuit rejects minimal participant status for defendant who was aware of full extent of drug transaction. (445) The 2nd Circuit rejected defendant’s claim that he should have received a three or four-level reduction in offense level based upon his minimal participation in a drug offense. Defendant, as contrasted with several other co-defendants, was aware of the full extent of the transaction. This finding was supported by trial testimony, which indicated that defendant acted as a look-out during the instant transaction and was present during at least one prior narcotics transactions involving his co-defendants. U.S. v. Pitre, 960 F.2d 1112 (2nd Cir. 1992).
2nd Circuit rules drug packager did not prove he was minor participant. (445) The 2nd Circuit rejected defendant’s claim that he was a minor participant in a drug organization because he was completely subordinate to everyone else at the time of his arrest. There was ample evidence that defendant was a co-equal member of the drug ring who was entrusted with large quantities of narcotics to be packaged for distribution. Defendant did not sustain his burden of showing he was a minor participant. U.S. v. Soto, 959 F.2d 1181 (2nd Cir. 1992).
2nd Circuit rejects mitigating role adjustment for defendant who weighed drugs and was present during sale to informant. (445) The 2nd Circuit rejected defendant’s claim that he was entitled to a mitigating role reduction. The district court found that defendant weighed narcotics and secreted them around the apartment from which his co-conspirators sold drugs. Defendant was present when his co-conspirators sold cocaine to the informant and when one co-conspirator negotiated a five-kilogram deal. In addition, defendant admitted to weighing drugs and acting as a driver in various instances. U.S. v. Olvera, 954 F.2d 788 (2nd Cir. 1992).
2nd Circuit rejects minimal role for defendant who travelled from Miami to New York to assist with drug transaction. (445) The 2nd Circuit rejected defendant’s claim that because his role in the conspiracy could not be discerned from the record, he was entitled to a reduction based upon his minimal role. First, a defendant bears the burden of proving his entitlement to a reduction based upon his role in the offense. Second, there was evidence that defendant knew of the plan to sell 50 kilograms of cocaine, travelled from Miami to New York to help with the transaction, and he expected a large payment for his services. This participation was more than the minimal role contemplated by the guidelines. U.S. v. Lopez, 937 F.2d 716 (2nd Cir. 1991).
2nd Circuit finds least culpable co-conspirator not entitled to minor role reduction. (445) The presentence report concluded that one co-conspirator was the most culpable and that defendant was the least culpable of the co-conspirators. Nonetheless, the district court gave them both the same sentence. The 2nd Circuit rejected defendant’s claim that he should have received an offense level reduction based upon his minor role. “The intent of the Guidelines is not to ‘reward’ a guilty defendant with an adjustment merely because his co-conspirators were even more culpable.” A defendant’s role in the offense is determined not just by comparing the acts of each participant, but also by measuring each participant’s individuals acts and relative culpability against the elements of the offense of conviction. The fact that the district court mistakenly stated that defendant’s role was “not minimal” did not mean that the judge failed to recognize the distinction between minor and minimal roles. U.S. v. Lopez, 937 F.2d 716 (2nd Cir. 1991).
2nd Circuit rejects minor role for drug courier. (445) Defendant claimed he was a minor participant because he was merely a drug courier. The 2nd Circuit rejected this contention, noting that a courier is not automatically entitled to a minor role adjustment based on that status. The “determination is to be made not with regard to status in the abstract but rather with regard to the defendant’s culpability in the context of the facts of the case.” A courier’s culpability depends upon “the nature of the defendant’s relationship to other participants, the importance of the defendant’s action to the success of the venture, and the defendant’s awareness of the nature and scope of the criminal enterprise.” U.S. v. Garcia, 920 F.2d 153 (2nd Cir. 1990).
2nd Circuit upholds finding that defendant was not a minor participant. (445) Defendant argued that he was a minor participant in a drug conspiracy. Defendant lay in wait, shot a federal agent and was found by the jury to have intended to kill the agent. At sentencing, the district court found defendant played an active, culpable role in the offense. Given the facts, the 2nd Circuit held that the district court’s decision that defendant was not a minor participant was not clearly erroneous. U.S. v. Romero, 897 F.2d 47 (2nd Cir. 1990).
2nd Circuit holds defendant’s poor financial condition did not make him a “minor or minimal participant.” (445) Defendant negotiated the purchase of heroin and attempted to carry out the transaction by meeting with undercover agents. The $723,000 for the transaction that defendant carried to the meeting was supplied by a co-defendant. The 2nd Circuit rejected defendant’s argument that he was a “minor or minimal participant” because he was in poor financial condition and the money was supplied by a co-defendant. Based on the facts, the determination that defendant was not a “minor or minimal participant” was not clearly erroneous. U.S. v. Adames, 901 F.2d 11 (2nd Cir. 1990).
2nd Circuit affirms use of evidence from co-defendant’s trials in finding defendant was an organizer. (445) The district court added four points based upon its determination that defendant was the organizer of a conspiracy involving more than 12 defendants. Testimony at the trial of the co-defendants revealed that defendant occupied a leading role in the conspiracy. The 2nd Circuit held that a district court has “broad discretion to consider any information relevant to sentencing, including information adduced at a trial at which the defendant was not present.” U.S. v. Rios, 893 F.2d 479 (2nd Cir. 1990).
2nd Circuit holds there should be no departure when defendant’s minor participation was recognized in setting base offense level. (445) Defendant claimed the court should have departed due to his minor role in the transaction. The 2nd Circuit disagreed, noting that the defendant had already received two reductions in his base offense level, two points for acceptance of responsibility, and four points for minimal involvement (§ 3B1.2(2)). The decision whether to depart is vested in the discretion of the sentencing court, but only when there exist factors of a kind or degree not considered by the guidelines (§ 5K2.0, 18 U.S.C.. § 3553). Because the grounds urged for departure had been recognized by the Sentencing Commission and had already resulted in a benefit to the defendant, the decision not to depart proper even if the doubtful assumption could be made that the “discretion not to depart could ever be exceeded.” U.S. v. Paulino, 873 F.2d 23 (2nd Cir. 1989).
2nd Circuit rules “steerers” are not minimal participants. (445) A drug defendant argued that the district court erred in failing to classify him as a minimal participant (§ 3B1.2(a)) because his role was merely to direct buyers to another co-defendant, who made the actual sale. The Second Circuit affirmed the sentence, noting that “steerers” play an important role in street sale transactions. The court found that the defendant’s knowledge of the scheme and activities of other participants precluded a finding that he was “substantially less culpable” than other members and thereby not entitled to the reduction. The district court’s finding was not clearly erroneous and the sentence was proper. U.S. v. Colon, 884 F.2d 1550 (2nd Cir. 1989), abrogated on other grounds by U.S. v. Mickelson, 443 F.3d 1050 (8th Cir. 2006).
3rd Circuit rules defendant’s role in drug transactions was not minor. (445) Defendant was convicted of two counts of distributing crack cocaine. He argued that he deserved a mitigating role reduction under § 3B1.2, noting that it was his brother who spoke to the confidential informant and set up the drug deal. He claimed he “was merely carrying out the instructions of his co-defendant brother.” He characterized his involvement in the offense was “simply receiving the payment for a previously negotiated transaction,” and stressed he told the informant he “[doesn’t] do this anymore.” The Third Circuit held that the district court did not err in denying defendant a mitigating role adjustment. Defendant did not indirectly further a criminal activity in some minor way. To the contrary, he directly engaged in the very act at the heart of the criminal enterprise – namely, the distribution of drugs in exchange for money. U.S. v. Self, 681 F.3d 190 (3d Cir. 2012).
3rd Circuit affirms denial of minor role reductions. (445) The Third Circuit ruled that the district court did not commit clear error in finding that defendants were not entitled to a minor role reduction. The court analyzed their respective participation against that of each co-defendant and found that each was no less culpable than any other, and therefore did not qualify for the reduction. U.S. v. Perez, 280 F.3d 318 (3d Cir. 2002).
3rd Circuit denies minor role reduction even though defendant may have been less culpable than others. (445) The Third Circuit held that even if defendant Orlando was less culpable than several other co-defendants in this securities fraud scheme, this did not entitle him to a minor role reduction. All other members of the conspiracy who were more culpable received enhancements because of their roles. The Third Circuit held that the district court’s decision to refuse an enhancement or reduction to defendant Orlando adequately reflected his level of culpability. Moreover, the court was “convinced that Orlando’s role was not one in which “[h]e did nothing on his own,” as he claimed. He “both trained and supervised younger brokers to undertake the fraudulent conduct and to conceal it.” There was no clear error. U.S. v. Hart, 273 F.3d 363 (3d Cir. 2001).
3rd Circuit holds that defendant did not play minor role in conspiracy to purchase handguns. (445) Defendant was involved in a conspiracy to purchase handguns for Jordan. The Third Circuit agreed that defendant did not play a minor or minimal role in the scheme. Her claim that she had limited knowledge of the scope and nature of the scheme was unpersuasive. Defendant recruited her cousin to act as a straw purchaser of the guns, and she knew that the purpose of the scheme was to procure untraceable firearms. Defendant also purchased firearms herself for Jordan so that she could earn her own money. She knew that Jordan intended to take the serial numbers off the guns and wanted her to report them as stolen. At the gun store, the dealer told Jordan that defendant “had to pick out the guns since [she] had the ID.” She did so, paid for the weapons with money Jordan provided, and filled out the necessary forms. Defendant’s involvement was commensurate with, if not greater than, that of other straw purchasers and she was important to the success of the venture. Like three of the four straw purchasers, defendant made a single buy for Jordan. However, unlike her other co-conspirators, defendant also acted as “an in-between, between a major figure in the conspiracy and a cohort or co-equal in the conspiracy.” U.S. v. Brown, 250 F.3d 811 (3d Cir. 2001).
3rd Circuit denies minor role reduction to distributor of ten kilograms of cocaine. (445) Defendant participated in a large drug conspiracy, but claimed he deserved a mitigating role reduction. Defendant admitted he was a distributor in the conspiracy. The record showed that the total amount of cocaine distributed by the conspiracy during defendant’s involvement was 50 kilograms. Based on defendant’s concession that ten of these 50 kilograms could be attributed to him, the Third Circuit affirmed the denial of a minor role reduction. A distributor does not play a mitigating role in a conspiracy to distribute ten kilograms of cocaine. U.S. v. Holman, 168 F.3d 655 (3d Cir. 1999).
3rd Circuit says defendant not a minimal participant but remands as to minor role. (445) Defendant assisted his co-defendant in selling stolen government bonds. The 3rd Circuit found that defendant was properly denied a minimal role reduction under §3B1.2(a) since he had full knowledge of the scheme. Remand was required, because the district court failed to address whether defendant was a minor participant under 3B1.2(b), warranting a two level decrease, or whether his conduct fell somewhere in between subsections (a) and (b), warranting a three level decrease. U.S. v. Stuart, 22 F.3d 76 (3rd Cir. 1994).
3rd Circuit holds that courier traveling with kingpin was not a minor participant. (445) Defendant was arrested at the Miami airport carrying $186,000. The 3rd Circuit rejected defendant’s claim that he was a minor participant in a money laundering conspiracy. Defendant was traveling with the kingpin of the conspiracy. He was “associated” with the kingpin and clearly knew that the money he was carrying were drug proceeds. The money laundering transaction might not have taken place if defendant had not been physically transporting the cash on his person and in his carry-on bag. U.S. v. Carr, 25 F.3d 1194 (3rd Cir. 1994).
3rd Circuit affirms that defendant was only minor, and not minimal, participant. (445) The 3rd Circuit held that the district court’s determination that defendant was a minor rather than a minimal participant was not clearly erroneous. The evidence showed that defendant promoted the cocaine a co-defendant was supplying an undercover officer and encouraged future transactions. He stated that “We’re like All State; you’re in good hands with us.” U.S. v. Salmon, 944 F.2d 1106 (3rd Cir. 1991).
3rd Circuit rejects minimal status to defendant who procured van used to transport co-defendants to drug deal. (445) Defendant contended that he should have received a four-point reduction for being a minimal participant in a drug transaction rather than the two-point reduction he received for being a minor participant. The 3rd Circuit rejected this contention, finding that defendant’s characterization as a minor participant may have been generous. Defendant participated in a meeting with an undercover agent where the sale of drugs was discussed. He drove the van to another meeting, and at the time of arrest had in his possession documents which indicated that the van was owned by a female residing at his residence, from which it could be inferred that he obtained the vehicle for the trip. U.S. v. Gonzales, 927 F.2d 139 (3rd Cir. 1991).
4th Circuit says defendant did not have a mitigating role in offense. (445) Defendant was convicted of making a false entry in a bankruptcy-related document. The charges arose from a fraud scheme directed by Pavlock, who established companies that had no legitimate business, convinced investors to invest in the sham companies, and then misappropriated the funds for personal use. Defendant was the managing member of one such company, and was convicted of charges relating to a letter he made to the bankruptcy trustee for one of Pavlock’s corporations. The Fourth Circuit upheld the district court’s denial of a § 3B1.2 mitigating role reduction. Regardless of whether defendant may have played only a small role in Pavlock’s overall scheme, the district court could reasonably find that as to the offense of conviction – making a false entry in a bankruptcy-related document – defendant’s conduct was essential and material. The jury found defendant signed the January 29 letter and submitted it to the bankruptcy trustee with knowledge that it contained at least one false statement, and with intent to obstruct, impede, or influence the bankruptcy. The district court did not clearly err in rejecting the mitigating role adjustment. U.S. v. Powell, 680 F.3d 350 (4th Cir. 2012).
4th Circuit says defendant did not play minor role in “pump and dump” securities fraud scheme. (445) Defendant was convicted of a variety of securities fraud offenses based on his involvement in a “pump and dump” scheme, which involved artificially inflating the value of securities, and then selling them at the inflated value to the public. The Fourth Circuit upheld the district court’s refusal to grant defendant a minor role reduction. Defendant’s actions were material and essential to the functioning of the conspiracy. Without his assistance in creating the documentation for the unregistered securities and in providing advice on how to circumvent registration requirements, the other facets of the conspiracy could not have occurred. In addition, defendant was intimately involved in the manipulation of sales to pump up the value of the unregistered securities before selling them to the public. U.S. v. Offill, 666 F.3d 168 (4th Cir. 2011).
4th Circuit holds that participant in armed carjacking was not a minor participant. (445) Defendant and a friend shot a man in the head and stole his SUV. The Fourth Circuit held that the district court did not clearly err in refusing to grant defendant a minor role reduction. Regardless of whether defendant actually controlled the gun, pulled the trigger, or drove the car, he comprised one half of an armed two-person carjacking team. In fact, defendant was the person who pointed the victim out and suggested to his friend that they rob him. U.S. v. Blake, 571 F.3d 331 (4th Cir. 2009).
4th Circuit says that courier did not have minor role in ecstasy conspiracy. (445) Defendant was a passenger in a car stopped by police, and found to contain large amounts of ecstasy and cash. He argued that he deserved a minor role reduction because he was a mere courier of the drugs and money and unaware of the precise nature of the substance involved in his crime. The Fourth Circuit found ample evidence to support the denial of the minor role reduction. Defendant agreed to transport a substantial amount of ecstasy from the Canadian border to south Florida. He traveled across state lines to rent a car for that purpose and recruited the driver to participate in the transportation of the drugs with him. Moreover, according to defendant’s fellow inmates at the county jail, defendant bragged that he and the driver often engaged in such trips and had been paid well for their efforts. U.S. v. Kiulin, 360 F.3d 456 (4th Cir. 2004).
4th Circuit holds that defendant did not have minor role in drug delivery. (445) Police discovered cocaine in a rental car containing defendant and Strachan. Defendant argued that he played a minor role in the cocaine distribution conspiracy. The Fourth Circuit disagreed. Defendant admitted he was aware of the cocaine in the car, the phone number of the conspirator to whom the drugs were being delivered was found in defendant’s possession, and defendant admitted to having been paid to transport cocaine for this same group of conspirators in the past. Nothing indicated that defendant was less culpable than Strachan. Although defendant argued that he only provided company for Strachan, the facts belied that claim. U.S. v. Pratt, 239 F.3d 640 (4th Cir. 2001).
4th Circuit holds that defendant did not play minor role in exam switching scheme. (445) Defendant participated in a scheme to switch GED test results for White, a political appointee who needed to pass the GED to qualify for his new job. Defendant, a certified public accountant, took the test at the same time as White, and then, with a co-conspirator, went to the GED office, obtained the two exams, and altered them to create the appearance that defendant’s materials belonged to White and vice versa. The Fourth Circuit held that defendant did not play a minor role in the scheme. Defendant participated in switching the exam papers, an essential step in the scheme. Defendant was a “key player” in the scheme. U.S. v. Edwards, 188 F.3d 230 (4th Cir. 1999).
4th Circuit rejects minor role for courier and enforcer despite lack of criminal forfeiture. (445) Defendant served as both a courier and an enforcer for a multi-million dollar marijuana and cocaine ring. He and a confederate were convicted of conspiracy. The jury found $300,000 was subject to criminal forfeiture by the confederate, but not defendant. Defendant contended that the jury’s failure to subject him to criminal forfeiture proved he was less culpable than his co-defendants. The Fourth Circuit found defendant’s claim preposterous, because he transported drugs from Arizona to California and arranged the assassination of potential adverse witnesses. A defendant’s role is based on all relevant conduct. Thus, whether or not the jury found him subject to criminal forfeiture was irrelevant. A defendant hired to murder potential witnesses against a conspiracy is not a minor participant. U.S. v. Love, 134 F.3d 595 (4th Cir. 1998).
4th Circuit rejects mitigating role for defendant who began conspiracy and was instrumental to its success. (445) Defendant lived on property owned by a defunct corporation. When he lost his job, he pilfered the operating and payroll checks from a shed on the property and planned what he described as his “big score.” Defendant distributed the checks and false identifications to accomplices, who negotiated them at various locations. In return, defendant received money from the accomplices. The Fourth Circuit rejected a mitigating role reduction, since defendant initiated the conspiracy and was instrumental to its success. Even if defendant’s financial gain was less than that of his cohorts, he was anything but a minor participant in the scam. U.S. v. Pebworth, 112 F.3d 168 (4th Cir. 1997).
4th Circuit denies minimal role for smuggler of 8 kilos of heroin into U.S. for $15,000. (445) Defendant served as a courier in a conspiracy to import heroin into the U.S. from Thailand. The Fourth Circuit held that the district court clearly erred in giving him a minimal role adjustment because defendant was given $15,000 to import over 8 kilograms of heroin into the U.S. This drug quantity could not be considered a “small amount of drugs,” since it was worth over a million dollars and was over eight times the amount sufficient to warrant a 10‑year mandatory minimum sentence. U.S. v. Withers, 100 F.3d 1142 (4th Cir. 1996).
4th Circuit says defendant who drove car while companion shot at victim was not minor participant. (445) While driving drunk in a national forest, defendant and an associate noticed a black man pass them in his truck. Defendant suggested to his companion that they kill the man. The companion then shot at the victim’s truck. After the companion began shooting, the victim accelerated in an effort to get away, but defendant sped up as well, allowing the companion to continue to reload and shoot. The Fourth Circuit rejected defendant’s contention that he was a minor participant in the crime, even though he never fired a shot. It was defendant’s idea to chase the victim, and defendant’s decision to keep driving allowed his companion to continue to shoot. U.S. v. Terry, 86 F.3d 353 (4th Cir. 1996).
4th Circuit rules active conspirator was not minor participant. (445) The 4th Circuit affirmed the district court’s refusal to decrease defendant’s offense level under section 3B1.2 for being a minor or minimal participant. Defendant may not have been as comprehensively involved in the conspiracy as its leaders, but he was an active conspirator for nearly a year who trafficked or sought to traffic large amounts of drugs on numerous occasions. U.S. v. Williams, 977 F.2d 866 (4th Cir. 1992).
4th Circuit rejects minor role for defendant promoted from “lookout” to seller in drug conspiracy. (445) The 4th Circuit rejected defendant’s claim that he played a minor role in a drug conspiracy. Soon after joining the organization, defendant was promoted from lookout to seller, a central position in a drug distribution ring. U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992).
4th Circuit refuses reduction for mitigating role to drug conspirator. (445) The 4th Circuit upheld the district court’s refusal to decrease defendant’s offense level based on a mitigating role. Although the trial court adopted the portion of defendant’s presentence report which indicated he was “less culpable” than the other defendants, the presentence report also found that his conduct did not qualify him for a mitigating role adjustment. Defendant did not meet the burden of proving he was entitled to the reduction. Moreover, defendant did receive the benefit of a reduced role because his base offense level was lower than the other co-conspirators based on his reduced knowledge of the amount of drugs involved in the conspiracy. U.S. v. Campbell, 935 F.2d 39 (4th Cir. 1991).
4th Circuit rejects minor or minimal status for defendant who drove conspirators to bomb site. (445) Several former mine workers were convicted of bombing a coal mine. Defendant contended that he was entitled to minor or minimal role status because he merely drove the miners to the site and did not actually place any explosives or take a leadership role in any of the meetings. Another co-conspirator who went with defendant on an earlier failed mission and waited with defendant in the car did receive a reduction. The 4th Circuit upheld the district court’s rejection of minor or minimal status for defendant. Defendant had the burden of proving his entitlement to such a reduction and did not carry this burden. The district court found that defendant was a key part of the conspiracy. Defendant transported the dynamite with a clear understanding of what explosives can do and waited while the others planted the bomb. U.S. v. Sharp, 927 F.2d 170 (4th Cir. 1991).
4th Circuit affirms that seller of drugs was not a minor or minimal participant. (445) Defendant was convicted of selling crack cocaine to a government informant. Defendant contended that he was merely a minor or minimal participant since each time he sold crack to the informant, he had to locate and purchase the drug from someone else, and that he resold the drug to the informant at no profit to himself, but merely as a favor. The 4th Circuit rejected this argument, finding that defendant was a major participant in a minor operation. As the actual seller of drugs, even if merely a go-between, defendant did not engage in the kind of conduct contemplated by § 3B1.2. U.S. v. Glasco, 917 F.2d 797 (4th Cir. 1990).
4th Circuit reverses “minor participant” adjustment for drug courier where there was no evidence that others participated in offense. (445) At trial, the prosecutor referred to the defendant as a courier. Accordingly, the district court followed U.S.S.G. § 3B1.2 commentary note 2 and found that he was a “minor participant” in the offense. The 4th Circuit reversed, agreeing with the government that “mitigating role adjustments apply only when there has been group conduct.” Despite the government’s reference to defendant as a courier, the court found “no facts in the record” to support that position. Moreover, the presentence report, which the district court adopted, stated that defendant was “solely responsible for the charge for which he is before the court.” Thus the district court’s two-level reduction for minor role was without factual foundation and was clearly erroneous. U.S. v. Gordon, 895 F.2d 932 (4th Cir. 1990).
4th Circuit rules defendant who passed counterfeit bills was not entitled to minor or minimal status. (445) Under guideline § 3B1.2, a defendant who is a minimal or minor participant is entitled to a two to four level reduction in his offense level. This determination is a factual one to be determined by the sentencing court. Thus it is subject to review only for clear error. U.S. v. Daughtrey, 874 F.2d 213 (4th Cir. 1989).
4th Circuit holds drug defendant’s driving, understanding and presence precludes minimal/minor participant adjustment. (445) The 4th Circuit held that the sentencing court properly declined to award a reduction in a drug defendant’s offense level under § 3B1.2 (minor/minimal role in the offense), despite the defendant’s assertions that his role was not as significant as his co-conspirators. Although the defendant never had cocaine on his person, he did drive almost the entire way from Tennessee to Virginia to consummate a transaction, he was aware of the nature of the entire planned drug transaction, and was present at the location where a codefendant handed over cocaine to an undercover agent. Application note 2, which suggests that the reduction is applicable where “an individual was recruited as a courier for a single drug transaction” was not applicable here, because the evidence suggested that he had participated in a number of prior deliveries. U.S. v. McCrary, 887 F.2d 485 (4th Cir. 1989), overruling on other grounds recognized by U.S. v. Alvarez-Hernandez, 478 F.3d 1060 (9th Cir. 2007).
5th Circuit rejects minor participation role for defendant who transported cooler of meth. (445) Defendant and Martinez were convicted of drug charges based on their sale of methamphetamine to an undercover officer. He challenged the denial of a minor role reduction under § 3B1.2, arguing that his “fleeting conduct in picking up a cooler and driving it to the location directed was so attenuated compared to the weeks-long surveillance [of] Martinez” that a reduction was required. The Fifth Circuit upheld the denial of the minor role reduction. The fact that defendant was not observed by DEA agents had little bearing on his role in the conspiracy. Martinez may have been more involved than defendant, but that did not establish that defendant was “peripheral to the advancement of the criminal activity.” The district court found that “although it [was] unclear the exact role defendant played in this offense, it was clear that he picked up the methamphetamine and transported it in a concealed fashion within an ice cooler. [D]efendant then aided the undercover agent in dismantling the cooler and exposing the narcotic.” The methamphetamine that he transported was all of the methamphetamine at issue; defendant was not held accountable for drugs with which he had no personal involvement. U.S. v. Perez-Solis, 709 F.3d 453 (5th Cir. 2013).
5th Circuit denies minor role reduction to driver of car containing drugs. (445) Officers arrested defendant at the Mexican border after discovering cocaine hidden in his car. Defendant told investigators that he was an unwilling participant in the offense, and that Mexican drug traffickers threatened to harm his family if he did not transport the drugs. He agreed to drive a vehicle containing an unknown type and quantity of drugs into the United States to protect his family from harm. The law enforcement agent handling defendant’s case believed his account, and concluded that defendant’s role was limited to driving the vehicle. Nonetheless, the district court denied defendant a minor participant reduction, and the Fifth Circuit affirmed. While defendant may have been less culpable than others, he was convicted of possession with intent to distribute and importing cocaine. Defendant possessed the cocaine and was the person who attempted to transport it across the border into the United States. That activity was not minimal when the elements of these offenses were examined. U.S. v. Silva-De Hoyos, 702 F.3d 843 (5th Cir. 2012).
5th Circuit affirms that drug “mule” was not entitled to minor role reduction. (445) Defendant argued that district court should have given him a two-level minor role reduction, because he was simply a “mule” who transported the drugs. He pointed out that his voice was not on the audiotapes, his fingerprints were not on the money or the drug packages, and he was not the owner of the drugs. The Fifth Circuit found no clear error in denying the reduction. Defendant spoke with Jimenez, a truck driver acting as a confidential source, directing him to the van in which he was instructed to put the cocaine, was present when Jimenez put the cocaine in the van, and later drove the van from the truck stop. The court properly found that defendant’s conduct was not “peripheral to the advancement of the illicit activity.” U.S. v. Thomas, 690 F.3d 358 (5th Cir. 2012).
5th Circuit denies minor role to defendant who actively participated in drug activity. (445) Defendant and Weldon were arrested by police acting on information from an informant that a black male would be selling crack from a particular car in a particular parking lot. The Fifth Circuit upheld the denial of the minor role reduction. Defendant admitted that he, along with Weldon, possessed the drugs with the intent to distribute them. Both defendant and Weldon, upon arriving at the parking lot, exited the car and looked around “suspiciously as if they were looking for someone.” These actions led to the conclusion that defendant was involved in the sale to the informant and not a mere bystander or passenger. Additionally, detectives found cocaine residue on both the driver’s and the passenger’s floorboards. Defendant’s cell phone contained text messages that a detective believed involved drug transactions, and at the time of his arrest, defendant possessed $1,232 in cash, despite his claim that he was unemployed. Although defendant might have been less culpable than Weldon, his participation was not peripheral to the advancement of the illicit activity. U.S. v. Claiborne, 676 F.3d 434 (5th Cir. 2012).
5th Circuit agrees defendant was not minor participant. (445) Defendant pled guilty to cocaine and money laundering conspiracy charges. He argued that the district court clearly erred by refusing to apply a two-level reduction for being a minor participant in the offense because he did not lead, recruit, or direct any individual in the criminal offense, and because he merely worked under the direction of others. The Fifth Circuit ruled that the district court’s finding that defendant was not a minor participant was not clearly erroneous. The PSR showed that defendant transported loads of narcotics, counted drug proceeds, conducted counter surveillance during the unloading of large shipments of cocaine, turned over drug proceeds to a courier, personally distributed five kilograms of cocaine, and helped direct the activities of one other person during the conspiracy. Given this extensive involvement in the drug conspiracy, the court’s finding that defendant was not a minor participant was not implausible. U.S. v. Guillermo-Balleza, 613 F.3d 432 (5th Cir. 2010).
5th Circuit rejects role reduction for average participant with minor role in smuggling network. (445) The district court held that defendant was an average participant despite his minor role in the smuggling network as a whole because he was only held accountable for the criminal activity in which he was personally involved. However, the minor role reduction remains available for a defendant who was only held accountable for the conduct in which he was personally involved. See Note 3 to § 3B1.2. However, the reduction only applies when a defendant is “substantially less culpable than the average participant.” Here, defendant acted as a guide in multiple countries, over an extended period of time, as the group of immigrants made its way from El Salvador to Mexico. His contribution to the illicit activity was more than peripheral. Thus, the Fifth Circuit affirmed the denial of the reduction – the district court’s finding that defendant was not a minor participant was plausible in light of the record as a whole. U.S. v. Villanueva, 408 F.3d 193 (5th Cir. 2005).
5th Circuit says corrupt police officer who escorted drug shipment through town was not minimal participant. (445) Defendants, corrupt police officers, assisted in the transportation of what they believed to be sizeable marijuana shipments. One defendant argued that he was a minor participant because he did not concoct the scheme, but was merely a “peripheral” actor. The Fifth Circuit disagreed. Aiding in the trafficking of 300 pounds of marijuana is not a minimal contribution to a large criminal enterprise, which essentially trafficked a total of 600 pounds of marijuana. Moreover, defendant contributed a major advancement to the crime, because he drove the only marked patrol vehicle that protected the drug shipment on that occasions. U.S. v. Partida, 385 F.3d 546 (5th Cir. 2004).
5th Circuit holds that defendant was not minor participant in drug transportation. (445) Defendant and another man became stranded on the highway when their truck ran out of gas. State troopers who stopped to help them get gas discovered that the gas tank of the trunk was loaded with 43 bundles of cocaine and marijuana. The Fifth Circuit rejected defendant’s claim that he had a minor role in the offense. The evidence pointed to defendant acting as the principal in the crime. Defendant spoke to the officers, purchased gas both times, filled the truck at the gas station, and threatened to sue after the truck was taken to a wrecking yard for inspection. Furthermore, the PSR mentioned that defendant paid the other man $2000 to accompany him on the trip. U.S. v. Saucedo-Munoz, 307 F.3d 344 (5th Cir. 2002).
5th Circuit denies minor role reduction to distributors who sold drugs to individual users. (445) The district court found that defendants were average, not minor, participants in a drug distribution ring. The Fifth Circuit upheld the denial of a minor role reduction, since the evidence showed that defendants were each actively involved in the conspiracy as distributors who sold drugs to individual users. U.S. v. Miranda, 248 F.3d 434 (5th Cir. 2001).
5th Circuit denies minor role reduction where defendant only sentenced for drugs she carried. (445) Defendant was stopped by police carrying over 80 pounds of marijuana in her car. The Fifth Circuit upheld the denial of a minor role reduction, since defendant was the only actor in her offense and the court only used the drugs she was transporting in calculating her sentence. Her status as a first-time offender and her claims to be a courier did not require a different result. U.S. v. Lujan-Sauceda, 187 F.3d 451 (5th Cir. 1999).
5th Circuit rules court made sufficient findings to reject request for minor role reduction. (445) Defendant argued that the district court failed to articulate the basis for overruling his objection to the denial of a minor role reduction. The Fifth Circuit held that the district court made the necessary findings. After the judge found defendant accountable for 567 kilograms of marijuana, the judge said “I certainly don’t think that he is entitled to an adjustment downward for having a minor role or less in the offense, but by the same token, I can’t see him as being qualified as a manager, supervisor, organizer or leader. That just doesn’t fit, doesn’t fit his position in this conspiracy.” This sufficiently articulated the basis for the court’s denial of defendant’s request for a reduction. U.S. v. Gallardo-Trapero, 185 F.3d 307 (5th Cir. 1999).
5th Circuit says court made implicit findings by adopting PSR. (445) At sentencing, defendant argued that contrary to the PSR, he was not a “right-hand man” to various drug brokers, but had a minor role because he only provided the stash house for the marijuana. The district court denied this objection and the request for a minor role reduction. Defendant claimed that the district court failed to articulate the basis for its finding. The Fifth Circuit held that the district court made the necessary findings by adopting the PSR. Although a 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,” a court need not make a “catechistic regurgitation of each fact determined” and may make implicit findings by adopting the PSR. In the present case, the judge stated at the sentencing hearing and in the signed judgment that he agreed with and adopted the factual findings in defendant’s PSR. U.S. v. Gallardo-Trapero, 185 F.3d 307 (5th Cir. 1999).
5th Circuit rejects mitigating role despite defendants’ limited employment. (445) Eleven defendants were convicted of conspiring and aiding and abetting bank fraud in the financing of A-1 mobile homes. One defendant worked at the Waco A-1 for three months as a salesman while he was in college. A second defendant worked at the Bryan A-1 for three months as a salesman. A third defendant worked only four weeks at the Bryan A-1 and was acquitted of the conspiracy charge. Without an extended discussion, the Fifth Circuit held that the district court’s denial of mitigating role reductions under § 3B1.2 was not clearly erroneous. U.S. v. Morrow, 177 F.3d 272 (5th Cir. 1999).
5th Circuit denies minor role reduction to defendant who received aggravating role increase. (445) Defendant argued that the district court should have awarded him a downward adjustment based on his minor role in a timber theft conspiracy. Defendant’s PSR did not recommend a § 3B1.2 reduction, and defendant did not object to this omission. Instead, the PSR recommended, and the district court awarded, a four-level increase under § 3B1.1(a) because defendant was the organizer or leader of a criminal conspiracy involving five or more participants. Defendant objected to this increase, but did not challenge it on appeal. The Fifth Circuit held that it was not plain error for the district court to fail to grant defendant a minor participant reduction in light of the fact that it awarded an increase for defendant’s organizer or leadership status. U.S. v. Anderson, 174 F.3d 515 (5th Cir. 1999).
5th Circuit denies minimal role reduction where defendant transported non-trivial amount of heroin. (445) Defendant contended that he was a mere “mule,” but admitted that he was to be paid $14,000 for his role in transporting heroin from Colombia to Houston, that he was supposed to meet a co-conspirator in San Antonio, and that they were to travel together to New York. Defendant was carrying a non-trivial quantity of heroin (1005 grams). He also was sentenced only for the amount that he was actually carrying. Under these circumstances, the Fifth Circuit ruled that the district court did not clearly err in concluding that defendant’s role in the offense was not minimal. U.S. v. Valencia-Gonzales, 172 F.3d 344 (5th Cir. 1999).
5th Circuit denies minor role reduction to defendant who leased warehouse to store cocaine. (445) Defendant leased a warehouse where cocaine that had been smuggled in from Mexico was stored. Because the district court found that defendant was a “vital link” in the conspiracy, the Fifth Circuit held that a § 3B1.2 minor role reduction was not justified. The guideline commentary notes that the adjustment is only intended for the defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant. U.S. v. Gourley, 168 F.3d 165 (5th Cir. 1999).
5th Circuit holds that defendant did not establish mitigating role in drug transaction. (445) Defendant was part of an extensive drug-trafficking conspiracy. He argued that he deserved a § 3B1.2 minor role reduction because he was less culpable than a co-conspirator. The Fifth Circuit held that the district court did not abuse its discretion in denying defendant a mitigating role adjustment. A defendant is not entitled to a reduction under § 3B1.2 merely because he is less culpable than his co-defendants. A reduction is appropriate only if the defendant was “substantially less culpable than the average participant.” A defendant bears the burden of proving his mitigating role by a preponderance of the evidence. Defendant did not establish that his conduct was substantially less culpable than other conspirators. U.S. v. Posada-Rios, 158 F.3d 832 (5th Cir. 1998).
5th Circuit rejects minor role where defendant helped deliver drugs three times. (445) Defendant was arrested transporting 50 pounds of marijuana. The Fifth Circuit rejected defendant’s claim that he was a minor participant in the marijuana conspiracy since he helped the conspiracy leader deliver drugs on at least three occasions before he was arrested. Further, he was transporting almost 50 pounds of marijuana when he was arrested, which is not a small amount of drugs. U.S. v. Hare, 150 F.3d 419 (5th Cir. 1998).
5th Circuit denies minimal role reduction for passenger in fleeing car. (445) Defendant was the passenger in a car that police attempted to stop for a traffic violation. The driver attempted to evade deputies by leading them on a high-speed chase that ended when the car flipped and landed on the hood of the deputies’ patrol car. During the chase, defendant threw plastic bags of crack cocaine out the window. Defendant pled guilty to drug charges. The Fifth Circuit upheld the court’s finding that defendant was not a minimal participant. Defendant admitted that when sheriff’s deputies attempted to stop the car, he told the driver that he had drugs on him, and that the driver needed to do something or they were going to jail. Although defendant did not drive the car, he actively participated in the decision to flee. The driver did not know defendant had any drugs on him when defendant got in the car. Also, defendant was observed throwing the cocaine from the car. U.S. v. Lugman, 130 F.3d 113 (5th Cir. 1997).
5th Circuit rejects minimal role for regular courier who suspected drugs were in car. (445) Defendant was arrested by Mexican police in a van containing 146 kilograms of marijuana. He was convicted and sentenced in Mexico for possession of marijuana, and transferred to the U.S. to serve his sentence. The Fifth Circuit upheld the Parole Commission’s determination that defendant was not a minimal participant. Defendant admitted to Mexican authorities that he had driven the vehicle on other occasions and that he was paid large sums of money for doing so. He also admitted that he suspected that drugs were in the van. Defendant could not, therefore, reasonably assert that he lacked knowledge or understanding of the enterprise to the degree necessary to support a minimal participant reduction. Rosier v. U.S. Parole Commission, 109 F.3d 212 (5th Cir. 1997).
5th Circuit denies minor role where defendant personally transported the drugs. (445) Defendant, an INS agent, assisted a large drug organization in transporting drugs across the U.S./Mexican border in INS buses and vans used to transport undocumented aliens. The district court found defendant was a minor participant. The Fifth Circuit reversed, because defendant’s sentence was based on his own activity rather than the conspiracy as a whole. The PSR estimated that the entire conspiracy transported 10,000 kilograms, while defendant was only held accountable for the 200 kilograms that he helped transport. U.S. v. Marmolejo, 106 F.3d 1213 (5th Cir. 1997).
5th Circuit denies minor role where courier was only accountable for drugs in his possession. (445) Defendant pled guilty to possession of cocaine base with intent to distribute. He argued that he deserved a minor role reduction because he was merely a “mule” transporting drugs for the benefit of others. The Fifth Circuit held that the courier’s role was not minor, since he made trips on a regular basis, and was only held accountable for the amount of cocaine in his possession at the time of his arrest. U.S. v. Flucas, 99 F.3d 177 (5th Cir. 1996).
5th Circuit holds defendant accountable for additional drugs and rejects role reduction. (445) Defendant was involved in a large marijuana and cocaine distribution conspiracy. The district court found defendant accountable for 9,638 kilograms of marijuana equivalency, while defendant argued that the only drug quantities foreseeable to him were one kilogram of cocaine and ten pounds of marijuana involved in a failed undercover buy. The Fifth Circuit held that the disputed quantities sold to witnesses by the leader of the conspiracy were reasonably foreseeable to defendant. The witnesses testified that defendant accompanied the leader to the purchases, sometimes made drug deliveries by himself and saw drug payments being made. The court also properly denied defendant a minimal role reduction based on defendant’s long‑term involvement and participation in more than 20 deliveries. U.S. v. Sotelo, 97 F.3d 782 (5th Cir. 1996).
5th Circuit denies minor role reduction where defendant distributed crack to other street level dealers. (445) Defendant was involved in a cocaine distribution scheme. The Fifth Circuit rejected a minor role reduction based on evidence that defendant both sold the crack at the street level, but distributed it to other street level distributors. U.S. v. Alix, 86 F.3d 429 (5th Cir. 1996).
5th Circuit rejects minor role in marijuana conspiracy. (445) The Fifth Circuit rejected defendant’s request for a minor role reduction in light of the following: Defendant (1) assisted in the loading of marijuana on at least one occasion, (2) made at least one trip to Ohio in an automobile ordinarily used by the conspiracy’s courier to ship marijuana, (3) was present at one meeting with the conspiracy’s leaders and another with two of the leaders, (4) purchased a car for which the conspiracy’s leader made a $18,000 cash deposit, and (5) was in possession of about 18 pounds of marijuana and a firearm when police searched his residence. U.S. v. Castillo, 77 F.3d 1480 (5th Cir. 1996).
5th Circuit denies minimal role where defendant lent property to store drugs and was chauffeur. (445) Defendant argued that he was a minimal participant rather than just a minor participant in a drug conspiracy. The Fifth Circuit upheld the denial of a minimal role reduction because defendant lent his property to be used for the storing of drugs and acted as a chauffeur to carry people to where drugs were stored. U.S. v. Gaytan, 74 F.3d 545 (5th Cir. 1996).
5th Circuit denies role reduction to defendant who weighed, hid, sold and delivered drugs. (445) Defendant attended a meeting with co-conspirators at a motel, weighed methamphetamine brought to the meeting by his co-conspirators, and left with it in a bag. The Fifth Circuit denied a minor role reduction based on defendant’s admission that he helped weigh the drugs, hid them on behalf of the conspiracy, and on several occasions accompanied a co-conspirator making deliveries. Defendant also admitted making several sales on his own. U.S. v. Edwards, 65 F.3d 430 (5th Cir. 1995).
5th Circuit rejects § 3B1.2 for role in larger conspiracy where loss was based on defendant’s own conduct. (445) Defendant was involved in a massive conspiracy to file false income tax returns. About 558 false returns were filed, with the amount of claimed refunds totaling $1.6 million. In addition to assisting others filing false returns, defendant also filed a false income tax return in his own name, and obtained a refund of $2,944. The district court found that defendant’s role in filing the false return in his own name was not minimal or minor, and rejected a § 3B1.2 reduction. Defendant argued that the district court erred by only considering his role in filing a false return in his own name, instead of considering his role in the overall conspiracy. The Fifth Circuit held that when a sentence is based on an activity in which a defendant was actually involved, § 3B1.2 does not require a reduction even though the defendant’s activity in a larger conspiracy may have been minor or minimal. Defendant pled guilty to filing a false tax return in his own name. The amount of loss used to calculate his offense level was only the $2,994 for his claim, not the $1.6 million accumulated claims of the conspiracy. U.S. v. Atanda, 60 F.3d 196 (5th Cir. 1995).
