United States v. Jimmy Pike ( 2020 )

Case: 20-10168 Document: 00515623071 Page: 1 Date Filed: 11/02/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 2, 2020
No. 20-10168
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jimmy Pike, also known as “Dewey”,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-304-13
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:
Jimmy Pike pleaded guilty to one count of conspiracy to possess with
intent to distribute methamphetamine. The district court sentenced him to
151 months of imprisonment and a three-year term of supervised release. On
appeal, Pike only challenges the district court’s denial of a two-to-four level
mitigating-role reduction in calculating his sentencing range under the
Sentencing Guidelines.
Because Pike preserved his claim that the district court erred by
denying him a mitigating-role reduction pursuant to U.S.S.G. § 3B1.2, we
Case: 20-10168 Document: 00515623071 Page: 2 Date Filed: 11/02/2020
No. 20-10168
will review the district court’s denial of the mitigating-role reduction for clear
error. See United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). The
record demonstrates that Pike understood the scope and structure of the
conspiracy, exercised decision-making authority, participated in the
conspiracy and performed acts to further it, and financially benefitted from
the conspiracy. See § 3B1.2, comment. (n.3(C)(i)-(v)). Pike and his
coconspirators combined their money to purchase methamphetamine from
their distributor, purchased and sold methamphetamine from each other, and
sold methamphetamine across the Northern District of Texas and beyond.
Furthermore, Pike negotiated sales and exercised discretion in choosing his
customers, and he used the funds from the transactions to support his own
use of methamphetamine and to support his business. Accordingly, the
factors primarily counsel against the reduction and demonstrate that Pike was
not “peripheral to the advancement of the illicit activity.” United States v.
Villanueva, 408 F.3d 193, 204 (5th Cir. 2005). Though the lack of evidence
regarding the degree to which Pike participated in planning or organizing the
conspiracy weighs in favor of mitigation, we have found that when some
factors support the reduction, but others do not, the district court does not
clearly err in denying the reduction. See United States v. Bello-Sanchez, 872
F.3d 260, 264-65 (5th Cir. 2017). Given the foregoing, it is “plausible in light
of the record as a whole” that Pike was not substantially less culpable than
the average participant in the conspiracy. Zuniga, 720 F.3d at 590. Thus, the
district court’s denial of the mitigating-role reduction was not clearly
erroneous. See id.
Pike also argues that a remand is necessary because the district court
erred by not articulating a permissible factual basis for denying the
mitigating-role reduction. Because Pike brings this challenge for the first
time on appeal, we will review for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Lopez-Velasquez, 526 F.3d 804, 806
2
Case: 20-10168 Document: 00515623071 Page: 3 Date Filed: 11/02/2020
No. 20-10168
(5th Cir. 2008). We held in United States v. Melton that the district court
must “articulate the factual basis for finding that, in this particular offense,
[the defendant] was an average participant” and “state for the record the
factual basis upon which it concludes that a requested reduction for minor
participation is, or is not, appropriate.” 930 F.2d 1096, 1099 (5th Cir. 1991).
However, we have limited this requirement to only when the defendant has
“requested that the court articulate the factual basis for the court’s findings
and the reasons for refusing the reduction.” Bello-Sanchez, 872 F.3d at 266
(internal quotation marks and citation omitted). Because Pike did not request
the district court to articulate a factual basis for denying the mitigating-role
reduction, Melton is inapplicable to his case. See id. Pike has therefore not
shown any error, much less plain error. See Puckett, 556 U.S. at 135. Thus, a
remand is not necessary. See Bello-Sanchez, 872 F.3d at 266.
Accordingly, the judgment of the district court is AFFIRMED.
3