United States v. Franklin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4966
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELIZABETH MOORE FRANKLIN,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:08-cr-00143-NCT-1)
Submitted: May 4, 2009 Decided: October 28, 2009
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, David P. Folmar, Jr., Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elizabeth Franklin pled guilty to conspiracy to
violate the drug laws of the United States, in violation of 21
U.S.C. § 846 (2006). Franklin, who was part of a
methamphetamine manufacturing conspiracy, admitted to unlawfully
possessing pseudoephedrine knowing that it would be used to
manufacture methamphetamine. The district court sentenced
Franklin to forty-six months’ imprisonment. Franklin appeals,
arguing that the district court erred in failing to reduce her
base offense level pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.2 (2007) for being a minimal or minor participant.
Finding no error, we affirm.
This court reviews the denial of a downward adjustment
pursuant to USSG § 3B1.2 for clear error. United States v.
Pratt, 239 F.3d 640, 646 (4th Cir. 2001). Accordingly, we will
reverse only if “left with the definite and firm conviction that
a mistake has been committed.” United States v. Stevenson,
396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985)).
According to USSG § 3B1.2, a defendant’s base offense
level may be decreased four levels if the defendant was a
minimal participant in any criminal activity or two levels if
the defendant was a minor participant. A minimal participant is
one who plays a minimal role in concerted criminal activity.
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USSG § 3B1.2(a) comment. (n.4). A defendant is a minimal
participant if the defendant is “plainly among the least
culpable of those involved in the conduct of a group.” Id. A
minor participant is one “who is less culpable than most other
participants but whose role could not be described as minimal.”
USSG § 3B1.2(a) comment. (n.5). Further, a § 3B1.2 reduction is
appropriate only if the defendant “plays a part in committing
the offense that makes him substantially less culpable than the
average participant.” USSG § 3B1.2(a) comment. (n.3(A)).
Whether a USSG § 3B1.2 adjustment is appropriate “is
to be determined not only by comparing the acts of each
participant in relation to the relevant conduct for which the
participant is held accountable, but also by measuring each
participant’s individual acts and relative culpability against
the elements of the offense of conviction.” Pratt, 239 F.3d at
646 (quoting United States v. Palinkas, 938 F.2d 456, 460 (4th
Cir. 1991), cert. granted sub nom., judgment vacated, remanded
on other grounds, Kochekian v. United States, 503 U.S. 931,
reinstated, 977 F.2d 905 (4th Cir. 1992)). “The critical
inquiry is thus not just whether the defendant has done fewer
‘bad acts’ than his codefendants, but whether the defendant’s
conduct is material or essential to committing the offense.”
Palinkas, 938 F.2d at 460.
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Franklin contends that the district court denied her
request for a § 3B1.2 reduction in violation of application note
3A, which permits a § 3B1.2 reduction even if a defendant is
only held accountable for his or her own relevant conduct.
Franklin’s argument is without merit. First, the application
note clarifies that § 3B1.2 permits, but does not require, a
reduction if the defendant is only held responsible for his or
her own relevant conduct. Second, Franklin’s conduct was
essential to the commission of the offense to which she pled
guilty, and she was only held accountable for the quantity of
pseudoephedrine which she personally purchased and provided.
Pratt, 239 F.3d at 646. Moreover, because Franklin was not
“substantially less culpable than the average participant” in
the criminal activity who purchased pseudoephedrine, a
distinction at sentencing between Franklin and other members of
the conspiracy was not warranted. See USSG § 3B1.2 comment
(n.3(A)); United States v. Gordon, 895 F.2d 932, 935 (4th Cir.
1990). Therefore, the district court did not commit clear error
in declining to grant Franklin a § 3B1.2 reduction.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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