5th Circuit says defendant convicted of misprision of felony not entitled to role reduction. (445) Defendant and an associate were found in possession of a substantial quantity of crack cocaine. He pled guilty to misprision of a felony. Defendant argued that he was entitled to a § 3B1.2 reduction for being a minimal participant in the underlying felony. The Fifth Circuit held that because § 2X4.1 presupposes a defendant’s lack of involvement in the underlying offense, any adjustment based on reduced culpability must be based on a mitigating role in the misprision offense, not the underlying offense. Section 2X4.1 assumes that the misprision defendant is not guilty of the underlying offense. U.S. v. Godbolt, 54 F.3d 232 (5th Cir. 1995).
5th Circuit rules that defendant was not minor participant in importation scheme. (445) Defendant was involved in a conspiracy to import marijuana from Jamaica to the Louisiana. The marijuana was hidden in two metal cylinders attached the bottom of the hull of a boat. The Fifth Circuit upheld the court’s refusal to characterize defendant as a minor participant. Defendant traveled from Texas to Louisiana to participate in the conspiracy, stayed in one motel while his co-conspirators stayed in another to conceal their drug activities, assisted the diver on two occasions in an attempt to retrieve the marijuana from the boat, and would have transported the marijuana if not intercepted by federal agents. U.S. v. Brown, 54 F.3d 234 (5th Cir. 1995).
5th Circuit rejects minor role given lesser culpability of street dealers. (445) Defendant was involved in a cocaine and cocaine base conspiracy. She argued that she was entitled to a minor role reduction since three other conspirators played a larger role in the conspiracy than she did. The Fifth Circuit disagreed, given the number of street dealers involved in the conspiracy who handled smaller quantities of drugs and were less involved than defendant. U.S. v. McKinney, 53 F.3d 664 (5th Cir. 1995).
5th Circuit says other participants’ greater culpability did not make defendant a minor participant. (445) Defendant requested a minor participant reduction because he was less involved in a drug conspiracy than the other participants. The Fifth Circuit rejected the request, since the fact that some participants are more culpable than defendant does not make defendant a minor participant. Defendant was the leader’s right-hand man and very active in the conspiracy. U.S. v. Morris, 46 F.3d 410 (5th Cir. 1995)..
5th Circuit says middleman who brought buyer and seller together was not a minor participant. (445) Defendant arranged for a buyer to purchase 150 pounds of marijuana from undercover agents. He argued that he was merely a “go-between” who had a minor role in the transaction. The Fifth Circuit held that the role of “go-between” did not warrant a finding of minor participation. Defendant’s actions as the person who brought the buyers and sellers together for the transaction was critical to the offense. U.S. v. Tremelling, 43 F.3d 148 (5th Cir. 1995).
5th Circuit rejects minor role reduction for distributing cocaine to lower level street dealers. (445) The 5th Circuit held that defendant was not a minor participant in a cocaine distribution ring. He was one of the primary members of a group that received cocaine from a high level distributor, and then distributed it to lower level street dealers. The district court properly found that defendant was an average participant in the conspiracy. U.S. v. Mitchell, 31 F.3d 271 (5th Cir. 1994).
5th Circuit refuses minor role for defendant who negotiated delivery of several hundred pounds of marijuana. (445) Defendant argued that his offense level should have been reduced because of his minor role in a drug conspiracy. The 5th Circuit upheld the denial of the reduction, in light of evidence that defendant negotiated for the delivery of several hundred pounds of marijuana, and stood to profit substantially. U.S. v. Cordero, 18 F.3d 1248 (5th Cir. 1994).
5th Circuit denies minor role for defendant who delivered four ounces of heroin. (445) Defendant and her husband were involved of drug trafficking. Defendant was acquitted of heroin conspiracy charges and convicted of distributing four ounces of heroin. The 5th Circuit upheld the denial of a minor role reduction. Defendant was only held accountable for the four ounces of heroin that she was delivered to a cooperating individual. The district court found her claims that she was unaware of her husband’s illegal activities not to be credible. Her role in delivering the four ounces of heroin was not unimportant. She was entrusted with custody of four ounces of heroin, and she arranged to be available at the apartment to receive the cooperating individual’s telephone call and to complete the actual delivery. U.S. v. Zuniga, 18 F.3d 1254 (5th Cir. 1994).
5th Circuit concludes defendant was not minor participant in kidnapping conspiracy. (445) Defendant and others beat a kidnapping victim with a wooden stick and a gun, threw him in the trunk of a car, and drove to another state with the victim in the trunk. The 5th Circuit held that defendant was not entitled to a minor role reduction, based on evidence that he rode to Mississippi in the car that contained the victim in the trunk, participated in conversations with the conspiracy’s leader concerning disposal of the victim’s body, and was ready to dispose of the body. U.S. v. Davis, 19 F.3d 166 (5th Cir. 1994).
5th Circuit relies on jury’s verdict to uphold denial of minor role reduction. (445) Defendant transported large amounts of marijuana and cocaine for an illegal narcotics enterprise. He argued that because he did not know what he was delivering, and was basically an innocent participant in the conspiracy, his role was either minimal or minor. The 5th Circuit relied on the guilty verdict to reject this claim. The jury found defendant guilty of participating in the conspiracy, and therefore necessarily found that defendant had knowledge of, and voluntarily participated in, the ongoing transportation of entire truckloads of narcotics. U.S. v. Martinez-Moncivais, 14 F.3d 1030 (5th Cir. 1994).
5th Circuit denies minor reduction to crack sellers. (445) Defendants worked for a drug dealer selling crack from a field the dealer owned. The 5th Circuit upheld the denial of minor participants reductions to both defendants. One defendant made at least one sale of crack to an undercover agent, was identified by at least two co-conspirators as an employee of the dealer, and arranged at the field for an agent to purchase cocaine at another location. The second defendant constructed a shed that was used as the dealer’s personal office, was identified by at least two co-conspirators as one of the dealer’s sellers, and attempted to sell crack to an undercover agent on at least one occasion. U.S. v. Sparks, 2 F.3d 574 (5th Cir. 1993).
5th Circuit rejects minor role for defendant who oversaw cocaine shipments from Florida to Baton Rouge. (445) The 5th Circuit found that the district court’s determination that defendant was not a minor participant in a cocaine conspiracy was not erroneous, in light of defendant’s statement on videotape that he would oversee cocaine shipments from Florida to Baton Rouge every two weeks. U.S. v. Vaquero, 997 F.2d 78 (5th Cir. 1993).
5th Circuit rejects minor role for “close aide” of leader of drug conspiracy. (445) The 5th Circuit concluded that defendant was a significant member of a drug conspiracy, and did not hold a minor role. There was evidence that crack cocaine was processed for distribution in defendant’s home, making it a base of operation for the conspiracy. Defendant accompanied his co-conspirators on several trips for the purpose of distributing crack cocaine. Defendant’s own testimony showed him to be a close aide to the leader of the conspiracy. U.S. v. Gadison, 8 F.3d 186 (5th Cir. 1993).
5th Circuit finds that defendant was partner with wife in drug dealing. (445) The 5th Circuit rejected defendant’s claim that he was less culpable than his common-law wife in distributing amphetamine. The PSR characterized them as partners in distribution. There was insufficient evidence to persuade the court that although defendant lived with his wife throughout the period of the investigation in an apartment where drug-dealing was obvious, and although he was identified as his wife’s distributor, he was somehow less culpable than she was. U.S. v. Windham, 991 F.2d 181 (5th Cir. 1993).
5th Circuit denies minor participant adjustment to repeat “mule.” (445) Defendant argued that he should receive a downward adjustment as a minor or minimal participant because he was merely a “mule” in his drug conspiracy. The district court rejected defendant’s argument, as did the 5th Circuit. The adjustment is available to those who are substantially less culpable than the average participant in the offense, but defendant’s role as a mere transporter does not entitle him to an adjustment. Defendant play the role more than once, and he received large payments. In addition, the court questioned defendant’s characterization of his own role, noting evidence that defendant had recruited another to transport a shipment. U.S. v. Pofahl, 990 F.2d 1456 (5th Cir. 1993).
5th Circuit rejects minor role for defendant who was present at illegal casino every night. (445) Defendant and others were convicted of operating an illegal gambling business. The 5th Circuit affirmed the denial of a minor participant reduction in light of evidence that defendant held various positions in the enterprise. He was present in the casino every night and took part in operating the craps table, dealing blackjack, and admitting bettors to the casino. U.S. v. Follin, 979 F.2d 369 (5th Cir. 1992).
5th Circuit says judge made independent finding in rejecting minor role reduction. (445) Defendants argued that the district court erroneously based its denial of a minor role reduction solely upon the jury’s verdict. The 5th Circuit rejected this argument in light of the district court’s express finding that all the defendants were equally culpable. U.S. v. Carr, 979 F.2d 51 (5th Cir. 1992).
5th Circuit affirms consideration of relevant conduct in rejecting mitigating role. (445) The 5th Circuit affirmed that defendant did not have a mitigating role in a drug distribution based in part upon his role in relevant conduct. Defendant’s activities were not limited to a single delivery of drugs. He regularly purchased cocaine and sold it during the six months prior to his arrest. U.S. v. Bethley, 973 F.2d 396 (5th Cir. 1992).
5th Circuit rejects minor status for drug courier who had been with organization for one week. (445) Defendant and an accomplice were arrested in a Mexican hotel by Mexican police while waiting for dark so that they could pick up 720 kilograms of marijuana and transport it into the United States. After conviction in Mexico he was subsequently transferred to the United States where his release date was set by the U.S. Parole Commission with reference to his guideline sentence. Defendant claimed that he was entitled to a minor participant reduction because he was just a courier and had been with the organization for just one week. The 5th Circuit rejected this argument based upon the Parole Commission’s findings that defendant was aware of the scope and structure of the operation. He knew where the marijuana was located, he had previously delivered 110 pounds to the border and he had been classified by the Mexican court as a serious offender. Molano-Garza v. U.S. Parole Commission, 965 F.2d 20 (5th Cir. 1992).
5th Circuit says defendant who sold large quantity of drugs to conspiracy leader was not a minor participant. (445) The 5th Circuit rejected defendant’s contention that he was a minor participant even though the volume of controlled substances attributed to him was a small fraction of the operation’s total drug trade and others in the operation had more active roles. Even if others were more culpable, this did not automatically qualify defendant for minor or minimal status. Defendant had been selling large amounts of controlled substances to the conspiracy leader for several years and regularly appeared on the drug trade ledgers along with other distributors. U.S. v. Thomas, 963 F.2d 63 (5th Cir. 1992).
5th Circuit rejects minor role for defendant who coordinated setting up methamphetamine laboratory. (445) Defendant and others were convicted of manufacturing methamphetamine. The 5th Circuit affirmed the district court’s rejection of a minor role reduction for defendant. Defendant coordinated the set up of the laboratory: he compiled a list of chemicals and equipment needed at the laboratory, he called a co-conspirator several days before the activity at the lab to inform him that some people were coming to use the lab, and the conspiracy’s leader instructed other conspirators to keep defendant informed of the status of the activity at the lab. U.S. v. Sherrod, 964 F.2d 1501 (5th Cir. 1992).
5th Circuit rejects minor role for defendants who were involved with substantial quantities of marijuana. (445) The 5th Circuit rejected the contentions of two drug conspirators that they were entitled to a reduction based upon their minor role. One defendant was a regular customer of a drug dealer/conspirator during the period listed in the indictment, purchasing between 150 and 180 pounds of marijuana every three to 12 pounds. The other defendant was involved in transactions totaling at least 2,000 pounds. U.S. v. Lokey, 945 F.2d 825 (5th Cir. 1991).
5th Circuit rules that minor participant status is a factual determination subject to review under the clearly erroneous standard. (445) The sentencing judge rejected the Probation Department’s recommendation for a three point increase in the defendant’s base offense level because she was a manager under § 3B1.1. He also rejected the defendant’s contention that she was a minor participant entitled to a two point reduction in her base offense level under § 3B1.2. On appeal, the 5th Circuit affirmed. Since the record provided an adequate foundation to support a denial of a reduction, the sentencing judge’s determination was not clearly erroneous as to this factual determination. The sentence was therefore proper. U.S. v. Thomas, 870 F.2d 174 (5th Cir. 1989).
5th Circuit rejects minor role of wife of money launderer. (445) The 5th Circuit rejected defendant’s contention that she was a minor or minimal participant in her husband’s money laundering scheme. Defendant played an important role in the laundering scheme: she relayed messages between the launderers and their clients, counted the money to verify the sums, and on at least one occasion actually transported the money to Belgium. U.S. v. Allibhai, 939 F.2d 244 (5th Cir. 1991).
5th Circuit rejects minor role for defendant who supplied chemical supplies to drug conspiracy. (445) Defendant was convicted of conspiracy to manufacture methamphetamine. The 5th Circuit rejected defendant’s argument that he was an unknowing participant in the scheme, and thus entitled to a reduction based upon his minor status. Defendant played a significant role in the drug conspiracy, providing the drug lab with needed chemical supplies. U.S. v. Harris, 932 F.2d 1529 (5th Cir. 1991).
5th Circuit rejects minor role of defendants who wore necklaces indicating membership in “inner circle” of conspiracy. (445) Defendants contended they were only minor or minimal participants in a conspiracy to distribute methamphetamine. One defendant argued that the only evidence implicating him in the conspiracy was a co-conspirator’s testimony that he and defendant were partners distributing between 12 and 20 pounds of methamphetamine between 1983 until 1986. In contrast, the conspiracy produced between 700 to 1200 pounds of methamphetamine. Moreover, defendant was only charged in one count of the 39-count indictment. The other defendant contended he was a musician with no money and little possessions who played a peripheral role in the conspiracy. The 5th Circuit upheld the district court’s refusal to accord them minor or minimal status. The evidence showed that the first defendant trafficked in large quantities of drugs with his partner for seven to nine years. Moreover, defendant wore a gold arrowhead necklace signifying his membership in the inner circle of the conspiracy. The other defendant sold drugs for the conspiracy’s leader as far back as 1982 and during this time distributed pound quantities of the drug. A search of his residence uncovered drug ledgers reflecting thousands of dollars in narcotics sales. Finally, this defendant also wore the arrowhead necklace. U.S. v. Devine, 934 F.2d 1325 (5th Cir. 1991).
5th Circuit rejects minor role reduction solely because defendant does less than other participants. (445) Defendant contended he was entitled to an offense level reduction based on his minor role. The presentence report indicated that defendant was only a “go-between,” and not a supervisor, and that he would pick up cocaine, package it and give it to couriers. The 5th Circuit acknowledged that defendant’s role in the conspiracy was less than the supervisory roles of his co-conspirators, but found defendant was not entitled to the reduction. “It is improper to award a minor participation adjustment simply because a defendant does less than the other participants. Rather, the defendant must do enough less so that he at best was peripheral to the advancement of the illicit activity.” Given defendant’s “daily role” in the conspiracy, the district court did not err in finding defendant’s participation was not minor. U.S. v. Thomas, 932 F.2d 1085 (5th Cir. 1991).
5th Circuit rejects minor status despite contrary conclusion in presentence report. (445) Defendant contended that he was just a “runner” entitled to minor status in a money laundering operation. Defendant was sent by a co-conspirator to pick up money from government agents conducting a “sting” operation. In a telephone conversation with one of the agents, the co-conspirator referred to defendant as simply a “runner,” and “not an Einstein.” Despite the “reluctant” conclusion of the presentence report that defendant was a minor participant, the 5th Circuit upheld the denial of a reduction based on his minor role. The district court reviewed a videotape of defendant’s meeting with the government agents, during which defendant engaged in a lengthy discussion about methods of laundering drug money. Moreover, the presentence report found that defendant was more than a mere runner and that his knowledge of money laundering was evident. This was a sufficient basis for the district judge to reach a conclusion contrary to the presentence report. U.S. v. Richardson, 925 F.2d 112 (5th Cir. 1991).
5th Circuit denies minimal or minor status to defendant who transported marijuana. (445) Defendant was arrested at a border checkpoint after a search of the borrowed car he was driving revealed 198 pounds of marijuana. The 5th Circuit rejected defendant’s contention that he was entitled to a reduction based on his minimal or minor role in the offense. The record showed that defendant was a person of substantial eduction who could be certain to realize the seriousness of the offense he was committing. He knew the car he was driving contained a large quantity of marijuana, and that the contraband represented part of a broad conspiracy to transport large amounts of marijuana. Before his apprehension at the checkpoint, defendant had already transported the marijuana a great distance, and thus had plenty of time to distance himself from the conspiracy during the trip. U.S. v. Badger, 925 F.2d 101 (5th Cir. 1991).
5th Circuit finds defendant with minor role in drug transaction did not have minor role in conspiracy. (445) In the factual resume that defendant signed as part of her guilty plea, she admitted that she had been involved on a daily basis in acquiring, transporting, and distributing cocaine and money over a period of about two years. The 5th Circuit found that defendant was not entitled to a reduction for her minor role. Although she may have had a minor role in the particular transaction that led to her arrest, she was not a minor participant in the cocaine distribution ring. U.S. v. Giraldo-Lara, 919 F.2d 19 (5th Cir. 1990).
5th Circuit holds that joint venturer was not a minor participant. (445) Defendant asserted that he was only a drug courier and not a partner in the transaction. However, the record indicated that he was a joint venturer, specifically that he would receive half of the 200 pounds of marijuana he was picking up. Accordingly the 5th Circuit upheld the district court’s refusal to characterize defendant as a minor participant under § 3B1.2(b). U.S. v. Fields, 906 F.2d 139 (5th 1990).
5th Circuit holds that defendant’s role was not “minor” even though codefendant was more culpable. (445) Defendant argued that he was entitled to a reduction in offense level for minor or minimal participant status because he had a lesser role compared to a co-defendant. The 5th Circuit rejected the argument, noting that the co-defendant’s offense level was adjusted upward for his leadership role. Moreover, the district court found that defendant was an “average” participant. His fingerprints were on some of the manufacturing equipment and he lived in the house where the drugs were made. U.S. v. Mueller, 902 F.2d 336 (5th Cir. 1990).
5th Circuit upholds refusal to reduce sentence for minor role where defendant safeguarded the cocaine. (445 The defendant was in possession and control of a large amount of cocaine in her home. The stipulated testimony showed that defendant’s name and handwriting were found in documents connected with cocaine trafficking. Accordingly the 5th Circuit held that the district court’s finding that defendant was not substantially less culpable than the average participant in the offenses was not clearly erroneous. U.S. v. Hurtado, 899 F.2d 371 (5th Cir. 1990).
5th Circuit upholds refusal to find defendant was a minor participant. (445) The district court refused to grant the defendant a two level reduction for being a minor participant in a scheme to purchase 2000 pounds of marijuana. Defendant produced $200,000 in cash to purchase 500 pounds, dictated how and when the transaction would take place, conducted a detailed examination of the marijuana, and gave final approval for purchase. Given these facts, the 5th Circuit held that the district court’s refusal to find him a minor participant was not clearly erroneous. U.S. v. Farrell, 893 F.2d 690 (5th Cir. 1990).
5th Circuit upholds denial of reduction for “minor or minimal” role. (445) Defendant distributed heroin for a co-defendant at a residence and was aware the residence was used by others to distribute heroin. Based on these facts, the 5th Circuit held that a finding that defendant was not a minor participant was not clearly erroneous. U.S. v. Rivera, 898 F.2d 442 (5th Cir. 1990).
5th Circuit holds that driver offloader is not a minimal participant. (445) The 5th Circuit held that the district court did not err in refusing to grant a “minimal participant” reduction (§ 3B1.2) to defendant. The evidence showed that he was waiting with another person late at night near the border to receive a 30 lb. load of marijuana. Defendant claimed he was merely the driver of the vehicle. The court stated that a sentencing court “need not accept a defendant’s self serving account of his role” when deciding the issue. Furthermore, it was not clearly erroneous for the district court to conclude that the defendant was not “substantially less culpable” than his co-defendant who was not before the court, even though the district court stated that this may have been the case. U.S. v. Velasquez, 890 F.2d 717 (5th Cir. 1989).
5th Circuit holds that defendant’s conviction of fewer counts than co-defendant does not entitle defendant to minor participant reduction. (445) The 5th Circuit held that the fact that a drug defendant was convicted of fewer counts than his co-defendant does not entitle him to a “minor participant” reduction. The court found “no impropriety in the district court’s assessment of sentence.” U.S. v. Molinar-Apodaca, 889 F.2d 1417 (5th Cir. 1989).
5th Circuit rules drug defendant’s responsibility for handling money precluded minor/minimal participant adjustment. (445) The 5th Circuit held that a drug defendant who was responsible for transporting and keeping track of money used to purchase cocaine and who asserted that the cocaine was “high quality” was not a minor or minimal participant under § 3B1.2. The sentencing court’s finding on this issue was not clearly erroneous. U.S. v. Kane, 887 F.2d 568 (5th Cir. 1989).
5th Circuit holds defendant who acted as a silent principal, rather than an errand runner was neither minor nor minimal participant. (440) The 5th Circuit held that the district court’s findings that a drug defendant was neither a minor nor minimal participant were not clearly erroneous. The defendant accompanied his co-defendants to an initial meeting with government agents. He had sole control over the 107 grams of heroin sold to the agents. He also assented to the prosecutor’s factual basis for a plea which described him as a “partner” in the enterprise. Thus, the district court’s denial of a 4 or 2 level downward adjustment in his offense level under § 3B1.2 was not improper, given his relative culpability. U.S. v. Nevarez-Arreola, 885 F.2d 243 (5th Cir. 1989).
5th Circuit rules role as drug courier is not per se minimal or minor. (445) The 5th Circuit held that the district court’s finding that the defendant was not a minor or a minimal participant was not clearly erroneous, even though the defendant’s role was merely that of a drug courier. Thus, it was not error to deny the defendant a reduction in his offense level. U.S. v. Hewin, 877 F.2d 3 (5th Cir. 1989).
5th Circuit finds where four participants were of equal culpability, none was entitled to “minor participant” status. (445) The district court found that all four of the defendants were of roughly equal culpability, and that no single individual was more of a manager or organizer or supervisor than any other. Thus, the Fifth Circuit agreed that the district court’s finding that the defendant was not a “minor participant” was not clearly erroneous. U.S. v. Gordon, 876 F.2d 1121 (5th Cir. 1989).
6th Circuit denies role reduction to defendant who directed demolition of site containing asbestos. (445) Defendant was convicted of violating the Clean Air Act, 42 U.S.C. § 7413(c), based on the demolition of a factory site containing asbestos. The Sixth Circuit rejected defendant’s claim that he was entitled to a minor role reduction under § 3B1.2. At the very least, defendant directed day after day of the demolition, knowing the site still contained asbestos, and he signed a false 10-day notice that misled the Air Pollution Control Bureau. The district court’s denial of the reduction was not clearly erroneous. U.S. v. Mathis, 738 F.3d 719 (6th Cir. 2013).
6th Circuit denies mitigating role reduction for drug courier. (445) Defendant was convicted of drug trafficking and conspiracy to commit money laundering. The Sixth Circuit held that the district court did not err in denying defendant a mitigating role reduction under § 3B1.2, because his role as courier was critical to the success of conspiracies. The district court held defendant accountable for 12,611 pounds of marijuana, the amount he actually delivered or transported, not the total amount of drugs transported throughout the entire conspiracy. The district court also found that defendant “facilitated the transportation of vast amounts of marijuana and money back and forth across the country,” and “[t]he conspiracy would not have been successful without the participation of the drivers…. [T]his defendant facilitated and allowed this conspiracy to progress…. That is more than just a minor or minimum player.” These findings justified the denial of the mitigating role adjustment. U.S. v. Skinner, 690 F.3d 772 (6th Cir. 2012).
6th Circuit denies role reduction to prison guard who agreed to plan and participated in cover-up. (445) Defendant and his co-defendant, Lanham, were prison jailers when a prison inmate was raped in jail. Defendants and their supervisor decided to “scare” the inmate after he was arrested for a traffic violation, by placing him in a general population jail cell. The district court rejected defendant’s request for a minor role reduction, stating: “While he did not have as much of a speaking role, his activities, his knowledge of what was going on and his participation in the agreement of defendants, was substantial. He added weight to Mr. Lanham’s statements and … he indicated agreement with the activities that were being requested by Mr. Lanham.” The Sixth Circuit affirmed the denial of the reduction. Defendant’s actions were deliberately indifferent, and after the rape he was an active participant in covering up the crime. U.S. v. Lanham, 617 F.3d 873 (6th Cir. 2010).
6th Circuit says participant in marijuana negotiation was not minor participant in sales. (445) A confidential source made three marijuana buys from defendant’s father, who obtained the marijuana from another man. Defendant helped deliver the marijuana on one occasion. When the source approached defendant about making another purchase, defendant stated that he had 500 plants available for sale and that he and the man who supplied the plants for the earlier sales were partners. Defendant’s father told the source that defendant was unreliable, however, and the father sold the source the plants. Defendant pleaded guilty to conspiracy to manufacture marijuana. At sentencing, he sought a reduction in offense level on the ground that he was a minor participant in the scheme. The district court refused to grant the reduction, and the Sixth Circuit held that the district court was not clearly erroneous. U.S. v. Gabbard, 586 F.3d 1046 (6th Cir. 2009).
6th Circuit bases role reduction on defendant’s role in money laundering, not drugs. (445) Defendant’s son was a drug dealer. She was aware that her son was a drug dealer, and she helped him conceal his illegal proceeds and also assisted her son in his drug trade. She pled guilty to money laundering. The district court, pursuant a cross-reference in § 2S1.1(a)(1), referenced § 2D1.1 to obtain defendant’s base offense level. The Sixth Circuit held that the district court erred by granting defendant a four-level reduction for her mitigating role in the drug conspiracy. Section 1B1.5(c) states that if the offense level is determined by reference to another guideline, the adjustments in Chapter Three also are determined in respect to the referenced offense level guideline, except as otherwise expressly provided. Note 2(c) to § 2S1.1 says that “Notwithstanding § 1B1.5(c), in cases in which subsection (a)(1) applies, application of any Chapter Three adjustments shall be determined based on the offense covered by this guidelines (i.e. the laundering of criminally derived funds)….” Thus, the court should have considered defendant’s role in the money laundering offense. Defendant clearly did not hold a minor role in that offense, since she was the only person criminally responsible for laundering the money. U.S. v. Anderson, 526 F.3d 319 (6th Cir. 2008).
6th Circuit rejects minor role for defendant who conducted surveillance and drove get-away car. (445) Defendant and three college buddies hatched a plan to steal rare books from the library of a nearby university, and sell them at auction in New York City. Defendant argued that he was the least culpable of the four and deserved a minor role reduction because (1) his ideas and suggestions were routinely rejected during the planning stages, (2) he had no contact with the “public” during either the robbery or the meeting with the auction house in new York, and (3) he was relegated to conducting surveillance, driving the get-away car, and accompanying others on their trip to New York. The Sixth Circuit upheld the district court’s finding that defendant was just as culpable as the other three participants, and did not hold a minor role. Defendant visited the library before the robbery to gather intelligence, developed the escape route, obtained and drove the escape vehicle, arranged hotel accommodations in New York, and helped finance the operations. He helped hide the stolen objects at his house, and helped transport them to New York and back. U.S. v. Allen, 516 F.3d 364 (6th Cir. 2008).
6th Circuit holds that owner of company that submitted false invoices was not minor participant. (445) Defendant and Kimmons, an independent contractor for Blue Cross, orchestrated a fraudulent invoice scheme in which Blue Cross paid defendant’s company for consulting work that was never performed. In declining to grant defendant a minor role reduction, the court noted that the fraud scheme would not have worked without defendant’s computer consulting business, into which Blue Cross’s funds were diverted. The Sixth Circuit affirmed the denial of the minor role reduction. It was clear the district court did not fully believe defendant’s claims of innocence, particularly given his past history with defendant. Defendant asked Kimmons to take care of the invoicing for his company, knowing that Kimmons was responsible for approving invoices for Blue Cross. Without defendant’s business, the fraud scheme would not have happened. Further, the funds were diverted directly into defendant’s business. U.S. v. Camacho, 348 F.3d 696 (8th Cir. 2003).
6th Circuit upholds denial of minor role reduction to “fully integrated member” of drug conspiracy. (445) Defendant was a fully integrated member of a substantial drug conspiracy that used his residence as a base of operations. He participated in several drug transactions that took place in his basement, stored a shotgun and ammunition in the closet near the stairs to his basement, and personally received at least one large shipment of marijuana. Defendant was therefore not entitled to either a minor-role or a minimal role reduction on these facts. The Sixth Circuit held that the district court did not err in refusing to grant him a reduction. U.S. v. Bartholomew, 310 F.3d 912 (6th Cir. 2002).
6th Circuit rejects minimal role reduction for broker accountable for all drugs involved in transaction. (445) The district court granted defendant a four-level minimum role reduction under U.S.S.G. § 3B1.2(a) based on his role in the sale of seven kilograms of cocaine from an informant to a co-defendant. The government argued that the court erroneous considered the informant’s conduct when considering relative culpability and erroneously set aside the quantity of drugs, which would have been one of the most significant factors in determining defendant’s role. The court found that all seven kilograms should be attributed to defendant for relevant conduct purposes and then ignored the fact that he acted as broker for the deal. The court’s comments also indicated that its findings were based on sympathy for defendant and its belief that the drug guidelines are too high, rather than on a genuine finding that defendant was a minimal participant in this crime. It was inconsistent to attribute the entire amount of cocaine to defendant and then grant him a four-level minimal role reduction. U.S. v. Samuels, 308 F.3d 662 (6th Cir. 2002).
6th Circuit says defendants who delivered, packaged and sold crack for a year not minimal participants. (445) In concluding that defendants were minimal participants in a drug conspiracy, the district court focused on the fact that several of the co-conspirators who testified at trial appeared to have greater roles in the conspiracy. The application notes to § 3B1.2 provide that the minimal role reduction is appropriate for “someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” In contrast, defendants each carried, delivered, packaged and sold crack cocaine in partnership with Burns for over a year. The Sixth Circuit found that the activities of these three defendants were so much greater in scope and duration than the one-time functionary duties listed in the application notes to § 3B1.2 that the district court committed clear error when it granted the four-level minimal participant reduction. This did not mean, however, that a two or three-level reduction for a minor role under § 3B1.2 would necessarily be inappropriate on remand. U.S. v. Burns, 298 F.3d 523 (6th Cir. 2002).
6th Circuit rejects role reduction for defendant only held responsible for drugs he personally handled. (445) The district court held defendant accountable for between 100 and 200 grams of cocaine, which was the amount of drugs that defendant actually purchased and distributed or used. The full amount of cocaine involved in the conspiracy was 15 kilograms. Because the district court held defendant accountable only for the quantity of drugs attributable to him, the Sixth Circuit held that the district court correctly denied his request for a mitigating role reduction under § 3B1.2. U.S. v. Campbell, 279 F.3d 392 (6th Cir. 2002).
6th Circuit rejects minor role reduction to trustee of trusts designed to evade taxes. (445) Defendant was part of an organization that instructed individuals on methods to avoid paying federal and state income taxes. For example, one couple, the Stewarts, closed all of their bank accounts, and created several trusts to which they transferred all of their assets. The trust paid their personal and business expenses, but the IRS never received any paperwork concerning the trusts. Defendant served as trustee for many of these trust. The Seventh Circuit reversed a minor role reduction, finding defendant’s actions as trustee were indispensable to the conspiracy. Defendant’s willful conduct as a trustee of the trusts, in permitting the Stewarts to use his signature stamp, securing property for the Stewarts, and creating a bogus mortgage, were essential to the operation of the conspiracy. U.S. v. Sabino, 307 F.3d 446 (6th Cir. 2002).
6th Circuit holds that son did not play minor role in mother’s tax fraud scheme. (445) Defendant and his mother owned and operated a tax service that prepared and electronically filed individual tax returns for their clients. The returns routinely omitted income, inflated deductions, and included false forms in order to increase the refunds. The service then collected a percentage of the refund, in violation of IRS regulations. The Sixth Circuit rejected defendant’s claim that he played a minor role in the tax fraud scheme. Defendant acknowledged that some victims came to him for tax services, that he was present when some victims supplied their financial information to the tax service, and that he prepared some returns. Defendant actively participated in the scheme and admitted splitting the proceeds of the crime equally with his mother. U.S. v. Searan, 259 F.3d 434 (6th Cir. 2001).
6th Circuit rejects minor participant reduction to defendant who transported seven kilograms of cocaine. (445) Defendant drove a car containing seven kilograms of cocaine from Miami, Florida to Louisville, Kentucky. The transportation of the cocaine from Florida was an act crucial to the success of the criminal scheme. Further, defendant’s role was not limited to simply transporting the cocaine. During the trip, defendant communicated with drug distributor to whom the drugs were being delivered by cell phone. He met with the distributor at a restaurant and exchanged the drug-laden vehicle for the distributor’s car, then drove the distributor’s car to the distributor’s residence. Defendant was at the distributor’s residence when the sale of five kilograms of cocaine to the informant was supposed to occur. In addition, defendant was not held accountable for the full amount of cocaine involved in the conspiracy, only the five kilograms of cocaine to be sold to the informant. In light of this, the Sixth Circuit held that defendant did not show that he was entitled to a minor participant reduction. U.S. v. Salgado, 250 F.3d 438 (6th Cir. 2001).
6th Circuit holds that defendant not a minor participant in trafficking of drug he transported. (445) The district court found that, as a paid long-distance courier, defendant knowingly contributed a vital service to the distribution cartel with respect to the four kilograms of cocaine that he transported. Because defendant was not a minimal or minor participant in the trafficking of the four kilograms of cocaine for which he was sentenced, the Sixth Circuit affirmed the denial of a § 3B1.2 reduction. U.S. v. Saucedo, 226 F.3d 782 (6th Cir. 2000).
6th Circuit upholds denial of minor role status despite limited participation and limited share of profits. (445) Defendant prepared about 20 fictitious tax returns for Jeter, who presented the tax returns to local banks to verify income and employment data submitted on fraudulent auto loan applications. Jeter paid defendant about $75 for each return. The Sixth Circuit held that defendant was not a minimal participant. Minimal participant status is reserved “primarily for someone who played a single, limited role in a very large organization. Defendant’s role was not limited to a single criminal act. He also was not “plainly among the least culpable” of the group as his fictitious tax returns were required to qualify Jeter’s recruits for the auto loans. It was arguable, however, whether defendant was entitled to a minor participant reduction. Defendant only prepared fictitious tax returns and was not involved in the planning or execution of the scheme. He also received a relatively small percentage of the profits–$75 per tax return compared to an average of $15,000 to $20,000 in loan proceeds. Nevertheless, Jeter could not have executed his scheme without defendant’s fraudulent tax returns, which provided phony verification of income and employment necessary to secure the loans. Because there were two permissible views of defendant’s role, the Sixth Circuit upheld the district court’s finding that defendant was not a minor participant in the scheme. U.S. v. Tilford, 224 F.3d 865 (6th Cir. 2000), abrogation on other grounds recognized by U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003).
6th Circuit rejects reduction where defendant only held accountable for acts in which he participated. (445) Because it was unclear whether transactions conducted individually by the four co-defendants were reasonably foreseeable to others, each defendant was only held responsible for the specific drug transactions in which he was involved. Nonetheless, defendant argued that he deserved a mitigating role reduction because (1) he was simply a courier for one co-defendant; and (2) a far smaller quantity of drugs was attributed to him than his co-defendants. The Sixth Circuit noted that it and a majority of other circuits have held that a defendant may only receive § 3B1.2 reduction if he can 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. See, e.g. U.S. v. Roper, 135 F.3d 430 (6th Cir. 1998); U.S. v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc). Here, the district court properly looked only to the relevant conduct attributed to defendant for purposes of determining his base offense level. Defendant did not demonstrate that he was a minor participant in comparison to other participants in that relevant conduct. U.S. v. Roberts, 223 F.3d 377 (6th Cir. 2000).
6th Circuit denies minor role reduction to defendant at higher distribution level than street dealers. (445) Defendant argued that he was substantially less culpable than the other participants in the drug conspiracy because he was only an end user of drugs who occasionally supplemented his income by selling drugs to others. The district court disagreed, concluding that defendant was more culpable than the street-level dealers because he was at a higher level in the chain of distribution. McGraw testified that Larry supplied drugs to defendant, who then distributed them to McGraw to sell at a crack house in 1988 and 1989. McGraw also testified that after he was released from jail in 1993, defendant “fronted” drugs to him for several months by supplying him with an ounce of crack per week. The Sixth Circuit affirmed the denial of the minor role reduction. Although defendant claimed he was in jail in 1988 and 1989, he was out of jail for over two months in 1988 and nine months in 1989. McGraw’s testimony was consistent with other testimony describing defendant’s role in the conspiracy. U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000).
6th Circuit denies minor reduction to defendant who copied hate flyers. (445) Defendant was present when Dunn and Porter discussed a plan to place copies of a hate flyer on the lawn of an African-American family. Defendant made copies of the flyer for Dunn and Porter, but was not present when Dunn scattered the copies on the family’s yard. The Sixth Circuit held that defendant was not entitled to a minor or minimal participant reduction. Defendant knew of his co-conspirators’ plans for the flyer before he copied it, he actively participated in the racial harassment by joining Dunn and Porter in yelling racial epithets outside the family’s home, and he took steps to avoid detection by concocting an alibi about finding the flyers on the roadside and by making sure not to leave any fingerprints. Thus, defendant well understood the scope of the conspiracy to deprive the family of their right to occupy their home free from racial harassment, and actively participated in this conspiracy. Even though defendant did not personally place the hate flyers on the family’s lawn, he was not substantially less culpable than his co-conspirators. Defendant’s role in copying the flyers was essential to the overall scheme. U.S. v. Mahan, 190 F.3d 416 (6th Cir. 1999).
6th Circuit rejects § 3B1.2 reduction where defendant actively participated in 3 charged drug sales. (445) Defendant was convicted of distributing cocaine base on three occasions. The Sixth Circuit rejected a minor role reduction since defendant was the only person with whom the informant and the DEA agent dealt, and he actively participated in each of the three sales of cocaine base for which he was charged. U.S. v. Roper, 135 F.3d 430 (6th Cir. 1998).
6th Circuit rejects role reduction for arson defendant who recruited another. (445) Defendant and others were hired to burn a restaurant so that the owner could collect insurance proceeds. The Sixth Circuit refused to grant him a minor role reduction because there was evidence that defendant recruited one of the conspirators, paid him, and was the contact with the restaurant owner. Defendant was not the main player in the scheme, but he was not a minor participant. U.S. v. Latouf, 132 F.3d 320 (6th Cir. 1997).
6th Circuit rejects minimal role for defendant who may have been brains of the outfit. (445) A confidential informant arranged to purchase some heroin from an acquaintance at a local restaurant. The acquaintance made a few phone calls. Shortly thereafter, defendant arrived driving a BMW and supplied the informant with an ounce of heroin. Defendant was convicted of distributing a controlled substance. He argued that he was only a courier and should have received a four level minimal role reduction rather than two levels for minor role. The Sixth Circuit found no clear error. Although it was possible defendant was only a courier, it was equally plausible that he was the brains of the outfit who sent the acquaintance out to make the transaction and once done, arrived to finalize the deal. U.S. v. Aguwa, 123 F.3d 418 (6th Cir. 1997).
6th Circuit denies role reduction to defendant who sold cocaine, collected money, and sent wire transfers. (445) Defendant contended that he played a minor role in a cocaine distribution ring and was less culpable than those who took an active part in acquiring, delivering, breaking down, and selling cocaine. The Sixth Circuit affirmed the denial of the § 3B1.2 reduction based on evidence that defendant transported cocaine from Florida to Tennessee, collected money from gang members, sold cocaine at a housing project, and sent and received wire transfers totaling $24,300. U.S. v. Elder, 90 F.3d 1110 (6th Cir. 1996).
6th Circuit rejects minor role reduction for major participant in fraud scheme. (445) Using numerous false names and addresses, defendant joined a record club. After receiving the free tapes and CDs (which he later sold on the street), defendant then refused the later invoices that were sent to the false names. His defense at trial was that he was only a dupe in the scheme, which was masterminded by a man known as Derrick. He argued for the first time an appeal that he deserved a minor role reduction. The Sixth Circuit found no plain error, since the evidence showed that defendant was the major, if not sole, participant in the fraud scheme. U.S. v. Ellerbee, 73 F.3d 105 (6th Cir. 1996).
6th Circuit denies role reduction to defendant who actively hatched bank robbery plot with husband. (445) Defendant conspired to rob a bank, and aided and abetted her husband’s bank robbery. The Sixth Circuit found that defendant was not a minor participant under § 3B1.2(b). Defendant actively participated in hatching the plot. She helped plan the robbery, cut pantyhose into masks and gloves, selected the bank, drove the get-away car, selected the location to dispose of the guns, masks, and gloves, and traded in the get-away car. U.S. v. Lowery, 60 F.3d 1199 (6th Cir. 1995).
6th Circuit rejects minor role for defendant who was present when controlled drug delivery was made. (445) Defendant was present when police made a controlled delivery of drugs to defendant’s cousin from Nigeria. The Sixth Circuit upheld the denial of a minor role reduction. Defendant’s claim that the district court failed to consider trial testimony was meritless. The court directly referred to the cousin’s trial testimony. The court was not required to credit the cousin’s testimony that he only gave the package to defendant so that he could find a place where it would not be disturbed by defendant’s young sister. Various items found among defendant’s possessions implicated him in drug trafficking, including a hollowed-out book, an operational pager, and 27 packets of marijuana. Moreover, evidence was found establishing defendant’s association with the Nigerian connection–a mailing envelope listing him as the addressee, with a Nigerian return address. U.S. v. Jackson, 55 F.3d 1219 (6th Cir. 1995).
