United States v. Grier

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-12-2002
USA v. Grier
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-1669
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 01-1669
UNITED STATES OF AMERICA
v.
MICHAEL L. GRIER,
a/k/a EDWARD GRIER,
a/k/a UNIVERSE
Michael Grier,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 00-cr-00416)
District Judge: Hon. Mary Little Cooper
Submitted Under Third Circuit LAR 34.1(a)
October 31, 2002
Before: SLOVITER, FUENTES, Circuit Judges
and FULLAM,* District Judge
(Filed: November 12, 2002 )
OPINION OF THE COURT
___________________
* Hon. John P. Fullam, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.
Appellant Michael Grier pled guilty to distribution and possession with intent to
distribute more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a). His
appeal is limited to the sentence imposed on him by the District Court. He argues the
District Court erred in denying his request for a downward adjustment for a minor role in
the offense and erred in denying his request for a downward departure for a number of
reasons.
Because this decision is of interest only to the parties, who are familiar with the
facts, we set them forth only briefly.
I.
On June 20, 2000, a confidential informant (“CI”) working for the Drug Enforcement
Agency (DEA) asked Grier for 60 grams of crack cocaine, Grier agreed, and they arranged
to meet to complete the sale a short time later. Grier arrived at the predetermined location,
entered the CI’s vehicle, and handed the CI approximately 58.6 grams of crack cocaine,
receiving in exchange $2,000 from the CI. Grier was then arrested by DEA agents who
witnessed the transaction.
Grier was indicted shortly thereafter. He entered into a plea agreement with the
government that provided, inter alia, that the base offense level was 32, and that Grier was
entitled to downward adjustments for acceptance of responsibility and timely notification
of intent to plea, reducing his total offense level to 29.
Prior to sentencing, Grier moved for a 2-level downward adjustment pursuant to
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U.S.S.G. § 3B1.2(b) based on his alleged minor role in the crime. He also moved for a
downward departure on various grounds, inter alia, (1) his criminal history calculation was
overstated pursuant to U.S.S.G. § 4A1.3; (2) drug dependence; (3) post-offense
rehabilitation; (4) lack of guidance as a youth; (5) family ties and responsibilities; and (6)
totality of the circumstances.
At the sentencing hearing, the District Court acknowledged its authority to depart,
rejected Grier’s motions, and sentenced Grier to 127 months of imprisonment which was
within the Guideline range of 121 to 151 months for a total offense level of 29 and a
criminal history category of IV.
Grier argues that he was entitled to a 2-level downward adjustment due to his minor
role in the offense. U.S.S.G. § 3B1.2(b) provides that “[i]f the defendant was a minor
participant in any criminal activity, decrease [the offense level] by 2 levels.” Application
Note 5 states that a minor participant means any participant “who is less culpable than most
other participants, but whose role could not be described as minimal.” According to the
Application Notes to this provision, its application is heavily dependent on the facts of a
particular case, and “provides a range of adjustments for a defendant who plays a part in
committing the offense that makes him substantially less culpable than the average
participant.” U.S.S.G. § 3B1.2, Application Note 3. We have stated that “[t]he district
courts are allowed broad discretion in applying this section, and their rulings are left
largely undisturbed by the courts of appeal.” United States v. Isaza-Zapata, 148 F.3d 236,
238 (3d Cir. 1998).
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The following factors are relevant in determining whether a defendant is a minor
participant:
the nature of the defendant’s relationship to the other
participants, the importance of the defendant’s actions
to the success of the venture, and the defendant’s
awareness of the nature and scope of the criminal
enterprise.
Id. at 239 (quoting United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991) (citation
omitted)). Essentially, “these considerations are directed generally towards a defendant’s
involvement, knowledge, and culpability, and should provide guidance in any case.” Id.Significantly, “[t]he defendant bears the burden of demonstrating that other participants
were involved and that, under the standards set forth above and the facts of his particular
case, the minor role adjustment should apply.” Id. at 240.
Grier argues that he was a minor participant because he was not the only individual
sought by law enforcement agents and because he was not the only individual who
participated in the offense. He notes that the CI originally sought to purchase drugs from a
street dealer who did not appear, and only then did the CI seek to buy the drugs from Grier.
This did not establish that there were other individuals involved in the crime but at most that
there were multiple dealers in that area.
As the District Court stated at Grier’s sentencing hearing, “[Grier] negotiated and
carried out the entire transaction.” App. at 58a-59a. Thus, Grier was the central, if not the
principal, participant in the crime, and as such, his role was far more extensive than a minor
participant. It follows that the District Court did not err in ruling Grier had failed to meet
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his burden of showing that he was a minor participant.
Grier also argues that the District Court erred in failing to grant a downward
departure based on the alleged over-representation of his criminal history, his post-offense
rehabilitation, drug dependence, lack of guidance as a youth, and family ties and
responsibilities.
We lack jurisdiction to review the District Court’s refusal to downward depart. As
long as the District Court was “aware of its authority to depart from the Guidelines, and
chose not to, we are without power to inquire further into the merits of its refusal to grant
[a downward departure].” United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991)
(citing United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989)). As we have stated, “we
have jurisdiction to decide whether a sentencing court erred legally when not making a
requested discretionary downward departure, but we cannot hear a challenge to the merits
of a sentencing court’s discretionary decision not to depart downward from the
Guidelines.” Georgiadis, 933 F.2d at 1222 (citation omitted).
It is evident from the record that the District Court was well aware of its authority to
depart downward and chose not to, often for reasons it articulated on the record. We
therefore cannot inquire further into the refusal to grant a downward departure. We will
affirm the judgment of conviction and sentence.
____________________
TO THE CLERK:
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Please file the foregoing opinion
/s/Dolores K. Sloviter
Circuit Judge
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