U.S. v. Thomas ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-8581
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT BRUCE THOMAS,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
( June 2, 1992)
Before POLITZ, Chief Judge, SMITH and WIENER, Circuit Judges.
POLITZ, Chief Judge:
Having pleaded guilty to possession with intent to distribute
marihuana, 21 U.S.C. § 841(a)(1), and money-laundering, 18 U.S.C.
§§ 1956(a)(1)(B)(i), 2, and sentenced to concurrent 72-month and
60-month terms followed by three years supervised release, Robert
Bruce Thomas appeals his sentence, contending that the district
court erred in calculating his base offense level and by refusing
to decrease his offense level for minor or minimal participation.
Finding no error, we affirm.
Background
Thomas was charged in three counts of a 44-count indictment
involving 29 defendants accused of operating an international drug
ring. Pursuant to a plea agreement he entered guilty pleas to
possession with intent to distribute marihuana and money-
laundering. The charges were based on his involvement in a
45-kilogram marihuana transaction. The presentence report
recommended, however, that Thomas's sentencing level be calculated
using the l50 kilograms of cocaine equivalency attributed to the
full conspiracy. Thomas objected and argued at the sentencing
hearing that his involvement was limited to the single marihuana
transaction and was minimal or minor. U.S.S.G. § 3B1.2. The court
granted a two-point reduction for acceptance of responsibility but
declined to decrease the offense level for minor or minimal
participation. The court found that Thomas was an average
participant. Refusing to impute the entire drug ring volume to
Thomas, the court estimated that the amount of drug activity
reasonably foreseeable by Thomas was double the amount of his
45-kilogram marihuana transaction, thus placing him at the level of
80 to 100 kilograms of marihuana. He was sentenced accordingly and
timely appealed.
Analysis
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Thomas's challenge to the district court's application of the
sentencing guidelines is reviewed de novo. United States v.
Glavan-Revuelta, 958 F.2d 66 (5th Cir. 1992). The court's factual
findings in sentencing are reviewed under the clearly erroneous
standard. United States v. Lokey, 945 F.2d 825 (5th Cir. 1991).
Our review requires that we determine from the record whether the
sentence "(1) was imposed in violation of law; (2) was imposed as
a result of an incorrect application of the sentencing guidelines;
or (3) is outside the applicable guideline range. . . ." 18 U.S.C.
§ 3742(e).
Thomas maintains that his base offense level should be
determined including only the amount involved in the single
transaction for which he pleaded guilty. In controlled substance
convictions, however, the sentence is based not only on the amount
involved in the offense for which the defendant was convicted, but
also on the contraband involved in "acts . . . that were part of
the same course of conduct or common scheme or plan as the offense
of conviction." U.S.S.G. § 1B1.3(a)(2). Conspirators may be
sentenced on the basis of the conduct of coconspirators taken in
furtherance of the conspiracy if that conduct was known or
reasonably foreseeable. U.S.S.G. § 1B1.3 comment (n.1). The
sentencing court is to make an approximation of the controlled
substance reasonably foreseeable by the defendant. See U.S.S.G.
§ 2D1.4 comment (n.2); United States v. Puma, 937 F.2d 151 (5th
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Cir. 1991), cert. denied, 112 S. Ct. 1165 (1992).1 In arriving at
this estimate the court may consider any information that has
"sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. § 6A1.3, p.s.; United States v. Angulo, 927
F.2d 202 (5th Cir. 1991); see also United States v. Singleton, 946
F.2d 23 (5th Cir. 1991), cert. denied, 112 S. Ct. 1231 (1992)
(hearsay expressly sanctioned).
The court a`` quo considered the factual resume of the guilty
plea and the presentence report. Drug trade ledgers reflect that
Thomas was assigned a code number and had bought substantial
quantities of cocaine over a period of time. Regarding the
money-laundering count, Thomas used the $20,000 he received to
purchase more marihuana. The district court's quantitative finding
in the instant case is not clearly erroneous. We previously have
observed that an individual dealing in a sizable amount of
controlled substances ordinarily would be presumed to recognize
that the drug organization with which he deals extends beyond his
universe of involvement. United States v. Devine, 934 F.2d 1325
(5th Cir. 1991).
Thomas also contends that he is entitled to a decrease in his
offense level computation for his minor or minimal participation in
1
Section 2D1.1 is the guideline applicable to Thomas's
conviction under 21 U.S.C. § 841(a). The comments to this section
direct that "[i]f the amount seized does not reflect the scale of
the offense, see Application Note 2 of the Commentary to § 2D1.4."
U.S.S.G. § 2D1.1 comment (n.12). See United States v. Angulo, 927
F.2d 202 (5th Cir. 1991) (outlining the application of the
guideline provisions).
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the conspiracy because the volume of controlled substance
attributed to him was a small fraction of the operation's total
drug trade and because others with whom he worked had more active
roles. See U.S.S.G. § 3B1.2. A minimal participant is "plainly
among the least culpable of those involved in the conduct of the
group." U.S.S.G. § 3B1.2 comment (n.1). "[A] minor participant
means any participant who is less culpable than most other
participants, but whose role could not be described as minimal."
U.S.S.G. § 3B1.2 comment (n.3). Even if other codefendants were
more culpable, that does not automatically qualify Thomas for
either minor or minimal status. Each participant must be
separately assessed. See United States v. Mueller, 902 F.2d 336
(5th Cir. 1990). A defendant's participation is not minor unless
he is "substantially less culpable than the average participant."
U.S.S.G. § 3B1.2 comment (n.3).
We are not persuaded that either classification applies to
Thomas. He 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 the other distributors. The
record contains ample support for the court's factual finding that
Thomas was an average participant. We will not disturb that
finding.
For the reasons assigned, the decision of the district court
is AFFIRMED.
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