6th Circuit says court may consider defendant’s knowledge of scheme in rejecting role reduction. (445) Defendant was involved in a conspiracy to steal trucks, remove their VINs, dismantle them, and then place the stolen parts onto the frames of salvaged trucks. Defendant assisted in dismantling the stolen trucks. The Sixth Circuit affirmed the denial of a minor role reduction since defendant’s role of taking the trucks apart was necessary to the conspiracy’s success. The district court properly took into account defendant’s knowledge of the scope of the conspiracy in finding he was not a minor participant. This factor is not just relevant for determining whether a defendant is a minimal participant. U.S. v. Miller, 56 F.3d 719 (6th Cir. 1995).
6th Circuit denies minor role reduction to defendant whose house was used for drug storage. (445) Defendants argued that they were only minor participants in a drug conspiracy. The 6th Circuit rejected both claims. Trial testimony implicated one defendant in drug sales. Also, her house was used for the storage and sale of narcotics. Evidence showed that the other defendant knew that cocaine was obtained from sources in Florida and sent back to Ohio. Defendant had made some of the trips to get cocaine. U.S. v. DeFranco, 30 F.3d 664 (6th Cir. 1994).
6th Circuit denies minimal role to defendant who helped load 244 kilos of cocaine and paid for another shipment. (445) The district court reduced defendant’s offense level by three under § 3B1.2, but refused to reduce it by four for being a minimal participant. The 6th Circuit affirmed, since defendant did not lack knowledge or understanding of the enterprise. He helped load 244 kilograms of cocaine, and paid a courier for delivering another shipment of cocaine. U.S. v. Ledezma, 26 F.3d 636 (6th Cir. 1994).
6th Circuit finds defendant who went along to pick up drugs was not minimal participant. (445) Defendant made regular purchases of methamphetamine from his cousin. He knew his cousin made weekly visits to Cleveland to purchase six to 10 grams of methamphetamine from his supplier. Defendant accompanied his cousin on one of those trips and was convicted of conspiracy to possess methamphetamine with intent to distribute. He received an adjustment for having a “minor” role, and the 6th Circuit upheld the district court’s finding that he was not a “minimal” participant. He admitted that he knew the scope and structure of the enterprise, and knew how much the cousin purchased each week. In addition, defendant had been his cousin’s regular customer for several months, and had accompanied his cousin on at least two drug-buying trips. Defendant also admitted to being his cousin’s confidante in drug dealing matters. U.S. v. Cochran, 14 F.3d 1128 (6th Cir. 1994).
6th Circuit rejects minor role for defendant who accepted 100 pound marijuana shipment. (445) The 6th Circuit concluded that defendant did not meet his burden of proving he was entitled to a minor or minimal role reduction. Although he alleged that he was only a small-time marijuana dealer, he participated in the conspiracy to the extent that he accepted delivery of 100 pounds of marijuana. U.S. v. Moss, 9 F.3d 543 (6th Cir. 1993).
6th Circuit finds that one who made unauthorized electronic transfers was not minor participant. (445) Defendant claimed he was a minor participant in a scheme to obtain money using unauthorized electronic transfers, since other participants planned the scam, obtained required input numbers, and made all arrangements other than causing the actual transmissions that produced the money. The 6th Circuit upheld the denial of the reduction based on the district court’s finding that defendant played a key role which was “indispensible” to committing the offenses. U.S. v. Burroughs, 5 F.3d 192 (6th Cir. 1993).
6th Circuit holds defendant entrusted with drug-related funds was not minimal participant. (445) The 6th Circuit affirmed that defendant was not a minimal participant in a drug conspiracy, despite the probation officer’s conclusion that defendant was the least involved among the co-defendants. Defendant was involved in the drug distribution ring throughout the bulk of its existence, having been entrusted with drug-related funds, as well as critical knowledge concerning the whereabouts of the cocaine supply. U.S. v. Phibbs, 999 F.2d 1053 (6th Cir. 1993).
6th Circuit rejects minor role reduction for courier in drug importation scheme. (445) Defendant made two trips to Japan for the purpose of bringing back large quantities of heroin. The 6th Circuit rejected her contention that she was a minor participant in the scheme. In a purely domestic distribution operation couriers of large quantities of a controlled substance may frequently be minor participants. When the crime is importation, however, couriers play a role that is central to the offense. Defendant’s role was not significantly less culpable than that of other couriers. U.S. v. Walker, 1 F.3d 423 (6th Cir. 1993).
6th Circuit rejects minor role for defendant who arranged drug transaction with agents. (445) The 6th Circuit affirmed that defendant was not a minor participant in a transaction between undercover agents posing as drug dealers and several co-defendants. In addition to arranging the transaction, defendant greeted the officers at the hotel room door and led them inside. He inquired whether anyone was wearing a wire. He then relinquished control and a co-defendant handled the actual negotiations. The search conducted after the arrest yielded three scales and three screens, leading to the conclusion that all three defendants would take part in preparing the drugs for distribution. U.S. v. White, 985 F.2d 271 (6th Cir. 1993).
6th Circuit rejects minor role for “bag man” in drug deal. (445) The district court refused to find that defendant was a minor participant in a drug deal because he was the “bag man.” Defendant had control of the $330,000 that his co-conspirators were to use to purchase cocaine from the undercover agents, and he zipped open the bag so that the agents could see that the money was there. The 6th Circuit refused to reverse this finding, even though the presentence report labeled defendant and two others who received the minor role reduction as equally culpable. It was the district judge, not the probation officer, who presided at trial and understood the “interstices” of the case. U.S. v. Sims, 975 F.2d 1225 (6th Cir. 1992).
6th Circuit rejects minor role for active “ground floor” participant in drug conspiracy. (445) The 6th Circuit affirmed the denial of a minor participant reduction based upon the district court’s determination that defendant was an active “ground floor” participant in the drug conspiracy. Defendant provided transportation to all the major figures in the conspiracy, was a direct associate of these major figures, was a drug courier, provided a storage place for cocaine and firearms, and was referred to by one witness as a co-conspirator’s “right hand.” U.S. v. Chalkias, 971 F.2d 1206 (6th Cir. 1992).
6th Circuit rejects minimal role for defendant who had knowledge of scope of the enterprise and the activities of others. (445) The district court denied defendant’s request for a four point reduction under section 3B1.2 as a minimal participant because she had knowledge of the scope of the enterprise and the activities of others. The 6th Circuit concluded that this was a sufficient basis for refusing the four level reduction. Defendant actually received a two point reduction as a minimal participant, and bore the burden of proving the existence of a mitigating factor by a preponderance of the evidence. U.S. v. Warner, 971 F.2d 1189 (6th Cir. 1992).
6th Circuit rejects minimal role despite defendant’s acquittal of money laundering charge. (445) The 6th Circuit affirmed that defendant did not hold a minimal role in a money laundering operation despite his acquittal of substantive money laundering charges. Defendant was convicted of conspiracy, and thus the court could find that defendant did not have a minor role. He was recorded telling an undercover agent that he could quickly set up a transaction which would launder the agent’s money for a 20 percent fee, and that he would set up a fictitious business to do so. U.S. v. Payne, 962 F.2d 1228 (6th Cir. 1992).
6th Circuit rejects minor role reduction for defendant even though he was less culpable than other participants. (445) Defendant claimed he was entitled to a reduction based on his minor role in a drug conspiracy because his two co-defendants were the principal operators of the operation. The 6th Circuit upheld the denial of the reduction, even if defendant was less culpable than the other defendants. The district court found that defendant was heavily involved in the conspiracy. Defendant distributed 250 to 500 grams of cocaine every week, received the cocaine from a runner and paid the runner for the drugs. Defendant indicated that he sold a quarter kilogram of cocaine every six days for $6,500, making $1,000 profit each time. These facts demonstrated that the conspiracy relied upon defendant to move large quantities of cocaine every week. U.S. v. Nagi, 947 F.2d 211 (6th Cir.).
6th Circuit refuses minimal participant reduction to defendant who drove car in which cocaine and weapons were found. (445) Defendant contended that she was entitled to four-level reduction for being a minimal participant, rather than the two-level reduction she received for being a minor participant. The 6th Circuit found no clear error in the district court’s determination. Defendant was driving the car where a weapon and cocaine were found, and had a key to and stayed in the motel room where more cocaine was found. U.S. v. Williams, 940 F.2d 176 (9th Cir. 1991) (en banc).
6th Circuit rejects minimal status for co-conspirator who permitted his premises to be used as a base of operations. (445) The 6th Circuit rejected defendant’s contention that he was a minimal, rather than a minor, participant in a drug conspiracy with his two brothers. Although he was the least culpable, he was involved in more than a single transaction. He could not conclusively prove that his trips with his brother to one of the conspiracy’s suppliers was for his own use. Defendant was present during several of the drug purchases. Moreover, his roommate was a frequent customer of the business who was also intimately involved in the drug transaction. Defendant’s conduct contributed to the use of his premises as a base of operations for at least some of the conspiratorial business. U.S. v. Hodges, 935 F.2d 766 (6th Cir. 1991).
6th Circuit finds claims adjuster who launched fraudulent scheme was not a minimal or minor participant. (445) Defendant, a claims adjuster, hired an “expert” to fraudulently inflate the costs of repairs to a damaged boat. Defendant purchased the boat at a salvage sale, repaired it, and had unrestricted use of it. The 6th Circuit found that defendant’s launching of the scheme and his ultimate unrestricted use of the boat after it was repaired supported the district court’s conclusion that defendant was neither a minor nor minimal participant. U.S. v. Sloman, 909 F.2d 176 (6th Cir. 1990).
6th Circuit denies reduction for being minor or minimal participant to defendant whose home was used to sell drugs. (445) Defendant contended that he was a minor or minimal participant in a drug conspiracy, because he would have received much more money as compensation had his involvement been more than minimal. The 6th Circuit rejected this argument, noting that defendant had a role in the genesis of the conspiracy, and defendant’s home was used as the base of operations for the conspiracy. U.S. v. Smith, 918 F.2d 664 (6th Cir. 1990).
6th Circuit holds that defendant’s role was not minor even though government ranked him next to last in culpability. (445) The defendant relied primarily upon a letter from the Assistant U.S. Attorney ranking defendant as next to last among his six codefendants in culpability. Nevertheless the 6th Circuit upheld the district court’s finding that defendant was not a minor participant. He was arrested the company of major coconspirators at a house that could properly be found to have been his own residence. A witness testified that defendant helped him in weighing and packaging approximately half a kilogram of cocaine. Another witness stated that defendant carried an automatic or semiautomatic weapon in a briefcase on at least one occasion. Finally, another witness testified that he saw defendant drop off $15,000 in cash and several ounces of cocaine at one drug house. U.S. v. Perry, 908 F.2d 56 (6th Cir. 1990).
6th Circuit reverses reduction for minor role where district court failed to hear proof on the issue. (445) The district court found that defendant was a minor participant without hearing any proof from either party, relying solely upon the presentence report’s determination that defendant was entitled to minor participant status. The 6th Circuit reversed, since a defendant must prove by a preponderance of the evidence entitlement to a downward revision of the appropriate offense level. Although defendant contended that the government failed to object to the presentence report prior to the sentencing hearing, the government disputed this, and the appellate court declined to resolve the factual issue. U.S. v. Kingston, 922 F.2d 1234 (6th Cir. 1990).
6th Circuit holds that defendant who pled to a telephone count did not qualify as minimal participant. (445) The defendant pled guilty to use of a telephone to facilitate a drug transaction. The district court departed upward to impose the maximum four year sentence. The district court found that the defendant was not entitled to a mitigating role adjustment. The application notes to sections 2X3.1 and 2X4.1 indicate that a defendant who pleads to a lesser offense should not receive an adjustment for mitigating role. Moreover, the 6th Circuit held that defendant did not qualify as a minimal participant in the offense. The defendant was well acquainted with her mother’s drug operations, knew how to advise others of how much to say over the telephone and who in the organization would be able to assist callers. U.S. v. Anders, 899 F.2d 570 (6th Cir. 1990).
6th Circuit finds defendant’s knowledge of conspiracy justified denial of downward role adjustment. (445) Defendant was the driver for a drug dealer involved in a conspiracy to distribute drugs. The District Court refused to lower the offense level, holding that defendant’s status as a driver made him privy to all the information his boss knew. The 6th Circuit affirmed the failure to make a downward adjustment, ruling the District Court’s findings were not clearly erroneous. U.S. v. Moreno, 899 F.2d 465 (6th Cir. 1990).
7th Circuit rejects minor role for defendant who recruited others but waited in car during robbery. (445) Defendant and three others conspired to rob a bank. Defendant argued that he was entitled to a minor role reduction because he was less culpable than Thompson (who worked at the bank and assisted in the robbery), Schoenhaar (the principal executor of the robbery), and Gregory (Thompson’s boyfriend and the driver of the getaway car). The Seventh Circuit disagreed. Defendant was as culpable as Schoenhaar, and more culpable than the others: he recruited Schoenhaar to execute the robbery and supplied him with the pellet gun that Schoenhaar used in the robbery. Given the defendant’s age (62) and poor health, a sentence of 92 months was admittedly stiff. However, it was so far below the bottom of the guideline range (151-188 months) that it could not be thought excessive. U.S. v. Bey, 748 F.3d 774 (7th Cir. 2014).
7th Circuit denies minor role for courier who had “intimate and substantial” contact with large drug quantity. (445) Defendant was part of a conspiracy that distributed drugs for a Mexican drug-trafficking organization in Chicago. He argued at sentencing that his role as courier entitled him to a minor role reduction. The district court, however, found that he had an “intimate and substantial” contact with large amounts of narcotics, and denied the reduction. The Seventh Circuit affirmed. The district court considered the quantity of drugs, the length of time that defendant was involved in the conspiracy, and whether or not defendant was simply a courier. It found that the quantity of drugs handled by defendant was conclusive in determining culpability. While a court cannot base its denial of a reduction solely on the quantity of drugs involved in a case, it can give effect to a defendant’s role in connection with those drugs. U.S. v. Sandoval-Velazco, 736 F.3d 1104 (7th Cir. 2013).
7th Circuit says defendant did not play minor role in false ID conspiracy. (445) Defendant was involved in a high-volume false document conspiracy that produced an estimated 7,000 phony identification documents. He challenged the court’s denial of a minor role reduction, noting that he was not involved in the scheme for its entire duration, did not know of its extent, did not participate in the majority of the fraud, and was only one of several transporters. The Seventh Circuit upheld the denial of the reduction. Defendant was fully involved in the conspiracy. Over a significant period of time, he played an active, essential role by locating customers, transporting them, delivering false documents, collecting payments, and ensuring that customers returned the false passports for reuse. Even if others were more culpable, the court did not clearly err by denying the minor-participant reduction. U.S. v. Zhaofa Wang, 707 F.3d 911 (7th Cir. 2013).
7th Circuit finds owner of nail salon who stole debit card info did not have minor role in bank fraud. (445) Defendant and her boyfriend stole debit-card information from customers of defendant’s nail salon, and used that information to make unauthorized ATM withdrawals. She argued that she deserved a minor role reduction under § 3B1.2, claiming that her boyfriend and another salon employee were the primary perpetrators. The Seventh Circuit was not persuaded, finding defendant was at least as culpable as her co-conspirators. Investigators reported that, based on their surveillance of the salon, defendant appeared to be one of three primary employees, along with her boyfriend. Yet defendant alone bought the salon and was caught carrying the flash drive that stored the private financial information of hundreds of salon customers. The district court found that defendant knew that customer information was being trafficked to California (to make fraudulent purchases), and actively participated in this scheme by ingratiating herself with customers, stealing their private financial information, and siphoning money from their bank accounts. U.S. v. Thi, 692 F.3d 571 (7th Cir. 2012).
7th Circuit denies minor role reduction to defendant who initiated conspiracy and was integral in its planning. (445) Defendant argued that the district court erred in denying him a minor role reduction. The Seventh Circuit disagreed, finding ample evidence for the district court’s conclusion that defendant’s involvement in the drug conspiracy was such that he did not deserve a reduction. First, defendant’s participation in the offense was essential to its success. He helped initiate the conspiracy and was integral in the planning. Second, he was directly responsible for recruiting Tapia and was indirectly responsible for recruiting an undercover agent. Third, he coordinated the activities of others, both in directing Tapia to hire a driver and in arranging Tapia’s trip to Indiana. Finally, defendant had extensive knowledge of the scope and inner workings of the conspiracy, as demonstrated by his statements to arresting officers and the evidence of his involvement. U.S. v. Doe, 613 F.3d 681 (7th Cir. 2010).
7th Circuit rejects mitigating role for defendant who had significant administrative duties. (445) Defendant was convicted of participating in a large document forgery operation that provided false green cards, driver’s licenses and social security numbers to illegal immigrants. Defendant was accused of being an “office manager” of sorts for the organization and of producing fraudulent documents himself. At sentencing, the district court denied a three-level reduction for a mitigating role in the offense, and on appeal the Seventh Circuit affirmed. Even if defendant was not an autonomous decision maker, he was still entrusted with significant administrative duties and a large quantity of the organization’s cash was found in his home. These two factors alone suggested that his role was at least as significant as that of a typical member of the conspiracy. Moreover, in calculating his guideline range, the district court relied only on the quantity of false documents for which defendant was personally responsible. U.S. v. Munoz, 610 F.3d 989 (7th Cir. 2010).
7th Circuit finds corrupt police officer did not have minor role in scheme with drug dealers. (445) Defendant, a police officer, was involved in a corruption scheme between drug dealers and cops. The dealers provided the police with information about rival drug dealers, and the officers used that information to conduct traffic stops and home invasions to seize the drugs and money. The cops then sold the drugs with the assistance of the drug dealers, and the co-conspirators divided the proceeds. The Seventh Circuit held that defendant was not entitled to a minor role reduction. Defendant admitted to having a direct and active involvement in four separate “rip-offs” or attempted “rip-offs” of drug dealers. In each instance, he played an essential role as a police officer making vehicle stops, seizing cocaine, and performing home invasions. During one home invasion, he displayed his badge to a neighbor who was questioning the legitimacy of the police presence in the building. Defendant’s role in the conspiracy was not as great as some of his co-conspirators’, but it was essential. He did not show that he was a minor participant. U.S. v. Haynes, 582 F.3d 686 (7th Cir. 2009), abrogated as to double counting by U.S.v. Vizcarra, 668 F.3d 516 (7th Cir. 2012).
7th Circuit denies minor role reduction despite defendant’s limited time in drug conspiracy. (445) The district court refused to grant defendant a minor role reduction under § 3B1.2(b), finding that he played an essential role in the conspiracy, even though his time in the conspiracy was limited compared to other conspirators. He was a trusted associate of his brother, who was the “highest up” person in the conspiracy, and he was given access to the stash house where the drugs were stored. The Seventh Circuit found no error in the denial of the minor role reduction. Where a person was an “essential component” in the conspiracy, the fact that other members of the conspiracy were more involved does not entitle the defendant to the reduction. The court expressly considered the length of defendant’s involvement, but nonetheless found that his role was essential to the success and scope of the conspiracy. Defendant handled large quantities of cash and drugs, executed essential deliveries, and his involvement was on par with that of the average member of the conspiracy. U.S. v. Gallardo, 497 F.3d 727 (7th Cir. 2007).
7th Circuit denies minor role reduction to courier who had close relationship with drug buyer. (445) Defendant was involved in a scheme to transport a shipment of cocaine across the country from California to a buyer in Chicago. Defendant argued that he was entitled to a minor participant reduction, since he was merely a courier who could have been replaced by anyone old enough to drive a car. He noted that he was directed to drive only 25 miles, as opposed to his co-defendants who drove the drugs from California to Illinois. The Seventh Circuit held that defendant failed to establish that he played a minor role in the conspiracy. The judge found that defendant’s prior personal relationship with Alfaro, the buyer in Chicago, was most relevant. If Alfaro did not have the utmost trust and confidence in defendant’s ability to protect Alfaro’s identity and avoid detection by authorities, he would not have entrusted defendant with the responsibility for the final delivery of the drugs. Defendant’s duty was not simply to transport the cocaine; he was also trusted with the important job of insulating Alfaro from the authorities and protecting Alfaro’s identity from law enforcement and the other members of the conspiracy. U.S. v. Mendoza, 457 F.3d 726 (7th Cir. 2006).
7th Circuit agrees that defendant who assured drug seller that deal would go through did not hold minor role. (445) A government informant sold cocaine to defendant and others. He argued that he was a minor participant. The government argued that although the informant’s dealings were mainly with co-conspirator Dawson, there was evidence that defendant was actually the “kingpin.” At a sale of 38 kilograms, defendant carried the $269,000 in cash for the purchase price from Memphis, the headquarters for the gang, and assured the informant that the deal would go through and that the informant would get all the money. That was the talk not of a courier but of a manager. The Seventh Circuit found no error in the denial of the minor role reduction. Nevertheless, because the sentencing determination was made under the pre-Booker regime, it ordered a limited remand under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005). U.S. v. Dawson, 425 F.3d 389 (7th Cir. 2005).
7th Circuit says court erred in failing to cap offense level. (445) Guideline § 2D1.1 of the 2002 Sentencing Guidelines states that if the defendant received an adjustment under § 3B1.2 for a mitigating role adjustment, the base offense level shall not be more than 30. The government conceded, and the Seventh Circuit found, that the district court erred by failing to cap defendant’s offense level at 30. The court should have begun with a base level of 30 and then subtracted any negative adjustments, such as a mitigating role. Of course on remand, in accordance with U.S. v. Booker, 543 U.S. 220 (2005), the district court is to treat the guidelines as advisory rather than mandatory. However, the district court must consider the correct guideline range when determining a new sentence, but may “tailor the sentence in light of other statutory concerns as well.” U.S. v. Jackson, 410 F.3d 939 (7th Cir. 2005).
7th Circuit says court did not err in refusing to grant defendant minor role adjustment. (445) Defendant argued that he held a minor role in a drug trafficking conspiracy. The Seventh Circuit found adequate support for the court’s actions based on defendant’s participation in transporting cocaine and providing counter-surveillance, and a co-conspirator’s testimony regarding defendant’s involvement in the conspiracy. Although another conspirator may have orchestrated the cocaine distribution conspiracy, the district court reasonably found that defendant played an integral role in the conspiracy. U.S. v. Parra, 402 F.3d 752 (7th Cir. 2005).
7th Circuit denies minor role reduction to defendant who provided housing and transportation to drug couriers. (445) Defendant was part of a conspiracy to smuggle ecstasy from the Netherlands to Chicago. His role was to provide housing, transportation, and telephones for the couriers while they were in Chicago. Defendant argued that he was a minor participant because “all of the other participants were higher up on the food chain than he was.” However, where each person was an “essential component” in the conspiracy, the fact that other members of the conspiracy were more involved does not entitle a defendant to a reduction in the offense level. Moreover, the court found that defendant was “an average participant” because of his role in “getting the cars and the apartment and the telephone and making the contact.” Therefore, the Seventh Circuit held that the district court did not clearly err in denying defendant a sentence reduction under § 3B1.2(b). U.S. v. McKee, 389 F.3d 697 (7th Cir. 2004).
7th Circuit says courier not entitled to minor role reduction. (445) Gutierrez arranged two drug sales to persons cooperating with law enforcement agents. After Gutierrez negotiated each of the sales, defendant completed the transactions by meeting the buyers at prearranged locations. Defendant admitted at sentencing that he knew each time that he was delivering drugs. The Seventh Circuit upheld the denial of a minor role reduction. The district court did not improperly rule that defendant was precluded from receiving the reduction because he was only held accountable for his own conduct. Rather, the court merely considered defendant’s level of culpability as compared to his co-conspirator. The court found that defendant, who delivered the drugs, was no less culpable than Gutierrez. This finding was not clearly erroneous. U.S. v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir. 2004).
7th Circuit holds that defendant entrusted with drugs and possession of stash house did not play minor role. (445) Defendant arrested Corral after he delivered a kilogram of cocaine to an informant. He told officers that he had purchased the drug at a particular apartment. When officer searched the apartment, they found defendant hiding in a closet. Defendant argued that his role was minor because he was not a party to the drug transaction and served only as a messenger to let Corral know the drugs were ready to pick up and to admit Corral for that purpose. The district court, however, found that defendant either resided in the apartment or worked out of that apartment prior to his arrest. The district court also found that the apartment served as a stash house for the parties’ drug transactions. Based on defendant’s role in maintaining the stash house and opening it to Corral, the Seventh Circuit upheld the denial of a minor role reduction. Defendant was not substantially less culpable than the others. He was entrusted with delivery of a large quantity of cocaine. He was also trusted with sole possession of the apartment, which contained a large quantity of marijuana, $14,000, cocaine and a firearm. The fact that defendant might not have profited from the transaction did not matter. U.S. v. Corral, 324 F.3d 866 (7th Cir. 2003).
7th Circuit rejects minor role reductions for defendants who played significant roles in charged offenses. (445) Defendants argued that they played minor or minimal roles in a drug distribution conspiracy. However, the first defendant executed the important task of securing the warehouse for delivery. The second defendant took part in planning the delivery, was present at the warehouse for the delivery, and drove the minivan that was to be used to take delivery. Therefore, the Seventh Circuit ruled that the district court was not clearly erroneous in finding both defendants played significant roles in the charged offenses. U.S. v. Gonzalez, 319 F.3d 291 (7th Cir. 2003).
7th Circuit says defendant not entitled to minor role reduction despite amendment. (445) Under Seventh Circuit law, a drug courier who is only held accountable for the amount of drugs he carried is not entitled to a minor role reduction. The circuits have been split on this issue, and a November 2001 amendment to the commentary to § 3B1.2 adopts the position that a minor role reduction may be warranted even if the offense level “is determined solely by the quantity personally handled by the defendant.” Defendant argued that, in light of the then-proposed amendment, the court should remand for resentencing. The Seventh Circuit declined to do so, since defendant would not be entitled to the reduction even under the amendment. At sentencing, the government presented sufficient evidence to show that defendant’s role went well beyond the role of “mere courier.” There was substantial circumstantial evidence to suggest that defendant’s role in the conspiracy was an important one, even when viewed in the context of the entire conspiracy. Defendant had been shown how to operate the hidden traps in the car where the drugs were carried, had been present at the garage where the cocaine was loaded into the trap, conducted counter-surveillance, and picked up a co-conspirator after he dropped the car containing the cocaine. U.S. v. Carrillo, 269 F.3d 761 (7th Cir. 2001).
7th Circuit denies minor role reduction where defendants jointly exercised control over all the cocaine. (445) Conspirators drove a truck containing over 500 kilograms of bricked cocaine in boxes to a hotel in Illinois. After paging their contact person, defendants emerged from one of the hotel rooms, milled around the truck, got in, pulled it slightly forward, got out, and peeked inside the trailer. They performed this routine several more times over the next hour. At one point, they went inside the trailer, seemingly moving boxes near the door of the trailer to ease their eventual removal. On their fourth trip from their hotel room to the truck, a third man joined them, whereupon he proceed to drive a van up to the rear of the trailer. Defendants opened the trailer doors, and all three began to move one of the boxes out of the trailer and into the van. At that point, DEA agents arrested the men. The Seventh Circuit upheld the denial of minor role reductions to defendants. All of the defendants exercised total control over all of the cocaine and thus were all equally culpable for it. Furthermore, no additional relevant conduct beyond the drugs involved in this case were attributed to defendants. U.S. v. Johnson, 248 F.3d 655 (7th Cir. 2001).
7th Circuit refuses to alter circuit law based on proposed guideline amendment. (445) Under controlling Seventh Circuit precedent, a defendant may not receive a § 3B1.2 minor role reduction when a defendant is held accountable only for drugs that he handled personally. See U.S. v. Cruz, 223 F.3d 492 (7th Cir. 2000); U.S. v. Isienyi, 207 F.3d 390 (7th Cir. 2000). Defendant asked the Seventh Circuit to reconsider that position, but it declined. Although the Sentencing Commission has published for comment a draft amendment that would depart from that position, proposals to amend the guidelines do not invariably lead to amendments, they must first be promulgated and then left undisturbed by Congress. Judges must apply the guidelines in force when a defendant is sentenced. U.S. v. Perez, 249 F.3d 583 (7th Cir. 2001).
7th Circuit reaffirms that defendant only held accountable for own conduct not a minor participant. (445) Defendant carried 156 grams of heroin by train from New York to Milwaukee. Although defendant may have been part of a larger operation, no one else involved was arrested, and he was charged only with possessing with intent to distribute the 156 grams. The Seventh Circuit held that under circuit caselaw, because defendant was only held accountable for his own conduct, he was not entitled to a minor or minimal role reduction under § 3B1.2. See, e.g. U.S. v. Almanza, 225 F.3d 845 (7th Cir. 2000). This is the view of most of the other circuits as well. The panel refused to re-examine its position based on contrary cases in the Eighth and Ninth Circuits. See U.S. v. Snoddy, 139 F.3d 1224 (8th Cir. 1998); U.S. v. Demers, 13 F.3d 1381 (9th Cir. 1994). These decisions have been discussed and either distinguished or rejected in other Eighth Circuit cases. U.S. v. Cruz, 233 F.3d 492 (7th Cir. 2000).
7th Circuit holds that defendant did not play minor role in kidnapping scheme. (445) Montenegro enlisted defendant and his brother to assist him in strong-arming debtors into turning over drug money owed to him. Defendant and the two men kidnapped at least two such debtors and held them until their families and friends could raise the needed money. The Seventh Circuit rejected defendant’s claim that he played a minor role in the kidnap scheme. Defendant admitted that he, his brother and Montenegro went to the first victim’s house with the intent to use strong-arm tactics to collect the drug money. His claim that he was asleep while the victim was dragged into the van and blindfolded was not only highly dubious, but also did not mitigate his involvement in the next kidnapping. According to the second victim’s testimony, during his abduction the brother informed the victim that defendant was in the van and wanted to talk to him. However, because the second victim was blindfolded before he got into the van, he could not positively identify defendant as one of his abductors. Finally, after the ransom drop had been arranged, defendant and his brother drove the first victim to a restaurant for the exchange. Once they arrived, defendant turned to the victim and said, “No hard feeling. It’s business. This is the way we collect money.” When police arrested defendant at the restaurant, police recovered two sets of handcuffs from him. U.S. v. Montenegro, 231 F.3d 389 (7th Cir. 2000).
7th Circuit says level of participation depends on scope of offense for which defendant is accountable. (445) Defendant’s co-conspirators, the Santoyo brothers, arranged to purchase six kilograms of cocaine from an government informant. They brought defendant with them, although in what capacity was unclear. He admitted knowing that the Santoyos were drug dealers, he accompanied them to a storage locker at which they picked up the money for the drug purchase, and when the three of them were arrested at the site of the transaction, defendant was carrying $5,000 in cash bundled together in the same way as the $102,000 in cash found in one of the two cars in which the three conspirators had driven to the site. The Seventh Circuit held that defendant properly received only a two-level minor role reduction rather than a four-level minimal role reduction. If a defendant is just charged with the transaction in which he personally participated, and if the separate transactions of his co-conspirators are not counted as his relevant conduct, then he is not subject to disproportionately severe punishment and is not entitled to a sentencing discount. Defendant was a minor participant within a three-man conspiracy. Because he was punished just for the single aborted transaction, he was not at risk of being punished heavily, the kind of risk that might justify a three- or four-level discount. U.S. v. Almanza, 225 F.3d 845 (7th Cir. 2000).
7th Circuit denies minor role reduction for defendant only held accountable for drugs she carried. (445) The minor participant reduction “is designed to mitigate the effect of the relevant conduct assessment to the extent that a defendant’s sentence reflects conduct other than her own. Thus, the proper inquiry under [§ 3B1.2] is whether the defendant was a minor participant in the offense for which she was convicted, not whether she was a minor participant in a larger conspiracy above and beyond the conduct for which she is being held accountable. Because defendant was held accountable only for the amount of drugs she actually carried, the Seventh Circuit ruled that she was not a minor participant. U.S. v. Walls, 225 F.3d 858 (7th Cir. 2000).
7th Circuit rejects minor role reduction for drug courier only charged with drugs he actually carried. (445) Defendant argued that he was entitled to a § 3B1.2 minor role reduction because he was a mere “errand-runner” who made drug deliveries as ordered by Bola, with no decision-making role and no connection between his own earnings and the success of the conspiracy. He noted that he was only charged with the 6.8 kilograms he actually delivered, and not the 60 kilograms attributable to the conspiracy. The Seventh Circuit noted that this last fact “virtually doom[ed]” his effort to obtain the minor role reduction. This circuit follows the rule that where a defendant is sentenced only for the amount of drugs he handled, he was not entitled to a § 3B1.2 reduction. “Where a courier is held accountable for only the amounts he carries, he plays a significant rather than a minor role in that offense.” U.S. v. Burnett, 66 F.3d 137 (7th Cir. 1995). Moreover, even if defendant was “just” a courier, couriers play an important role in any drug distribution scheme and are not automatically entitled to a mitigating role reduction. Defendant repeatedly did jobs for Bola, not only carrying drugs, but assisting her with wire transfers of drug money. U.S. v. Hamzat, 217 F.3d 494 (7th Cir. 2000).
7th Circuit denies reduction where courier only held accountable for drugs he actually carried. (445) Defendant ingested and carried into the US 72 pellets containing heroin. He argued that he played only a small role in the criminal activity that resulted in his arrest. The sentencing court refused to consider defendant’s role in comparison to the conduct of others because defendant was charged and held accountable only for the drugs that he personally transported into the US. The Seventh Circuit agreed that under circuit law, when a courier is held accountable for only the amount he carries, he plays a significant rather than a minor role in that offense, and he is not entitled to a mitigating role reduction. See e.g., U.S. v. Burnett, 66 F.3d 137 (7th Cir. 1995). Although other circuits have taken differing approaches, the panel still believed that its approach was sound. “The mitigating role adjustment appears to contemplate a defendant who, because of his role in a concerted activity, is held accountable for the acts of others; the purpose of the adjustment is therefore not implicated when, as here, the defendant is charged only with importing the drugs that he actually carried.” U.S. v. Isienyi, 207 F.3d 390 (7th Cir. 2000).
7th Circuit denies minor participant reduction for drug courier. (445) Defendant argued that he was a minor participant in a drug distribution conspiracy because he was a low-level courier who acted at the direction of others, received no share of the profits, and whose involvement with the conspiracy only lasted five months. The Seventh Circuit affirmed the denial of the minor role reduction. Defendant made numerous trips between Milwaukee and Green Bay to transport drugs. Although he was primarily a drug courier, defendant also played an active role packaging and distributing the cocaine he had brought to Green Bay. There were members of the conspiracy who ranked below defendant and whose participation was far less important to the success of the operation than was defendant’s. The district judge carefully familiarized himself with the many individuals involved in the conspiracy and was in a good position to determine the extent of each one’s participation. U.S. v. Milquette, 214 F.3d 859 (7th Cir. 2000).
7th Circuit rejects minor role reduction for defendant who helped drug dealer launder money. (445) Defendant’s brother, Hill, ran a large drug organization. Defendant helped Hill launder drug proceeds by participating in the purchase of residential and rental real estate properties, and assisting in the investment of business such as Pocketown Records and American Tour and Travel. The Seventh Circuit rejected defendant’s claim that she was entitled to a minor role reduction. Defendant helped launder money through Pocketown and American Tour. Defendant was involved in the daily operation of Pocketown, and was in charge of all of Pocketown’s bills, corporate papers, stock certificates, and contracts. Defendant also assisted Pocketown in locating and purchasing two apartments in New York. In obtaining one of the apartments, defendant represented herself to be the manager of Pocketown. Additionally, defendant was the sole signatory on two of the Pocketown’s corporate accounts and was also responsible for depositing various cash amounts into those account. U.S. v. Neeley, 189 F.3d 670 (7th Cir. 1999).
7th Circuit says career offender not eligible for minor role reduction. (445) Defendant argued that he was entitled to a minor or minimal role reduction. The Seventh Circuit held that because defendant was a career offender, he could not receive either a reduction or an increase for his role in the offense. A footnote to the career offender table says that the specified offense level may be decreased to account for the defendant’s acceptance of responsibility, but does not indicate that the other Chapter 3 adjustments may be added to the offense level specified by the career offender table. The commentary accompanying the 1989 amendment adding the footnote confirms that in the absence of express authorization, Chapter 3 adjustments do not apply to the offense levels specified by § 4B1.1. U.S. v. Jackson, 189 F.3d 655 (7th Cir. 1999), overruled on other grounds, U.S. v. Ceballos, 302 F.3d 679 (7th Cir. 2002).
7th Circuit says defendant did not have minor role in 100-kilogram delivery in which he participated. (445) Sandoval supplied drugs to various individuals in the Chicago area, including the Hruza and defendant. Hruza owned and operated an auto repair shop and employed defendant as a mechanic. The FBI arranged for a controlled delivery in Chicago of an intercepted U-Haul truck containing 100 kilograms of cocaine. The FBI arrested defendant and several others as they were unloading the cocaine at the auto shop. Defendant argued that he was, at worst, a minor participant in Sandoval’s drug operation. The Seventh Circuit held that defendant was not entitled to a § 3B1.2 reduction because did not have a minor role in the 100-kilogram delivery. Defendant was present at the auto repair shop when the delivery of cocaine was planned. He went to the parking lot with Hruza to pick up the truck containing the cocaine and transported it back to the auto shop. Finally, defendant backed the truck up to the shop door immediately prior to unloading the cocaine and was present when the boxes of cocaine were removed from the truck. Hruza also was not entitled to a minor participant reduction. There was ample evidence that Hruza was directly involved in the planning and execution of the 100-kilogram delivery. U.S. v. Mojica, 185 F.3d 780 (7th Cir. 1999).
7th Circuit rejects minor role reduction even though defendant never presented robbery demand note. (445) Defendant, Womack and Williams drove to a bank and parked across the street. Womack wrote out two demand notes and gave one each to defendant and Williams. The plan was for defendant and Williams to approach two tellers simultaneously and present the demand notes. Defendant and Williams entered the bank together, but because the bank was very busy, defendant was left standing at the service counter while Williams approached a teller. After the teller gave Williams the money, he and defendant left the bank and ran to the car where Womack was waiting. The money was divided up between the three robbers. The Seventh Circuit held that defendant was not entitled to a minor participant reduction even though he did not approach a teller during the robbery. Defendant had full knowledge of the robbery plan, accompanied Williams into the bank for the purpose of committing the robbery, and took a note that threatened violence and demanded money. It just so happened that the bank was too crowded to allow defendant to present his note. Fortuity has no bearing on culpability. U.S. v. Mitchell, 178 F.3d 904 (7th Cir. 1999).
7th Circuit says lesser role did not entitle defendant to minor role reduction. (445) Defendant argued that she deserved a minor role reduction because she did not procure drugs for the conspiracy, went along on only one drug run, and sold drugs less frequently than other conspirators. Her principal role in the conspiracy was preparing the bindles in which the cocaine was packaged. The Seventh Circuit held that defendant’s lesser role did not entitle her to a minor role reduction. The judge found that defendant was “an inextricably integral part of the overall activities …the preparation of wraps, taking phone calls, dealing with covering with who was doing what … [and her activities were] all indices of someone who [was] very attuned to the whole notion of the extent of the distribution of cocaine on the Menominee Reservation and its environs.” U.S. v. Brisk, 171 F.3d 514 (7th Cir. 1999).
7th Circuit rejects minimal role reduction for defendant who helped conceal stolen equipment. (445) Several associates stole a trailer containing eight marine engines worth more than $300,000. They transported the engines to auto salvage business owned by one of the conspirators, and loaded the engines into a different trailer. The engines remained there for several months, until a conspirator asked defendant to move the trailer to an abandoned lot in another town. The conspirator then became concerned that someone would steal the engines and so asked defendant to move the trailer back to the auto salvage lot. Defendant claimed he never look inside or knew the contents of the trailer. He argued that he should have received a four-level minimal role reduction under § 3B1.2, rather than the three-level reduction he received. The Seventh Circuit rejected a minimal role reduction since the evidence showed that defendant played an integral part in the conspiracy by helping the group conceal the engines. The district court considered defendant’s role in the offense and decided, on the facts, that he was a minor participant. U.S. v. Miller, 159 F.3d 1106 (7th Cir. 1998).
7th Circuit denies minor role reduction to defendant who drove conspirators making drug deliveries. (445) Defendant was arrested driving a car that delivered drugs to various locations. He argued that he was less culpable than his co-conspirators because he never personally handled drugs or money, was not a bodyguard, and never hand-delivered narcotics. Moreover, he claimed that he rented the car in connection with his father’s business and not for the purpose of maintaining the conspiracy. He also claimed that he rented the apartment that was used as a stash house but not for that purpose, but simply because he was having marital problems. The Seventh Circuit upheld the denial of a minor role reduction. The court did not clearly err by discounting these explanations and instead finding that defendant provided necessary services to the conspiracy by driving a co-conspirator, renting the car used to deliver drugs, and renting the apartment used to store them. U.S. v. Cain, 155 F.3d 840 (7th Cir. 1998).
7th Circuit rejects minor role even though others were more culpable. (445) Defendants argued that they were the least culpable members of a marijuana conspiracy and thus deserved minor role reductions. The conspiracy involved re-packing and transporting marijuana from Mexico to various points throughout the U.S. for later distribution and sale. The Seventh Circuit held that defendants were not entitled to minor role reductions simply because other members were more involved. The district court found that defendants were average members of the conspiracy. They performed similar roles by providing transportation services and something else. One defendant re-wrapped marijuana in Brownsville, Texas, while the other provided couriers with a place to sleep in Houston. Both defendants were essential components of the conspiracy. U.S. v. Castillo, 148 F.3d 770 (7th Cir. 1998).
7th Circuit holds career offender is not entitled to minor role reduction. (445) Defendant was arrested at a bus terminal when he attempted to claim a bag from which authorities had removed drugs and a loaded gun. He contended that he deserved a minor participant reduction. The Seventh Circuit found that defendant was not entitled to the reduction because he qualified as a career offender. Section 4B1.1(A) specifies an offense level of 37 for defendant unless the offense level otherwise applicable is greater. A footnote to the career offender table indicates that the specified offense level may be decreased to account for a defendant’s acceptance of responsibility, but does not indicate that other Chapter 3 adjustments, including role in the offense, may be used. Singling out the acceptance of responsibility reduction would have been unnecessary if all Chapter 3 adjustments could be applied to an offense level specified under § 4B1.1. Amendment 266, effective November 1989, confirms that in the absence of express authorizations, Chapter 3 adjustments do not apply to the offense levels specified by § 4B1.1. U.S. v. Ward, 144 F.3d 1024 (7th Cir. 1998).
