United States v. Marcus Derby

Opinion

United States Court of Appeals For the Eighth Circuit

___________________________

No. 18-3570

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Marcus Derby

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court for the Western District of Arkansas - Fayetteville

____________

Submitted: September 23, 2019 Filed: November 4, 2019

[Unpublished]

____________

Before KELLY, MELLOY, and STRAS, Circuit Judges.

____________

PER CURIAM.

Marcus Derby received a within-Guidelines-range, 96-month prison sentence after pleading guilty to conspiracy to distribute cocaine. 21 U.S.C. §§ 841(a)(1), 846. On appeal, Derby argues that the district court1 erroneously denied him a minor-

1 The Honorable Timothy L. Brooks, United States District Judge for the Western District of Arkansas.

participant adjustment. See U.S.S.G. § 3B1.2(b). Derby was a supplier of drugs distributed in the conspiracy. The district court found that, although Derby was less culpable than the two leaders of the drug trafficking organization, he was not substantially less culpable than the average participants, many of whom were streetlevel dealers. At sentencing, the district court commented that it may have never heard argument for a minor-role adjustment made for an upstream supplier. Regardless, we agree with the district court’s finding that Derby cannot qualify for a minor role adjustment given the facts of this case, see United States v. Cubillos, 474 F.3d 1114, 1120 (8th Cir. 2007); United States v. Thompson, 60 F.3d 514, 517 (8th Cir. 1995), and we find no clear error in the district court’s ruling, United States v. Brown, 929 F.3d 1030, 1041 (8th Cir. 2019) (standard of review). Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.

______________________________