United States v. Balogun

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 9, 1997
• Docket: 96-2186
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 9 1997 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v. No. 96-2186 RAHEEM BUKOLA BALOGUN, (D.C. No. CR-95-352-04-JP) (D. New Mexico) Defendant-Appellant.

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**

Defendant Raheem Bukola Balogun pleaded guilty to various federal charges

relating to the interstate transportation of more than one kilogram of heroin. The district

court sentenced Balogun to 135 months imprisonment to be followed by five years of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1.9. The case is therefore ordered submitted without oral argument. supervised release. Challenging his sentence, Balogun argues that the district court erred

by not affording him a reduction in his base offense level under U.S.S.G. § 3B1.2(a), for

being a minimal or minor participant in the criminal activity. We exercise jurisdiction

under 18 U.S.C. § 3742(a), and affirm.

We review a district court’s refusal to find a defendant a minimal or minor

participant for clear error. United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir. 1994).

As an adjustment for a minimal or minor role does not concern a departure under the

guidelines, the district court is not required to announce the reasons supporting a factual

finding under U.S.S.G. § 3B1.2(a). See United States v. Maldonado-Campos, 920 F.2d

714, 717-18 (10th Cir. 1990).

Relying on United States v. Mondaine, 956 F.2d 939, 942-43 (10th Cir. 1992) and

United States v. Pettit, 903 F.2d 1336, 1341 (10th Cir. 1990), Balogun contends that a

district court can look only at the defendant’s role in the offense for which he was

convicted in connection with the requested minimal- or minor-role adjustment. He argues

that the district court improperly “used conduct on a previous [heroin transportation] trip

for the basis of its ruling.”

Balogun correctly argues the rule of law set forth in Pettit and applied in

Mondaine, that a court is limited to considering a defendant’s role in the offense of

conviction in determining whether to allow for a minimal- or minor-role adjustment.

However, as explained in Mondaine, the application commentary for U.S.S.G. § 3B1.2

2 was amended to state that the determination of a defendant’s role in the offense is to be

made on the basis of all relevant conduct, and not solely on the basis of the offense of

conviction. See Mondaine, 956 F.2d at 943 n. 2. As the criminal activity in this case

occurred after the effective date of the amendment, November 1, 1990, the amended

commentary applies. See Stinson v. United States, 113 S. Ct. 1913, 1919 (1993) (stating

that amended commentary is binding on federal courts).

We have reviewed the parties’ briefs and the record in this case, particularly the

evidence presented at the sentencing hearing. We conclude that the district court did not

clearly err in finding that Balogun played more than a minimal or minor role in the

offense, considering all relevant conduct. Thus, the district court did not err in denying

Balogun a minimal- or minor-role adjustment.

AFFIRMED.

Entered for the Court,

Bobby R. Baldock Circuit Judge