7th Circuit rules courier was too intertwined in drug conspiracy to be minor participant. (445) Defendant was convicted of involvement in a cocaine trafficking conspiracy. He claimed he was entitled to a minor role reduction because he was just a “flunky” with a drug habit who did odd jobs and chores for the leaders of the conspiracy. The Seventh Circuit found that defendant was too intertwined with the daily operation of the conspiracy to merit a minor role reduction. Defendant was a driver for the leaders for a year. He was paid a flat fee to deliver drugs for the leaders. On average, defendant delivered drugs once per week but sometimes more. In addition, defendant made repeated trips to Chicago to pick up cocaine for the leaders. On some of these trips, defendant transported money to Chicago, and at one time, he wired money. Defendant also made one trip to California to pick up cocaine for the conspiracy. Although defendant was less culpable than the leaders of the conspiracy, he was not a minimal participant. Defendant was an average participant in the conspiracy. His reduced role in the conspiracy in comparison to the leaders was reflected in the fact that he did not receive an organizer or managerial enhancement. U.S. v. McClinton, 135 F.3d 1178 (7th Cir. 1998).
7th Circuit rejects role reduction for bookkeeper and sole buyer for heroin conspiracy. (445) Defendants participated in a large heroin distribution conspiracy. The Seventh Circuit rejected their claims that they played minor or minimal roles in the conspiracy. Defendants played crucial roles and had substantial involvement in the conspiracy’s operations. The first defendant acted as bookkeeper and chief money launderer. The second defendant was the conspiracy’s sole buyer of wholesale high-purity heroin. U.S. v. Jarrett, 133 F.3d 519 (7th Cir. 1998).
7th Circuit rejects minor role reduction in check-kiting scheme. (445) Defendant and her husband conducted a large check-kiting scheme involving 697 checks and over $20 million. The Seventh Circuit affirmed the denial of a § 3B1.2 minimal role reduction. The district court found defendant’s contention that she was a minimal participant to be “ludicrous.” The court found defendant was integrally involved in the check-kiting scheme, and equally culpable with her fugitive husband. In light of the sufficiency of the evidence as to defendant’s participation in the scheme and her knowledge of the finances of the businesses involved, the refusal to grant the reduction was not error. U.S. v. Yoon, 128 F.3d 515 (7th Cir. 1997).
7th Circuit says rejection of minor role foreclosed argument seeking minimal role. (445) Defendant was convicted of conspiracy to distribute cocaine and various counts of money laundering. She argued that although the district court found she was not a minor participant, she should be resentenced because the judge did not consider her alternative argument that she was a minimal participant. The Seventh Circuit rejected this argument. It was “like saying that a play that didn’t gain a yard should have gone for a touchdown.” U.S. v. Thompson, 126 F.3d 1032 (7th Cir. 1997).
7th Circuit denies minor role reduction to fourth most culpable member of drug conspiracy. (445) Defendant pled guilty to a drug conspiracy. He claimed he played a minor role, despite the fact that the PSR determined that defendant was the fourth most culpable member of the 12-person conspiracy. The Seventh Circuit denied the reduction. The district court properly considered defendant’s role in the overall conspiracy instead of his role in his “branch” of the conspiracy. It concluded that defendant was not a minor participant since he had his own drug business and decided to go into partnership with his brother, and they both dealt with the leader of the conspiracy. U.S. v. Adams, 125 F.3d 586 (7th Cir. 1997).
7th Circuit finds lesser quantity of heroin did not warrant role reduction. (445) Airport officials in Brussels, Belgium found 4.5 kilograms of heroin in the lining of a carry-on bag of a woman attempting to board a flight to Chicago. The woman had been traveling to Chicago with defendant and another man. Customs officers in Chicago found an additional 7.53 grams of heroin in defendant’s garment bag. No heroin was found in the other man’s luggage and he was eventually released. The district court granted defendant a 3-level reduction under § 3B1.2, finding that his participation in the crime fell between minimal and minor. The Seventh Circuit ruled that nothing in the record supported the § 3B1.2 reduction. There were 3 possible participants in the scheme to import heroin into the U.S. The district court reasoned that the person carrying the most heroin was likely the lowest ranking member of the team because he was expected to take the most risk. Using this theory, the court reasoned that the man who was released was the leader, while defendant was the least culpable. However, the record did not support the court’s finding. There was no evidence in the record that would support a conclusion that defendant was less culpable than the other two participants. U.S. v. Farouil, 124 F.3d 838 (7th Cir. 1997).
7th Circuit finds defendant was full-fledged bookie rather than mere “phone man” (445) Defendant was involved in a Chicago crime syndicate. He argued that he deserved a § 3B1.2(b) reduction because he was merely a penny-ante phone man. The Seventh Circuit upheld the denial of the reduction since the evidence showed defendant was a full-fledged bookmaking agent. Defendant took in over $60,000 in bets from a single customer in an 18-month period. After this customer failed to pay a $2500 wager, defendant cut off his betting privileges and repeatedly met with him to discuss his delinquent debt. The syndicate would not have permitted a low level phone man to make discretionary calls on who could bet with their bookies. Also, defendant twice sent the customer to a parking lot where syndicate thugs were waiting to rough him up. U.S. v. Zizzo, 120 F.3d 1338 (7th Cir. 1997).
7th Circuit denies minor role reduction to street level dealer. (445) Defendant contended that the district court committed clear error when it denied him a § 3B1.2 mitigating role reduction. The Seventh Circuit found no error. The district court recognized that as a street-level dealer, defendant may not have been as culpable as other members of the conspiracy. However, sales at the street level are obviously vital to the success of a narcotics conspiracy. As a dealer who made recurrent purchases from the conspiracy for resale to users of cocaine, defendant made a significant contribution to the illicit ends of the conspiracy. U.S. v. Carraway, 108 F.3d 745 (7th Cir. 1997).
7th Circuit denies minor role where defendant was fully involved in conspiracy for a short time. (445) Defendant was involved in a conspiracy that stole, transported and sold computer equipment. Defendant argued that he played a minor role in the conspiracy because he was only involved in it for a short time. The Seventh Circuit denied the § 3B1.2 reduction since defendant was fully involved in the conspiracy during the time he participated. The conspiracy paid more to those confederates who actually carried the stolen equipment out of the store. Defendant received more compensation the son of the leader of the conspiracy. Moreover, he held the getaway van’s title in his name and paid the insurance premiums on that van. The leader testified that when the group went to a store, defendant would “always” go into the store and carry out computers or printers. Defendant also drove the getaway van, and unloaded the van when the stolen goods were delivered. The district court concluded that only the conspiracy’s leader had more knowledge of the group’s criminal activity than defendant. The fact that defendant participated in the conspiracy for a limited period of time was taken into account in calculating his offense level. U.S. v. Trigg, 119 F.3d 493 (7th Cir. 1997).
7th Circuit denies minimal role where defendant was only held accountable for drugs he carried. (445) Defendant was arrested leaving the hotel room of a confidential informant, carrying two suitcases with heroin sewn in the lining. He contended he was a one-time courier who deserved a minimal role reduction. The Seventh Circuit held that defendant was not entitled to a § 3B1.2 reduction since he was not charged with being a member of a larger conspiracy nor was he held accountable for drug quantities beyond that which he picked up on that single day. He was not a minor or minimal participant for the crime for which he was held accountable. U.S. v. Cobblah, 118 F.3d 549 (7th Cir. 1997).
7th Circuit finds defendant did not play minor role in insurance fraud. (445) Defendant participated in a conspiracy that staged auto accidents, made false medical claims, and then collected fraudulent insurance proceeds. The Seventh Circuit held that defendant was not a minor participant even though the fraud could have continued without him. That is not the proper legal test. Defendant’s role was not minor because his multiple visits to the doctor and his filing of a fraudulent insurance claim made him no less culpable than his co-defendants. U.S. v. Green, 114 F.3d 613 (7th Cir. 1997).
7th Circuit rejects minor role reduction for defendant who mailed seven packages of crack to co-conspirator. (445) Defendant mailed seven packages containing crack to a co-conspirator. The Seventh Circuit rejected defendant’s claim that he was a minor participant in the co-conspirator’s larger drug scheme. Defendant played a major role in the scheme. He had to obtain the drugs from someplace, and then mail them to the co-conspirator. The co-conspirator in turn mailed money to defendant. Defendant’s role approached that of his co-conspirator. U.S. v. James, 113 F.3d 721 (7th Cir. 1997).
7th Circuit rejects mitigating role for defendant involved in daily cocaine sales of $1,000‑4,000. (445) Defendant pled guilty to conspiring to distribute cocaine base. The Seventh Circuit upheld the denial of a § 3B1.2 reduction because defendant was involved in cocaine sales totaling between $1,000 and $4000 per day for several months. U.S. v. Tanksley, 104 F.3d 924 (7th Cir. 1997).
7th Circuit holds that passenger who faked injury in insurance was not minor participant. (445) Defendant’s co‑conspirator staged a car accident, then defendant and three others entered the car, and pretended to be victims of a hit‑and‑run accident. All four received unnecessary emergency medical care at a nearby hospital and then retained the same attorney to file fraudulent claims with the insurance company. The Seventh Circuit rejected defendant’s claim that she played a minor role in the fraud scheme. Although there might have been others more culpable than defendant, defendant was not less culpable than “most other participants.” Most of the participants in the scheme were people whose roles were identical to defendant’s—each of them pretended to be injured passengers. This staged accident was just one of a number of staged accidents charged in the indictment. The vast number of those charged in the indictments were alleged to have posed as injured passengers. U.S. v. Boatner, 99 F.3d 831 (7th Cir. 1996).
7th Circuit denies minor role reduction to top telemarketer. (445) Defendant worked as a telemarketer in a scam in which telemarketers advised victims that they had won one of five “prizes.” To receive the “prize” the victim had to send the company $250 for promotional fees and taxes. The “prize” usually was vacation vouchers for which the telemarketing firm had paid $45. The Seventh Circuit rejected defendant’s claim that he played a minor role in the scam since he was a top telemarketer, knew what was going on, and was as culpable as any of the other telemarketers. The fact that defendant may have worked for the telemarketing company for a relatively short time did not entitle him to the reduction. U.S. v. Jackson, 95 F.3d 500 (7th Cir. 1996).
7th Circuit rejects minor role even though co-defendant with greater contact with cocaine received reduction. (445) Defendant was involved in a conspiracy which used leased trucks to store and distribute large amounts of cocaine. He argued that he deserved a § 3B1.2 reduction since a co-defendant who was present the entire time cocaine was loaded and unloaded received the reduction. The Seventh Circuit held that defendant was not entitled to the § 3B1.2 reduction. The extent of a co-defendant’s contact with drugs did not minimize defendant’s role in offense. Defendant traveled to arrange the transportation of the cocaine and stored proceeds from various sales. He met with a co-conspirator at least 20 times to discuss the logistics of the cocaine shipments. Defendant also negotiated the terms of the various drug transactions. The co-defendant who received the reduction may have had greater physical contact with the cocaine and other instrumentalities of the drug trade, but these facts were perfectly consistent with the court’s characterization of him as a “mule” in the conspiracy. Defendant, by contrast, operated at a higher level within the criminal organization. U.S. v. Guiterrez, 92 F.3d 468 (7th Cir. 1996).
7th Circuit rejects minor role where no evidence of larger conspiracy. (445) Defendant was arrested carrying three kilograms of cocaine in his truck. Police also found 36 grams of cocaine in a baggie in his pocket and one ounce of cocaine and other drug paraphernalia at his farmhouse. Defendant claimed he was a minor participant in a broad cocaine distribution conspiracy run by another man. The Seventh Circuit affirmed since defendant had an integral role in assisting the other man and there was no evidence of the larger conspiracy to which he alluded. The cocaine was put in defendant’s truck at his farm and then taken from there to Milwaukee. U.S. v. Navarro, 90 F.3d 1245 (7th Cir. 1996).
7th Circuit rejects minor role reduction where courier only held accountable for drugs he carried. (445) Defendant was arrested carrying a heroin‑filled suitcase from Mexico into the United States. The Seventh Circuit rejected a minor role reduction since the only evidence that there were other participants was defendant’s testimony, which the jury discredited. More importantly, defendant was not sentenced as a participant in a larger enterprise as to which he might have been a minor participant. He was sentenced only for the drug he personally carried. U.S. v. Uriostegui‑Estrada, 86 F.3d 87 (7th Cir. 1996).
7th Circuit rejects minor or minimal role even though defendant played lesser role than son. (445) Defendant and his son ran a phony investment company. The Seventh Circuit held that defendant was not a minor or minimal participant, even though his role in the scheme was less than his son. Defendant was the president of the company for years and had the authority to sign checks. He was aware that investors’ funds were being diverted for his son’s personal use, and used the company’s accounts himself to divert funds for his and his son’s personal use. U.S. v. Strang, 80 F.3d 1214 (7th Cir. 1996).
7th Circuit denies minor role where courier carried all conspiracy’s drugs across country. (445) Defendant argued that he was a mere courier who played either a minimal or minor role in a drug conspiracy. The Seventh Circuit held that defendant, who drove a van loaded with 91 pounds of marijuana halfway across the country, was not a minimal or minor participant. Defendant was aware of the general purpose of the conspiracy. He was not less culpable than the other members of the conspiracy and played an integral part because he drove the van carrying all of the conspiracy’s drugs. This was not a case in which defendant was caught with only a tiny portion of a much larger conspiracy’s drugs. The conspiracy began and ended with the 91 pounds of marijuana defendant transported. U.S. v. Smith, 80 F.3d 215 (7th Cir. 1996).
7th Circuit holds that courier was not minor or minimal participant. (445) Defendant and his father were arrested at the airport carrying a bag containing crack and powder cocaine, $15,000 in cash and a pager. He argued that he was just a courier who deserved a minor or minimal role reduction under § 3B1.2. The Seventh Circuit held that defendant’s status as a courier did not make him a minor or minimal participant. A courier may be sufficiently minor or minimal where only a single transaction occurs. Defendant was arrested carrying 774.9 grams of 94 percent pure cocaine, with a street value of $300,000, and 231.7 grams of 83 percent pure cocaine base, and almost $15,000 in cash. The drug quantity showed that defendant was not acting as a courier for a single smuggling transaction involving a small amount of drugs. The drugs were not for personal use, but could be processed to three kilos of street quality cocaine, and were intended for distribution. U.S. v. Nobles, 69 F.3d 172 (7th Cir. 1995).
7th Circuit rejects role reduction where defendant was sentenced only for crack he actually distributed. (445) Defendant claimed he was a minor participant in a crack cocaine conspiracy. The Seventh Circuit held that defendant was not entitled to a § 3B1.2 reduction because he was not sentenced for being a member of the conspiracy nor on the basis of his role in the conspiracy. He pled guilty to and was sentenced for distributing crack. His base offense level was calculated on the basis of a single kilogram of crack, not the more than 24 kilograms shown to be distributed by the conspiracy. U.S. v. Pollard, 72 F.3d 66 (7th Cir. 1995).
7th Circuit denies minor role to “central figure” in conspiracy. (445) Defendant and his associates ran a business that leased stolen trucks that had been furnished with new, fraudulent VIN numbers, re-titled and re-tagged. The Seventh Circuit rejected defendant’s request for a minor role reduction, since he was an educated man who played a “central role” in the conspiracy. Almost $45,000 in checks passed through his account as lease payments. U.S. v. Brown, 71 F.3d 1352 (7th Cir. 1995).
7th Circuit says defendant who delivered money for drugs was not minimal participant. (445) Defendant was involved in an attempt to purchase five kilograms of cocaine from an undercover agent. The Seventh Circuit held that he was not a minimal participant, since he was responsible for delivering the money to purchase the cocaine, attempted to warn his co-conspirators that the police were involved, and attempted to protect himself and his co-conspirator from arrest and the money from seizure. U.S. v. Velasquez, 67 F.3d 650 (7th Cir. 1995).
7th Circuit rules passenger in car transporting marijuana was not minor participant. (445) Defendant was a passenger in a car transporting 17 kilograms of marijuana from Texas to Ohio. The Seventh Circuit rejected her claim that she was a minor participant. Defendant was no less culpable than her husband who drove the car. She owned the car and rode with her husband for over 24 hours. Defendant’s presence in the car enhanced her husband’s image as a law-abiding citizen and reduced the suspicious nature of the trip. The names and phone numbers in Ohio found in defendant’s purse showed that defendant intended to play an active role in distributing the marijuana. U.S. v. Covarrubias, 65 F.3d 1362 (7th Cir. 1995).
7th Circuit rejects minor role for defendant described as co-defendant’s partner. (445) An associate brought defendant to a meeting to discuss purchasing cocaine from confidential informants. The associate described defendant as his partner. When the informants offered to reduce the price if the associate and defendant bought at least 10 kilograms, the associate asked defendant whether he could find enough people to join them and defendant responded affirmatively. On the day of the arrest, defendant drove the associate to the transaction site. Both defendant and the associate directed the informants to the box containing the money. The Seventh Circuit agreed that these facts supported the district court’s refusal to reduce defendant’s sentence under § 3B1.2. The fact that defendant drove and did not talk to the informants in any depth did not mandate a finding that defendant was a minor participant. U.S. v. Jones, 55 F.3d 289 (7th Cir. 1995).
7th Circuit says defendant not among least culpable in extortion scheme. (445) Defendant argued that he had a mitigating role in drug and extortion schemes. The Seventh Circuit disagreed, upholding the district court’s finding that defendant was not among the least culpable participants in the schemes. Although defendant was not the leader, he was close to being a co-leader, and was in all likelihood second in command in directing the affairs of the criminal enterprise. U.S. v. Johnson-Dix, 54 F.3d 1295 (7th Cir. 1995).
7th Circuit rejects minor role reductions for “integral” members of conspiracy. (445) Defendants were convicted of charges related to their involvement in a cocaine distribution conspiracy. They argued they were entitled to mitigating role adjustments, and that the district court erroneously compared their culpability among the three of them rather than comparing it to others in the organization. The Seventh Circuit upheld the denial of the reduction. A district court need not articulate its comparison on a person by person basis with each member of the conspiracy. Each defendant was an integral member of the conspiracy. They each sold drugs for the leader, and each acted as the leader’s bodyguard and ran errands for him. All three defendants attempted to rob a rival drug dealer in furtherance of the conspiracy. These functions were vital to the continuing success of the enterprise and gave defendants intimate knowledge of its inner workings. U.S. v. Stephenson, 53 F.3d 836 (7th Cir. 1995).
7th Circuit finds defendant was not minor participant in drug sale to undercover agent. (445) Defendant was present in an apartment during a drug sale to an undercover agent. He claimed he was unaware of the transaction and only came to the apartment with his cousin to repair a car. The Seventh Circuit upheld the denial of a minor role reduction, concluding that defendant was more than an innocent bystander to the drug transaction. When one conspirator asked about the location of the cocaine, defendant pointed with his foot to the compartment of the coffee table where the cocaine was found. In addition, defendant countermanded the agent’s intention to send for the money, instead directing him to get it personally. Also, it was highly implausible that defendant’s cousin, an armed participant in a cocaine transaction involving tens of thousands of dollars in cash, would bring an innocent bystander to witness the deal. U.S. v. Soto, 48 F.3d 1415 (7th Cir. 1995).
7th Circuit refuses minor role where offense level was based only on drugs defendant handled. (445) Defendant argued that he was only a minor participant in a drug conspiracy. The Seventh Circuit held that defendant was not entitled to a § 3B1.2 reduction since his minor role was already reflected in his offense level. The court could have based defendant’s sentence on amounts involved in transactions by co-conspirators that were reasonably foreseeable to defendant. Instead, the court based defendant’s offense level only on those drugs that he actually handled. Given this, the district court was not required to provide a further reduction for minor participation. It makes no sense to claim that one is a minor participant in one’s own conduct. U.S. v. Lampkins, 47 F.3d 175 (7th Cir. 1995).
7th Circuit finds defendant was not a minor participant in money laundering scheme. (445) In 1986 defendant began a romantic relationship with a drug distributor who had been involved in a drug conspiracy since 1978. After the distributor was convicted of drug charges, defendant helped him hide his assets. She was convicted of money laundering and obstruction of justice charges. The Seventh Circuit held that defendant was not entitled to a minor participant reduction. Although defendant’s role in her boyfriend’s 10-year drug conspiracy may have been relatively small, she was a central participant in the events underlying the money laundering and obstruction counts. She played an important role in transacting business with his drug money once he was imprisoned. She also was a key player in conspiring to hide his assets and documents. U.S. v. Maggi, 44 F.3d 478 (7th Cir. 1995).
7th Circuit agrees that defendant did not play minor role in counterfeiting operation. (445) Defendant’s boyfriend, who worked in his father’s print shop, made counterfeit bills at the shop after hours. Defendant was acquitted of manufacturing counterfeit bills and convicted of possessing them. The 7th Circuit upheld the lower court’s refusal to grant defendant a minor role reduction. Although the boyfriend was the “driving force” in the counterfeiting scheme, defendant had “an integral role” assisting him in the manufacture and distribution of forged bills. U.S. v. Bolin, 35 F.3d 306 (7th Cir. 1994).
7th Circuit says failure to seek reduction for minor role or aberrant behavior was not ineffective assistance. (445) Defendant argued that his attorney’s failure to seek a minor role reduction or an aberrant behavior departure was ineffective assistance. The 7th Circuit rejected the claim since defendant could not show that he had a reasonable probability of receiving the reductions. His actions were far from the single, unplanned, spontaneous acts associated with aberrant behavior. Defendant planned to fly to Houston to obtain cocaine. When he encountered car trouble en route to his plane, he arranged alternate transportation. He went to Houston, obtained the drugs, packaged them, and shipped them back to Rockford, Illinois. In sentencing defendant, the district court noted that he played a significant part in bringing the cocaine to Rockford, and there was no evidence that he was merely a “mule.” This made it unlikely the district court would have granted defendant a minor role reduction even if his counsel had sought one. U.S. v. Partee, 31 F.3d 529 (7th Cir. 1994).
7th Circuit says defendant who stored, cut and repackaged 25 kilos of cocaine was not minor participant. (445) The 7th Circuit agreed that defendant was not a minor participant in light of evidence that he had the responsibility to store, cut and repackage 25 kilograms of cocaine, which was up to 25 percent of that sold by the conspirators. Defendant was a trusted and loyal member of the conspiracy. U.S. v. Durman, 30 F.3d 803 (7th Cir. 1994).
7th Circuit says defendant who gave bank layout to conspirators was not a minor participant in robbery. (445) Defendant met with co-conspirators and gave them a “schematic” of the bank’s layout and information about the bank’s security system (which he had learned through efforts to sell the branch a set of security cameras). The next day defendant’s co-conspirators robbed the bank, while defendant attempted to sell cameras at the bank’s main office. The 7th Circuit agreed that defendant was not a minor participant in the bank robbery under § 3B1.2(b). Contrary to defendant’s assertions, there was no evidence that the information he provided was insignificant. The district court was entitled to reject the testimony of defendant’s psychologist that defendant was “too passive” to plan a robbery. One conspirator stated that defendant had assisted them before the robbery. In addition, the evidence suggested that defendant took part in choosing which bank to rob. U.S. v. Redig, 27 F.3d 277 (7th Cir. 1994).
7th Circuit holds that defendant sent to test sample of cocaine was not minor or minimal participant. (445) Defendant was sent by his conspirators to examine two kilograms of cocaine. Defendant was unaware that the two kilograms were part of a 50 kilogram transaction. The 7th Circuit affirmed the denial of a mitigating role adjustment, finding that “reasonable minds could differ” as to whether defendant deserved the reduction. Defendant was less culpable than his cohorts, but his conduct contributed crucially to the potential success of the enterprise. U.S. v. Corral-Ibarra, 25 F.3d 430 (7th Cir. 1994).
7th Circuit rejects minimal role where defendant was fully aware of counterfeiting operation. (445) The 7th Circuit concluded there was no error in finding defendant was a minor, rather than a minimal, participant in a counterfeiting operation. The district court found that defendant was fully aware of each of the participants in the counterfeiting activity, and assisted in each step of the process. Although defendant may not have been aware of the precise printing process, this did not mean he was a minimal participant. U.S. v. McDonald, 22 F.3d 139 (7th Cir. 1994).
7th Circuit says lack of minor role reduction or aberrant behavior departure not plain error. (445) Defendant argued for the first time on appeal that the district court erred by refusing to reduce his offense level to reflect his minor role in a cocaine conspiracy and his single act of aberrant behavior marring an otherwise “clean” record. The 7th Circuit held that defendant waived these claims by failing to raise them below. There was no plain error which would permit the appellate court to review the issues. Defendant did not show that he was either the least culpable of those involved in the conspiracy or less culpable than most other participants. Defendant’s actions could not be classified as a single, unplanned, spontaneous act. The record reflected that defendant had a substantial role as an integral part of all facets of the drug transaction in question. U.S. v. Rosalez-Cortez, 19 F.3d 1210 (7th Cir. 1994).
7th Circuit denies minimal role reduction where defendant was fully aware of fraud scheme. (445) Defendant was involved in a company that obtained a Postal Service contract by misrepresenting that it was a minority-owned business. He argued that he should have received a four level minimal role reduction under section 3B1.2, rather than the three level reduction he actually received. The 7th Circuit held that the denial of the additional point reduction was warranted. Although defendant did not participate in the day-to-day operations of the company, he fully understood what he was getting into as a director of the company and personal guarantor of the company’s loan. U.S. v. Loscalzo, 18 F.3d 374 7th Cir. 994).
7th Circuit denies minor role reduction to defendant who purchased cocaine at least 50 times. (445) Defendant argued that he was entitled to a minor role reduction because he was an addict on the lowest rung of a drug organization. The 7th Circuit rejected this claim. In reality, defendant was a significant distributor of cocaine who purchased it in quantities up to two ounces, on at least 50 occasions. He played a crucial role in getting cocaine to end users, the ultimate goal of the conspiracy. U.S. v. Kozinski, 16 F.3d 795 (7th Cir. 1994).
7th Circuit denies minor role although culpability of “average defendant” was somewhat higher. (445) The district court found that defendant did not meet the threshold for a minor role reduction, although the culpability of the “average” defendant was “somewhat higher” than that of defendant. Defendant was involved in the conspiracy for many months, knew its extent, lent her name to the enterprise by putting its leader’s home and telephone in her name, and participated in an occasional drug transaction. The 7th Circuit affirmed. Comparative roles are an important factor, but not a determinative one, and a trial judge’s decision is reversed only for clear error. Defendant’s claim that she was “dominated” by the conspiracy’s leader was also rejected. The law no longer accepts the assumption that a woman living with a man is under his domination. U.S. v. Kerr, 13 F.3d 203 (7th Cir. 1993).
7th Circuit denies minor role reduction to primary distributor for drug conspiracy. (445) Defendant argued that he should have received a minor role reduction because he distributed only 10 to 12 pounds of methamphetamine, which was much less than the quantities handled by the other members of the conspiracy. The 7th Circuit affirmed the denial of the reduction, based on evidence that at the beginning of the conspiracy, defendant was one of the primary distributors of methamphetamine. In addition, it was apparent from trial testimony that defendant continued to buy quantities of methamphetamine and knew enough about the scope of the conspiracy to realize that the conspiracy was prepared to receive a large shipment of the drug on August 31, 1990. U.S. v. DePriest, 6 F.3d 1201 (7th Cir. 1993).
7th Circuit says defendant whose home was used for drug distribution was not a minor participant. (445) The 7th Circuit rejected defendant’s claim that he was a minor participant in a marijuana conspiracy. Defendant’s home was used as the division and distribution center for the marijuana. He contacted a network of buyers for the marijuana, who came to his home to do business. U.S. v. Severson, 3 F.3d 1005 (7th Cir. 1993).
7th Circuit denies minor role where defendant delivered substantial amount of cocaine. (445) The 7th Circuit affirmed that defendant was a not a minor participant in a cocaine conspiracy. Defendant helped distribute 24 ounces of cocaine obtained from a co-conspirator. He pick up the cocaine, delivered it to the customers, collected payment, and reimbursed the co-conspirator, who had provided the drug on a consignment basis. The co-conspirator testified that defendant was loyal member of the conspiracy whom he entrusted with knowingly delivering a substantial amount of cocaine. U.S. v. Pitz, 2 F.3d 723 (7th Cir. 1993).
7th Circuit rejects minor participant reduction for defendant who transported large quantity of drugs. (445) Defendant sought a downward adjustment in his sentence based on his alleged “minor participant” status under 3B1.2(b). The 7th Circuit upheld the district court’s failure to allow the reduction. While the reduction might be appropriate for a drug courier who transported “a small quantity of drugs on only one occasion,” defendant transported 997 grams of heroin on at least three occasions. U.S. v. Emenogha, 1 F.3d 473 (7th Cir. 1993).
7th Circuit rejects minimal role adjustment for harvester of marijuana. (445) The 7th Circuit rejected defendant’s claim that he was entitled to a minimal role adjustment under section 3B1.2(a). Defendant’s role in the marijuana conspiracy was far more involved that simply offloading a single shipment or acting as a courier for a small amount of drugs. Defendant was a trusted and active member of the conspiracy who not only assisted in harvesting large quantities of marijuana (3000 to 4000 pounds), but was also allowed to receive and deliver a substantial money order in payment for a drug shipment. U.S. v. Johnson, 997 F.2d 248 (7th Cir. 1993).
7th Circuit says culpability refers to defendant’s actions, not his character. (445) Defendant embezzled money from his employer and invested it, intending to pay back the money with his profits. However, the two men he invested it with were con men. The 7th Circuit upheld the denial of a minor role reduction. Even though the other two men were “very bad people,” and defendant also lost his own money in the crime, this just showed that the two men were “worse people,” not that defendant was less responsible for taking the money from his employer. The reference to culpability in the guideline requires an examination of what actions the defendant took, not an examination of the defendant’s character. U.S. v. Berna, 995 F.2d 711 (7th Cir. 1993).
7th Circuit rejects minor role for participant in welfare benefits fraud. (445) The 7th Circuit affirmed that defendant did not have a minor or minimal role in a welfare fraud conspiracy. Defendant knew about the conspiracy and was an integral part of it. He knowingly received forged birth certificates for a fictitious family, instructed a female confederate to obtain false social security cards for this family and to apply for public aid. He collected a total of $1,764 in profits for himself and his confederate in the course of three separate transactions. The fact that he received less money than his co-conspirators did not diminish the importance of his role in the offense. Nor was his role diminished by the fact that his participation in the conspiracy was short-lived. Finally, the fact the he was among the two or three least guilty of all the defendants did not mean that he played a minor role. U.S. v. Moore, 991 F.2d 409 (7th Cir. 1993).
7th Circuit rejects possibility of minor role reduction for felon in possession of firearm. (445) Defendant was convicted of being a felon in possession of a firearm. The 7th Circuit rejected his claim of that he was entitled to a minor role reduction. The “minor role” guideline section, 3B1.2, applies to concerted activity, group crime. Although a friend testified that the weapon belonged to her, that did not make her a participant in the offense. The witness was not a convicted felon, and even if she was and jointly possessed the gun with defendant, this did not affect defendant’s culpability or minimize his role in the offense. U.S. v. Thompson, 990 F.2d 301 (7th Cir. 1993).
7th Circuit rejects minor role even though defendant played less active role. (445) Although defendant played a less active role in a marijuana conspiracy than the other participants, the 7th Circuit affirmed the denial of a minor role reduction. Defendant’s involvement was too extensive to consider him a minor participant. He assisted in harvesting the marijuana, transporting it to a rendezvous location and was aware of the magnitude as well as the other participants. He accompanied his son to drug deals. Although defendant’s role in the conspiracy may not have been as great as others, he was not less culpable than any other participants. U.S. v. Tolson, 988 F.2d 1494 (7th Cir. 1993).
7th Circuit upholds reliance on husband’s proffer to reject minor role reduction. (445) Defendant and her husband were convicted of drug conspiracy charges. The 7th Circuit upheld the district court’s reliance upon the husband’s immunized pretrial proffer to deny defendant a reduction based upon her minor role in the conspiracy. In the proffer, the husband said that he told defendant on the day of the transaction that he was going to assist others in buying cocaine, and that defendant had agreed to join him. He also said that defendant was fully aware that he placed a weapon in her purse before they left their residence. The district court found that defendant had lied to the magistrate during her husband’s detention hearing when she testified that she did not know where they were going in her car and that she knew nothing about the drug deal. The fact finder’s choice between two permissible views of the evidence cannot be clearly erroneous. U.S. v. Gunning, 984 F.2d 1476 (7th Cir. 1993).
7th Circuit rejects minor role for conspirator whose involvement extended over six months. (445) The 7th Circuit rejected defendant’s claim that she was entitled to a mitigating role adjustment. Her involvement in a drug conspiracy extended over its entire six month term. Her involvement in the conspiracy began in April 1988 and lasted through its final stages. She had a conversation in April 1988 with one conspirator concerning safe routes to transport drugs from Florida. Taped telephone calls showed that over this six month period she had conversations concerning the future sale of cocaine, the availability of cocaine, the whereabouts of the co- conspirators and the progress of various deals, and the conspiracy’s code language. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993).
7th Circuit denies mitigating role adjustment to principal participant in offenses. (445) The 7th Circuit rejected defendant’s claim that as a courier, he was entitled to a mitigating role adjustment. Defendant was charged with possessing with intent to distribute cocaine and of carrying a gun during the commission of this crime. He was the principal participant in both these crimes. Defendant, acting alone, knowingly transported five pounds of cocaine across state lines. He used and drove a family car and was paid $2,500 for the trip. He claimed to know the identify of his supplier and exhibited familiarity with drug dealing. He admitted having made a prior cocaine delivery to the informant. He was entrusted with collecting $77,000 from the buyer-informant in connection with the charged delivery, and carried a loaded gun to protect himself. U.S. v. Sanchez, 984 F.2d 769 (7th Cir. 1993).
7th Circuit rejects minor role for defendant who acted as translator during drug transactions. (445) Defendant contended that she should have received a minor or minimal role reduction because the evidence at trial proved she was nothing more than a translator in a drug deal. The 7th Circuit affirmed the denial of the reduction in light of evidence that defendant possessed a pager, was involved in more than one transaction, traveled in order to facilitate the conspiracy, and actively participated in the discussions that initiated the conspiracy. Defendant was an integral and active member of the conspiracy whose duties happened to include translating. U.S. v. Villasenor, 977 F.2d 331 (7th Cir. 1992).
7th Circuit defers to trial court’s conclusion that defendant was not a minor participant. (445) The 7th Circuit found no clear error in the district court’s denial of a minor participant reduction based on the factual finding that defendant “was a well-established coke dealer who did engage in a number of coke transactions.” U.S. v. Spears, 965 F.2d 262 (7th Cir. 1992).
7th Circuit rejects mitigating role for extortionist. (445) Defendant and a co-defendant sent a letter to a woman which threatened to harm the woman and her house unless she paid the defendants $25,000. The 7th Circuit rejected defendant’s claim that she had a lesser role in the extortion scheme. Both defendants were in the post office together for about 20 minutes prior to mailing the letter, moving from the clerk’s window to the work tables to the copying machines. This made it unlikely that defendant was unaware of the preparation of the threatening letter. When the co-defendant was attempting to pick up the dummy extortion package, defendant was with him across the street from the drop-off point for over an hour and had been seen looking in the direction of the drop-off point. The district court found that defendant’s claim that she was less culpable than her co-defendant was not believable in light of evidence that the pair were convicted of theft by swindle in 1987, had a close relationship and had lived together for 12 years before their arrest. U.S. v. Johnson, 965 F.2d 460 (7th Cir. 1992).
7th Circuit rejects minor participant reduction for defendant who was “go-between” for undercover agents and drug buyer. (445) The 7th Circuit affirmed that defendant who served as a “go-between” for an undercover agent posing as a drug seller and a drug buyer was not entitled to a minor participant reduction. First, the district court did not erroneously focus on defendant’s activities in the scheme, rather than his relative degree of culpability. Defendant’s activities in the scheme were indicators of his relative culpability. Second, substantial evidence supported the determination that defendant did not have a minor role in the conspiracy. Defendant contacted the drug buyer when the confidential informant asked him to locate a buyer for several kilograms of cocaine. Defendant spoke for the buyer during the negotiations, and aggressively tried to close the deal by persistently haggling over the details with the informant and undercover agent in the hopes that some transaction would occur. He also met personally with the informant and undercover agent and offered his house for completing the transaction. U.S. v. Cea, 963 F.2d 1027 (7th Cir. 1992).
7th Circuit rejects minor role adjustment for drug courier. (445) The 7th Circuit rejected defendant’s claim that he should have been sentenced as a minor participant under section 3B1.2 because his only role in the drug conspiracy was that of a “somewhat naive courier.” There is no per se rule entitling drug couriers to minor participant status. There was no error in the district court’s conclusion that defendant was not a minor participant where he was personally involved in the sale of more than five kilograms of cocaine, at least two of which he transported across state lines. U.S. v. Rossy, 953 F.2d 321 (7th Cir. 1992).
7th Circuit rejects mitigating role adjustment for mid-level cocaine distributor. (445) The 7th Circuit rejected defendant’s contention that he was entitled to a reduction based upon his mitigating role in a cocaine conspiracy. The probation department and the district court concluded that defendant was a mid-level cocaine distributor, and as such, held neither an aggravating nor a mitigating role in the offense. U.S. v. Navarez, 954 F.2d 1375 (7th Cir. 1992).
7th Circuit rules defendant waived minor participant issue because not raised below. (445) The 7th Circuit ruled that defendant waived the issue of his minor participation because he did not raise the issue below. There was no plain error and no miscarriage of justice. Defendant was not less culpable than other members of the conspiracy, and he was more than a minimal participant. U.S. v. Cooper, 942 F.2d 1200 (7th Cir. 1991).
7th Circuit rejects minimal role for defendant who allowed drug dealer to use her home to store marijuana. (445) The 7th Circuit rejected defendant’s claim that she should have received a three or four level reduction under guideline section 3B1.2 for being either a minimal or between a minor and minimal participant in a drug conspiracy. Defendant knowingly allowed a drug dealer to use her home to store marijuana and cocaine and to conduct at least one drug sale. On four or five other occasions, defendant sold cocaine from her home for the dealer. U.S. v. Trussel, 961 F.2d 685 (7th Cir. 1992).
7th Circuit finds sufficient evidence that defendant was full participant in interstate theft scheme. (445) The 7th Circuit rejected defendant’s contention that he was a minor or minimal participant in a conspiracy to steal a trailer and its interstate shipment. Although defendant was acquitted of conspiracy charges, there was ample evidence from which the district court could conclude that defendant was a full participant in the offense. Defendant was present during the discussion and planning of the theft of the trailer. He travelled with a co-defendant to the truck lot to steal the trailer. Defendant helped unload the trailer’s cargo, boxes of dishwashing detergent, into a co-defendant’s basement. In addition, defendant participated in the distribution by loading the stolen detergent from the basement into a van so that a co-defendant could sell it and participated in selling the detergent. U.S. v. Davis, 938 F.2d 744 (7th Cir. 1991).
7th Circuit denies further role reduction despite judge’s comment that defendant’s role was “minimal.” (445) Defendant argued that the sentencing judge should have treated defendant as a minimal participant rather than a minor participant. The judge called defendant’s role “minimal” when sentencing another defendant. The 7th Circuit rejected defendant’s argument that this statement was dispositive. “Extemporaneous speech by a judge who may not have been paying attention to nuance does not preclude a more considered decision later.” U.S. v. Dumont, 936 F.2d 292 (7th Cir. 1991).
7th Circuit rejects minor role of “facilitator” of drug transaction. (445) Defendant located a drug buyer for a government informant. He contended that he should have received a reduction for being a minor participant, since he was merely a “facilitator” of the drug transaction. The 7th Circuit rejected this argument. Defendant, not the informant, pursued the contact with the ultimate purchaser of the drugs. The informant was unacquainted with the purchaser before defendant intervened and set up the transaction. The fact that the government requested an “aiding and abetting” instruction at defendant’s trial did not preclude the court from denying the reduction. U.S. v. Boyer, 931 F.2d 1201 (7th Cir. 1991).
7th Circuit rejects minor role for drug courier. (445) Defendant contended that he was a minor participant in a drug conspiracy because he only acted as a “mule” carrying drugs for the conspiracy’s leader. The 7th Circuit rejected this argument. Defendant acted as a courier twice, which prevented him from falling within the terms of application note 2 to guideline § 3B1.2. The controlling standard is whether defendant was substantially less culpable than the conspiracy’s remaining participants, and he was not. Defendant’s transportation of a total of 11 ounces of cocaine in two separate trips “can be considered nothing but playing an integral role in the conspiracy.” U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit finds that defendant who pulled weeds around marijuana plants was not a minimal participant. (445) Defendant contended that the district court should have determined that he was a minimal, rather than a minor participant. The 7th Circuit disagreed. Evidence showed that for two days prior to his arrest, defendant lived on the farm where 60,000 marijuana plants were growing and that he advanced the conspiracy by picking weeds around the plants. The district court did not abuse its discretion in refusing to find him a minimal participant. U.S. v. Hagan, 913 F.2d 1278 (7th Cir. 1990).
7th Circuit reverses finding that businessman who hired violent debt collectors was a minor participant. (445) Defendant businessman hired two burly men to assist him in collecting legitimate business debts. The two men used violence and threats to collect the money. The 7th Circuit reversed the district court’s finding that defendant was a minor participant. Defendant made threats over the phone to one of his debtors, and shared information about these phone calls with the two men. He willingly profited from the threats and violence even after the debtors brought them to his attention. Therefore, defendant was not substantially less culpable than the two men who committed the violence. U.S. v. Bigelow, 914 F.2d 966 (7th Cir. 1990).
7th Circuit finds no minor role where defendant reassured his codefendant that the buyers could be trusted and was present during the transaction. (445) The codefendant arranged the last transaction by himself. However, prior to the transaction, defendant had to reassure the codefendant that the buyers could be trusted. Moreover, defendant sat in the back seat of the vehicle while the codefendant conducted the sale in the front seat. Thus, the 7th Circuit ruled that defendant “played an important role in this last transaction by his mere presence.” They added that “[w]ithout the presence of [defendant, the codefendant] may not have consummated this last transaction, nor any of the transactions.” U.S. v. Brick, 905 F.2d 1092 (7th Cir. 1990).
