United States v. James ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 2 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-1249
ELDON RAY JAMES,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 97-CR-26-N)
Submitted on the briefs:
Michael G. Katz, Federal Public Defender, James P. Moran, Assistant Federal
Public Defender, Denver, Colorado, for Defendant-Appellant.
Henry L. Solano, United States Attorney, John M. Hutchins, Assistant U.S.
Attorney, Daniel J. Cassidy, Assistant U.S. Attorney, Denver, Colorado,
for Plaintiff-Appellee.
Before BRORBY , McKAY , and BRISCOE , Circuit Judges.
BRISCOE , Circuit Judge.
Defendant Eldon Ray James appeals the sentence he received following
a plea of guilty to the offense of engaging in the prohibited activities of a
Racketeer Influenced and Corrupt Organization (RICO), in violation of 18 U.S.C.
§§ 1962(c) and 1963. We exercise jurisdiction pursuant to 28 U.S.C. § 1291and 18 U.S.C. § 3742(a), and affirm. 1
BACKGROUND
On March 28, 1997, James pled guilty to engaging in RICO activities in
connection with a drug trafficking enterprise. Pursuant to the terms of the plea
agreement, the government agreed to dismiss five additional counts filed in two
separate indictments, and to consider, based on the value of James’ assistance,
filing a motion for downward departure. In return, James agreed to cooperate
with the government.
In the agreement, James acknowledged that the government’s evidence was
sufficient to establish his involvement in a drug trafficking enterprise that
transported cocaine from California to Colorado for distribution in numerous
counties there. James’ role in the conspiracy was to receive cocaine from a
codefendant and distribute it in at least two Colorado counties.
1
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
is therefore ordered submitted without oral argument.
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The presentence report prepared by the probation officer concluded the
enterprise trafficked at least 94 kilograms of cocaine, as well as additional
amounts of marijuana, hashish, and methamphetamine. The report calculated
James’ base offense level as 27. This figure included a two-level reduction based
on the quantity of drugs directly attributable to James himself (as opposed to the
amount of drugs attributable to the entire conspiracy), and a three-level reduction
for acceptance of responsibility. See U.S.S.G. §§ 3E1.1 and 5C1.2. With a
criminal history category of I, James’ guideline range was 70 to 87 months.
At sentencing, James moved for downward departure from the guideline
range, alleging (1) his participation was merely aberrant behavior, (2) he received
very little financial gain from the enterprise, (3) he was a minor participant in the
conspiracy, and (4) his health and age would put him at risk of abuse in prison.
The district court rejected James’ motion for reduction on all grounds and
sentenced him to seventy months’ imprisonment and three years’ supervised
release. On appeal, James challenges only the district court’s refusal to grant a
two-level reduction for his minor role in the conspiracy.
JURISDICTION
As a threshold matter, we address this court’s jurisdiction to entertain this
appeal. In James’ docketing statement, he framed his issue on appeal as
“[t]he Defendant should have been granted a downward departure.” Appellant’s
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Docketing Statement at 4. It is well-settled, however, that a defendant may not
appeal a sentencing court’s refusal to depart downward from a sentence within the
guideline range. See United States v. Bromberg , 933 F.2d 895, 896 (10th Cir.
1991). Consequently, our jurisdiction is limited in these circumstances to
reviewing the sentencing court’s decision to ensure the sentence imposed is not
the result of an incorrect application of the guidelines or otherwise in violation of
the law. See id. at 897; 18 U.S.C. § 3742(a). Because supplemental briefing
makes plain that James does in fact assert the district court departed from the law
in sentencing him, we have jurisdiction to consider his appeal.
DISCUSSION
James contends the sentencing court erred by refusing him a two-level
downward adjustment under U.S.S.G. § 3B1.2(b) as a minor participant in the
criminal enterprise. We review the district court’s factual findings regarding a
defendant’s role in the offense for clear error and give due deference to the
court’s application of the sentencing guidelines to the facts. See United States v.
