United States v. Corey Hilliard , 16 F. App'x 533 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3471/00-3669NI
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United States, *
*
Cross-Appellant/Appellee, *
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v. * Appeals from the United States
* District Court for the Northern
Corey Hilliard, * District of Iowa
*
Appellant/Cross-Appellee. * [UNPUBLISHED]
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Submitted: May 14, 2001
Filed: June 14, 2001
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Before McMILLIAN and BOWMAN, Circuit Judges, and BOGUE,1 District Judge.
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PER CURIAM.
Corey Hilliard appeals his convictions for aiding and abetting the illegal transfer
of firearms. Hilliard argues there was insufficient evidence to convict and that the
government was permitted to ask an improper question concerning one of his associates
criminal history. The United States has cross-appealed the issue of the trial court’s
four-level minimal participant downward reduction.
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The Honorable Andrew W. Bogue, Senior United States District Judge for the
District of South Dakota, sitting by designation.
After a careful analysis of the evidence before the district court, this Court agrees
with the determination of the jury and the trial court that there was sufficient evidence
to convict. Under Eighth Circuit Rule 47B, no further commentary is warranted.
Upon review of the grounds for the cross-appeal, this Court finds that Hilliard
was not entitled to a four-level reduction for minimal participation. Hilliard introduced
the buyers and seller of the firearms. Whether a defendant qualifies for a minor
participant reduction is a question of fact, the determination of which we review for
clear error. See, e.g., United States v. Harris, 974 F.2d 84, 86 (8th Cir. 1992). This
Court has consistently applied the precept that if ‘but for’ a defendant’s conduct the
illegal transfer would not have occurred, the defendant is not entitled to a minimal
participant reduction. United States v. Hale, 1 F.3d 691, 694 (8th Cir. 1993) (See,
United States v. McGrady, 97 F.3d 1042 (8th Cir. 1996) (courier who played a small
role in the drug deals but was essential to the commission of the crimes and they would
not have occurred without his participation was not entitled to a reduction.) United
States v. Ramos-Torres, 187 F.3d 909 (8th Cir. 1999), cert. denied, 120 S.Ct. 601(1999)(courier who was only sentenced upon his participation and not the entire
conspiracy was not entitled to a further reduction.)).
Hilliard’s conduct made the criminal activity possible. Not only did he introduce
the criminal actors, he took the seller to the buyers on at least two occasions. He was
present during the sales and must have been aware of the illegality of the sales. United
States v. James, 172 F.3d 588, 594 (8th Cir. 1999) (one would have to be “extremely
naive” to believe the defendant did not know or had no reason to believe the firearms
would be used in another felony offense). Hilliard was only convicted and sentenced
for part of the total conspiracy that included upwards of 40 firearms. He is not entitled
to any further reduction.
Accordingly, we affirm the conviction, but vacate and remand for re-sentencing
without the four-level reduction for minimal participation.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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