7th Circuit rules that a person who directs a buyer to a seller cannot be considered a minor participant. (445) Defendant argued that he was a minor participant because he profited only $330 from the first two transactions while his codefendant profited $2,800. Rejecting the argument, the 7th Circuit said that “the importance of an individual’s role in a drug offense should not be based solely on the amount of that individual’s pecuniary gain.” “A person who directs a buyer to a seller cannot be considered a minor participant because that person also plays an important role in the distribution of the drugs.” U.S. v. Brick, 905 F.2d 1092 (7th Cir. 1990).
7th Circuit holds that involvement in more than one drug transaction precludes finding of minimal participant status. (445) Defendant assisted her brother in laundering drug proceeds. She participated in at least four activities relating to money laundering. She allowed two vehicles she knew were bought with drug proceeds to be titled in her name, and converted drug proceeds from cash to cashier’s checks and back to try and disguise the source of payments on the Mercedes. Also, she put her name on safety deposit boxes which were used to store large amounts of her brother’s drug proceeds. Based upon these facts, the 7th Circuit affirmed the trial court’s designation of the defendant as a minor participant, and held that it was not error for the court not to designate her a minimal participant under guidelines § 3B1.2. U.S. v. Franklin, 902 F.2d 501 (7th Cir. 1990).
7th Circuit rejects mitigating role adjustment where defendant recruited others and purchased the cocaine. (445) Defendant argued that it was clearly erroneous for the trial court to deny him a reduction in his offense level under § 3B1.2 based upon his mitigating role in the offense. The 7th Circuit disagreed, finding that the evidence clearly indicated that he was a “important player in the drug conspiracy.” He made phone calls and recruited others into the conspiracy and provided the money to purchase the cocaine. Furthermore he was the person who actually distributed the cocaine to an undercover agent. These facts justified a conclusion that the defendant was not a minor or minimal participant in the offense. U.S. v. Dillon, 905 F.2d 1034 (7th Cir. 1990).
7th Circuit holds that recruiting another to assist in an offense supports a finding of minor and not minimal status. (445) Defendant pled guilty to conspiring to possess cocaine with intent to distribute after he and two friends were arrested while trying to steal a car they believed contained cocaine and cash. The defendant had enlisted co-defendant’s assistance in committing this offense. The 7th Circuit held that his active enlistment of co-defendant to help steal the automobile as well as his knowledge of the amount of cocaine that was supposed to be located in the car supported a finding that his participation was minor and not minimal under § 3B1.2 of the guidelines. Schetz v. U.S., 901 F.2d 85 (7th Cir. 1990).
7th Circuit holds extensive participation in cocaine smuggling justified minor rather than minimal participant status. (445) The evidence established that defendant extensively participated in acquisition of equipment and construction of a sophisticated storage compartment used to smuggle cocaine. This role suggested that the defendant had a more complete knowledge of the extent of the criminal conspiracy than that which he acknowledged. A made a “substantial effort” to see that the criminal enterprise would succeed. In light of these circumstances, the district court did not clearly err in finding that the defendant was a minor rather than a minimal participant. The 7th Circuit rejected the defendant’s assertion that his conduct was less culpable than that of the sample minimal participant described in application note 2 to § 3B1.2. The court rejected his attempt to minimize his conduct by comparing it to that of some “unspecified groups whose existence and activities were not a part of the record.” U.S. v. Valencia, 907 F.2d 671 (7th Cir. 1990).
7th Circuit holds that defendant was not a minor participant because of “culpable desire to profit from a scheme.” (445) Defendant’s brother was found by the district court to be the mastermind of a scheme to pose as DEA agents and “rip-off” drug dealers. Defendant argued that because he and his brother were the only participants in the scheme he should have been given a two level decrease. The district court held that although he was not the leader, the defendant did not deserve a decrease because he had a culpable desire to profit from the scheme. The 7th Circuit upheld the district court’s findings, as not clearly erroneous. U.S. v. Tholl, 895 F.2d 1178 (7th Cir. 1990).
8th Circuit holds that one-time courier did not prove entitlement to minor role reduction. (445) Defendant pled guilty to aiding and abetting the possession of more than 500 grams of methamphetamine with intent to distribute. The Eighth Circuit upheld the denial of a mitigating role adjustment under § 3B1.2. Defendant argued that his involvement was limited to being a courier in a single transaction. However, even if that were true, someone’s role as a courier is not sufficient, in and of itself, to warrant the reduction. Similarly, a defendant’s involvement in a single transaction does not compel a finding of clear error. Defendant failed to meet his burden of proving an entitlement to the reduction. He never compared his culpability to that of his co-defendants, such as the vehicle’s passenger or others involved with the stash house. The record was similarly lacking in these details. U.S. v. Salazar-Aleman, 741 F.3d 878 (8th Cir. 2013).
8th Circuit denies minor role where defendant was accountable only for drugs at arrest. (445) Defendant pled guilty to distributing methamphetamine. He challenged the denial of a mitigating role reduction. The Eighth Circuit ruled that the district court correctly concluded that the § 3B1.2 reduction did not apply because defendant “was held responsible only for the amount of drugs involved in the single episode of his arrest and not those related to the greater reach” of his criminal activity. U.S. v. Lara, 718 F.3d 994 (8th Cir. 2013).
8th Circuit rejects mitigating role in transporting methamphetamine. (445) Defendant, a professional truck driver, was stopped carrying 9.8 pounds of 91% to 99% pure methamphetamine chloride in his truck. He testified at trial that the meth had been given him by a friend named “El Cowboy,” who had asked him to deliver a box of medicine to a friend in Maryland, who would buy him “a couple of tacos” to thank him for the delivery. The Eighth Circuit ruled that the district court did not clearly err in finding that defendant had failed to prove he had a mitigating role in the offense. Defendant argued that if he were a drug courier, there would have been others involved who were more culpable than him. However, defendant offered no evidence to show what roles El Cowboy and his Maryland friend played in the drug trafficking operation, or to show that they were more culpable than defendant. Furthermore, the government’s expert witness testified that meth of the quantity and purity found in defendant’s truck ordinarily would be entrusted only to a well-known courier. U.S. v. Castillo, 713 F.3d 407 (8th Cir. 2013).
8th Circuit agrees that defendant was active participant in drug conspiracy. (445) Defendant used his home to store drugs as part of a marijuana and cocaine distribution conspiracy. Guideline § 2D1.8(a)(2) provides for a four-level reduction if “the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises.” The Eighth Circuit held that witness testimony sufficiently described defendant’s substantial involvement in the conspiracy, and established that he was not eligible for § 2D1.8(a)(2)’s lower base offense level. The witnesses testified that defendant helped co-conspirators distribute drugs, purchased drugs from co-conspirators, and distributed drugs to his own customers. Thus, defendant did much more than merely “allow[ ] use of [his] premises.” U.S. v. Dengler, 695 F.3d 736 (8th Cir. 2012).
8th Circuit rejects minor role for defendant who had central role in hate crimes. (445) Defendant and two friends chased a car full of Hispanic passengers, ramming the car with defendant’s truck until the car crashed, seriously injuring all of the passengers. The Eighth Circuit rejected defendant’s argument, raised for the first time on appeal, that he was entitled to a minor role adjustment under § 3B1.2(b). In light of the extensive evidence at trial that defendant played a central role in every aspect of the crimes, there was no error, much less plain error, in the district court’s failure to sua sponte grant him a minor role adjustment. U.S. v. Maybee, 687 F.3d 1026 (8th Cir. 2012).
8th Circuit rules defendants were not minor participants in altered currency scheme. (445) Defendants and others were involved in a fraud scheme to persuade a victim that they could convert black paper into $100 bills using legitimate currency and various chemicals. Unfortunately for them, their “victim” was an informant for the sheriff’s office, and defendants were arrested as they prepared to purportedly convert $50,000 for him. The Eighth Circuit held that two defendants were not minor participants. Defendant Boe was present at every meeting with the putative victim, assisted in demonstrating the fictitious conversion process, leased the stash house, and would have received a share of the proceeds. He had “significant involvement in nearly all aspects of the conspiracy.” Defendant Gayekpar asserted that he was entitled to the reduction because he was merely the driver of the vehicle, and the conspirators agreed that he would receive only three percent of the proceeds. However, transportation to gather additional supplies and to meet the targeted victim was a necessary part of this black money scheme, and Gayekpar was to be compensated for his participation. The district court did not clearly err in finding that Gayekpar’s role was substantial enough to preclude a minor role adjustment. U.S. v. Gayekpar, 678 F.3d 629 (8th Cir. 2012).
8th Circuit denies minor role reduction where other assailant was intoxicated minor. (445) A jury convicted defendant of “assault resulting in serious bodily injury” in violation of 18 U.S.C. §§2, 1153, and 113(a)(6). At trial, six eyewitnesses, including the victim and defendant’s minor son, testified that defendant and her minor nephew assaulted the victim during a party at defendant’s home. The Eighth Circuit upheld the denial of a minor role reduction. Defendant argues that the jury could have found that she simply aided and abetted her nephew in the assault. The district court rejected this argument, finding: (1) there was no evidence to support this theory; and (2) as the adult relative of an intoxicated minor, and by initiating and encouraging the assault, defendant probably was more culpable than her nephew. These findings were not clear error. U.S. v. White, 675 F.3d 1106 (8th Cir. 2012).
8th Circuit rules that defendant was not entitled to minor role reduction. (445) Defendant participated in a conspiracy to transport cocaine to Davenport, Iowa, convert it to crack, and distribute over 30 kilograms of cocaine base. The Eighth Circuit upheld the denial of two- and four-level reductions for defendant’s role in the conspiracy. Although defendant was not personally involved in the distribution of all drug quantities, defendant sold substantial quantities of crack cocaine, collected money from customers and other dealers, and had extensive knowledge of the conspiracy. He was at least as culpable as many of the conspirators in Davenport. Indeed, he was not significantly less culpable than major customer Randle: Cornelous, the leader and organizer, “fronted” crack cocaine to both, and one of defendant’s duties in Davenport was to collect Randle’s drug debts to Cornelous. The district court did not clearly err in denying defendant a minor participant role-in-the-offense reduction. U.S. v. Pinkin, 675 F.3d 1088 (8th Cir. 2012).
8th Circuit rejects minor role reduction for defendant “deeply involved” in drug conspiracy. (445) Defendant argued that the district court erred in not granting him a reduction for his minor role in a drug conspiracy. He contended that he was a simple, uneducated man who could not read, write, or speak English, and was unable to comprehend the full extent of the drug conspiracy. The Eighth Circuit upheld the denial of the minor role reduction, since the trial evidence showed that defendant was deeply involved in the conspiracy. For example, Sanchez testified that when he sold drugs, he gave the money for the drugs to defendant, and that it was defendant who told him to carry a gun. Sanchez stated that the drugs he sold were supplied to him by Tapia, whose supplier was defendant, indicating that he was higher up in the conspiracy chain than at least two other members of the conspiracy. Defendant’s lack of education and other mitigating factors were not relevant to the minor role reduction. U.S. v. Rodriguez-Ramos, 663 F.3d 356 (8th Cir. 2011).
8th Circuit denies role reduction even if defendant was less culpable than co-defendant. (445) Defendant was convicted of money laundering charges for cashing money orders for Epherson, a drug dealer who paid defendant between $50 and $100 for each $1,000 cashed. Defendant’s appealed the district court’s denial of a three-level minor role reduction, noting that he only cashed about 15 percent of the known money orders in the conspiracy, was not involved in the underlying drug dealing, did not participate in the purchase of the money orders, and did not transport the money orders from St. Louis to Los Angeles. The Eighth Circuit ruled that defendant did not establish that the district court clearly erred in finding him a full participant in the conspiracy and denying his request for a minor-role reduction. Epherson and defendant were the only principals in the money laundering conspiracy. The fact that defendant was less culpable than Epherson did not necessarily lead to the conclusion that defendant was substantially less culpable than the average participant. U.S. v. Mitchell, 613 F.3d 862 (8th Cir. 2010).
8th Circuit says wife did not meet burden to show minimal role in descrambler manufacturing. (445) Defendant and her husband were convicted of manufacturing cable TV descramblers intended for unauthorized interception of cable signals. She argued that the district court erred in refusing to reduce her base offense level for being a minimal participant in the conspiracy and in assisting an unauthorized interception of cable signals. The Eighth Circuit rejected her argument, noting that the defendant bears the burden of proving that a reduction for role in the offense applies, and the defendant failed to meet that burden here. Defendant performed many of the same tasks as her husband, operating equipment, shipping and billing and hiring and paying employees. In U.S. v. Denton, 434 F.3d 1104, 1115 (8th Cir. 2006) the court held that a defendant “cannot be considered a minimal participant [where she] has ‘knowledge of the scope and structure of the conspiracy and observed the activities of others in the conspiracy.'” U.S. v. Sweeney, 611 F.3d 459 (8th Cir. 2010).
8th Circuit upholds finding that drug couriers were not minor participants. (445) Defendants were couriers for an organization that transported large quantities of cocaine and methamphetamine from Mexico into the U.S., as well as cash proceeds from drug sales. The organization provided vehicles containing hidden compartments to defendants, and defendants made $600 to $700 per kilogram transported. One defendant transported 235 kilograms of cocaine and methamphetamine and $1.7 million; one defendant transported 18 kilograms and $90,000; and one defendant transported 66 kilograms and $220,000. The district court declined to find that defendants were minor participants in the offense under § 3B1.2. The Eighth Circuit affirmed, rejecting defendants’ arguments that the district court improperly compared them to other drug traffickers and that they should not receive the enhancement because they were less culpable than other members of the organization. U.S. v. Adamson, 608 F.3d 1049 (8th Cir. 2010).
8th Circuit denies role reduction to middleman in first of three drug transactions. (445) Defendant argued that the district court clearly erred in denying him a two-level adjustment based on his minor role in a drug conspiracy. He had introduced the buyer (who was actually a confidential informant) to co-conspirator Zeimes, who sold the buyer drugs on three occasions. Defendant argued that he did not package, protect, distribute or even examine the cocaine, and did not schedule the last two transactions, making him a minor participant in the three-transaction conspiracy. In denying the reduction, the district court noted that defendant was “intimately involved in the first [of the three transactions] and was to have been compensated for his efforts.” The Eighth Circuit upheld the denial of the reduction. Numerous decisions have upheld the denial of minor role adjustments to defendants who served as middlemen or “steerers,” like defendant, because those participants play a critical role in illicit drug trafficking by “directing buyers to sellers who wish to remain hidden from public view.” U.S. v. Deans, 590 F.3d 907 (8th Cir. 2010).
8th Circuit rejects minimal participant reduction for defendant who was aware of scope and structure of drug conspiracy. (445) Defendant was convicted of multiple drug and gun crimes in connection with the operation of a drug trafficking business on a South Dakota Indian reservation. He argued that the court erred in giving him a two-level minor participant reduction rather than a four-level reduction as a minimal participant. The Eighth Circuit found no error. The district court found that defendant participated in the conspiracy primarily by selling at the retail level, but that there was also evidence that he repackaged cocaine for sale once. This evidence was supported in the record. The evidence also indicated that defendant was selling from the Igloos (a particular neighborhood where the conspiracy sold drugs), so the idea that he was ignorant of the “scope and structure of the enterprise” was untenable. U.S. v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008).
8th Circuit holds that defendant did not play minor role in drug conspiracy. (445) Defendant argued that he was less involved in the drug distribution conspiracy than Garcia-Delacruz and thus deserved a two-level minor role reduction in his offense level. The Eighth Circuit found no error. Defendant did not object to the government’s assertion in his PSR that he was responsible for 1.16 kilograms of methamphetamine. Measuring this against the 500 grams of meth charged in the conspiracy, it was clear that defendant was deeply involved in the conspiracy. Moreover, defendant’s role as a “mule” or courier in the drug conspiracy did not entitle him to the reduction. U.S. v. Pruneda, __ F.3d __ (8th Cir. Feb. 8, 2008) No. 07-2285.
8th Circuit rejects minor role for defendants “deeply involved” in cross-burning conspiracy. (445) Defendants were convicted of a civil rights conspiracy for their involvement in a cross-burning incident. The district court found that defendants were minor participants in the conspiracy and reduced their offense levels by two levels under § 3B1.2. The Eighth Circuit reversed. Defendants did not offer any evidence comparing their culpabilities with that of the other participants in the conspiracy. The trial evidence indicated that defendants were deeply involved in the conspiracy. Both joined the conspiracy to build a cross for purposes of driving the victim out of the neighborhood and, although they did not physically engage in every step of the building and burning of the cross, they assisted Baird in the activity that led to the construction and burning of the cross. The court’s conclusion that defendants “did not play as major a role as did Baird,” did not mean that they were less culpable than Baird. U.S. v. Weems, 517 F.3d 1027 (8th Cir. 2008).
8th Circuit holds court clearly erred in finding defendant had minor role in meth scheme. (445) Officers encountered defendant at a store where his then-girlfriend had been detained for shoplifting cold medicine containing pseudoephedrine, a key ingredient in manufacturing methamphetamine. He confirmed the girlfriend’s story that she had been paid $100 to obtain the cold medicine, but he refused to identify the person. Defendant consented to a search of his truck, located outside the store. Within the truck, police found a gun, methamphetamine, 650 pseudoephedrine pills and additional paraphernalia used in the manufacture of meth. The district court granted him a four-level minimal role reduction, finding that his only involvement was to assist his girlfriend in obtaining pseudoephedrine. The Eighth Circuit reversed, holding that the district court erred in applying the minimal role reduction. The evidence compelled a finding that defendant was “deeply involved” in the manufacture of methamphetamine. The items seized from defendant’s truck and from his person were all associated with the manufacture or distribution of methamphetamine. The panel was left with the firm conviction that the court erred in finding that defendant’s only involvement was to assist his girlfriend in obtaining methamphetamine. U.S. v. Goodman, 509 F.3d 872 (8th Cir. 2007).
8th Circuit denies minor role reduction to meth distributor. (445) Defendant pled guilty to a number of methamphetamine-related charges. Although defendant argued that his involvement, compared to the amount of drugs attributed to his co-conspirators, was minimal or minor, the Eighth Circuit upheld the denial of a mitigating role adjustment. The uncontested facts show that methamphetamine, intended for distribution, was twice seized from defendant’s home, and that he conspired to distribute over 500 grams of methamphetamine. He also received methamphetamine from another supplier, an uncharged conspirator, and distributed three pounds of methamphetamine during the conspiracy. A drug distributor does not deserve a minor role reduction simply because of the presence of a larger-scale upstream distributor. U.S. v. Carpenter, 487 F.3d 623 (8th Cir. 2007).
8th Circuit holds that methamphetamine distributor did not hold minor role in distribution conspiracy. (445) Defendant was convicted of conspiracy to distribute or possess 500 grams or more of methamphetamine. The evidence showed that defendant’s role was to distribute methamphetamine, the intended object of the conspiracy. The Eighth Circuit held that this was sufficient to warrant denial of a minor role reduction. It rejected defendant’s argument that a distributor of controlled substances deserves a minor role reduction simply because of the presence of a larger-scale upstream distributor. U.S. v. Cubillos, 474 F.3d 1114 (8th Cir. 2007).
8th Circuit denies minor role reduction to courier carrying $12,000 in cash across country. (445) Where a defendant is one of several participants in a conspiracy, he must show that his culpability was relatively minor compared to that of the other participants and that he was not deeply involved in the offense. Here, defendant was aware that he was transporting proceeds from a drug conspiracy, he had been involved in several prior trips in furtherance of that conspiracy, and was trusted enough to travel across the country with $12,000 in cash. The Eighth Circuit held that the district court did not clearly err in finding that defendant was not entitled to a minor role reduction. U.S. v. Vargas, 457 F.3d 828 (8th Cir. 2006).
8th Circuit denies minor role reduction to “equal partner” in alien smuggling scheme. (445) Defendant and a co-defendant were stopped by authorities while driving a vehicle transporting eleven illegal aliens. The Eighth Circuit found that the two were “equal partners” and therefore defendant was properly denied a minor role reduction. Defendant was actively involved in and pleaded guilty to transporting illegal aliens. Although he was recruited to the enterprise by his co-defendant, thereafter the two’s involvement was “largely indistinguishable.” U.S. v. Carasa-Vargas, 420 F.3d 733 (8th Cir. 2005).
8th Circuit holds that court erred in relying on contested portions of PSR. (445) Defendant objected to paragraphs 10 through 15 of the PSR, which set forth the offense conduct. In denying defendant a requested minor-role reduction, the court noted that there was not an adequate basis in the plea colloquy to establish that defendant was a minor participant “in the offense conduct under § 3B1.2. And I include not only the charged conduct but the relevant conduct set forth in the Presentence Report.” Because the district court referenced the contested portion of the PSR when it denied defendant’s request for a minor-role reduction, the Eighth Circuit remanded for resentencing. The panel directed the court to not rely on disputed portions of the PSR for factual findings. U.S. v. Morehead, 375 F.3d 677 (8th Cir. 2004).
8th Circuit holds that defendant did not establish entitlement to minor role reduction. (445) Police searching defendant’s apartment found in his bedroom a single package containing 450 grams of methamphetamine that tested 92% pure. They also found three smaller packages of meth hidden behind a decorative mask on defendant’s living room wall, and two additional packages on defendant’s living room table. The methamphetamine found in his living room totaled about 89 grams, and its purity was much lower than that of the large quantity found in his bedroom. Defendant admitted ownership of the smaller packages, but claimed that he was only safeguarding the large package for an unnamed person. The Eighth Circuit held that defendant did not establish that he played a minor or minimal role in the offense. Other than his own assertion that he was storing the methamphetamine for someone else, he provided no evidence to support this claim. The weight and credibility of this statement was for the district court to decide, and it properly found it less than compelling. U.S. v. Brubaker, 362 F.3d 1068 (8th Cir. 2004).
8th Circuit holds that defendant failed to prove entitlement to minor role reduction. (445) The Eighth Circuit found that defendant did not meet his burden of showing that he was eligible for a minor role reduction. He admitted that he distributed methamphetamine many times to several different people. He helped a co-conspirator, Deherrerea, to obtain, transport and store methamphetamine, and even attempted to procure it from different sources. Clearly, defendant was less culpable than Deherrerea, but Deherrerea was not the only other member of conspiracy. Defendant failed to show that he was less culpable than the other members of the conspiracy, many of whom assisted Deherrerea in a similar fashion. U.S. v. Stanley, 362 F.3d 509 (8th Cir. 2004).
8th Circuit denies role reduction to street-level drug dealer. (445) Defendant contended that the district court erred in denying him a two-level reduction for being a minor participant. The district court found that, in distributing two and half kilos of crack over a long period of time, defendant did not play a minor role in the conspiracy when compared to other co-conspirators. The Eighth Circuit concluded that defendant, a street-level dealer, failed to prove he was less culpable than most of his co-conspirators. The district court did not err in denying defendant a role reduction. U.S. v. Benford, 360 F.3d 913 (8th Cir. 2004).
8th Circuit holds that defendant was not entitled to minor role reduction. (445) Defendant argued that he was merely a minor participant in two controlled buys of crack. However, defense counsel admitted that defendant was the one who supplied the crack for each transaction, and it was clear that the district court found that defendant was essential to the commission of the controlled buys. The Eighth Circuit believed that this evidence clearly supported the factual finding that defendant was not a minor participant in the drug transactions. Moreover, the record also revealed that defendant was not entitled to the reduction because he was “deeply involved” in the offense. Defendant was solely responsible for the distribution of more than 70 grams of cocaine base in the area, and agreed to swap crack for guns in the future. Even if there were other participants in the controlled buys, defendant presented no evidence that he was less culpable than the average participant who sells drugs. See U.S. v. Snoddy, 139 F.3d 1224 (8th Cir. 1998) (a defendant who conducted drug sales both with and without others present does not establish entitlement to minor role reduction). U.S. v. Johnson, 358 F.3d 1016 (8th Cir. 2004).
8th Circuit denies minor role reduction where defendant not held accountable for drugs distributed by others. (445) The district court held defendant accountable only for the drugs she personally distributed, 50 grams of cocaine base, and assessed a base offense level of 33. The court found no legal basis to reduce defendant’s base offense level for her role in the offense, because she was not being held accountable for drugs other conspirator distributed. The Eighth Circuit found no error in the denial of the minor role reduction. The record supported the finding that one conspirator’s conduct involved over 1.5 kilograms of cocaine base, and the court held another conspirator accountable for 21,454 grams of marijuana, 5188 grams of cocaine, and over 1.5 kilograms of cocaine base. If defendant were held accountable for the drugs other conspirators had distributed, her base offense level would be much higher than 33. U.S. v. Speller, 356 F.3d 904 (8th Cir. 2004).
8th Circuit says defendant who acted as go-between was not entitled to minor role reduction. (445) The Eighth Circuit upheld the district court’s finding that defendant was not entitled to a mitigating role adjustment. Defendant acted as the go-between on several different drug buys, either delivering the drugs, or delivering the money. When one of his co-conspirator’s was out of town, he used defendant as a courier to complete a sale. This supported the court’s observation that defendant knew, and participated in, the full extent of the conspiracy. The district court did not abuse its discretion in refusing to grant defendant a downward departure for a minor participant role, particularly in light of his criminal history. U.S. v. Johnston, 353 F.3d 617 (8th Cir. 2003).
8th Circuit says court may not deny mitigating role adjustment based on length of resulting sentence. (445) 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 agrees that drug courier did not qualify as minor participant. (445) Defendant was arrested after drug agents searching a Greyhound bus found five kilograms of cocaine in his suitcase. The Eighth Circuit upheld the district court’s conclusion that defendant did not qualify as a minor participant. Defendant was arrested on what he admitted was his sixth trip transporting drugs in bulk. In addition to transporting as much as 30 kilograms of drugs on these trips across the country, defendant also collected payment for the drugs when he delivered them to the intended recipients and admitted he was aware there were at least four other individuals who were transporting similar amounts of drugs in furtherance of the conspiracy (amounts which defendant arguably could have been, but was not, held responsible). U.S. v. Winborn, 344 F.3d 766 (8th Cir. 2003).
8th Circuit rejects minimal role reduction to drug supplier. (445) Defendant was arrested after delivering methamphetamine to a seller who had agreed to sell the meth to a confidential informant. He was convicted of conspiracy to distribute more than 500 grams of methamphetamine. The Eighth Circuit upheld the denial of a four-level minimal role reduction. Defendant was an integral part of the conspiracy. The seller would have been unable to deliver the drugs if defendant had not first supplied them. Defendant’s conduct was different than the seller’s but could not be described as minimal in comparison. U.S. v. Nambo-Barajas, 338 F.3d 956 (8th Cir. 2003).
8th Circuit rejects minimal role reduction even though defendant’s boyfriend bought guns found in her house. (445) A jury convicted defendant of being an unlawful user of a controlled substance in possession of a firearm based on two loaded guns found in the house she shared with others. After an incident in which someone tried to break into the house while defendant was home alone at 3 a.m., defendant’s boyfriend had acquired the shotguns for defendant’s protection. However, the boyfriend moved out of the residence about a week before police searched it. The district court granted defendant a four-level minimal role reduction, but the Eighth Circuit reversed. Although defendant may have been less culpable than her boyfriend, the mere fact that a defendant is less culpable than her co-defendants does not entitle the defendant to minor participant status. Defendant fully satisfied the elements of each offense of which she was convicted, and certain aspects of her criminal activity exceeded the minimum necessary to be found guilty of the offenses (e.g., her concurrent possession of marijuana, the presence of other weapons, the fact that both firearms were kept loaded and readily accessible, and the fact that one of the shotguns was sawed-off). However, the panel left defendant with a two-level minor role reduction because the PSR recommended it and the government did not object to it at the time. U.S. v. Yirkovsky, 338 F.3d 936 (8th Cir. 2003).
8th Circuit rejects minor role reduction for defendant found in possession of large amount of cash. (445) Narcotics investigators observed defendant and a co-conspirator arrive at an apartment building suspected of housing methamphetamine. The two men entered the building, and later defendant was observed leaving the building carrying a box. He carried the box to a nearby car. He placed a plastic bag over his hand and transferred several items from the trunk of the car into the box. He then removed the box and placed it in the trunk of the car he had been driving. Authorities later found methamphetamine in both cars. In addition, investigators seized $2,567 in cash from defendant and $152 from the co-conspirator. The district court found that defendant was an average participant in the drug crimes, and not entitled to a § 3B1.2 minor role reduction. The Eighth Circuit ruled that this holding was not clearly erroneous. Defendant was found in possession of much more cash than his co-conspirator, a fact which suggested that he was not substantially less culpable than the co-conspirator. Defendant was also observed taking precautions to conceal his identity when he transferred several kilograms of methamphetamine from one car to the other, which suggested that he knew or understood both the illegal nature and scope of the conspiracy. U.S. v. Rumbo-Rosendiz, 340 F.3d 598 (8th Cir. 2003).
8th Circuit says defendant who delivered drugs, collected money, and helped close deal was not minor participant. (445) Defendant moved for a § 3B1.2 mitigating role adjustment, claiming he was merely a front man who facilitated deals and transported drugs for his co-conspirators. The Eighth Circuit found that the record established that defendant was not a minor participant in the criminal activity. After a co-conspirator had arranged a sale with an undercover officer, defendant delivered a half pound of methamphetamine and collected a cash payment of $3500. Several weeks later, defendant and a co-conspirator met with a confidential informant, waited together for over an hour for the informant to collect the buy money, and were arrested in the process of closing the drug deal. Defendant was not simply a minor player, but an active participant in the conspiracy. U.S. v. Preciado, 336 F.3d 739 (8th Cir. 2003).
8th Circuit holds defendant did not have minor role in burglary and assault. (445) Defendant and her nephew drove to a home. The nephew, armed with a metal pipe, forcibly entered the home by kicking in the front door. Defendant followed her nephew into the residence armed with a baseball bat. Defendant and her nephew then attacked the two residents. The Eighth Circuit held that defendant was not entitled to a minor role reduction. Defendant was an average participant in the crime. She illegally entered the home wielding an aluminum baseball bat, and assaulted one of the residents. Defendant was no less culpable of the crimes than her nephew. U.S. v. Weiss, 328 F.3d 414 (8th Cir. 2003).
8th Circuit rejects minor participant reduction where court found defendant’s testimony unreliable. (445) Defendant contended that he was a minor participant in a conspiracy to distribute methamphetamine. He testified at his plea hearing and at sentencing that his role in the conspiracy was limited to his agreement with Gustavo to store drugs in a locker at his apartment building in exchange for help with obtaining a driver’s license and $200 for rent. The district court, however, determined that defendant’s testimony was unreliable and contradicted that of other witnesses, as well as information in his plea agreement. Accordingly, the court found that defendant was an average participant, and therefore was ineligible for a minimal participant reduction. The Eighth Circuit concluded that this finding was not clearly erroneous. U.S. v. Gutierrez-Manzanarez, 323 F.3d 613 (8th Cir. 2003).
8th Circuit holds that courier who directed others did not hold mitigating role. (445) Defendant was a courier for a large-scale drug trafficking organization that smuggled enormous amounts of various drugs from Texas to Arizona, California and Oklahoma. From August 1999 until January 2001, defendant delivered at least 27 kilograms of methamphetamine to various locations and returned to Texas with the cash proceeds. The Eighth Circuit held that defendant was not entitled to a § 3B1.2(b) reduction for being a minor participant. Defendant’s individual acts significantly contributed to the elements of the offense. In additional to supplying at least 27 kilograms of meth to known drug distributors, defendant instructed other members of the distribution scheme to accept drugs from a particular source in Texas and return to Kansas City. Thus, defendant served as a conduit for the drugs – a necessary link in the drug distribution chain – and furthered the offense by directing others within the conspiracy. Defendant’s status as a “mere courier” did not require the court to declare him a minor participant. U.S. v. Ponce, 311 F.3d 911 (8th Cir. 2002).
8th Circuit holds that defendant did not satisfy burden of showing he was entitled to § 3B1.2 reduction. (445) Nebraska police arrested defendant after they discovered 44 packages containing about 175 pounds of marijuana in the car he was driving. He argued that he was a minimal participant in the drug conspiracy. The Eighth Circuit held that defendant did not satisfy his burden of showing that he was entitled to the § 3B1.2 reduction. Under U.S. v. Snoddy, 139 F.3d 1224 (8th Cir. 1998), a defendant convicted of a “sole participant” offense may nonetheless be entitled to a mitigating role reduction if the defendant shows (1) that the relevant conduct to which the defendant would otherwise be accountable involved more than one participant; and (2) that defendant’s culpability for such conduct was relatively minor compared to that of the other participant or participants. The court found that defendant satisfied the first prong, and asked him to satisfy the second prong by showing that he was less culpable than his co-conspirators. Defense counsel offered no evidence. U.S. v. Monk, 312 F.3d 389 (8th Cir. 2002).
8th Circuit says defendant only held responsible for drugs he sold not entitled to minor role reduction. (445) The district court held defendant accountable for the distribution of 35-50 grams of crack cocaine, finding this was the amount that defendant personally sold. His base offense level was significantly lower than it would have been had the court accepted the government’s portrayal of defendant’s involvement in a large-scale conspiracy. Because the district court limited defendant’s relevant conduct to the crack cocaine he personally sold, the Eighth Circuit held that defendant was not entitled to a reduction for having played a minor or minimal role in a large conspiracy. The district court should have examined defendant’s role in distributing 35-50 grams of crack cocaine. Defendant was the primary seller of those drugs; thus, he was ineligible for the § 3B1.2 reduction. U.S. v. Thurmon, 278 F.3d 790 (8th Cir. 2002).
8th Circuit holds that supplier was not minor or minimal participant in drug conspiracy. (445) The record supported the district court’s holding that defendant was a willing participant in the drug conspiracy, undeserving of a minor or minimal role reduction. Trial evidence showed that a co-conspirator went to defendant’s residence immediately prior to one cocaine and two methamphetamine deals. Similarly, another conspirator was followed to defendant’s residence just prior to his arrest. The surveillance officer testified that the conspirator entered defendant’s apartment without a coat on and returned ten minutes later wearing a coat and attempting to hide something underneath. Further, defendant was the only charged conspirator who was in possession of any of the buy money given by an undercover agent for the methamphetamine he purchased from a conspirator. All of this supported the reasonable inference that defendant was the source of at least some of the cocaine and meth charged in the conspiracy. Therefore, the Eighth Circuit ruled that the district court’s refusal to grant him a minor or minimal role reduction was not clearly erroneous. U.S. v. Lopez-Arce, 267 F.3d 775 (8th Cir. 2001).
8th Circuit says defendant who knew extent of conspiracy and handled money was not minimal participant. (445) Defendant claimed he should have been classified as a minimal participant rather than a minor participant in the drug conspiracy. Because the trial testimony showed defendant knew of the extent of the conspiracy and handled $5000 in drug money, the Eighth Circuit ruled that the district court’s classification of him as a minor participant was not clearly erroneous. U.S. v. Beeks, 266 F.3d 880 (8th Cir. 2001).
8th Circuit rejects minor participant reduction where defendant helped buy and transport large drug shipment. (445) Defendant argued that he should be found a minimal participant because there was evidence that others in the conspiracy did not trust him. The Eighth Circuit found no error. The evidence showed that defendant sold marijuana he had acquired from Ellis on credit on several occasions and that Ellis trusted him to help buy and transport a large shipment of drugs. U.S. v. Ray, 250 F.3d 596 (8th Cir. 2001).
8th Circuit rejects minor role reduction for defendant who arranged drug purchases. (445) The government presented evidence that defendant either supplied or was involved in at least four methamphetamine transactions with his long-time friend Mitchell, who distributed meth in another state. The district court rejected defendant’s request for a minor role reduction, finding he was “the Oregon source of the methamphetamine that came into Rapid City,” and that “[h]e was indeed a part of this multiple-party drug conspiracy.” Because the district court concluded from the testimony that defendant understood the scope of the enterprise and played a central role in the conspiracy, the Eighth Circuit held that the district court did not clearly err in finding that defendant was not a minor participant. U.S. v. White, 241 F.3d 1015 (8th Cir. 2001).
8th Circuit says defendant not a minor participant where he used stolen gun. (445) Defendant and two others decided to burglarize a house. One of the others actually entered the house and removed three rifles. Later, all three went to a store where they intended to commit a second burglary. Defendant used one of the rifles taken from the first burglary to shoot out the front door of the store. The burglar alarm went off and the three fled. Defendant pled guilt to attempted third-degree burglary and possession of a stolen firearm. The Eighth Circuit ruled that defendant was not entitled to a minor role reduction. The pertinent count of conviction was the firearm count under 18 U.S.C. § 922(j). However, defendant himself used one of the stolen guns to shoot out the front door of the store in an effort to gain access to the premises. Because defendant’s § 922(j) conviction was largely based on that conduct, not just the first burglary, the district court properly found that defendant was not a minor participant under § 3B1.2(b). U.S. v. Provost, 237 F.3d 934 (8th Cir. 2001).
8th Circuit rejects minor participant reduction for driver of vehicle that transported cocaine. (445) The trial court ruled that defendant was not entitled to a minor participant reduction because he was the driver of the vehicle used for transporting the cocaine and seemed to be quite aware of what was happening during the drug sale. Because this finding did not create a “definite and firm conviction that a mistake has been committed,” the Eighth Circuit affirmed. U.S. v. Ortiz, 236 F.3d 420 (8th Cir. 2001).
8th Circuit holds that defendant who participated in planning robbery was not minor participant. (445) Defendant’s co-conspirators robbed an armored car. The robbers then drove to defendant’s house. Defendant met them there and hid the money in his basement. Defendant also participated in planning the robbery, including the use of a gun, acted as a lookout at the time of the robbery, and rented the getaway car on his business account. The Eighth Circuit affirmed the denial of a minor role reduction, ruling the district court did not clearly err in refusing to find defendant less culpable than most of his fellow participants. U.S. v. Spears, 235 F.3d 1150 (8th Cir. 2001).
8th Circuit denies minor reduction where defendant’s sentence based solely on drugs in his car. (445) Police found methamphetamine in the spare tire of defendant’s car, which he had parked at a highway rest area. Although he owned and drove the car, defendant argued that he was unaware that the spare tire, which had been given to him by another individual, contained contraband, and thus he was merely an unknowing courier. The Eighth Circuit held that defendant was not entitled to a minor participant reduction. The district court found ample evidence that defendant was aware of the substantial quantity of drugs in the tire, the amount for which he was held accountable. Defendant may only have been a courier for a larger distribution operation, but his sentence was based solely on the quantity of drugs in his vehicle. U.S. v. Alverez, 235 F.3d 1086 (8th Cir. 2000).
8th Circuit agrees that defendant not a minor participant in food stamp scheme. (445) Defendant, who sold meat door-to-door from his truck, accepted food stamps from customers, even though he did not have USDA authorization. Defendant then sold the food stamps for 95% of their face value to Murphy, who had USDA authorization. The Eighth Circuit affirmed the denial of a minor participant reduction, finding defendant failed to prove his claim to be a mere employee in an elaborate food stamp scheme initiated by Murphy and her contacts at other food supply firms. Instead, the evidence established that defendant ran his own small retail meat operation, selling the food stamps he received to Murphy rather than applying for USDA authorization to receive and redeem them. The district court’s finding that defendant and Murphy were equally culpable was not clearly erroneous. U.S. v. Griffin, 215 F.3d 866 (8th Cir. 2000).
8th Circuit says defendant played substantial, not minor, role in drug organization. (445) Defendant claimed that he played only a minor role in the Gomez drug trafficking organization. The Eighth Circuit disagreed. Although defendant may have been less culpable than Gomez, he nevertheless was “deeply involved” in the illegal conduct of the Gomez organization. Defendant stored drugs at his house, transported them from Arizona back to Iowa, helped manufacture and “cut” methamphetamine, arranged for the payment of drugs, and helped count drug proceeds. Defendant’s role was better described as substantial, not minimal or minor. U.S. v. O’Dell, 204 F.3d 829 (8th Cir. 2000).
8th Circuit denies minor role reduction to defendant “deeply involved” in selling drugs. (445) Defendant argued that he was a minor participant in the charged drug conspiracy. The Eighth Circuit disagreed. Even if defendant was less culpable than his co-conspirators, he was not entitled to the minor participant reduction if he was “deeply involved” in the criminal acts. Evidence at sentencing showed defendant was deeply involved in the conspiracy for several years as a seller of crack cocaine, PCP and marijuana. U.S. v. Jones, 195 F.3d 379 (8th Cir. 1999).
8th Circuit denies minor role reduction to defendant involved in operation of three meth labs. (445) The district court found that defendant’s assertion that she played a minor role in the conspiracy was inconsistent with evidence at trial, which showed she was associated with the operation of three different methamphetamine labs and had taken substantial steps to aid the manufacture at a fourth lab. In light of this evidence, the Eighth Circuit ruled that the district court’s finding that defendant was not less culpable than most other participants in the conspiracy was adequately supported by the evidence and was not clearly erroneous. U.S. v. Davidson, 195 F.3d 402 (8th Cir. 1999).
8th Circuit denies minor role reduction for defendant who recruited accomplice and acted as intermediary. (445) Michal, an armored car messenger, allowed accomplice Bell to take from his truck four bags containing over $185,000. Defendant then pretended that he had been robbed. Defendant, who was Michal’s sister, was living with Bell at the time and helped present the robbery plan to Bell and acted as an intermediary between Bell and Michal. The district court rejected a minor role reduction because defendant helped recruit Bell and because she fully understood the nature and extent of the planned robbery. The Eighth Circuit ruled that this finding was not clearly erroneous. U.S. v. Jankowski, 194 F.3d 878 (8th Cir. 1999).
8th Circuit holds that defendant did not play minor role in cross burning. (445) Defendant and his brother were convicted of conspiring to violate civil rights as a result of their involvement in a cross burning. When the brother made a speech at the local fire station to obtain support for the cross burning, defendant gave a speech about “white power.” However, after several youths left the meeting because they did not wish to participate in the attack, defendant suggested to his brother that it was not a good night for the cross burning because too many people knew of the plan. Ultimately, the brother and two others burned the cross while defendant went home. Although defendant played a smaller role in the cross burning than his brother, the Eighth Circuit held that defendant was not entitled to a minor role reduction. Defendant played a critical part in making the cross flammable (wrapping the cross in towels and securing the towels in place with wire). He also gave a “white power” speech to the crowd at the fire station shortly before the cross burning. Defendant’s involvement was not “an isolated unsubstantial instance.” U.S. v. Pospisil, 186 F.3d 1023 (8th Cir. 1999).
