United States v. David Michael Lang ( 1996 )

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No. 96-2267
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United States of America, *
*
Appellee, *
*
v. *
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David Michael Lang, *
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Appellant. *
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Appeals from the United States
No. 96-2623 District Court for the
___________ District of Minnesota.
United States of America, * [UNPUBLISHED]
*
Appellee, *
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v. *
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Sandra Lee MacNeil, *
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Appellant. *
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Submitted: December 16, 1996
Filed: December 18, 1996
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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
In this consolidated appeal, David Lang and Sandra MacNeil
challenge the sentences imposed by the district court1 for drug
offenses. We affirm as to both.
1
The Honorable David S. Doty, United States District Judge for
the District of Minnesota.
I. Lang
Lang pleaded guilty to distributing approximately 6.5 grams of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and was
found guilty by a jury of conspiring to distribute and possess with
intent to distribute more than 2,601 grams of methamphetamine, in
violation of 21 U.S.C. § 846. At sentencing, the district court
assessed an enhancement for obstruction of justice under U.S.
Sentencing Guidelines Manual § 3C1.1 (1995), denied a minor-
participant role reduction under U.S. Sentencing Guidelines Manual
§ 3B1.2 (1995), and sentenced Lang to 150 months imprisonment and
five years supervised release.
Based on de novo review of evidence presented at Lang's
earlier bond-revocation hearing,2 the district court found that
Lang threatened a government witness prior to trial. After
carefully reviewing the record, we conclude the district court's
findings in support of the section 3C1.1 enhancement were not
clearly erroneous. See United States v. Pena, 67 F.3d 153, 157
(8th Cir. 1995) (standard of review); United States v. Adipietro,
983 F.2d 1468, 1472 (8th Cir. 1993) (district court's credibility
findings are virtually unassailable on appeal).
Section 3B1.2 as a whole permits a reduction "for a defendant
who plays a part in committing the offense that makes him
substantially less culpable than the average participant." U.S.
Sentencing Guidelines Manual § 3B1.2, comment. (backg'd.) (1995).
A sentencing court must consider the defendant's role in the entire
conspiracy. See United States v. Westerman, 973 F.2d 1422, 1427-28
(8th Cir. 1992). The record shows that Lang was an active
participant in a conspiracy involving a significant quantity of
drugs. Accordingly, we find no error in the denial of the
2
The Honorable J. Earl Cudd, United States Magistrate Judge
for the District of Minnesota.
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mitigating-role reduction. See United States v. Abanatha, 999 F.2d
1246, 1250 (8th Cir. 1993) (sentencing court properly denied
§ 3B1.2(b) reduction where defendant was active participant in drug
conspiracy), cert. denied, 114 S. Ct. 1549 (1994); United States v.
Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam) (district
court can deny mitigating-role reduction based solely on presence
of significant amount of drugs).
We reject as meritless Lang's final argument that the court
abused its discretion by imposing on him a sentence that was
disproportionate to his co-defendants' sentences. See United
States v. Granados, 962 F.2d 767, 774 (8th Cir. 1992).
II. MacNeil
MacNeil pleaded guilty to aiding and abetting another co-
defendant in attempting to possess with intent to distribute
methamphetamine. The district court sentenced her to 78 months
imprisonment and five years supervised release. On appeal, MacNeil
challenges only the court's refusal to depart downward under U.S.
Sentencing Guidelines Manual § 5K2.12 (1995) (coercion and duress),
based on her claim that she suffered from Battered Woman Syndrome
and that this condition caused her participation in the offense.
The district court made it clear that it was aware of its
discretion to depart but did not find departure warranted by the
facts in this case. "This court has repeatedly held that the
exercise of discretion by a district court to refuse to depart
downward is nonreviewable." United States v. Trupiano, 11 F.3d
769, 776 (8th Cir. 1993).
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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