United States v. Kinzer

13 F. App'x 399
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 27, 2001
DocketNo. 01-1088
StatusPublished
Cited by4 cases

This text of 13 F. App'x 399 (United States v. Kinzer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kinzer, 13 F. App'x 399 (7th Cir. 2001).

Opinion

ORDER

Jonathon Kinzer and two codefendants were indicted for conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). After pleading guilty, Kinzer was sentenced to 84 months’ imprisonment, the lowest possible sentence within the applicable guideline range, and four years’ supervised release. In this appeal, Kinzer challenges 1) the district court’s determination that Kinzer did not qualify for a two-level downward adjustment pursuant to U.S.S.G. § 3B1.2(b) for being a “minor participant” in the conspiracy, and 2) the constitutionality of the drug equivalency tables contained in U.S.S.G. § 2D1.1. We affirm.

[400]*400BACKGROUND

From October 1998 through March 1999, Kinzer, John Coito, Joseph Barr and others were involved in a conspiracy to distribute methamphetamine. Under the conspiracy, Kinzer acted as a middleman for shipments of methamphetamine from Coito to Barr. Coito would ship drugs to fictitious companies via hotels, at which the drugs would be picked up by Kinzer.

In preparation for one such shipment, Kinzer checked into the Comfort Inn in Champaign, Illinois on October 27, 1998 under the name “Quality Construction.” Kinzer repeatedly checked with the hotel staff to see if a package had arrived for Quality Construction. When the package did not arrive on October 28, Kinzer stayed at the hotel for an extra night, since the hotel allowed only registered guests to receive packages. The package did not arrive, and Kinzer checked out of the hotel on October 29.

Kinzer’s package did not arrive because it had been confiscated by the DEA. On October 28, United Parcel Service in Chula Vista, California had received a suspicious package addressed to Quality Construction, c/o the Comfort Inn in Champaign, Illinois. United Parcel called the DEA, which retrieved the package and later determined that it contained 194.7 grams of methamphetamine (29.2 grams of methamphetamine actual1). Although the package contained a fictitious return address, DEA agents traced the package back to Coito. DEA agents also learned that Coito had rented a post office box in Bonita, California; between March 1998 and February 1999, this box had received 18 express mail packages from addresses in Decatur, Illinois. Both Kinzer and Barr sent packages to Coito at the post office box. Kinzer stipulated sending one such package that postal inspectors confiscated in February, 1999; this package contained $10,800 in cash.

On March 2,1999, DEA agents executed a search warrant at Coito’s residence. Agents recovered 5.6 grams of methamphetamine (1.6 grams of methamphetamine actual), among other things. Agents also discovered addresses to several hotels in Illinois and Missouri, with specific companies designated at particular hotels. The DEA was able to determine that Kinzer had stayed at several of these hotels during the conspiracy. On May 29, 1999, Illinois State Police executed a search warrant at Barr’s residence in Decatur, Illinois, where Kinzer was temporarily residing. While executing the search warrant, agents discovered suspected cannabis and cocaine, as well as currency and numerous firearms. Kinzer was arrested at that time.

On August 17, 2000, pursuant to a written agreement, Kinzer pleaded guilty to one count of conspiring to distribute methamphetamine. At sentencing, the district court rejected Kinzer’s arguments that the drug equivalency tables in U.S.S.G. § 2D1.1 create irrational classifications in violation of the Due Process and Equal Protection clauses, and that he should be allowed a two-level reduction in his offense level pursuant to U.S.S.G. § 3B1.2 because he was only a minor participant in the crime. The court then found that Kinzer was responsible for 200.3 grams of methamphetamine (30.8 grams of methamphetamine actual) — the 194.7 grams contained in the intercepted package that Coito shipped to Kinzer and the 5.6 grams seized from Coito’s residence. The district court [401]*401sentenced Kinzer to 84 months in prison, the bottom of the relevant guideline range.

ANALYSIS

1. Domvward Departure For Minor Participant Status

Kinzer first argues, in essence, that he was a minor participant in the conspiracy because he was little more than a courier for Coito and Barr, and that the district court erred by failing to depart downward pursuant to U.S.S.G. § 3B1.2. Because a district court’s decision to deny a downward departure pursuant to § 3B1.2 depends heavily on the facts of the case, we review such a decision for clear error. United States v. Mojica, 185 F.3d 780, 790-91 (7th Cir.1999). However, the district court’s legal conclusions, including interpretations of the guidelines, are reviewed de novo. Id. at 791.

Under U.S.S.G. § 3B1.2(b), a defendant qualifies for a 2-level decrease in his offense level if he was a “minor participant” in the criminal activity. A “minor participant” is defined as “any participant who is less culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment (n.3). In a case involving a conspiracy, an offense level reduction under § 3B1.2 is appropriate only if the defendant was substantially less culpable than the conspiracy’s other participants. United States v. Montenegro, 231 F.3d 389, 395-96 (7th Cir.2000). The defendant bears the burden of proving, by a preponderance of the evidence, that he is entitled to a minor participant reduction. United States v. Mitchell, 178 F.3d 904, 910 (7th Cir.1999). Downward adjustments for minimal participant status should be used “infrequently.” U.S.S.G. § 3B1.2, comment (n.2).

That Kinzer may have acted only as a courier does not, in and of itself, entitle him to a minor role adjustment. United States v. McClinton, 135 F.3d 1178, 1190 (7th Cir.1998). Couriers play an important role in the drug distribution scheme. United States v. Hamzat, 217 F.3d 494, 497 (7th Cir.2000). In determining whether a minor role adjustment is appropriate here, we consider whether Kinzer was substantially less culpable than Coito and Barr. Montenegro, 231 F.3d at 395-96.

A review of the evidence as summarized in Kinzer’s plea agreement and PSR shows that the district court did not clearly err in denying Kinzer’s request for a minor role adjustment. Kinzer was an integral part of the conspiracy; he was the middleman responsible for receiving shipments of methamphetamine from Coito and delivering it to Barr. Kinzer stipulated in his plea agreement that he was a part of the conspiracy, and that Coito furnished drugs to him and Barr via Express Mail or another shipping service.

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