8th Circuit denies minor role reduction to defendant sentenced only for his own actions. (445) Defendant contended that he deserved a minor role reduction because his only role in the conspiracy was helping to arrange the shipment of a package to California and tracking down another package. He also contended that he was never involved in the sale of drugs, and had a substantially smaller role in the conspiracy than his co-conspirators. The Eighth Circuit found defendant was not entitled to the reduction because he was not sentenced for the entire conspiracy but only upon his own actions. The district court only held him responsible for the two packages of drugs proceeds with which he had contact. The two packages contained $97,820 in drug proceeds which represented four kilograms of cocaine. Defendant was only held accountable for the amount of cocaine in these packages and not the total amount of drugs transported or sold by the conspiracy. A further reduction for his role in the offense was not warranted. U.S. v. Ramos-Torres, 187 F.3d 909 (8th Cir. 1999).
8th Circuit denies minor role reduction where defendant only held accountable for drugs he possessed. (445) Police observed defendant receive a white bag from two other men. Shortly thereafter, officers recovered 15 ounces of methamphetamine from defendant’s car during a search following a traffic stop. Based on this meth alone, defendant had a guideline range of 57-71 months in prison. The court imposed a 57-month sentence. Defendant appealed the denial of a § 3B1.2(b) minor role reduction, arguing that he should not have been sentenced to a longer term of imprisonment than one of the sellers, who received a 35-month sentence. The Eighth Circuit found no error in the denial of the minor role reduction, since defendant was only held accountable for the drugs he actually possessed. Note 4 to § 3B1.2 says that the mitigating role reduction is not available if “a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct….” The government agreed not to charge defendant with any other offense arising from the investigation of the conspiracy and stipulated that the amount of drugs recovered from defendant’s car was the total amount that could be attributed to him. U.S. v. Ramirez, 181 F.3d 955 (8th Cir. 1999).
8th Circuit denies minor role reduction to defendant who threw drugs from car window. (445) When police attempted to stop a vehicle making a drug delivery, they observed defendant, the front seat passenger, extend his right arm out of the window and saw a white bag flying through the air. The bag was later found to contain two ounces of crack cocaine. While searching defendant and the driver, police found on each of them about $600, mostly in small bills. The Eighth Circuit held that on these facts, the district court’s did not clearly err in finding that defendant was an “average participant” who did not deserve a minor role reduction. U.S. v. Surratt, 172 F.3d 559 (8th Cir. 1999).
8th Circuit affirms managerial enhancement and denies minor role reduction for supervising one participant. (445) Defendant argued that the district court erred when it enhanced her sentence under § 3B1.1 for being a manager or supervisor of a drug conspiracy, and that, in fact, she should have received a minor role reduction under § 3B1.2. The Eighth Circuit disagreed with both points. First, a defendant need only supervise one or more other participants to be subject to a managerial enhancement. The enhancement may apply even if the management activity was limited to a single transaction. In this case, there was direct testimony from one conspirator that she got instructions from defendant. Defendant was not a minor participant. There was ample evidence that defendant was involved in the conspiracy to transport cocaine from California and to deliver money to California from St. Louis, and that she managed or supervised at least one other participant. Defendant may not have been among the most culpable in the conspiracy, but the district court did not clearly err in finding that she was not entitled to a minor participant reduction. U.S. v. Garrison, 168 F.3d 1089 (8th Cir. 1999).
8th Circuit rejects minor role reduction for drug courier. (445) After defendant was stopped for moving violations, police found 16 pounds of methamphetamine hidden in a secret compartment built between the trunk wall and the back seat of the car defendant was driving. The Eighth Circuit affirmed the denial of a minor role reduction. A role as a courier or mule in a drug distribution scheme does not necessarily entitle the individual to a § 3B1.2 reduction. Given the facts regarding defendant’s demeanor and statements, the appearance of the inside of the trunk (clean except for a few metal shavings under the carpet), the manner in which the drugs were secreted in the car, and the large amount found, it was not error to deny defendant a minor role adjustment. U.S. v. Martinez, 168 F.3d 1043 (8th Cir. 1999).
8th Circuit denies minor role reduction for defendant held accountable for drugs directly attributable to him. (445) Defendant was involved in a large-scale drug conspiracy. The Eighth Circuit rejected his request for a minor role reduction, noting that the district court only considered the amount of drugs directly attributable to defendant rather than the entire amount chargeable to the conspiracy. U.S. v. Marsalla, 164 F.3d 1178 (8th Cir. 1999).
8th Circuit rules defendant did not have a minor role in bank robbery conspiracy. (445) Defendant was convicted of conspiracy to commit bank robbery. The Eighth rejected her claim that she was entitled to a minor or minimal role reduction. Defendant was involved in virtually all of the acts in furtherance of the conspiracy, including renting a car and driving to the bank’s location, finalizing plans for the robbery, casing the bank, driving to another town in search of a gun to purchase, and acquiring police scanner frequencies. Defendant voluntarily and actively participated with her boyfriend in conspiring to carry out the robbery. Whether she would have participated in the actual robbery had it occurred was immaterial to her culpability for conspiracy. The district court did not mistakenly believe it could not grant her a minor role reduction. The fact that the judge felt he had no basis to depart did not show that he believed he could not grant a role reduction. U.S. v. Nichols, 151 F.3d 850 (8th Cir. 1998).
8th Circuit rejects minor role for defendant who expanded marijuana conspiracy to include meth. (445) Defendant argued that he played only a minor role in a marijuana conspiracy. The Eighth Circuit held that defendant was not entitled to a minor role reduction because he was important in expanding the conspiracy to include the distribution of methamphetamine. Thus, his involvement was not an isolated instance. U.S. v. Alaniz, 148 F.3d 929 (8th Cir. 1998).
8th Circuit denies minor role for defendant ranked 6th to 8th in culpability among 21 conspirators. (445) Defendant was involved in a conspiracy to distribute heroin and cocaine. The Eighth Circuit held that the denial of minor participant reduction was not plain error. Defendant did not object to the PSR’s conclusion that he was ranked 6th to 8th in culpability amongst 21 conspirators. He did not dispute that he helped prepare heroin for retail sale, that he stored heroin, packaging materials and money at his residence, or that he met with his cousin for the purpose of obtaining heroin and making payment for heroin previously supplied to defendant. The district court found defendant’s involvement in the conspiracy was “substantial.”. U.S. v. Jones, 145 F.3d 959 (8th Cir. 1998).
8th Circuit rejects minor role reduction where crime was jointly committed by both defendants. (445) Defendants were convicted of cocaine and marijuana charges. The Eighth Circuit upheld the district court’s finding that neither defendant was a minor participant in the offense. The district court properly rejected one defendant’s claim that his role was minor in comparison to others involved in drug activity well beyond the particular offense in question. The crime was jointly committed by both defendants. U.S. v. Velasquez, 141 F.3d 1280 (8th Cir. 1998).
8th Circuit rejects role reduction where court only considered drugs defendant could foresee. (445) Defendant allowed a friend to store drugs and drug paraphernalia in his basement. He argued that he was entitled to a § 3B1.2 reduction because he was unaware of the scope of the criminal enterprise and was even unaware of most of the drugs stored at his house. The Eighth Circuit held that defendant was not entitled to a minor role reduction because he was only held accountable for the drugs he knew or could foresee were being stored in his house. Although police found 6 1/2 pounds of methamphetamine in defendant’s basement, the court based his sentence on only 380 grams. Although defendant arranged no sales, received no profits, and served only as a storage facility, his voluntary and knowing storage of a substantial amount of meth was sufficient to preclude a minor role reduction. U.S. v. Belitz, 141 F.3d 815 (8th Cir. 1998).
8th Circuit rejects role reductions for conspirators in methamphetamine lab. (445) Defendants were involved in a conspiracy to manufacture methamphetamine. The Eighth Circuit ruled that none of them held mitigating roles in the conspiracy The first defendant was the distributor of the methamphetamine, and an enforcer of the conspiracy, collecting currency for the leader. The second defendant helped purchase ingredients and cook the methamphetamine. The third defendant made a propane tank and stainless steel container used to cook the methamphetamine. U.S. v. Coleman, 148 F.3d 897 (8th Cir. 1998).
8th Circuit denies role reduction for defendant who helped plan robbery, drove robber to bank, and split proceeds. (445) Defendant and a co-conspirator plotted a bank robbery. Defendant drove the co-conspirator to the bank, and the co-conspirator actually robbed it. The Eighth Circuit upheld the denial of a minor participant reduction because defendant helped plot the robbery, drove his co-conspirator to the bank knowing he intended to rob it, provided the co-conspirator with a gun and duffel bag to use in the robbery, and split the proceeds of the robbery with the co-conspirator. These facts alone supported the denial of the reduction. U.S. v. Hafiz, 129 F.3d 1011 (8th Cir.. 1997).
8th Circuit holds that career offender cannot receive minor role reduction. (445) Defendant argued that the district court erred by denying his request for a mitigating role reduction under § 3B1.2. The Eighth Circuit held that the § 3B1.2 reductions did not apply because defendant was a career offender. The career offender guideline trumps all other offense level adjustments, with the exception of the reduction for acceptance of responsibility. As a career offender, defendant was subject to a base offense level of 34, which was appropriately reduced by his acceptance of responsibility under § 3E1.1. He was not entitled to a further reduction under § 3B1.2. U.S. v. Beltran, 122 F.3d 1156 (8th Cir. 1997).
8th Circuit says existence of more culpable suppliers did not give defendant minor role. (445) Defendant argued that he was merely a “mule” in a drug distribution scheme who played a minor role in a drug conspiracy compared to the suppliers of the drugs. He claimed he was being unfairly denied a reduction based on the fact that the suppliers had not been identified. The Eighth Circuit rejected this argument. Taken to its logical conclusion, defendant’s position would mean that every participant in every drug distribution scheme would be presumably entitled to a minor participant reduction so long as he or she were able to prove the existence of an upstream supplier. U.S. v. Chatman, 119 F.3d 1335 (8th Cir. 1997).
8th Circuit rejects mitigating role where defendant was present when other defendant received bribe. (445) Defendant, the senior vice president of a bank, helped the bank president and others conceal their scheme to defraud the bank. Defendant was present when the president received bribe money and personally participated in transferring the funds that were the subject of her money laundering convictions. The Eighth Circuit affirmed the denial of a mitigating role adjustment. Defendant’s conduct was not comparable to the infrequent situations contemplated by the minimal participant reduction. The minor role adjustment was a closer question, particularly since defendant did not receive any direct share of the proceeds of the loan sales, and her codefendants clearly masterminded the deal. However, given the facts, the denial of the reduction was not clearly erroneous. U.S. v. Van Brocklin, 115 F.3d 587 (8th Cir. 1997).
8th Circuit rejects minimal role for banker who helped others commit fraud. (445) Defendant, a banker, helped two brothers commit fraud by making it appear that his bank had lent the brothers a large sum of money. The brothers needed to obtain a private loan in order to qualify for another loan from HUD. The Eighth Circuit rejected a minor participant reduction because he was a “key player” in the conspiracy. Without defendant, the brothers could not have represented that they had obtained the matching private financing required to obtain the HUD funds. U.S. v. Gjerde, 110 F.3d 595 (8th Cir. 1997).
8th Circuit rejects mitigating role even though defendant was less culpable than his brother. (445) Defendant and his brother sought a HUD loan to establish a new business. To obtain the loan, HUD required defendants to obtain an additional $292,000 of private financing. Unable to obtain the funding, defendants entered into a scheme with a banker under which it appeared his bank had lent the money to defendants. Defendant claimed he deserved a § 3B1.2 reduction since he was less culpable than his brother. The Eighth Circuit found defendant was not entitled to the reduction, even if he was less culpable than his brother, since he played “an integral part” in the offense. Although the brother was the impetus behind the scheme, defendant was “deeply involved” in the criminal conspiracy, and the scheme could not have succeeded without his participation. Defendant incorporated and was an officer of the business and was the president of the corporation formed to receive the “loan” proceeds. All critical documents bore defendant’s signature as well as his brother’s, defendant was present at the loan negotiations, and defendant understood that the money from the “loan” would never really leave the bank. U.S. v. Field, 110 F.3d 587 (8th Cir. 1997).
8th Circuit rejects minor role where defendant was “deeply involved.” (445) Police conducting surveillance at the apartment of a drug dealer saw defendant and another man go into the apartment and leave a short time later. Defendant’s companion was carrying a black bag. After a car chase, the companion fled with the bag, and defendant, who was the driver, was arrested. The companion was apprehended and the bag was later found with 745 grams of cocaine. The Eighth Circuit rejected a minor role reduction for defendant, because even if defendant was less culpable than his companion, he was “deeply involved” in the criminal acts. The drug dealer testified that defendant was at his companion’s side during three different transactions, they “were in it together,” and that defendant was either the companion’s right‑hand man or bodyguard. U.S. v. Wilson, 102 F.3d 968 (8th Cir. 1996).
8th Circuit holds defendant was average participant in rebuilding stolen car. (445) Defendant was convicted of one count of conducting operations in a “chop shop.” In an operation known as “swinging,” the shop would purchase a salvaged vehicle, cut it up for parts, have the body of a stolen car assembled onto the frame of the salvaged car, and then switch the vehicle identification numbers. The rebuilt car would then be sold at a substantial profit. Defendant contended he was a minor participant in the operation, even though the district court limited its factual consideration to the “swing” of one vehicle. The Eighth Circuit held that defendant was not a minor participant in the “swing” of the one car. Defendant and another man spent two days reassembling the body of the stolen car onto the salvaged frame. He was at least an average participant with respect to this “swing,” even if he did not participate in stealing the car or reselling the reassembled vehicle. U.S. v. Uder, 98 F.3d 1039 (8th Cir. 1996).
8th Circuit rejects minimal role for defendant who aided marijuana manufacturing. (445) Defendant was involved in a large marijuana importation and distribution network. The Eighth Circuit rejected a minimal role reduction in light of evidence that defendant aided and abetted the marijuana manufacturing process for a 2,000-pound load, which took place over the course of a week at a ranch. Defendant acted as a lookout while the other conspirators cleaned and dried the marijuana. He picked up food and supplies for the other conspirators while they were processing the contraband. The court’s decision to only grant a minor role reduction was not clearly erroneous. U.S. v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).
8th Circuit denies role reduction where defendant was sentenced only for drugs he sold. (445) Defendant argued that he was a minor or minimal participant in a large and intricate marijuana distribution network. The Eighth Circuit held that defendant was not entitled to a § 3B1.2 role reduction because he was only held accountable at sentencing for the 220 pounds of marijuana he actually obtained and distributed in Minnesota. Defendant’s argument would have more force if the court had attributed to him the entire 5,000 pounds imported and distributed by the conspiracy. However, defendant was a principal actor in the Minnesota distributions. U.S. v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).
8th Circuit rejects minor role reduction for courier. (445) Defendant pled guilty to two counts of distributing crack cocaine. He argued that he deserved a § 3B1.2 reduction because he was merely a courier who played a small role in the drug deals. The Eighth Circuit affirmed the denial of the reduction based on the court’s finding that defendant was essential to the commission of the crimes and that they would not have occurred without his participation. U.S. v. McGrady, 97 F.3d 1042 (8th Cir. 1996).
8th Circuit rejects minor role reduction despite small role in overall conspiracy. (445) Defendants were convicted of using a communication facility to facilitate a drug crime. One defendant who lived with a drug dealer had four telephone conversations with a friend in which she conveyed messages to the dealer to facilitate the friend’s purchase of crack from the dealer. The second defendant was convicted of ordering .02 grams of crack from the dealer over the telephone. The district court denied a minor role reduction to the first defendant since she was an average participant in the telephone transaction. Similarly, the court found that the second defendant did not play a minor role in the illegal telephone use. The Eighth Circuit upheld the denial of the reductions. Even though defendants may have played minor roles in the overall conspiracy, they were neither more nor less culpable that the average person who uses the telephone to negotiate a drug transaction. U.S. v. Shaw, 94 F.3d 438 (8th Cir. 1996).
8th Circuit rejects minor role for defendant claiming he was just a “mule.” (445) Defendant argued that he should have received a minor role reduction because he was just a “mule.” The Eighth Circuit held that defendant did not prove his eligibility for the reduction. The district court did not have to believe defendant’s self‑serving testimony that he was just a mule. Moreover, even if defendant was just a mule, the adjustment would not necessarily have been warranted. Although there was evidence suggesting that others may have been paying defendant to carry drugs, there was no evidence to show that he was any less culpable than those unidentified actors whose roles were unknown. Also, defendant was apprehended in possession of a very substantial amount of drugs, a circumstances that suggests that his participation in the criminal enterprise was itself very substantial. U.S. v. Carrazco, 91 F.3d 65 (8th Cir. 1996).
8th Circuit denies role and acceptance reductions where jury rejected claim that defendant innocently possessed gun. (445) Defendant was a passenger in a car stopped by police. The officers found a gun protruding from underneath defendant’s left leg. Defendant testified that as the car was being pulled over, the driver pulled the gun from his pocket and shoved it toward defendant, telling defendant to hide it. Defendant further testified that he did not move, hide or even touch the gun, although he later admitted that the gun was touching his leg. He was convicted of being a felon in possession of a firearm. The Eighth Circuit upheld the denial of a mitigating role adjustment under § 3B1.2 and an acceptance of responsibility reduction under § 3E1.1. Defendant’s claims were based upon the assumption that the facts were as he claimed. The court’s findings were not clearly erroneous. U.S. v. Ali, 63 F.3d 710 (8th Cir. 1995).
8th Circuit refuses to categorize defendant involved in numerous drug transactions as minimal participant. (445) Defendant argued that he was a minimal participant in a drug conspiracy. The Eighth Circuit disagreed, since defendant’s actions spanned the entire time period of the conspiracy and involved numerous cocaine transactions. Defendant loaned money to one conspirator for bail and served as a de facto guarantor of her drug debts. U.S. v. Fregoso, 60 F.3d 1314 (8th Cir. 1995).
8th Circuit says supplier’s greater culpability did not make defendant minor participant. (445) Defendant challenged the denial of a § 3B1.2 reduction, arguing that his role in a drug conspiracy was relatively minor compared to that of his supplier. The Eighth Circuit held that supplier’s culpability did not entitle defendant to a minor role reduction. Defendant’s position would mean that every participant in a drug distribution scheme would be entitled to a minor participant reduction so long as he was able to prove the existence of an upstream drug supplier. Defendant was not a minor participant, but a highly culpable offender who was deeply involved in the drug distribution scheme. He was partners with one dealer in an ongoing distribution scheme in which defendant repeatedly traveled to Los Angeles in order to obtain cocaine to convert to crack for distribution in St. Louis. Defendant was stopped at the airport with $16,000, assaulted a police detective, and admitted mailing a package containing 476 grams of cocaine from Los Angeles to St. Louis. U.S. v. Thompson, 60 F.3d 514 (8th Cir. 1995).
8th Circuit holds that defendant less culpable than husband still was not minor participant. (445) Defendant and her husband engaged in an insurance speculation scheme involving the purchase of multiple hospital insurance policies. The Eighth Circuit held that defendant was not a minor participant, even if she was less culpable than her husband. Defendant had a major and important role in the scheme. She paid the majority of the premiums on the policies, handled the payments, received and invested them. She signed 18 of the 22 checks deposited in various accounts. After the IRS informed her husband that he was under investigation, she liquidated the investment accounts and, with her daughter’s help, established multiple bank accounts. She and her daughter then withdrew cash from the accounts in amounts slightly below $10,000. Defendant instructed her daughter to keep the withdrawals below $10,000. U.S. v. Rodamaker, 56 F.3d 898 (8th Cir. 1995).
8th Circuit denies minor role reduction to defendant who transported drugs, helped associate flee, and attended meetings. (445) Defendant claimed that he was a minor participant in a drug distribution business. The Eighth Circuit disagreed based on evidence that defendant transported large loads of marijuana on at least two occasions, used his farm to break up the shipments for resale, paid money to an associate to help him flee prosecution, and attended a meeting of conspirators after one of the dealers was arrested. Although defendant was not the ring leader, he did not show his involvement was less culpable than most other participants. U.S. v. Alexander, 53 F.3d 888 (8th Cir. 1995).
8th Circuit denies minor role reduction to defendant who was “deeply involved” in offense. (445) Defendant and an associate were found in a car containing guns and drugs. Defendant was convicted of being a felon in possession of a firearm and ammunition. The Eighth Circuit rejected his claim that he was a minor participant. The evidence showed that defendant was as equally culpable as his associate and was “deeply involved” in the offense. U.S. v. Smith, 49 F.3d 475 (8th Cir. 1995).
8th Circuit holds that drug courier was not minor participant. (445) Defendant worked for a drug conspiracy transporting cocaine from Los Angeles to Kansas City for distribution. The Eighth Circuit held that defendant was not a minor participant in the conspiracy. Defendant was so involved in transporting cocaine to Kansas City that he rented an apartment in Kansas City to stay in between trips. During the period of time that co-conspirators were in jail, defendant was responsible for transporting the cocaine to Kansas City, delivering the cocaine to distributors in Kansas City, and returning the proceeds to California. U.S. v. Logan, 49 F.3d 352 (8th Cir. 1995).
8th Circuit finds defendant was more than mere courier. (445) Defendant argued that he was merely a courier and thus held only a minor role in a cocaine conspiracy. The Eighth Circuit upheld the denial of the reduction, since defendant’s duties exceeded those of a mere courier. Defendant accompanied the conspiracy’s leader to California for meetings. He rented several beepers in another’s name, paid the bills, and presumably gave the beepers to the conspirators. Defendant also addressed many packing labels used during the conspiracy. Moreover, courier status alone does not entitle a defendant to a reduction. U.S. v. Rice, 49 F.3d 378 (8th Cir. 1995).
8th Circuit says defendant who supplied guns to bank robbers was not minor participant. (445) Defendant sold guns to a group of men who robbed banks together. Defendant was convicted of firearms charges, and of aiding and abetting two armed bank robberies. The Eighth Circuit held that defendant was not a minor participant in the bank robberies. Even though he did not actually participate in the robberies, defendant repeatedly supplied guns to the bank robbers, completely financed and armed one of the robberies, and later shared in that robbery’s proceeds. U.S. v. Crouch, 46 F.3d 871 (8th Cir. 1995).
8th Circuit rules failure to grant larger reduction was not plain error in light of stipulation. (445) Defendant pled guilty to drug charges. Under a sentencing stipulation, the parties agreed that defendant was entitled to a two level reduction for being a minor participant in the offense. Defendant argued for the first time on appeal, that he was entitled to a four level reduction for being a minimal participant. The Eighth Circuit found no plain error, given defendant’s sentencing stipulation and his failure to present any evidence on this issue other than a reference to the large scope of the conspiracy. U.S. v. Copeland, 45 F.3d 254 (8th Cir. 1995).
8th Circuit rejects minor role where offense level was based only on defendant’s conduct. (445) Defendant pled guilty to money laundering to promote an unlawful activity. He argued that he was either a minor or minimal participant given the scope of the scheme. The Eighth Circuit found that defendant was not entitled to the reduction since his offense level was based only on the money-laundering conduct to which he pled guilty. He could not have both the benefit of the smaller immediate offense in calculating his base offense level and the benefit of the larger conspiracy in determining his role. U.S. v. Copeland, 45 F.3d 254 (8th Cir. 1995).
8th Circuit says enhancements are not reviewable if overall sentence was a downward departure. (445) Defendant challenged a weapon enhancement under § 2D1.1(b)(1) and the denial of a minor role reduction under § 3B1.2(b). The 8th Circuit held that these issues were not appealable, since defendant’s sentence still represented a downward departure from the sentencing range that would have resulted if he had prevailed on both points. Moreover, there was no error. Defendant carried a loaded firearm while harvesting marijuana on a marijuana patch. Although he claimed that he carried the gun to disguise himself as a squirrel hunter, defendant posed a risk of danger to anyone who might have approached him on the patch. Defendant was not a minor participant because he harvested the marijuana and was to receive one-half of the marijuana he picked. U.S. v. Wyatt, 26 F.3d 863 (8th Cir. 1994).
8th Circuit says manager of investors’ money was not minor participant in fraud scheme. (445) Defendant and her husband defrauded investors in their equipment leasing business. Defendant claimed she deserved a minimal or minor role reduction because she only performed administrative duties and clerical work. The 8th Circuit found no error. Defendant was in charge of managing the investors’ money and handling the finances of the company. She was also involved with selling the leases to many investors and was a party to numerous misrepresentations made to them. U.S. v. Duncan, 29 F.3d 448 (8th Cir. 1994).
8th Circuit upholds denial of minimal participant reduction to drug conspirator. (445) The 8th Circuit rejected defendant’s contention that she was a minimal, rather than a minor, participant in a drug conspiracy. Note 2 to § 3B1.2 states that the minimal participant reduction is to be used infrequently, such as for someone who played no other role in a very large drug smuggling operation than to offload part of a single marijuana shipment, or for someone recruited as a courier for a single smuggling transaction involving a small amount of drugs. The district court stated that he could not find that defendant’s level of participation was minimal as clarified by this commentary. This conclusion was not clearly erroneous. U.S. v. Turk, 21 F.3d 309 (8th Cir. 1994).
8th Circuit rejects minor role reduction where defendants not accountable for all drugs. (445) Defendants were charged with conspiracy and numerous underlying drug counts. Pursuant to a plea agreement, they each pled guilty to one count of conspiracy to distribute a smaller quantity of drugs. The district court denied mitigating role reductions, noting that they were held accountable only for the drugs with which they were directly involved, not for the total amount of drugs in the conspiracy. The 8th Circuit held that the district court correctly applied the guidelines. Under note 4 to section 3B1.2, if a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than his actual criminal conduct, a mitigating role adjustment ordinarily is not warranted because he is not substantially less culpable than a defendant whose only conduct involved the less serious offense. U.S. v. Lucht, 18 F.3d 541 (8th Cir. 1994).
8th Circuit denies minor participant reduction to less-involved defendant. (445) The 8th Circuit upheld the denial of a minor participant reduction. Although defendant’s involvement in the conspiracy was not as great as some of the other participants, it entailed far more than one isolated drug sale and possession of 26 grams of PCP, as defendant asserted. U.S. v. Rayner, 2 F.3d 286 (8th Cir. 1993).
8th Circuit rules defendant was not less culpable than co-defendant who received minor role reduction. (445) The 8th Circuit rejected defendant’s claim that he deserved a minor role reduction because he was less culpable than a co-defendant who, pursuant to a plea agreement, received such a reduction. Statements from defendant in the plea agreement indicated that he was involved with larger amounts of drugs than the quantity to which he pled guilty. Furthermore, the co-defendant occasionally directed other customers to defendant for narcotics or obtained narcotics from defendant to distribute to other customers. U.S. v. Hammer, 3 F.3d 266 (8th Cir. 1993).
8th Circuit rules that “steerer” was not a minor participant. (445) The 8th Circuit rejected defendant’s claim that he was a minor participant because he acted as a “steerer.” Steerers play an important and critical role in the street-level drug trade, directing prospective buyers to sellers who wish to remain hidden from public view. Additionally, defendant did more than inform an undercover officer where he could purchase drugs. He entered the officer’s car, accompanied him to the apartment, and signaled for the seller. Moreover, defendant’s sentence was calculated on the basis of a relatively small quantity of drugs sold in the transaction that he facilitated. This was not a case where defendant played a small role in a transaction involving a large amount of drugs. U.S. v. Hale, 1 F.3d 691 (8th Cir. 1993).
8th Circuit rejects minor role based on wife’s active participation in husband’s drug dealing. (445) The 8th Circuit rejected defendant’s claim that she only played a minor role in her husband’s drug dealings. The government presented a different set of facts, including the testimony of several witnesses who said that defendant was an active participant in the drug dealings. U.S. v. Abanatha, 999 F.2d 1246 (8th Cir. 1993).
8th Circuit precludes role reduction for defendants with extensive involvement in conspiracy. (445) The 8th Circuit affirmed the denial of a minor or minimal role reduction to defendants. The reduction was precluded by defendants’ extensive involvement with the conspiracy. Nor could defendants be said to be less culpable than most other participants so as to qualify for the reduction. U.S. v. Ortiz-Martinez, 1 F.3d 662 (8th Cir. 1993).
8th Circuit rejects minimal role for defendant who contributed money to finance marijuana operation. (445) The 8th Circuit affirmed the district court’s decision to grant a minor role reduction, rather than the minimal role reduction requested by defendant. Agents observed defendant working at the property which the conspiracy used to grow marijuana. Defendant admitted that he not only knew of the marijuana-growing operation on the property, but that he contributed $600 a month to finance it. U.S. v. Meyers, 990 F.2d 1083 (8th Cir. 1993).
8th Circuit rejects minimal role reduction where defendant played integral role in fraud scheme. (445) Defendant and others fraudulently exchanged mislabeled computer parts for new parts as part of a computer company’s exchange program. Defendant received a two level reduction for his minor role, but contended he should have received an additional two level reduction for his minimal role. The 8th Circuit affirmed. Although defendant’s role was different from the others, he nevertheless played an integral part in the charged scheme. The district court did not err in denying the minimal role adjustment merely because others in the scheme were more culpable. U.S. v. Nelson, 988 F.2d 798 (8th Cir. 1993).
8th Circuit rejects minor role reduction for man who raped woman three times. (445) Defendant and a co-defendant were both convicted of forcible rape and of aiding and abetting each other. The 8th Circuit rejected defendant’s claim that he was a minor participant, in light of evidence that he raped the victim three times in a period of hours. U.S. v. Norquay, 987 F.2d 475 (8th Cir. 1993), abrogated on other grounds by U.S. v. Thomas, 20 F.3d 817 (8th Cir. 1994).
8th Circuit affirms that middleman was not minor participant. (445) Defendant, a drug conspirator, contended that he was entitled to a minor role reduction, since he was only a middleman in the drug distribution chain. The 8th Circuit affirmed the district court’s determination that defendant was not a minor participant. Defendant personally dealt with an undercover narcotics agent in arranging each of eight separate distributions. He also negotiated the price to be paid by the detective, placed phone calls to inform him that he had obtained the cocaine and was ready to proceed with the transactions, guided the detective to the source’s apartment, handled cash for some of the transactions, and delivered the cocaine to the detective. U.S. v. Harris, 974 F.2d 84 (8th Cir. 1992).
8th Circuit denies mitigating role adjustment to defendant who initiated transaction with undercover agent. (445) The 8th Circuit affirmed the court’s denial of a minor or minimal role adjustment because defendant initiated the drug transaction with the undercover agent, had previously distributed drugs, and had a weapon to protect himself. U.S. v. Laird, 948 F.2d 444 (8th Cir. 1991).
8th Circuit rules defendant who was aware of drug distribution scheme and handled certain transactions was at least a minor participant. (445) The 8th Circuit rejected defendant’s contention that she should have received a three level, rather than a two level, reduction under guideline section 3B1.2 based upon her mitigating role in her boyfriend’s drug operation. Defendant argued she was entitled to a larger reduction because there was no evidence that she ever bought or sold drugs, arranged drug sales or possessed drugs. Her only role was handling legitimate purchases or transactions for which identification was required. Defendant rented the apartment used for drug trafficking and paid the utility bills. The car which the boyfriend used was registered to her. The court found that defendant’s participation in the financial side of the boyfriend’s drug activities and her knowledge of the scope and structure of the enterprise amply supported the district court’s conclusion that she was at least a minor participant in the operation. Defendant admitted that she handled the “drug money” for the boyfriend. U.S. v. Hall, 949 F.2d 247 (8th Cir. 1991).
8th Circuit upholds denial of minor role adjustments to defendants in stolen goods conspiracy. (445) Defendants were part of a conspiracy which used “boosters” to shoplift merchandise from retail outlets, and then retagged the merchandise and resold the merchandise through another retail outlet. The 8th Circuit affirmed the denial of a minor role adjustments for two defendants who resold the property stolen by the boosters. This activity made the conspiracy work, and defendants were aware that at least some of the goods they sold were stolen. A third defendant who received stolen property from the boosters and stored it at her house was also denied a mitigating role adjustment. U.S. v. Wilson, 955 F.2d 547 (8th Cir. 1992).
8th Circuit rejects minor role simply because defendant was less culpable than his father. (445) Defendant and his father pled guilty of selling adulterated meat with intent to defraud. The 8th Circuit rejected defendant’s argument that defendant was entitled, as a matter of law, to a minor role reduction under guideline § 3B1.2(b) simply because he was less culpable than his father. In this case, the stipulated facts indicated that defendant was deeply involved in the criminal acts. Therefore, there was no error in refusing to give defendant the requested reduction. U.S. v. West, 942 F.2d 528 (8th Cir. 1991).
8th Circuit rejects minor status for defendant involved in all aspects of drug manufacturing and distribution. (445) The 8th Circuit affirmed the district court’s decision to deny defendant a reduction for being a minor or minimal participant in the methamphetamine lab defendant and her husband operated in of their home. The district court found that defendant was involved in all aspects of the drug manufacturing and distribution process and that her primary responsibility was packaging and addressing the drugs for shipment. Although one witness testified that defendant had no specific responsibilities and was not a “main player,” the district court’s decision not to grant the downward adjustment was not clearly erroneous. U.S. v. Rogers, 939 F.2d 591 (8th Cir. 1991).
8th Circuit rejects minor status for defendant who contacted informant to purchase drugs. (445) Defendant contended that he was entitled to minor participant status because he made only a small financial contribution to a drug purchase and was only a middle man in the transaction. The 8th Circuit rejected this argument. The record showed that defendant contacted the government informant to arrange the cocaine transaction, flew to Colorado to meet with the source, and contributed his own money the complete the transaction. Defendant also admitted that he actively worked to arrange the transaction. U.S. v. Olson, 931 F.2d 1250 (8th Cir. 1991).
8th Circuit rejects minimal or minor status based upon quantity of cocaine. (445) The 8th Circuit rejected defendant’s argument that he was entitled to minor or minimal participant status. Given the 3.5 to 4 kilograms of cocaine stipulated by defendant in his plea agreement, and defendant’s participation throughout the entire drug transaction, the district court’s determination that defendant was not a minor or minimal participant was not clearly erroneous. The court also found that defendant’s request that he be sentenced at the low end of the guidelines range was non-reviewable. U.S. v. Hutchinson, 926 F.2d 746 (8th Cir. 1991).
8th Circuit rejects minor role for pilot who was to fly stolen aircraft. (445) Defendant was convicted of conspiracy to transport a stolen aircraft. The 8th Circuit found that defendant, as the only conspirator involved who could pilot the plane, was not a minor participant, since defendant’s role in the offense was “crucial.” U.S. v. Culver, 929 F.2d 389 (8th Cir. 1991).
8th Circuit finds that courier was not a minor participant in drug transaction. (445) The 8th Circuit rejected defendant’s argument that she was merely a courier, and was therefore entitled to a two point reduction in her base offense level for being a minor participant. The district court’s finding that defendant was not a minor participant was supported by evidence of the large quantity of cocaine defendant handled, her responsibility for delivering and exchanging cash for cocaine on her own, and her personal acquaintance with the leader of the organization. U.S. v. Phillippi, 911 F.2d 149 (8th Cir. 1990).
8th Circuit upholds finding that defendant was a minor, but not a minimal participant, where she arranged and made drug sales. (445) Defendant was involved in three actual sales of cocaine to the undercover agent. She was the direct recipient of the purchase price on two of those instances, though her remuneration was only a fraction of the purchase price. The 8th Circuit ruled that her conduct “might have been minor, but it was instrumental in both arranging and making sales to the agent, and can hardly be said to be minimal.” U.S. v. Foley, 906 F.2d 1261 (8th Cir. 1990).
8th Circuit holds wife is not entitled to mitigating role to offset her husband’s aggravating role. (445) The defendant and her husband pled guilty to concealing property from a bankruptcy trustee in violation of 18 U.S.C. § 152. The wife argued that she should have received a reduction in her offense level for a mitigating role because her husband’s offense level was increased by two levels on the ground that he was the leader of the criminal activity. The 8th Circuit rejected the argument, finding no authority to support the argument that if one participant receives an enhancement for an aggravating role, a balancing reduction must be awarded to another participant for a mitigating role. The court affirmed the sentence. U.S. v. Snover, 900 F.2d 1207 (8th Cir. 1990).
8th Circuit upholds finding that seller of crack was not a minor participant. (445) Defendant participated in two sales of crack cocaine and was carrying a firearm on both occasions. He was seen selling crack on other occasions and when the “stash house” was raided he was arrested with 4.5 grams of crack and a firearm. Based on these facts, the 8th Circuit held that the sentencing court’s finding that defendant was not a minor participant in a large drug-dealing enterprise was not clearly erroneous. U.S. v. Foote, 898 F.2d 659 (8th Cir. 1990).
8th Circuit holds that distributors are as culpable as manufacturers of counterfeit money. (445) Defendant contended that since he was a mere distributor of counterfeit bills, he was a minor participant in the overall counterfeiting operation in which he played a part. The 8th Circuit disagreed, holding that “[w]e do not believe, as a general matter, that a distributor is less culpable than a manufacturer; adequate distribution is as essential to a counterfeiting scheme as is efficient production.” U.S. v. Goebel, 898 F.2d 675 (8th Cir. 1990).
8th Circuit affirms denial of minor participant role even though no profit motive. (445) Drug defendant argued that the district court’s finding that he was not a minor participant (§ 3B1.2(b) was clearly erroneous. The 8th Circuit disagreed. Although the record revealed that he was less culpable than his co-defendant, it supported the district court’s finding that he was not “substantially less culpable than the average participant” because he had made arrangements for the distribution of cocaine valued at $17,000. His lack of a profit motive and stated purpose for arranging the transaction (“a favor for a relative”) were not important to the decision. The issue is one of culpability, not courier status. U.S. v. Ellis, 890 F.2d 1040 (8th Cir. 1989).
8th Circuit finds that drug courier was not entitled to minor participant reduction because there were no other defendants. (445) The 8th Circuit held that it was proper to deny an offense level reduction for minor participant status (§ 3B1.2) to a drug courier. The evidence presented at the sentencing hearing established that he possessed approximately 3.5 kilograms of cocaine on his person at the airport, he had made similar flights to California before and had returned on the same day, he was to earn $2,000 for the trip, and had documents which connected him to a known drug trafficker. These facts supported the findings that the defendant was not a minor participant. Although a drug courier may be a minor participant “there was simply no evidence to establish that the defendant was any less culpable than those unidentified actors whose actual roles were unknown. U.S. v. Williams, 890 F.2d 102 (8th Cir. 1989).
8th Circuit upholds denial of minimal role for defendant who may have been a courier. (445) The Commentary to § 3B1.2(a) of the guidelines suggests that a minimal role adjustment may be appropriate for a person “recruited as a courier for a single transaction involving a small amount of drugs.” Here the defendant said she was carrying the cocaine for her brother, and then later said she was taking it to an unknown party. Nevertheless, her references to other participants were “vague”, and the sentencing judge was not clearly erroneous in concluding that she was the only one involved. U.S. v. Nunley, 873 F.2d 182 (8th Cir. 1989).
8th Circuit finds facts supported denial of minor participant reduction. (445) The 8th Circuit held that it was proper to deny a drug defendant a two level decrease in his offense level after the district court found that he had arranged ultimate sales of cocaine, handled the cash, and delivered the product. The defendant’s assertions that he was merely a courier were not sufficient to warrant the adjustment. U.S. v. Jones, 875 F.2d 674 (8th Cir. 1989).
9th Circuit upholds denial of minor role decrease to fraud participant. (445) Defendant participated in a short-lived investment fraud scheme. During the six-month scheme, defendant traveled to promote the scheme and received profits from the scheme. Based on that participation, the district court held that defendant was not entitled to a “minor role” decrease in offense level under § 3B1.2. On appeal, the Ninth Circuit found no error. U.S. v. Swor, 728 F.3d 971 (9th Cir. 2013).
9th Circuit upholds rejection of minor role adjustment. (445) Defendant was convicted of distributing cocaine over a seven-year period. At sentencing, he sought a reduction in offense level because he had played a minor role in the offense. The district court found that defendant’s role in the offense was not substantially less culpable than the average defendant and denied the reduction. The Ninth Circuit held that the district court was not clearly erroneous in finding that defendant did not play a minor role, noting that defendant did not merely share cocaine that he had. U.S. v. Mancuso, 718 F.3d 780 (9th Cir. 2013).
9th Circuit says currency smuggler did not play minor role. (445) Defendant and his brother were convicted of attempting to smuggle $500,000 cash from the United States to Mexico in defendant’s van. He argued that the district court should have given him a 2-level reduction for his minor role, pointing to Congressional findings that bulk cash smugglers are “typically low-level employees of large criminal organizations.” The Ninth Circuit found no error, noting that defendant asserted lack of knowledge of the currency, and had not urged that he was carrying it for a large organization. In any event, the facts at trial indicated that his role was not minor. U.S. v. Del Toro-Barboza, 673 F.3d 1136 (9th Cir. 2012).
9th Circuit denies minor role adjustment for drug courier. (445) Defendant pleaded guilty to importing 33 kilograms of cocaine into the U.S. He admitted that prior to his effort to smuggle drugs into the U.S., he had registered the car he used in his own name and made several test border crossings. In his plea agreement, defendant and the government agreed that defendant would receive a two-level decrease in offense level pursuant to § 3B1.2(b) on the ground that, as a mere courier of the drugs, he played a minor role in the offense. With this adjustment, defendant had a Guidelines range of 41-51 months. The presentence report recommended that defendant not receive a minor role adjustment, and the district court declined to award the adjustment. Without the adjustment, defendant’s sentencing range was 57-71 months, and the district court imposed a 57-month sentence. The Ninth Circuit held that the district court had not clearly erred in finding that defendant did not play a minor role in the offense. U.S. v. Rodriguez-Castro, 641 F.3d 1189 (9th Cir. 2011).
9th Circuit agrees that drug transporter is not entitled to minor role adjustment. (445) Defendant participated in selling 250 pounds of marijuana. Defendant met with the buyers to negotiate the sale, and later transported the marijuana to the buyers, who were undercover law enforcement agents. Defendant pleaded guilty to drug-trafficking offenses, but he failed to appear for sentencing and fled to Mexico. When defendant was eventually recaptured and sentenced on the drug-trafficking offense, the district court declined to find that he was a minor or minimal participant in the offense. The Ninth Circuit held that the district court had not erred in denying defendant a minimal role adjustment. U.S. v. Rosas, 615 F.3d 1058 (9th Cir. 2010).