Smith , 131 F.3d 1392, 1399 (10th Cir. 1997), cert. denied , 118 S. Ct. 1109(1998).
Section 3B1.2 vests the district court with discretion to grant a base offense
level reduction if it finds a defendant played a mitigating role in the criminal
offense. Section 3B1.2 authorizes a four-level reduction if the defendant was a
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“minimal” participant in the criminal activity, a two-level reduction if the
defendant was a “minor” participant in the criminal activity, and a three-level
reduction if the defendant’s participation was more than minimal but less than
minor. A defendant’s role is minor if his role in the enterprise made him
substantially less culpable than the average participant. See id. , comments 3 and
4. James argues that, compared to the involvement and conduct of his
codefendants, his role in the criminal enterprise was minor, warranting
a two-level reduction in his base offense level.
James is not entitled to the reduction he seeks. Section 3B1.2, Application
Note 4 states:
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, a reduction for a mitigating role under
this section ordinarily is not warranted because such defendant is
not substantially less culpable than a defendant whose only conduct
involved the less serious offense.
We think the reasoning of Note 4 is applicable here. Although James was not
convicted of a less serious offense, he received a less onerous sentence because of
his minor role in the enterprise. That is, James’ sentence was based not on the
collective amount of drugs distributed by all members of the conspiracy, but only
on the amount of drugs distributed by James himself. Any further reduction
would cede James an undeserved windfall. See United States v. Lampkins , 47
F.3d 175, 181 n.3 (7th Cir. 1995).
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Although this court has not yet spoken on the issue, a number of circuits
have held in similar circumstances that a defendant is not entitled to a mitigating
role adjustment where the relevant conduct of the conspiracy was not considered
in calculating the base offense level. See United States v. Holley , 82 F.3d 1010,
1011-12 (11th Cir. 1996); United States v. Atanda , 60 F.3d 196, 199 (5th Cir.
1995); Lampkins , 47 F.3d at 180-81; United States v. Gomez , 31 F.3d 28, 31
(2d Cir. 1994); United States v. Lucht , 18 F.3d 541, 555-56 (8th Cir. 1994);
United States v. Olibrices , 979 F.2d 1557, 1561 (D.C. Cir. 1992). James urges us
to reject the conclusions of these circuits in favor of the Ninth Circuit’s holding
in United States v. Ruelas that “[t]he defendant’s role in relevant conduct may
provide a basis for an adjustment even if that conduct is not used to calculate the
defendant’s base offense level.” 106 F.3d 1416, 1419 (9th Cir.), cert. denied , 117
S. Ct. 2470 (1997). This we decline to do.
Here, James’ base offense level was predicated only on the amount of drugs
he personally handled. Thus, the district court necessarily took into account
James’ minor role in the drug trafficking enterprise. To provide a further
reduction for his role in the enterprise would amount to finding James “a minor
participant in [his] own conduct,” a finding that would “make[] no sense.”
Lampkins , 47 F.3d at 181 (footnote omitted); see also Olibrices , 979 F.2d at 1560(where larger conspiracy was not taken into account to set the base offense level,
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allowing it to be taken into account for purposes of a reduction for the mitigating
role of the defendant would produce an “absurd result”). As the sentencing court
stated, “I don’t think [James] can be said to have a minor or minimal role in
distributing the drugs that he himself distributed. Had he been charged and had
attributed to him the amount of drugs distributed in the overall conspiracy, the
argument might be different.” 2
R. Vol. 4 at 10 .
Therefore, we join the majority of circuits that have addressed this issue
and hold that when the relevant conduct of the larger conspiracy is not taken into
account in establishing a defendant’s base offense level, a reduction pursuant to
U.S.S.G. § 3B1.2 is not warranted.
AFFIRMED.
2
We note that, if the district court had calculated James’ base offense
level based on the amount of drugs charged to the conspiracy as a whole -
ninety-four kilograms - his sentencing range, even with a downward departure for
a minor role, would have been significantly higher. See, e.g. , Olibrices , 979 F.2d
at 1561.
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