9th Circuit upholds refusal to find salesman minor participant in securities fraud. (445) Defendant was a broker at a firm that engaged in a scheme to deceive investors into buying certain stocks. Defendant’s role in the scheme was to convince clients to buy the stocks. At his sentencing for fraud and securities offenses, the district court declined to decrease defendant’s offense level under § 3B1.2(b) because defendant was a minor participant in the fraud. The Ninth Circuit held that defendant’s case did not present “exceptional circumstances” in which the district court had no choice but to grant the downward adjustment. U.S. v. Laurienti, 611 F.3d 530 (9th Cir. 2010).
9th Circuit denies minor role adjustment to crewman on drug-smuggling vessel. (445) Defendant was a crewman on a fishing vessel containing 9,200 kilograms of cocaine. At sentencing on his conviction for drug-trafficking offenses, the district court declined to grant defendant a reduction in his offense level for his minor role in the offense. The Ninth Circuit affirmed the district court’s determination, agreeing that persons assisting in the transportation of large quantities of drugs by sea do not play a minor role. U.S. v. Zakharov, 468 F.3d 1171 (9th Cir. 2006).
9th Circuit agrees that drug courier was not minimal participant. (445) During a drug conspiracy, defendant accompanied another conspirator on five or six occasions when the conspirator picked up kilogram quantities of drugs. She also helped repackage and sell drugs. The district court denied her an adjustment for playing a minor role under § 3B1.2 because she facilitated an extensive drug operation. The Ninth Circuit affirmed, finding that the district court’s decision was not clearly erroneous. U.S. v. Cantrell, 433 F.3d 1269 (9th Cir. 2006).
9th Circuit finds that defendant acquitted of conspiracy was not minor participant. (445) Defendant was alleged to be part of a large drug-trafficking conspiracy, but he was acquitted of that offense and convicted only of possession with intent to distribute. The district court nevertheless denied defendant a reduction for being a minimal participant because defendant denied any participation in the conspiracy. The Ninth Circuit held that defendant could not obtain a downward adjustment for being a minimal participant in the conspiracy involving his codefendants while asserting that he never participated in the conspiracy. U.S. v. Cantrell, 433 F.3d 1269 (9th Cir. 2006).
9th Circuit rejects minimal role reduction for least culpable fraud scheme participant. (445) Defendant was convicted of conspiracy to launder money based on his participation in a telemarketing fraud scheme. He argued that he should receive a minimal participant reduction under § 3B1.2 because he did not engage in the actual financial transactions that constituted the money laundering and he did not work at the telemarketing company throughout the scheme. The Ninth Circuit accepted defendant’s contention that he was the “least culpable participant in the scheme,” but it nevertheless affirmed the district court’s decision to deny the reduction because he played a significant role in the offense. U.S. v. Johnson, 297 F.3d 845 (9th Cir. 2002).
9th Circuit rejects minor role adjustment for drug importer. (445) Defendant was arrested as he tried to cross the border in a car containing 100 pounds of marijuana in a hidden compartment. At his sentencing for illegally importing drugs, he sought a deduction for his minimal role in the offense on the ground that he was a mere courier and that the vehicle containing the drugs had been registered to him only a few weeks before his arrest. The Ninth Circuit upheld the district court’s refusal to grant a minimal-role adjustment, finding that although the evidence could have supported the adjustment, there was sufficient evidence to find that defendant purchased the drugs and attempted to import them himself. U.S. v. Rosales-Rodriguez, 289 F.3d 1106 (9th Cir. 2002).
9th Circuit holds that participation in multiple aspects of smuggling scheme dooms minor role adjustment. (445) Defendant was convicted of participating in a scheme to smuggle marijuana into the U.S. The presentence report related that defendant was involved in two of the three loads involved in the scheme; that he flew to Washington to arrange an offload of one of the ships bringing in the marijuana; that he was aboard a small boat that went to aid the large vessel carrying one of the marijuana cargoes; and that defendant went to Cambodia to act as captain on a boat bringing another load. The Ninth Circuit found that this evidence was sufficient to foreclose defendant’s argument that he should have received an adjustment for his minimal role in the offense. U.S. v. Smith, 282 F.3d 758 (9th Cir. 2002).
9th Circuit says lack of foreknowledge of murder did not require role reduction for robbery conviction. (445) Defendant assisted in disposing of the body of a murder victim; he then participated in stealing the victim’s truck, and he used his knowledge of the victim’s bank account to drain it. He also tried to cover up the murder. Based on this conduct, he was convicted of Hobbs Act robbery and conspiracy to convict Hobbs Act robbery, as well as using or carrying a firearm during a crime of violence. The Ninth Circuit rejected defendant’s contention that he should have received a reduction for his minor or minimal role in the offense because he did not know that the murder was going to occur. The district court was not clearly erroneous in finding that defendant’s participation in the murder and subsequent theft of the victim’s goods and money precluded a reduction for his minimal role in the offense. U.S. v. Pizzichiello, 272 F.3d 1232 (9th Cir. 2001).
9th Circuit rejects role reduction for major repeat drug courier. (445) The issue of whether a defendant is a minor participant under guideline § 3B1.2 is primarily a question of fact. See U.S. v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989). Where drugs are present in sufficient quantities, that in itself is sufficient to deny a sentencing reduction. Id. at 557-58. Here, the multi-kilogram quantities of drugs entrusted to defendant were worth over $1 million. Further, the evidence showed that this was more than a one-time trip as a drug courier, and suggested that he had engaged in identical activity on multiple occasions in the ten months preceding his arrest. Accordingly, the Ninth Circuit held that the district court did not clearly err in refusing to reduce defendant’s sentence by two levels for his claimed minor role in the offense. U.S. v. Murillo, 255 F.3d 1169 (9th Cir. 2001), overruling on other grounds recognized by U.S. v. Mendez, 476 F.3d 1077 (9th Cir. 2007).
9th Circuit holds “guide-in-training” for smuggling aliens was not a minor participant. (445) Under § 3B1.2(b), a defendant is entitled to a two-level downward adjustment as a “minor” participant if he is deemed “less culpable than other participants but [his] role could not be described as minimal.” The defendant is to be compared to all participants in the illegal activity, not just his co-defendants. Whether a defendant is a minor or minimal participant is a factual determination reviewed for clear error. Here, the district court refused to give defendant a reduction for a minor role in guiding aliens into the United States even though it gave minor role adjustments to two co-defendants. Defendant was treated differently because he admitted he was a “guide-in-training” who had previously assisted in guiding aliens into the United States. Thus, his role was more significant than the two co-defendants who had simply agreed to accompany an alien smuggler named “El Pajaro” to assist a group of about 15 aliens to enter the United States illegally through the mountains. U.S. v. Rodriguez-Cruz, 255 F.3d 1054 (9th Cir. 2001).
9th Circuit holds supplier of kilogram quantities of cocaine was not a minor participant. (445) Under U.S. v. Frega, 179 F.3d 793, 811 n.22 (9th Cir. 1999), the district court’s application of the guidelines to the facts of a particular case is reviewed for an abuse of discretion. In the present case, defendant argued that he should have been given a downward adjustment for his minor role under § 3B1.2. However, the sentencing judge determined that a supplier of kilogram quantities of cocaine on multiple occasions was not deserving of any downward adjustment. The Ninth Circuit affirmed, finding that this was “within the judge’s discretion.” “A repeat supplier of kilogram quantities of drugs plays a significant role in a conspiracy to distribute those drugs.” U.S. v. Antonakeas, 255 F.3d 714 (9th Cir. 2001).
9th Circuit rejects minor role status where defendant failed to point to other more culpable participants. (445) Defendant argued that his role in the offense should have been compared to that played by other “co-participants,” not just his co-defendant Cruz. He observed that no methamphetamine was found in his home (although ledgers were found there), but he failed to point to other more culpable participants. Accordingly, the Ninth Circuit found no clear error in refusing to reduce his sentence for a minor role. U.S. v. Garcia-Guizar, 227 F.3d 1125 (9th Cir. 2000).
9th Circuit says transporter of illegal aliens was not entitled to minor role adjustment. (445) Defendant was convicted of smuggling aliens on two separate occasions. The Ninth Circuit found that he failed to satisfy his burden of proving by a preponderance that he was entitled to a minor role adjustment. Defendant “did not simply provide the means of transportation.” Rather “he was convicted of smuggling illegal aliens into the United States on two separate occasions within a sixteen-day period, and of receiving compensation for his services.” As the district court found, he “provided a vital link in the [alien smuggling] operation.” The court added that “the mere fact that [defendant] was to transport the aliens north does not entitle him to a minor role adjustment.” U.S. v. Pena-Gutierrez, 222 F.3d 1080 (9th Cir. 2000).
9th Circuit reiterates that drug courier does not necessarily play a minimal or minor role. (445) Defendant was the driver and sole occupant of the vehicle in which a substantial amount of marijuana was hidden, and the evidence proved that he knew the drugs were in the gas tank. Under U.S. v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994), the fact that a defendant acted as a drug courier does not necessarily mean his role was minimal or minor. See also U.S. v. Rigby, 896 F.2d 392, 393-94 (9th Cir. 1990) (defendant not a minor participant when he was sole occupant of a car in which 173 grams of methamphetamine and a loaded hand gun were found). Therefore, the Ninth Circuit found no error in denying a role adjustment under § 3B1.2. U.S. v. Hursh, 217 F.3d 761 (9th Cir. 2000).
9th Circuit rejects minor role for defendant who transported the drugs and negotiated the sale. (445) It was not improper for the district court to focus on the January 29 delivery of the 17 kilograms of cocaine because that delivery was this defendant’s only “relevant conduct.” Moreover, defendant not only transported the drugs to the residence but he also actively negotiated the sale. Furthermore the amount of drugs – 17 kilograms – was substantial. Accordingly, the Ninth Circuit upheld the district court’s conclusion that defendant was not “substantially” less culpable than his codefendants. U.S. v. Duran, 189 F.3d 1071 (9th Cir. 1999).
9th Circuit rejects minor role for driver who attempted to transport undocumented aliens. (445) The Ninth Circuit found nothing to indicate that defendant was substantially less culpable than other participants in the offense because he was to be the driver of the truck. The aliens were brought to the residence in small numbers by different individuals. The fact that defendant was to transport most, if not all, of these aliens suggested that he was at least as culpable as many of the other participants in the smuggling ring. The district court did not err in denying a minor role reduction. U.S. v. Hernandez-Franco, 189 F.3d 1151 (9th Cir. 1999).
9th Circuit says defendant failed to show that his role was “minor” compared to co-defendant. (445) Defendant argued that he was a minor participant because his role in the conspiracy and the possession of the cocaine was “subservient and minor.” However, the Ninth Circuit observed that he conducted cocaine sales both when Butler was present and when he was not, and he offered both his own pager number and Butler’s for subsequent transactions. Moreover he pled guilty to possessing 210 grams of cocaine jointly with Butler. It was defendant’s burden to show substantially less culpability. U.S. v. Howard, 894 F.2d 1085, 1089 (9th Cir. 1990). The district court properly found that defendant “did not show by a preponderance of the evidence that he was substantially less culpable than Butler.” U.S. v. Williams, 185 F.3d 945 (9th Cir. 1999).
9th Circuit denies reduction for role where defendant delivered the heroin. (445) The Ninth Circuit said that “[o]bviously others brought the heroin to [defendant] before he delivered it to Burres,” but “he was the one who did deliver it, make the sale and get the money.” Accordingly, the Ninth Circuit held that the district court did not err in treating defendant as more than a minor participant. U.S. v. Lopez, 163 F.3d 1142 (9th Cir. 1998).
9th Circuit rejects minor role for chief engineer on drug laden vessel. (445) A defendant is entitled to a two level reduction as a minor participant only if he is substantially less culpable than the other participants in the same offense. As chief engineer, defendant supervised three crew members and had primary responsibility for the maintenance of the vessel which was carrying twelve tons of cocaine. Thus, the Ninth Circuit held that he fulfilled a “critical role” in the criminal venture. Although the district court reduced the sentences of the other crew members for minor role, it did not clearly err in denying a minor role adjustment for this defendant. U.S. v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998).
9th Circuit says defendant’s acquittal on some charges did not make him less culpable. (445) Defendant Grigonis was convicted of bankruptcy fraud, but acquitted of filing a false tax return and making false statements. He argued that this showed he played only a minor role. The Ninth Circuit found no merit in the argument, ruling that it merely showed that the jury acted inconsistently. Thus, the fact that he was acquitted of some of the charges did not mean that he was “less culpable than the other co-participants.” U.S. v. Ladum, 141 F.3d 1328 (9th Cir. 1998).
9th Circuit rejects minor role for helping to plan and execute jewelry store robbery. (445) The district court found that defendant Edwards played neither a minor role nor a leadership role in the July 11 robbery. The district court found that she participated in the robbery, was present in the jewelry store, helped put the jewelry in the pillowcase, and was present during the planning of the robbery. Based on these findings, the Ninth Circuit held that defendant Edwards’ culpability was “at best equivalent to the other robbers inside the store.” U.S. v. Nelson, 137 F.3d 1094 (9th Cir. 1998).
9th Circuit rejects minor role where defendant made “more than a cameo appearance.” (445) Defendant argued that the district court erred in denying him a reduction for minor role under guideline § 3B1.2. The district court found that “[t]he involvement of the defendant was more than a cameo appearance, it was more than a minor or minimal participant passing through.” The court added that “the evidence in view of all the things that are going on indicates a deeper involvement than simply a passing, innocent participant recruited for one single event.” The Ninth Circuit found that these findings were not clearly erroneous and that the denial of the role reduction was a proper exercise of discretion. U.S. v. Otis, 127 F.3d 829 (9th Cir. 1997).
9th Circuit denies role reduction even though defendant was tied to a larger drug scheme. (445) The district court refused to grant defendant a three point role reduction under § 3B1.2 because he negotiated the methamphetamine deal himself and delivered it without assistance. The court said defendant “is not entitled to a reduction in his sentence simply because he was tied to a larger drug trafficking scheme.” U.S. v. Ruelas, 106 F.3d 1416 (9th Cir. 1997).
9th Circuit finds defendant was more than a mere courier. (445) Defendant was present when the cocaine was taken from the diaper box, when the samples were taken, and when the sale was discussed. The Ninth Circuit found that this “removed the defendant from the role of a mere courier,” and justified the district court’s refusal to subtract four levels for minimal role, and giving him only two levels off for minor role. U.S. v. Felix, 87 F.3d 1057 (9th Cir. 1996).
9th Circuit reduces for role only when defendant is substantially less culpable than the average participant. (445) Under Guideline § 3B1.2, a reduction for being a minor participant apples when the defendant is “substantially less culpable than the average participant.” Here, the district court found that defendants had important roles in giving out advice and coaching applicants for immigration services, and providing fraudulent documents to the applicants. Although defendants were less culpable than the ringleaders of the business, the district court did not clearly err in determining that they did not qualify as minor participants. U.S. v. Torres, 81 F.3d 900 (9th Cir. 1996).
9th Circuit says fact that defendant did not “mastermind” robbery did not make his role minor. (445) Defendant argued that his conduct was “far less culpable” than his coconspirators because he only drove the getaway car, transported the stolen mail to his home and intended to benefit from cashing the checks. The 9th Circuit found no error in the court’s refusal to find that he was a minor participant. “T]he fact that [he] did not mastermind the robbery does not automatically make him a minor participant.” Moreover, receiving economic benefits weighs against minor participant status. The court said that “[d]ownward adjustments for minor participant status are to be used ‘infrequently.’“ U.S. v. Pinkney, 15 F.3d 825 (9th Cir. 1994).
9th Circuit rejects basing mitigating role reduction on fact that crime was “not very serious.” (445) Defendant argued he was entitled to a mitigating role adjustment because he did not distribute any drugs for profit and the amount he possessed with intent to distribute was relatively small compared to other offenders. Construing defendant’s argument as one that he should receive the reduction because his crime “was not very serious”, the Ninth Circuit upheld the district court’s rejection of the mitigating role adjustment. A downward role adjustment is appropriate only where a defendant’s role is minor or minimal compared to other participants in the same offense or in the relevant conduct. The reduction is not proper on the ground that a defendant’s crime is less serious than similar crimes by unrelated other defendants. U.S. v. Kipp, 10 F.3d 1463 (9th Cir. 1993).
9th Circuit finds transferring prisoner failed to establish mitigating role. (445) Defendant transferred to the United States to serve a sentence imposed in the United Kingdom for importing a controlled substance. She had smuggled 89 packages of 238.8 grams of heroin by swallowing the packages. The Parole Commission, in setting a release date and calculating the sentencing guidelines, did not believe defendant was merely a courier, and denied a mitigating role reduction. The Ninth Circuit relied on the Parole Commission’s finding of lack of credibility and found no clear error. No one else was arrested and defendant gave no useful information regarding her contact. Defendant’s self-serving statement was insufficient. Ajala v. U.S. Parole Commission, 997 F.2d 651 (9th Cir. 1993).
9th Circuit reiterates that sole participant is not entitled to role reduction. (445) In U.S. v. Tamez, 941 F.2d 770, 777 (9th Cir. 1991), the court found there could be no minor role adjustment where the defendant was the sole participant in the count of conviction. Here, because defendant was the sole participant in both his drug and gun convictions, the 9th Circuit found he was not entitled to consideration for a mitigating role reduction. Any evidence of a larger conspiracy would have been irrelevant. U.S. v. Walker, 993 F.2d 196 (9th Cir. 1993).
9th Circuit rejects minor role reduction even though defendant did not own the heroin. (445) The 9th Circuit rejected defendant’s argument that he was just a “courier” of the heroin, noting that he owned the trading company and leased the warehouse to which the drugs were delivered, attended two foreign meetings to discuss the shipment, and was paid a substantial sum for his participation. Despite defendant’s claim that he had no ownership interest in the narcotics, the district court’s finding that he was not a minor participant was not clearly erroneous. U.S. v. Hoac, 990 F.2d 1099 (9th Cir. 1993).
9th Circuit denies minimal participant status to defendant who was co-equal partner in fraud scheme. (445) The district court found that defendant’s claims of ignorance and non-involvement were implausible, and that she was a co-equal partner with her husband because both shared equally the economic reward from the fraud scheme. These findings supported the district court’s conclusion that the wife was not a minimal participant. U.S. v. Peters, 962 F.2d 1410 (9th Cir. 1992).
9th Circuit agrees that defendant who installed and maintained generator was not a minor participant. (445) Defendant argued that he “was not involved with the cultivation of the marijuana or its harvesting, record keeping, or distribution,” and that his only participation in the operation was “the installation and maintenance of a generator.” The district court accepted these claims as true, but found that his role was significant in that the operation could not have succeeded without him. Moreover, the record showed that the profits were to be equally shared. On appeal, the 9th Circuit held this finding to be not clearly erroneous. U.S. v. Belden, 957 F.2d 671 (9th Cir. 1992).
9th Circuit rejects minor or minimal participant adjustment in bank fraud case. (445) Defendant argued that because he did not know how much money was in his account until after his arrest, his role in the offense was only minimal. The 9th Circuit rejected his argument, finding that his involvement and culpability in the offense were significant. He played an integral role in the conspiracy and was “equally culpable” with the other defendants. U.S. v. Deeb, 944 F.2d 545 (9th Cir. 1991).
9th Circuit upholds rejection of minimal role adjustment despite contrary government recommendation. (445) Pursuant to a stipulation, the government recommended a 4-level reduction in defendant’s offense level for her minimal participation in the drug transaction. However, the district court found that her conduct justified only a 2-level reduction for minor participant status. The 9th Circuit upheld the court’s ruling, noting that the court made specific findings indicating that the defendant was not among the least culpable of the defendants in the heroin transaction. U.S. v. Madera-Gallegos, 945 F.2d 264 (9th Cir. 1991).
9th Circuit denies reduction for minimal participation where defendant played a formative role. (445) Defendant argued that he played only a peripheral role in the transaction and was the least culpable of the other participants. Nevertheless, the 9th Circuit upheld the district court’s refusal to reduce his offense level for being a minimal or minor participant under § 3B1.2, noting that he “played a significant, indeed formative role in the criminal activity.” U.S. v. Molina, 934 F.2d 1440 (9th Cir. 1991).
9th Circuit holds that court need not accept defendant’s “self serving claim that he was merely a “courier.” (445) Defendant argued that he should have received a reduction for being a minimal or minor participant under § 3B1.2 because he was a “one time drug courier.” The 9th Circuit held that he failed to demonstrate that his role was purely that of a courier, noting that in U.S. v. Rigby, 896 F.2d 392, 395 (9th Cir. 1990) the court denied the reduction “since there was no evidence other than defendant’s self serving statement, to support such a finding.” In addition, the court noted that “a defendant may be a courier without being either a minimal or a minor participant.” Finally the court noted that “possession of a substantial amount of narcotics is grounds for refusing to grant a sentence reduction.” Here the defendant possessed nearly 28 pounds of high quality heroin. U.S. v. Lui, 941 F.2d 844 (9th Cir. 1991).
9th Circuit denies minor participant adjustment where defendant admitted being well paid for his services to participate in narcotics delivery. (445) The 9th Circuit stated that a “simple statement by the district court that the defendant was not a minor participant is typically sufficient to settle this question.” Here the defendant admitted to being well paid for his services and to flying across the country simply to participate in this particular narcotics delivery. The district court was entitled to disbelieve his self-serving description of his own involvement. U.S. v. Ocampo, 937 F.2d 485 (9th Cir. 1991).
9th Circuit upholds finding that drug smuggler was not a minor participant. (445) Emphasizing that a district court’s finding that a defendant does not qualify for minor participant status is “heavily dependant on the facts of the particular case,” the 9th Circuit ruled that the district court’s refusal to find that defendant was a minor participant was not clearly erroneous. The defendant admitted adapting cars for drug smuggling. He was also acquainted with the parties and had access to the gun and guarded the money. U.S. v. Prieto-Villa, 910 F.2d 601 (9th Cir. 1990).
9th Circuit holds that defendants were not minor participants in cocaine-smuggling operation. (445) Two defendants claimed that they were mere couriers, and therefore were minor participants in a cocaine-smuggling operation. The 9th Circuit rejected this argument. One defendant had recruited others to participate in the scheme and had purchased certain components necessary to build the secret compartment in which the cocaine was smuggled. The other defendant had registered under a false name the trucks used to smuggle the cocaine, had repaired the trucks in his repair shop to prepare them for the border crossing, and had recruited others to participate in the scheme. Moreover, both defendants were caught smuggling substantial quantities of cocaine. U.S. v. Sanchez, 908 F.2d 1443 (9th Cir. 1990).
9th holds that co-defendant’s greater culpability does not entitle defendant to “minor participant” reduction. (445) The guidelines call for a two-point reduction in offense level for defendants who are “minor participants” in a multiple-party offense. Defendant argued that the district court erred by failing to undertake a detailed comparison between defendant’s role in the offense and that of his codefendant before rejecting defendant’s bid for a minor participant reduction. Judges Alarcon, Wallace, and Leavy disagreed. The court held that a defendant is not entitled to the reduction simply because a codefendant was more culpable. Nor was the district court clearly erroneous in finding that defendant was not a minor participant. The defendant packaged 15 pounds of marijuana into containers with false bottoms over a three-day period, picked up the intended courier at the airport, received compensation for his work, and was “deeply involved with marijuana.” U.S. v. Rexford, 903 F.2d 1280 (9th Cir. 1990).
9th Circuit rules that “caretaker” of crack house did not perform minimal role. (445) Defendant argued that, because he was the “caretaker” of the crack house rather than the owner, his role was minimal or minor. The district court found that although he did not own the crack house, he was operating it when police executed the search warrant and was intending to make sales. The 9th Circuit upheld the district court’s refusal to reduce the offense level for minimal minor participation, finding no clear error. U.S. v. Williams, 898 F.2d 1400 (9th Cir. 1990).
9th Circuit upholds finding that defendant was minor, (but not minimal) participant in the offense of conviction. (445) Defendant argued that he was a minimal participant in the cocaine conspiracy. The 9th Circuit noted, however, that he was sentenced “based on the charge of using a telephone in the commission of a drug-related offense, not for conspiracy to distribute cocaine.” Because there was “evidence that he used the telephone to negotiate the price and quantity of drugs, the court reasonably concluded that his participation in this crime was not minimal.” The trial court’s ruling was not clearly erroneous. U.S. v. Christman, 894 F.2d 339 (9th Cir. 1990).
9th Circuit upholds refusal to grant downward adjustment for minor or minimal participation. (445) The 9th Circuit upheld the district court’s refusal to grant a downward adjustment for minor or minimal participation under § 3B1.2. The court noted that these downward adjustments are “to be used infrequently,” citing the Commentary to 3B1.2. Here the district court properly relied on the equipment, gun and drugs that were found in defendant’s house in denying the adjustment. That ruling was not clearly erroneous. U.S. v. Gillock, 886 F.2d 220 (9th Cir. 1989).
10th Circuit rules “lookout” was not entitled to minor participant reduction. (445) Defendant participated in a bank robbery, acting as the lookout and recruiting a friend to drive. He was assigned the role of lookout because he refused to enter the bank. The Tenth Circuit held that defendant was not entitled to a § 3B1.2 minor participant reduction. Defendant’s level of culpability was similar to the defendant in U.S. v. Lockhart, 37 F.3d 1451 (10th Cir. 1994): he knew the plan’s purpose – to rob a bank – and he provided transportation and expected to be compensated for his role. The court reviewed decisions from other circuits and found defendant’s involvement in the robbery was similar to other cases denying the minor role reduction: defendant acted as the lookout, planned to assist in the escape, and admitted to knowledge of the scheme. The district court did not clearly err when it denied him a minor-participant reduction. U.S. v. Adams, 751 F.3d 1175 (10th Cir. 2014).
10th Circuit rejects minor role and safety valve claims for meth dealer. (445) Defendant was convicted of two counts related to dealing in methamphetamine. She argued that the court should have granted her a “safety valve” departure from the mandatory minimum sentence and that her offense level should have been lowered because she was only a minimal participant in the conspiracy. The Tenth Circuit rejected both claims. The record as a whole did not support her claim of being a minor participant. There was testimony that defendant was calling for drugs several times a day in one two-week period. There was evidence she helped “round up” funds with which to buy quantities of meth for those at a higher level in the conspiracy and that she was re-selling at least some of the meth she purchased. As for the safety valve protection, the judge found that defendant did not satisfy the information requirement. This finding followed defendant’s testimony at sentencing. In her testimony, defendant continued to deny any involvement in the crimes for which she had been found guilty and maintained her innocence. U.S. v. Allen, 603 F.3d 1202 (10th Cir. 2010).
10th Circuit holds that drug courier did not have minor role in meth conspiracy. (445) Defendant argued that he played a minor role in a drug conspiracy, noting that (1) he was less culpable than co-conspirator Aguilar-Banuelos, and (2) both were mere mules in the larger drug operation. The Tenth Circuit upheld the denial of the reduction. The district court found that defendant and Aguilar-Banuelos were fairly equal participants in the transportation of drugs, both defendants were present and agreed to transport the methamphetamine for $2,000, and both were entrusted with a large quantity of drugs. The court found no evidence to suggest that defendant was substantially less culpable than Aguilar-Banuelos. As to the second argument, this circuit has consistently refused to adopt a per se rule allowing a downward adjustment based solely on a defendant’s status as a drug courier. Moreover, defendant was indicted and sentenced only for the amount of drugs he personally transported. U.S. v. Martinez, 512 F.3d 1268 (10th Cir. 2008).
10th Circuit rejects minor role for defendant who obtained false driver’s license, purchased carrier car and recruited elderly uncle to travel with him. (445) Defendant argued that he was entitled to minor or minimal participant status. The record provided little information about the scheme in which defendant was involved. However, he argued that it could be inferred from the fact that he was transporting cocaine from California to Ohio that there must also be individuals in California who smuggled it into the U.S. from a foreign nation, arranged for its distribution for a distribution point in Ohio, concealed the drugs in the spare tire in the trunk of his vehicle, and arranged for defendant to transport the drugs to the assigned delivery point in Ohio. The Tenth Circuit found that even if it could make these inferences, it would not mean that defendant was a minor participant. The only evidence that defendant was not himself involved in any of these roles was his own testimony, which the court could reasonably find not credible. Moreover, defendant was no innocent driver duped into delivering the drugs in Ohio. He traveled to Ohio to obtain a false driver’s license, bought and insured the carrier car, and returned to California where he recruited his elderly uncle to travel with him. U.S. v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004).
10th Circuit denies minimal role reduction to defendant who obtained drugs, negotiated drug price, and returned money to supplier. (445) Defendant failed to prove that he was entitled to a minimal participant in the drug conspiracy. Delgado, whom the district court found credible, testified that he observed defendant obtain at least a pound of methamphetamine from one apartment. Defendant delivered over a pound of methamphetamine to the DEA during the course of the conspiracy. At one point, defendant directly negotiated with an undercover DEA agent over the price of the methamphetamine. Delgado also observed defendant deliver a “roll” of money to a methamphetamine source. Because the record supported the district court’s finding that defendant played a significant role in facilitating the drug conspiracy, the Tenth Circuit held that the district court’s finding that defendant was not entitled to a minimal participant reduction was not clearly erroneous. U.S. v. Virgen-Chavarin, 350 F.3d 1122 (10th Cir. 2003).
10th Circuit says defendant who distributed over 100 kilos of methamphetamine more than co-defendants was not minor participant. (445) Defendant argued the district court erred in failing to grant him a minimal or minor role reduction under § 3B1.2. Considering the relevant conduct involved and the length of time defendant was involved in the conspiratorial conduct, the district court found a downward adjustment for defendant’s alleged participation would be “a mischaracterization.” The government proved at sentencing, and the district court found, that defendant distributed over 100 more kilograms of methamphetamine than his co-defendants. Thus, defendant was plainly among the most culpable of those involved in his group, and the Tenth Circuit found that the denial of the minor or minimal role reduction was not clearly erroneous. U.S. v. Montoan-Herrera, 351 F.3d 462 (10th Cir. 2003).
10th Circuit says court cannot grant mitigating role reduction to career offender. (445) The district court denied defendant’s request for a mitigating role reduction under § 3B1.2, holding that such a reduction is unavailable to a defendant who qualifies as a career offender under § 4B1.1. The Tenth Circuit, following every other federal appellate court to address the question, agreed that a defendant is not entitled to a § 3B1.2 reduction following a career offender adjustment. See, e.g. U.S. v. Johnson, 155 F.3d 682 (3d Cir. 1998); U.S. v. Ward, 144 F.3d 1024 (7th Cir. 1998). Upon determining that a defendant qualifies as a career offender, the court must compare the offense level listed in the § 4B1.1 table (determined by reference to the statutory maximum for the offense of conviction) to the offense level that would apply absent the career offender adjustment. If the career offender offense level is greater than the “otherwise applicable” level, the court must use this offense level. Moreover, § 1B1.1, which sets forth the order in which the various sections of the guidelines should be applied, directs courts to make any applicable role in the offense adjustments before making any applicable career offender adjustment under § 4B1.1. U.S. v. Jeppeson, 333 F.3d 1180 (10th Cir. 2003).
10th Circuit denies minor role even though defendant was not a “significant player” in drug conspiracy. (445) Defendant argued that because he was not a regular participant in the larger drug trafficking chain, he should receive a minor role reduction. The Tenth Circuit agreed that defendant was not a “significant player in the larger conspiracy.” He purchased drugs regularly from Sanders, but generally had infrequent contact with other members of the group. Only once did he involve himself in the transportation or sale of drugs to or with other conspiracy members. Nonetheless, the panel ruled that the denial of the minor role reduction was not clear error. The district court’s evaluation of the evidence was plausible. The evidence showed that defendant sold the conspiracy’s drugs to an undercover agent, he received a large quantity of drugs soon after its arrival, he kept scales used for weighing drugs at his residence, and assisted directly in holding the drugs for a co-conspirator when the normal chain of production broke down. Thus, the district court concluded that defendant’s role “fell somewhat in the middle of all of this ….” This was a permissible view in light of the record as a whole. U.S. v. Heckard, 238 F.3d 1222 (10th 2001).
10th Circuit denies minor role reduction to defendant who met drug courier. (445) Defendant met a drug courier who transported a truckload of marijuana to Albuquerque from Mexico. She argued that she deserved a minor role reduction because she acted as a one-time courier who carried only a small amount of drugs. The Tenth Circuit affirmed the denial of a minor role reduction. First, even if defendant was a one-time courier, a drug courier is not per se a minor participant in a drug transaction. Moreover, the evidence did not support this interpretation of defendant’s role. Defendant controlled the transfer of money in this transactions, was the only confirmed recipient of the drugs, and acted as the courier’s contact person. U.S. v. Chavez, 229 F.3d 946 (10th Cir. 2000).
10th Circuit reverses minor role reduction for seller of three kilograms of cocaine. (445) Defendant agreed to obtain cocaine and sell it to a paid informant. Defendant acquired the cocaine from Chavez and Torrez. The district court granted defendant a § 3B1.2 minor role reduction. The Tenth Circuit held that it was clear error to conclude that a seller of nearly three kilograms of cocaine who helped orchestrate its sale by contacting suppliers was a minor participant. The fact that the government “preyed” on defendant’s sympathy did not diminish his substantial role in the offense. U.S. v. Garcia, 182 F.3d 1165 (10th Cir. 1999).
10th Circuit denies minor role reduction to middleman in drug transaction. (445) Defendant attempted to purchase six kilograms of cocaine from an undercover agent and an informant. While the informant inspected the money, defendant ran some tests on the cocaine to determine its quality. After he was arrested, defendant told agents that he was merely a middleman in the transaction, and that an unknown man would be picking up the drugs later that day. The district court found that defendant was not entitled to a minor role reduction because he (1) handled a large sum of cash, (2) had responsibility for transporting the cocaine, (3) had some knowledge of cocaine, and (4) stated that he could arrange a multi-pound marijuana deal. The Tenth Circuit agreed that these facts supported the denial of a minor role reduction. A defendant is not entitled to a § 3B1.2 reduction solely because he was a middleman. U.S. v. Onheiber, 173 F.3d 1254 (10th Cir. 1999).
10th Circuit says defendant cannot be minor participant in his own conduct. (445) Defendant pled guilty to RICO charges in connection with a drug trafficking enterprise. He contended that he deserved a § 3B1.2(b) reduction as a minor participant in the enterprise. The Tenth Circuit held that defendant did not merit a minor role reduction because his sentence was based only on the drugs he himself distributed. When the relevant conduct of the larger conspiracy is not taken into account in establishing a defendant’s base offense level, a § 3B1.2 reduction is not warranted. A defendant cannot be a minor participant in his own conduct. U.S. v. James, 157 F.3d 1218 (10th Cir. 1998).
10th Circuit holds that alleged courier failed to prove minor role in drug scheme. (445) Defendant was arrested on a train to Las Vegas carrying a bag containing six whiskey bottles filled with PCP. He sought a § 3B1.2 minor role reduction on the ground that he was merely a drug “mule” or “courier.” The Tenth Circuit held that defendant failed to meet his burden of proving that he played a minor role in the offense. Although defendant argued that the circumstances suggested that other participants were necessarily involved in the crime, the district court was not required to accept defendant’s own declarations about his level of participation. U.S. v. Gault, 141 F.3d 1399 (10th Cir. 1998).
10th Circuit rules defendant who learned to make meth was not a minor participant. (445) The district court rejected defendant’s claim that he was a minor participant in a methamphetamine operation. The Tenth Circuit affirmed, based on evidence that defendant had traveled from California to Oklahoma for the purpose of learning to manufacture methamphetamine, and that he lived in Oklahoma rent-free with the leaders of the conspiracy while defendant bought ingredients for and cooked methamphetamine. Defendant also directed a co-conspirator to do small tasks in the drug lab. U.S. v. Smith, 131 F.3d 1392 (10th Cir. 1997).
10th Circuit says accessory after the fact not entitled to minor role reduction. (445) Defendant pled guilty to being an accessory after the fact to murder. The Tenth Circuit rejected defendant’s claim that he was entitled to a reduction under § 3B1.2 for his mitigating role as an accessory after the fact. Section 2X3.1, which provides the base offense level for accessory after the fact, already takes into account the defendant’s reduced role in the underlying offense. Under note 2, the § 3B1.2 reduction would not apply because the adjustment for reduced culpability is incorporated in the base offense level. U.S. v. Henning, 77 F.3d 346 (10th Cir. 1996).
10th Circuit denies minor role where defendant permitted drug dealer to use his apartment. (445) Defendant rented an apartment and a drug dealer helped him pay for it. Defendant knew the dealer was selling cocaine and using the apartment to prepare and store crack, contact potential buyers, and store money. Defendant acknowledged that he sometimes traveled with the dealer to pick up money and had sold cocaine for the dealer on occasion over a period of several months. Under these circumstances, the Tenth Circuit denied a minor role reduction. Defendant served an important function in the drug distribution network. U.S. v. Ayers, 84 F.3d 382 (10th Cir. 1996).
10th Circuit upholds use of “substantially” less culpable standard. (445) Defendant challenged the district court’s statement that § 3B1.2 applies to an individual who is “substantially” less culpable than the average participant. The Tenth Circuit found that the background commentary supported the district court’s use of the term “substantially. The commentary states that § 3B1.2 provides “a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.” Moreover, defendant, a police officer, was not less culpable than the others. He served as a watchdog for the drug operation, keeping everyone informed of possible investigations and warning members of how and when to conduct their business. He also was a financial adviser to the organization. Although defendant’s conduct was qualitatively different from the other participants, he was not less culpable. U.S. v. Williamson, 53 F.3d 1500 (10th Cir. 1995).
10th Circuit rejects § 3B1.2 reduction for defendant who cooked cocaine and served as runner. (445) Defendant argued that she was less culpable than the others in a drug operation. The Tenth Circuit rejected a § 3B1.2 reduction in light of evidence that defendant cooked the cocaine powder into crack and served as a runner. Defendant’s involvement was at least as great, if not greater, than a courier. U.S. v. Williamson, 53 F.3d 1500 (10th Cir. 1995).
10th Circuit denies minor role reduction to “middleman.” (445) Defendant was convicted of distributing cocaine and marijuana. He argued that he was entitled to a minor role reduction because he was only a middleman who simply facilitated drugs sales from a drug dealer to third parties. The 10th Circuit upheld the denial of the reduction, since defendant’s conduct involved multiple distributions of controlled substances. Even if defendant was merely a middleman, this fact alone would not compel the district court to grant the reduction. U.S. v. Santistevan, 39 F.3d 250 (10th Cir. 1994).
10th Circuit denies mitigating role even though defendant may have been least culpable member of conspiracy. (445) Defendant drove a car to the bus station to obtain cocaine from a courier. The 10th Circuit affirmed the conclusion that defendant was not a minimal or minor participant even though he may have been less culpable than his co-conspirators. He knew that the purpose of the trip was to obtain cocaine, and he expected “to get something out of it.” Thus, he had knowledge or understanding of the scope and structure of the enterprise and the activities of others. U.S. v. Lockhart, 37 F.3d 1451 (10th Cir. 1994).
10th Circuit says defendant driving van full of illegal aliens was not a minor participant. (445) Defendant and an accomplice transported illegal aliens in a van driven by defendant. The 10th Circuit held that defendant was not entitled to a minor participant reduction because he knew that the aliens’ presence was illegal and that he could get in trouble for driving the van. Even if the accomplice was the mastermind of the plan, defendant’s actions in executing the plan, with the knowledge he possessed, made him as culpable as his accomplice. U.S. v. Chavez-Palacios, 30 F.3d 1290 (10th Cir. 1994).
10th Circuit agrees that defendant was not a minor participant in cocaine smuggling venture. (445) The 10th Circuit found sufficient evidence to support the district court’s decision that defendant was not a minor participant in a cocaine smuggling venture. Defendant was a willing, knowing participant who “did whatever he could” to facilitate the offense. He was an active participant for over four months in arranging and providing money to facilitate the transportation of the cocaine. He was just as culpable as most of the other participants. U.S. v. Pedraza, 27 F.3d 1515 (10th Cir. 1994).
10th Circuit says defendant’s absence during drug buy did not make him a minor participant. (445) Defendant and others were involved in a LSD-for-marijuana trade with undercover agents. The 10th Circuit rejected defendant’s claim that he was a minor participant simply because he was not present at the transaction. There was evidence that defendant was equally as culpable as the others. Defendant appeared to be the superior of one associate, because defendant had contacted the associate and asked him to arrange the trade. Defendant was the participant who had the LSD contact and who received the LSD. U.S. v. Telman, 28 F.3d 94 (10th Cir. 1994).
10th Circuit rules that courier was not a minor participant. (445) Defendant transported 17 pounds of marijuana. The 10th Circuit concluded that she was not a minor participant since she had been involved in this venture at least four months before transporting the 17 pounds, she had acquired the vehicle used for transportation, and admitted acting as a courier in December 1992. U.S. v. Montoya, 24 F.3d 1248 (10th Cir. 1994).
10th Circuit refuses to find minor participation based solely on defendant’s assertion that she was mere courier. (445) Defendant was arrested while driving a van containing 20 kilograms of cocaine from California to Missouri. She contended that she should have received a minor or minimal role reduction because she was only the driver of the van, and was not the owner of the van or the cocaine. The 10th Circuit refused to order the reduction, finding defendant’s assertion that she was a minor or minimal participant was not enough to overcome the clearly erroneous standard. Moreover, the circuit has refused to adopt a per se rule that couriers are minor or minimal participants. U.S. v. Ballard, 16 F.3d 1110 (10th Cir. 1994).
10th Circuit finds defendant failed to prove he was a minimal participant. (445) Defendant argued that he was a minimal participant, rather than merely a minor participant. The 10th Circuit found that defendant failed to meet his burden of proving he was entitled to the further reduction. Although he was not found to have been involved in the conspiracy before the March 9 transaction, he did on that date drive a co-conspirator to Topeka, retrieve P2P from the car, and carry the money out of the room. Defendant failed to show his lack of knowledge or understanding of the scope and structure of the enterprise. U.S. v. Johnson, 12 F.3d 1540 (10th Cir. 1993).
10th Circuit rejects minimal role for defendant who presented no evidence at sentencing. (445) Defendant argued for the first time on appeal that he deserved a minimal participant role reduction under §3B1.2(a). The 10th Circuit rejected this argument, since the evidence demonstrated his knowledge of and participation in the marijuana farm, and defendant presented no evidence in mitigation of his activity. U.S. v. Occhipinti, 998 F.2d 791 (10th Cir. 1993).
10th Circuit rejects minimal role for drug courier. (445) The 10th Circuit rejected a minimal role adjustment for defendant, even though he was only a drug courier or “mule.” Because drug couriers are an indispensable component of drug dealing networks, the Circuit has refused to adopt a per se rule allowing a downward adjustment based solely on a defendant’s status as a courier. Here, defendant was involved in transporting over 900 pounds of marijuana in vehicles for which he had purchased the insurance. He played an important role in the marijuana trafficking operation, and as such, his role was not minimal. U.S. v. Rangel-Arreola, 991 F.2d 1519 (10th Cir. 1993).
10th Circuit rejects mitigating role for defendant in middle of distribution chain. (445) The 10th Circuit affirmed the district court’s denial of a downward adjustment under section 3B1.2 based upon defendant’s role in a marijuana conspiracy. Defendant was in the middle of a distribution chain. Each link knew who he got marijuana from and to whom he was passing it. But, no one seemed to know, much less direct, all of the links in the chain. Defendant’s knowledge and activity in the case did not set him apart as a minor participant. U.S. v. Garcia, 987 F.2d 1459 (10th Cir. 1993).
10th Circuit rejects mitigating role adjustment for street-level drug dealer. (445) The 10th Circuit rejected a mitigating role adjustment for a street level dealer of methamphetamine. A drug dealer is not ordinarily classified as either a minor or minimal participant. There was considerable evidence that defendant was knowledgeable and was an integral part of the conspiracy. The fact that defendant sold illegal drugs only to users did not by itself warrant a mitigating role adjustment. U.S. v. Youngpeter, 986 F.2d 349 (10th Cir. 1993).
10th Circuit says courier of 20 kilograms of cocaine was not a minor participant. (445) The 10th Circuit affirmed that a defendant transporting over 20 kilograms of cocaine was not a minor participant. Conduct involving such a large quantity of narcotics runs counter to note 1 to section 3B1.2, which states that a mitigating role adjustment may be appropriate where an individual was recruited as a courier for a single smuggling transaction involving a small quantity of drugs. U.S. v. Martinez, 983 F.2d 968 (10th Cir. 1992).
10th Circuit rejects minor participant and “not for profit” reductions for transporter of illegal aliens. (445) Defendant was convicted of transporting illegal aliens. He contended that he was entitled to a reduction under section 3B1.2 for being a minor participant and under section 2L1.1(b)(1) because he did not commit the crimes for profit. The 10th Circuit rejected the argument. Four of defendant’s passengers testified that defendant stopped the car before the Border Patrol checkpoint, unloaded the passengers, drove the car through the checkpoint, and then stopped to pick the passengers up on the other side. One witness testified that he paid defendant $750. U.S. v. Uresti-Hernandez, 968 F.2d 1042 (10th Cir. 1992).
10th Circuit affirms that drug courier was not entitled to mitigating role adjustment. (445) Although defendant and the government made a non-binding stipulation that defendant was a minimal participant, the district court refused to grant defendant either a minimal or a minor role reduction. The 10th Circuit affirmed. Defendant was arrested on a train while transporting 42 pounds of marijuana from Los Angeles to Boston. A courier is an essential cog in any drug distribution scheme and in the instant case transporting 42 pounds of marijuana from Los Angeles to Boston was apparently quite important to all parties. Defendant’s services were as indispensable to the completion of the criminal activity as those of the seller in Los Angeles and the buyer in Boston. To debate which was less culpable than the others was not productive. U.S. v. Carter, 971 F.2d 597 (10th Cir. 1992).
10th Circuit finds minor or minimal status to be determined by defendant’s combined role in both offenses. (445) Defendant pled guilty to one count of distributing cocaine, and one count of distributing crack. The district court refused to give him a reduction for mitigating role, basing its decision on his role in distributing all of the drugs. Defendant argued that the court should have calculated a separate base offense level for each offense and then made a separate role adjustment for each offense. The 10th Circuit rejected this approach, ruling that the court must examine all relevant conduct in determining whether to make such an adjustment. Defendant was clearly not entitled to minimal or minor status in these offenses. The evidence demonstrated that he was a principal or an aider and abettor in all eight deliveries of cocaine to undercover agents, and he alone was involved in the delivery of the crack. U.S. v. Riles, 928 F.2d 339 (10th Cir. 1991).
10th Circuit rejects minor status for only defendant charged in the offense. (445) Defendant pled guilty to possessing counterfeit money and certain drug charges. He contended he was entitled to a minor or minimal role reduction under guideline § 3B1.2 because his role in the counterfeiting offense was merely that of a courier, he did not know how to print counterfeit notes, he was not a major distributor, and he derived no cognizable profit from the illicit activity. The 10th Circuit found that the district court’s refusal to adjust downward was not clearly erroneous. A defendant’s status as a courier does not necessarily mean that he was a minor participant. Moreover, because defendant was the only individual charged in the matter, no downward adjustment should be given for his role in the offense. U.S. v. McCann, 940 F.2d 1352 (10th Cir. 1991).
10th Circuit rejects minor participant status for driving car with drugs across border. (445) Defendant was arrested at the Mexican border after a search disclosed over 22 kilograms of marijuana hidden in the door panels of the vehicle he was driving. The 10th Circuit affirmed the district court’s denial of a reduction based on defendant’s minor role in the offense. The facts were almost a “carbon copy” of U.S. v. Pelayo-Munoz, 905 F.2d 1429 (10th Cir. 1990), in which the 10th Circuit held that a drug courier is not necessarily a minor participant. Here, the record did not require the district court to find defendant was a minor participant. Defendant was the driver and sole occupant of a vehicle which was carrying marijuana hidden in its door panels. Although defendant claimed not to have knowledge of the drugs, and suggested that they had been hidden in the car by its former owner, the district court was not obligated to accept this contention. U.S. v. Rios-Ramirez, 929 F.2d 563 (10th Cir. 1991).
10th Circuit finds defendant who refused to reveal amount of money he expected to receive was not a minor participant. (445) At the request of a government informant, defendant introduced the informant to his drug supplier. Defendant argued that he should have been given a downward adjustment because he was less culpable than the supplier of the crack. The 10th Circuit rejected this argument. Defendant admitted he participated in the transaction for the money, but refused to reveal the amount he was to receive, so a comparison with his codefendant was impossible. Moreover, since a mandatory minimum sentence of 20 years applied to defendant, the issue was moot, since 20 years was higher than the bottom of his guideline range whether or not he was a minor or minimal participant. U.S. v. Adams, 914 F.2d 1404 (10th Cir. 1990).
10th Circuit upholds determination that defendant was not a minor participant. (445) Defendant traveled from the United States to Mexico, and returned to the United States in a plane with over 1000 pounds of marijuana. Defendant also had a prior drug-related conviction. The 10th Circuit found that these facts justified the district court’s determination that defendant was not a minor participant. Although the judge failed to specify his reasons for making this finding, there is no legal requirement that a judge state reasons for his findings of fact. U.S. v. Donaldson, 915 F.2d 612 (10th Cir. 1990).
10th Circuit finds that defendant who participated in attempted prison escape was not a minor participant. (445) Defendant contended that he was a minor participant in an attempted prison escape. Defendant alleged that he had no prior knowledge of the escape attempt, did not participate in the planning, and was coerced into taking part after its initiation by other inmates. An institutional employee who witnessed the escape attempt testified that there was no indication that defendant was being coerced. The witness testified that he had been grabbed and restrained by three inmates, one of whom he thought was defendant. In addition, testimony showed that defendant used a welding torch to cut two metal bars that blocked a tunnel leading to an unguarded area, which the prisoners used to reach the outer perimeter of the prison. Based on this evidence, the 10th Circuit found that the district court’s determination that defendant was not a minor participant was not clearly erroneous. U.S. v. Alvarez, 914 F.2d 915 (7th Cir. 1990), superseded on other grounds by rule as stated in Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
10th Circuit finds that drug distributor was not a minor participant. (445) Defendant sold cocaine to government agents on three separate occasions. It was stipulated that the surveillance revealed that “although [defendant] supplied the cocaine to the agent, he was not the source of the cocaine and was less culpable than other individuals involved.” Defendant argued that this entitled him to a reduction based on his status as a minor participant. The district court found that no minor roles existed in the drug traffic trade, since it “takes everyone’s participation to make it happen.” The 10th Circuit found this conclusion erroneous, since the guidelines clearly envision that categories of minor and minimal participants will be applied to those involved in drug trafficking. However, the district court had alternatively determined that one who makes three sales was not entitled to a reduction as a minor participant. Since defendant presented no evidence other than the stipulation in support of his argument for a decrease, the 10th Circuit upheld the district court’s determination. U.S. v. Oliva-Gambini, 909 F.2d 417 (10th Cir. 1990).
10th Circuit finds that use of stolen credit card on 15 separate occasions involved more than minimal planning. (445) Defendant’s brother and his brother’s girlfriend were U.S. Postal Service employees who took credit cards from the mails and gave them to family and friends. Defendant personally used “his” stolen card 15 times in 15 different locations during a one month period. Each purchase involved “several calculated falsehoods including a forged signature.” The 10th Circuit concluded that the district court’s determination that defendant’s offense involved more than minimal planning was not clearly erroneous. The 10th Circuit also rejected defendant’s argument that he was a minor participant. Defendant was not convicted of conspiracy, he pled guilty only to his own fraudulent use of the card. Therefore, he was solely responsible for his crime. Moreover, defendant clearly had knowledge of his brother’s and his wife’s activities with respect to the credit cards. He even recruited his wife to become involved in the scheme. U.S. v. Sanchez, 914 F.2d 206 (10th Cir. 1990).
10th Circuit finds that courier is not a minimal participant. (445) The 10th Circuit rejected defendant’s argument that his status as a courier in a drug-smuggling operation entitled him to a reduction in sentence as a minimal participant. Defendant furnished his own automobile to smuggle the drugs, recruited two friends to walk the drugs over the border, knew the quantity of drugs involved and knew the destination. The 10th Circuit also rejected defendant’s argument that he should be considered a minimal participant because this was his first attempt at smuggling and his actions were obviously those of an amateur, noting that a defendant’s criminal skill, criminal history or lack thereof is not a factor to be considered in determining whether someone is a minimal participant. U.S. v. Calderon-Porras, 911 F.2d 421 (10th Cir. 1990).
10th Circuit finds that courier is not a minor participant. (445) The 10th Circuit rejected defendant’s contention that his status as a courier in a drug-smuggling operation entitled him to a reduction in sentence as a minor participant. The court found that by transporting the drugs over the border, defendant was not less culpable than the people who sold or purchased the drugs. Moreover, there was no evidence in the record that there were other participants, and when culpability must be weighed, evidence of other participants and their role in the criminal activity must exist. U.S. v. Arredondo-Santos, 911 F.2d 424 (10th Cir. 1990).
10th Circuit rules that defendant who stored chemicals to produce methamphetamine was not a minor participant. (445) Defendant pled guilty to attempting to produce methamphetamine, and argued that he was a minor participant based on the fact that he did not purchase the chemicals or mix them into methamphetamine; his sole role was to store the chemicals which he then turned over to a third party. The 10th Circuit found that defendant had failed to meet the burden of proof necessary to decrease his sentence, and upheld the district court’s determination that defendant was not a minor participant. U.S. v. Havens, 910 F.2d 703 (10th Cir. 1990).
10th Circuit upholds denial of minor participant adjustment in telemarketing scheme. (445) Defendant and a codefendant were convicted for involvement in a fraudulent telemarketing scheme. Defendant argued that the district court should have granted him a downward adjustment for being a minor participant in the scheme. Under U.S.S.G. § 3B1.2(b), a minor participant is any participant who is less culpable than most of the other participants, but whose role cannot be described as minimal. The 10th Circuit upheld the sentencing court’s denial of the adjustment, as not clearly erroneous. U.S. v. Lord, 907 F.2d 1028 (10th Cir. 1990).
10th Circuit holds that drug courier is not automatically entitled to minor participant adjustment. (445) Defendant was stopped near the border by agents who discovered over 100 pounds of marijuana in his truck. After they found the marijuana, the agents realized that a vehicle that had been stopped just ahead of defendant might have been a scout. Although they found defendant’s wallet inside the scout vehicle, they released the individuals. The defendant asserted that because he was a mere courier acting under the control and supervision of the scout vehicle, he was entitled to a minor participant adjustment under § 3B1.2. The 10th Circuit disagreed, finding that because that section turned upon culpability, not courier status, it was not error for the trial court to deny him the adjustment. U.S. v. Pelayo-Munoz, 905 F.2d 1429 (10th Cir. 1990).
11th Circuit rejects role reduction for defendant who profited significantly from criminal fraud. (445) Defendant, a co-founder and Chief Operating Officer of CSHC, was convicted of securities fraud stemming from his role in a “pump and dump” scheme, in which misrepresentations artificially boosted CSHC’s stock price and allowed insiders to sell inflated shares. Because evidence showed defendant substantially participated in and profited from the criminal fraud, the Eleventh Circuit held that the district court did not clearly err in denying him a minor role reduction. The district court found that defendant recruited investors and lenders for CSHC; falsely stated that CSHC owned bond assets, had multiple projects, and signed contracts in place; and made false statements to individual investors. Defendant was named as a contact person on several false press releases. He and another conspirator jointly provided false financial information to an outside accountant who prepared financial statements for the SEC. Defendant also profited significantly from the fraud, drawing more than $300,000 in salary and reaping gains when his ex-wife and daughters sold CSHC’s stock at fraudulently inflated prices. U.S. v. Stanley, 739 F.3d 633 (11th Cir. 2014).
11th Circuit finds defendant was not minor participant in bribery scheme. (445) Defendant, a former zoning official, was convicted of fraudulently obtaining low-income housing funds to renovate his home, and federal bribery charges. The Eleventh Circuit agreed with the district court that defendant was not a minor participant in the bribery conspiracy. Defendant helped initiate the bribery scheme, set the amount of the bribe, and accepted the role of conveying the bribes to county commissioners. Defendant’s “significant role” in the conspiracy was not incongruent with the conduct for which he was held accountable. Thus, even if defendant was correct that, as a facilitator, he played a smaller role in the conspiracy than did the county commissioners, he does not show how the district court clearly erred in measuring his role in the conspiracy against the conduct for which he was held accountable. U.S. v. Keen, 676 F.3d 981 (11th Cir. 2012).
11th Circuit agrees that defendant was leader of grade-changing scheme. (431) Defendant and his accomplices accessed their university’s Internet-based grading system and changed grades, added credits for courses which had been failed or not taken, and changed the residencies of several non-resident students to qualify them for in-state tuition. Defendant challenged a § 2B1.1(c) leadership enhancement, contending that the scheme consisted of “a group of students conducting a loosely coordinated college grades offense,” without a hierarchy. The Eleventh Circuit disagreed. The evidence showed that defendant initiated the scheme, solicited others to help, and was a driving force beyond the attempt to throw off the investigation and continue making grade changes. U.S. v. Barrington, 648 F.3d 1178 (11th Cir. 2011).
11th Circuit says men who contributed $3,000 and $8,000 to $35,000 drug buy did not have minor roles. (445) FBI agents arrested defendant and several others for attempting to buy cocaine from an FBI informant in Miami. Defendant argued that the district court erred in denying their requests for minor role reductions under § 3B1.2(b). They noted that they only contributed $3,000 and $8,000, respectively, to the drug buy, that they did not engage in any of the negotiations or planning of the deal, and that they remained in the car while their three co-conspirators were attempting to consummate the transaction. The Eleventh Circuit held that the district court did not clearly err in denying defendant’s requests for a minor role reduction. The district court properly determined that it had the basis for finding that the men were engaged in a joint enterprise and that contributing $3,000 or $8,000 to a $35,000 drug buy was significant. U.S. v. Bernal-Benitez, 594 F.3d 1303 (11th Cir. 2010).
11th Circuit says considering firearm in evaluating role in offense was not double counting. (445) Defendant was convicted of conspiracy to possess and distribute cocaine and possession of a firearm in furtherance of that conspiracy. He argued that the court clearly erred when it denied him a minor role reduction based on part on his possession of a firearm. He asserted that this amounted to double-counting of the firearm use, which is prohibited by Note 4 to §2K2.4. The Eleventh Circuit rejected defendant’s double counting argument, finding that Note 4 was inapplicable here. That Note bars a court from applying certain firearm enhancements when the defendant has also been sentenced for the firearm offense. It says nothing about whether a court, in denying a defendant a minor role reduction, may consider that defendant obtained a firearm for a robbery. Although the court was prohibited from using the firearm to increase the base offense level for the conspiracy charge, the court was entitled to consider the firearm when evaluating defendant’s argument about a minor role reduction. U.S. v. Docampo, 573 F.3d 1091 (11th Cir. 2009).
11th Circuit remands for consideration of whether defendant who received aggravated role enhancement can also receive mitigating role reduction. (445) Defendant (1) actively recruited two individuals to transport drugs, (2) arranged for one of those recruited individuals to transport cocaine, (3) directly paid at least one of those individuals for transporting cocaine, and (4) was, in turn, paid for his recruitment and supervision of individuals in that drug conspiracy. Therefore, the district properly assessed defendant an aggravated role enhancement under § 3B1.1 (c). However, defendant also argued that he played a minor role in the offense. In response, the government assumed, without citation or analysis, that if the leadership enhancement was proper, then defendant could not also receive a minor role reduction. The government did not discuss two cases addressing this issue, both which reached a contrary conclusion. See U.S. v. Tsai, 954 F.2d 155 (3d Cir. 1992); U.S. v. Jackson, 207 F.3d 910 (7th Cir. 2000), rev’d on other grounds, 531 U.S. 953 (2000). But see U.S. v. Conley, 156 F.3d 78 (1st Cir. 1998) (managerial role is “fundamentally inconsistent with minor or minimal role). The Eleventh Circuit has not addressed this issue, and it was unclear whether the district court, in refusing to grant the minor role reduction, even considered it. The case was remanded to the district court “for consideration of both the legal and factual issues concerning the defendant’s request for a minimal or minor role reduction.” U.S. v. Perry, 340 F.3d 1216 (11th Cir. 2003).
11th Circuit denies minor role reduction to defendant who helped download 45 stolen credit card numbers. (445) Defendant pled guilty to conspiracy to defraud, use and traffic in counterfeit credit cards. Defendant signed a statement of facts indicating that she hooked up a computer and helped download 45 stolen credit cards numbers. Her role in the conspiracy was no less significant than those played by her co-conspirators. Therefore, the Eleventh Circuit held that she was properly denied a minor role reduction. U.S. v. Freixas, 332 F.3d 1314 (11th Cir. 2003).
11th Circuit holds that court properly analyzed defendant’s role before denying reduction. (445) In November 2001, the Sentencing Commission proposed Amendment 635, which revised the commentary to § 3B1.2 to provide that 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” of a § 3B1.2 minor rule adjustment. In light of Amendment 635, defendant contended that the district court erred in stating that rarely will a defendant be a minor participant when he is only being held accountable for his own conduct. The Eleventh Circuit rejected defendant’s argument. Amendment 635 adopted this circuit’s holding in U.S. v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc), which stated that “[w]e do not create a presumption that drug couriers are never minor or minimal participants, any more than that they are always minor or minimal. Rather, we hold only that the district court must assess all of the facts probative of the defendant’s role in her relevant conduct in evaluating the defendant’s role in the offense.” The Sentencing Commission, through Amendment 635, has ratified De Varon. The district court, in denying defendant a minor role adjustment, did not commit a legal or factual error, not did it create a per se law. The court, after analyzing defendant’s role in the offense, found that defendant played an integral role and thus denied the reduction. U.S. v. Boyd, 291 F.3d 1274 (11th Cir. 2002).
11th Circuit rejects minor role reduction for defendant involved in purchase of 500 kilograms of marijuana. (445) Defendant argued that he held a minor role in the drug conspiracy and deserved a § 3B1.2(b) reduction. The Eleventh Circuit disagreed. The relevant conduct used to calculate defendant’s offense level included the agreement by his co-defendant to buy 500 kilograms of marijuana. Moreover, the evidence supported a finding beyond a reasonable doubt that defendant knowingly joined in that agreement from at least the time when his co-defendant supplied defendant’s phone number to the informant until defendant’s arrest at the scene of the drug deal. The same evidence supported the district court’s finding that defendant failed to establish by a preponderance of the evidence that his role, as compared to the relevant conduct, was minor. U.S. v. Ryan, 289 F.3d 1339 (11th Cir. 2002).
11th Circuit rejects minor role for RICO defendant even though he was involved for a short period. (445) The district court found that although defendant may have been a member of the RICO enterprise for a short period compared to most of the other participants, he knew and understood the scope of the enterprise’s activities. His knowledge of the operation, coupled with his conduct, led the court to conclude that his role in the enterprise was not so minor as to warrant a two-level downward adjustment under § 3B1.2(b). The Eleventh Circuit affirmed the district court’s finding as not clearly erroneous. U.S. v. Nguyen, 255 F.3d 1335 (11th Cir. 2001).
11th Circuit upholds court’s reliance on factors relating to drug courier status. (445) In U.S. v. Campbell, 139 F.3d 820 (11th Cir. 1998), an Eleventh Circuit panel held that it was improper for the sentencing court to consider factors relating solely to defendant’s status as a drug courier in denying her a minor role reduction. On motion of the government, the appellate court stayed the mandate of this case until rehearing en banc of U.S. v. DeVaron, 136 F.3d 740 (11th Cir. 1998). In U.S. v. DeVaron, 136 F.3d 740 (11th Cir. 1998), the Eleventh Circuit, en banc, overruled circuit precedent holding that it was improper to consider under § 3B1.2 factors relating to a defendant’s status as a drug courier. In light of that en banc opinion, the Eleventh Circuit vacated its previous Campbell opinion and held that it was not improper for the district court to rely on factors relating to defendant’s status as a drug courier in denying her a minor role adjustment. U.S. v. Campbell, 181 F.3d 1263 (11th Cir. 1999).
11th Circuit denies drug broker minor role reduction. (445) In discussing defendant’s role in a drug deal, the district court said that brokers “almost never have an aggravated role of being an organizer leader, supervisor or manager. But they also never have a []minor role or a minimal role. They are a classic example of somebody who deserves whatever the standard level is … I see nothing in the circumstances of this case to depart either upward or downward in the determination of the levels.” Defendant argued that the district court erred by applying a per se rule excluding brokers from being eligible for a mitigating role adjustment. The Eleventh Circuit held that the district court properly denied the reduction based on the individual facts of the case. The court did not construe the guidelines to categorically exclude drug brokers from a § 3B1.1 reduction. Instead, the court articulated a rough guide, which it then applied to the particular facts of defendant’s case. The district court did not commit clear error in refusing the reduction. Defendant had multiple contacts with the other participants in the enterprise about various cocaine transactions. The government also presented evidence that defendant was involved in the large-scale importation scheme. U.S. v. Cataldo, 171 F.3d 1316 (11th Cir. 1999).
11th Circuit holds extensive involvement in numerous drug transactions barred minimal role reduction. (445) Defendants contended that they should have been classified as minimal participants in a cocaine distribution conspiracy, rather than simply as minor participants. The Eleventh Circuit held that defendants’ extensive involvement in numerous drug transactions precluded them from receiving the minimal role reduction. Although the first defendant undertook few, if any, independent drug transactions, she was heavily involved in the supplier’s regular deals and cocaine purchasing trips outside the area. A co-conspirator testified that the second defendant sold him and at least five other persons cocaine for personal use and redistribution over a two-year period. U.S. v. Matthews, 168 F.3d 1234 (11th Cir. 1999).
11th Circuit rejects child pornography role reduction or downward departure. (445) Defendant downloaded to his computer in California child pornography from a computer bulletin board service in Denmark. He then uploaded the files to persons in Georgia and other states. A search of defendant’s residence disclosed a large amount of pornography files, many of which contained child pornography. Only two of his hundreds of files were from the Denmark service. He pled guilty to a single count of transporting child pornography in connection with his transfer of the files from California to Georgia. The Eleventh Circuit held that defendant was not entitled to a minor role reduction or a downward departure by analogy to § 3B1.2. Defendant was not a minor participant in a large conspiracy. He acted independently; there was no showing that he or any bulletin board service acted in concert. There was no valid reason for a downward departure. No one other than defendant was involved in transmitting the pornography to Georgia. U.S. v. Everett, 129 F.3d 1222 (11th Cir. 1997).
11th Circuit rejects minimal role where defendant provided van and stored drugs at his house. (445) Defendant argued that he played only a minimal role in a drug smuggling conspiracy. The Eleventh Circuit disagreed, noting that he provided his van for transporting a load of cocaine and was willing to allow his residence to be used to store the cocaine. This greatly contributed to the success of the conspiracy. Although defendant’s efforts may have not have been enough to make him the linchpin of the operation, his contribution was not minimal. U.S. v. Calderon, 127 F.3d 1314 (11th Cir. 1997).
11th Circuit says union official who received bribe was not minor participant. (445) A union official invested union funds in the stock of a real estate company in return for receiving a personal loan that he was otherwise unqualified to receive. Defendant introduced the official to the head of the real estate company and was involved in negotiating the union investment. The Eleventh Circuit found defendant ineligible for a minor role reduction because he was the facilitator of the transaction and played a significant role in assuring that the illegal transactions were completed. He also profited, at least indirectly, from them. U.S. v. Kummer, 89 F.3d 1536 (11th Cir. 1996).
11th Circuit rejects minor role where defendant only held accountable for drugs in count of conviction. (445) Defendant pled guilty to using a telephone to further a drug conspiracy. He claimed he played only a minor role in the offense. The Eleventh Circuit affirmed, since any error was to defendant’s benefit. The district court did not take all of defendant’s relevant conduct into account at sentencing. Instead, it attributed to him only the quantity of drugs involved in the count of conviction. Had the court properly applied § 1B1.3(a)(1)(B) and attributed to defendant all of the drugs that he reasonably knew were part of the conspiracy, his total offense level would have been considerably higher than the level 14 the court used. U.S. v. Holley, 82 F.3d 1010 (11th Cir. 1996).
11th Circuit rejects reduction where defendant “no less culpable” than conspiracy’s leader. (445) Defendant was involved in a large cocaine conspiracy. The Eleventh Circuit affirmed the denial of a minor role reduction. The district court properly found that while defendant did not fill a leadership role in the conspiracy, he and the other co-conspirators were no less culpable than the leader. U.S. v. Reid, 69 F.3d 1109 (11th Cir. 1995).
11th Circuit rejects minimal role reduction where defendant participated in several drug deals. (445) Defendant argued that he was a minimal participant in a cocaine conspiracy. The Eleventh Circuit disagreed based on evidence that defendant accompanied a co-conspirator to all significant events leading to their arrest. Defendant was present at and participated in several drug negotiations, offering suggestions on how to transport and store the cocaine. He actively participated in the attempted delivery of the cocaine. U.S. v. Camargo-Vergara, 57 F.3d 993 (11th Cir. 1995).
11th Circuit rejects downward departure where all others involved were government agents. (445) Defendant was convicted of receiving child pornography through the mail. He was ineligible for a role adjustment under § 3B1.2 because he was the only criminally culpable person involved — the persons from whom he ordered the child porn were government agents. Following the 3rd Circuit’s decision in U.S. v. Bierley, 922 F.2d 1061 (3rd Cir. 1990), the district court departed downward based on defendant’s role in the offense. The 11th Circuit reversed, finding the Commission expressly considered and rejected the possibility of a role reduction where all the other actors were government agents. Moreover, a downward departure on these grounds would suggest the government itself was culpable; a result that would “fl[y] in the face” of the jury’s determination that defendant was not entrapped. U.S. v. Costales, 5 F.3d 480 (11th Cir. 1993).
11th Circuit rejects minimal participant reduction for defendant in cocaine decontamination scheme. (445) Defendant assisted a co-conspirator in purifying contaminated cocaine. The 11th Circuit upheld the district court’s refusal to grant defendant a minimal participant reduction. The evidence showed that defendant knew of the decontamination scheme and willingly participated in it. U.S. v. Freyre-Lazaro, 3 F.3d 1496 (11th Cir. 1993).
11th Circuit holds middleman not entitled to minor role reduction. (445) Defendant was not the drug supplier, but he set up transactions and had some decision-making authority. He was not a mere mule but acted as a middleman through whom buys were made. Defendant was present at some buys, and at times the money was handed to him. At some of the buys a person working for defendant would make the actual delivery of the drugs purchased. Under these circumstances, the 11th Circuit affirmed the denial of a minor role reduction for defendant. U.S. v. Jones, 1 F.3d 1167 (11th Cir. 1993).
11th Circuit rejects minor role reduction for drug conspirator. (445) Defendant claimed he was entitled to a reduction under section 3B1.2(b) for being a minor participant. The 11th Circuit rejected this argument in light of evidence that defendant was a member of the cocaine conspiracy all along, knew the other co-conspirators, served as a liaison between the confidential informant and the other co-conspirators in three recorded telephone conversations prior to the actual meeting, and arranged the manner in which the transaction would occur. U.S. v. Gates, 967 F.2d 497 (11th Cir. 1992).
11th Circuit rejects mitigating role adjustment for drug courier. (445) The 11th Circuit rejected defendant’s claim that she was entitled to a mitigating role adjustment because she was a merely a courier in the drug conspiracy. Defendant and three other women were arrested together at the Miami airport, each carrying a package containing more than 1,100 grams of cocaine tied to her inner thigh. Defendant knew that all four women were attempting to bring into the United States a substantial quantity of cocaine. She traveled together with the other three and all were obvious participants in the conspiracy. The fact that she carried slightly less cocaine with a lower degree of purity than the drugs carried by the other conspirators did not make her the least culpable. U.S. v. Cacho, 951 F.2d 308 (11th Cir. 1992).
11th Circuit holds stipulation in plea bargain that defendant’s role was “minor” was not binding on the court. (445) Under the plea agreement, the government and the defendant agreed that defendant should receive a reduction for having a minor role in the counterfeiting scheme. The district court rejected the stipulation, and the 11th Circuit affirmed. Under guideline § 6B1.4(d), the district court is not bound by stipulations of fact, “but may with the aid of the presentence report, determine the facts relevant to sentencing.” U.S. v. Forbes, 888 F.2d 752 (11th Cir. 1989).
11th Circuit refuses minor participant status for defendant characterized in presentence report as least culpable. (445) The 11th Circuit rejected defendant’s contention that because he was characterized in the presentence report as the least culpable member of the conspiracy, he was a minor participant. “It is entirely possible for conspiracies to exist in which there are no minor participants or for which the least culpable participants, for whatever reasons, were not indicted.” Defendant knowingly assisted in the illegal importation of approximately 800 kilograms of cocaine in exchange for $75,000. Given the large amount of money involved, the district court’s conclusion that defendant was not a minor participant was not clearly erroneous. U.S. v. Zaccardi, 924 F.2d 201 (11th Cir. 1991).
11th Circuit rejects argument that defendants had minor role in offense as mere transporters of cocaine. (445) Defendants contended that they had a minor role in their offense as mere transporters of cocaine with no knowledge of the quantity involved. The 11th Circuit rejected this argument based on defendants’ apparent knowledge of the large amount of cocaine involved. One defendant offered the other defendant $1,000 to move a car parked at a local mall and told the other defendant that he suspected that the car contained drugs and that he was being followed. The removal of the back seat of the car to increase storage space for the cocaine and the distinct cocaine odor from the back passenger compartment and the trunk should have indicated to defendants that a large amount of cocaine was stored in the car. Moreover, defendants looked into the trunk and verified the sizeable cocaine load being transported by the vehicle. U.S. v. Asseff, 917 F.2d 502 (11th Cir. 1990).
11th Circuit upholds minor or minimal participant reduction based upon defendant’s equal culpability. (445) Two sheriff’s investigators were convicted of depriving a complaining witness of his constitutional rights when they allowed a private citizen to beat the witness to obtain a confession to an alleged theft. One defendant argued that his participation in the crime was “minor or minimal.” The 11th Circuit disagreed, finding that the evidence plainly indicated that the defendant was equally culpable along with his codefendant, and therefore was not entitled to the reduction. The court rejected the defendant’s argument that his culpability should have been compared to that of the private citizen, who had actually done most of the beating. Although it was the private citizen who inflicted force upon the witness, it was the defendant who betrayed his public trust by using his official powers under color of law. Furthermore, the citizen did not assault the witness while the two were alone, but was “emboldened to do so only after the witness was held helpless in official custody.” Thus, under these circumstances it was not improper to compare defendant’s culpability to that of the private citizen. The court concluded that not only was the refusal to grant the requested reduction not clearly erroneous but “a contrary decision would have been clearly erroneous.” U.S. v. Sellers, 906 F.2d 597 (11th Cir. 1990).
11th Circuit upholds finding that defendant was not a “minor or minimal participant.” (445) Defendant, a county commissioner, agreed to help an undercover agent set up a nightclub in which drugs would be sold and to inform the agent of law enforcement activities. Defendant introduced the agent to his brother-in-law, who supplied the agent with drugs. Finally, defendant sat in on meetings where drug transactions were arranged. Based on these facts, the 11th Circuit held that the sentencing court’s finding that defendant was not a “minor or minimal participant” was not clearly erroneous. U.S. v. Alston, 895 F.2d 1362 (11th Cir. 1990).
11th Circuit holds defendant’s role in counterfeiting scheme was not minor. (445) The 11th Circuit held that although defendant’s culpability apparently was less than one other defendant, his involvement in the counterfeiting scheme was “greater and his role more crucial” than that of two other defendants. He provided the necessary material, printing press and location for the operation. Thus he was not a minor participant. U.S. v. Forbes, 888 F.2d 752 (11th Cir. 1989).
11th Circuit rules defendant’s role was not minor given his role in the offense. (445) The Eleventh Circuit affirmed the district court’s denial of the defendant’s request for a two point offense level decrease due to his alleged minor status in the offense. The facts indicated that the defendant approached an undercover officer to instigate the transaction and was responsible for arranging the chain of communications necessary to complete the transaction. Because these findings were not clearly erroneous, the refusal to grant the reduction was proper. U.S. v. Erves, 880 F.2d 376 (11th Cir. 1989).
D.C. Circuit says failure to make reductions not plain error where defendant would still face mandatory minimum. (445) Defendant claimed that the district court erred by failing to explain its reasoning for rejecting his request for a four-point minimal participant reduction under § 3B1.2(a) and a downward criminal history departure under § 4A1.3. However, not only did defense counsel fail to raise these claims at sentencing or object to the district court’s rulings, she remained silent even after the government brought up the § 3B1.2 issue at the close of the hearing. Counsel’s reference to defendant’s role in the conspiracy and to his criminal record in the course of requesting a “time-served” sentence was insufficient to invoke the specific guideline provisions defendant now raised on appeal. The D.C. Circuit found no plain error because defendant could not “show a reasonable likelihood that the sentencing court’s obvious errors affected his sentence.” Regardless of any vertical base-offense level adjustment or horizontal shift in defendant’s criminal history category, defendant still would have faced a statutory mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b) (1)(A). Moreover, the district court found that defendant was in “the middle” of a larger conspiracy, which meant that he was more than a minimal or minor participant in the smaller conspiracy for which he was being held criminally responsible. In re Sealed Case, 349 F.3d 685 (D.C. Cir. 2003).
D.C. Circuit holds that defendant did not play minor role in drug conspiracy. (445) Defendant argued that he played a minor role in the overall drug conspiracy, and therefore deserved a § 3B1.2 minor role reduction. The D.C. Circuit disagreed, finding that defendant’s culpability under § 3B1.2 was based on his role in the relevant conduct for which he was being held responsible, not on his role in the overall conspiracy. Here, there was evidence that defendant was an integral role in the drug conspiracy. He regularly sold drugs for Gray during a six-week period in the summer of 1999. There was evidence that defendant visited locations where Gray stored drugs, and that defendant asked Gray for protection from another individual who threatened him when they were competing for drug sales. This evidence supported the district court’s conclusion that defendant was not less culpable than other individuals who worked as retail drug salesmen for the Gray organization. U.S. v. Graham, 317 F.3d 262 (D.C. Cir. 2003).
D.C. Circuit denies reduction based on role in relevant conduct. (445) Defendant contended that he deserved a § 3B1.2 minor role reduction because his role in the drug conspiracy was similar to Lee’s, who received the reduction. The district court decided that Lee was a minor participant because he “was used only as a messenger” or a “gopher” in small deals. Lee did not play “a role in the planning of the criminal enterprise.” Defendant, on the other hand, participated in a series of telephone calls in which he and others “planned, discussed and arranged for the delivery of 5 kilograms of cocaine,” which was “the largest single delivery of drugs in the whole case.” Although this transaction was not part of the offense of conviction, the D.C. Circuit ruled that the district court properly denied the reduction based on defendant’s role in the relevant conduct. U.S. v. Mathis, 216 F.3d 18 (D.C. Cir. 2000).
D.C. Circuit denies minor role where defendant was “crucial link” between buyers and sellers. (445) Defendant argued that he was entitled to a minor role reduction because a co-conspirator received such a reduction and his own role was less significant than the co-conspirator’s. The D.C. Circuit found that defendant was not entitled to the reduction because he served as a “crucial link” between the sellers and the buyers of the cocaine. The fact that the co-conspirator who received the reduction was held accountable for five kilograms of cocaine while defendant was only responsible for two was not dispositive. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit denies minor role for defendant who was not “just a courier.” (445) Defendant argued that he had a minor role in a drug conspiracy because he was not involved in initiating the conspiracy, attempting to locate suppliers, arranging finances for the Colombian supplier’s return to the U.S., negotiating of the quantity or price of the cocaine sold to the undercover officer, or transferring the initial 8 kilograms. The D.C. Circuit affirmed the denial of the § 3B1.2 reduction because defendant actively participated in the conspiracy. The district court properly found he was not “just a courier.” Defendant’s argument that the district court failed to consider his culpability in relation to his co-conspirators was meritless. A defendant is not entitled to a reduction simply because he is the least culpable among several participants in a jointly undertaken criminal enterprise. A court need not make express findings of relative culpability so long as it is clear that the court assessed the defendant’s role in the specific criminal conduct and did not “gauge his culpability generically.” U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit rejects minimal role where defendant was involved in three transactions. (445) Defendant was one of several car salesmen caught in a sting operation in which an undercover officer posed as a drug dealer seeking to buys cars with the cash proceeds of cocaine sales. The D.C. Circuit rejected a minimal role reduction because defendant participated in at least three transactions in various capacities. U.S. v. Spriggs, 102 F.3d 1245 (D.C. Cir. 1996).
D.C. Circuit rules court applied proper standard in rejecting minor participant status. (445) Defendant argued that the district court applied the incorrect legal standard in denying her a minor participant reduction. The court stated that defendant was a “facilitator” and that she “voluntarily and knowingly” did what brought her before the court. The D.C. Circuit held that the court applied the proper standard in rejecting defendant’s minor participant status. Reversal is not required every time the court fails to use the magic words “relative culpability” or does not make explicit findings of relative culpability on the record. A court must simply assess the defendant’s role in the specific criminal conduct and not gauge his culpability generally. This is what the court did here. Defendant played an instrumental role in each drug transaction. She did more than simply exchange names and telephone numbers. Defendant handled the drugs and exchanged them for money at least once. On another occasion, defendant requested payment in drugs for her services in arranging the deal. U.S. v. Edwards, 98 F.3d 1364 (D.C. Cir. 1996).
D.C. Circuit finds police providing protection to purported drug dealer did not have minor role. (445) Defendants were two of nine police officers caught in a reverse sting after providing “protection” to an undercover agent posing as a drug dealer. The D.C. Circuit agreed that the two defendants did not play minor roles in the scheme. The first defendant actively recruited the other defendant. Although he complained that his participation totaled no more than four hours, the guidelines do not base a defendant’s sentence on the amount of time he actively participated in the criminal enterprise. Although the second defendant did not actually recruit additional police officers, he freely offered to do so. More importantly, this defendant was willing to inject violence into the conspiracy when he offered to introduce the agent to a hit man. U.S. v. Washington, 106 F.3d 983 (D.C. Cir. 1997).
D.C. Circuit rejects minor role where defendant was more than “lookout.” (445) Defendant was a member of a cocaine trafficking organization involving more than 20 people. The District of Columbia Circuit rejected a minor participant reduction, since the record reflected that defendant was not just a “lookout,” but sold drugs directly to customers and sometimes played the role of lieutenant, supervising runners. U.S. v. Graham, 83 F.3d 1466 (D.C. Cir. 1996).
D.C. Circuit rejects minor role in larger conspiracy where defendant was convicted of lesser offense. (445) Defendant traveled from the District of Columbia to New York, purchased a kilogram of cocaine, and transported the kilogram of cocaine back to the District of Columbia. She pled guilty to a single count and received a base offense level of 26 based upon one kilogram of cocaine. She contended she was entitled to a four level reduction under section 3B1.2 because she played a “minuscule” role in the overall conspiracy. The D.C. Circuit found that it was inappropriate to consider defendant’s role in the larger conspiracy, since it was not considered in determining her base offense level. The commentary to Chapter Three, Part B of the guidelines does provide that a defendant’s role in an offense is to be determined on basis of all relevant conduct. However, the guidelines further state that such a reduction is not warranted if the defendant has received mitigation by virtue of being convicted of an offense significantly less serious than the actual criminal conduct. U.S. v. Olibrices, 979 F.2d 1557 (D.C. Cir. 1992).
D.C. Circuit reverses minor role determination based solely upon defendant’s status as a courier. (445) The district court reduced defendant’s offense level by two levels under guideline § 3B1.1, saying that it was “unfortunate” that Congress imposed such “extraordinarily high mandatory minimum sentences” for people like defendant who “are just couriers and do not have major responsibility for the drug plague that plagues this country.” The D.C. Circuit reversed, finding that defendant’s status as a courier, by itself, was insufficient to support a finding that defendant was a minor participant. Nevertheless, the court rejected the government’s contention that since defendant was convicted of a crime that did not involve any other participants, he could not, as a matter of law, be a minor participant. Despite its opinion to that effect in U.S. v. Williams, 891 F.2d 921 (D.C. Cir. 1989), the court noted that the November 1, 1990 amendments to the guidelines provide that a defendant’s role in the offense is to be determined on the basis of all relevant conduct, and not solely on the basis of the acts cited in the offense of conviction. Thus, defendant could be a minor participant. U.S. v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991).