F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 27 1999 THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 98-3355
v. (D.C. CIV-98-40045-O1-SAC) (District of Kansas) MARK B. WHITE,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BALDOCK ,and HENRY, Circuit Judges.
The defendant Mark B. White appeals the district court’s denial of his request for a
two-level reduction in his offense level pursuant to § 3B1.2(b) of the United States
Sentencing Guidelines. He argues that he was a minor participant in the offenses 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. which he was convicted. We conclude that the district court properly denied his request
and affirm his sentence.1
I. BACKGROUND
The government charged Mr. White with various drug offenses. In August 1998,
he pleaded guilty to one count of distributing cocaine base on February 23, 1998 and one
count of distributing cocaine base on February 25, 1998, both in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C.§ 2.
The presentence report describes the facts underlying these offenses. On February
23, 1998, Mr. White came to the residence of a confidential informant. There, Mr. White
met a special agent of the Kansas Bureau of Investigation, who was working undercover.
Mr. White and the special agent agreed that the agent would purchase $300 of cocaine
base. At Mr. White’s direction, the group proceeded to another residence, where they met
the codefendant Christopher Bell. En route, Mr. White was given $300 to buy cocaine
base. They then traveled to Mr. White’s residence. While the special agent waited
outside, Mr. White and Mr. Bell entered the residence. Shortly thereafter, Mr. White left
his residence and gave the special agent a package containing 2.23 grams of cocaine base.
1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
2 The special agent paid Mr. White $20 for completing the transaction.
The confidential informant then arranged another purchase of cocaine base with
Mr. White, this time for $200. Pursuant to that arrangement, the confidential informant
and the special agent came to Mr. White’s residence on February 25, 1998. Mr. White’s
son Marcus White answered the door and let them in. Although the informant and the
agent observed Mr. White in the residence, they began negotiating the transaction with his
son. Mr. White’s son displayed a handful of small chunks of cocaine base (later
determined to weigh 3.57 grams), and the agent agreed that he would pay $400 for this
amount. After the agent asked about obtaining a container for the packages, Mr. White
found a plastic bag, assisted the agent in transferring the cocaine base to the bag, and tied
the bag for the agent.
The confidential informant then told the special agent that an agreement had been
reached for Mr. White to receive another $20 for setting up the transaction. The agent
left Mr. White’s residence to get the $20. When he returned, he gave the money to Mr.
White’s son, and then left again.
After Mr. White pleaded guilty to the two cocaine distribution counts (charging
violations of 21 U.S.C. § 841(a)(1) and the aiding and abetting statute, 18 U.S.C. § 2) the
presentence report arrived at a base offense level of twenty-six. Mr. White objected to
the probation officer’s failure to reduce the offense level pursuant to USSG § 3B1.2. He
argued that his involvement in the February 25, 1998 transaction “was minimal at best,”
3 Rec. vol. III, at 29, ¶ 97 (Presentence Investigation Report). As to the February 23, 1998
transaction, Mr. White maintained that he was “simply asked to put the undercover agent
in touch with where the agent would be able to purchase the cocaine. It was never Mark
White’s cocaine to sell.” Id.
The district court overruled Mr. White’s objection to the presentence report,
concluding that he was not entitled to an offense level reduction for two reasons. First,
the court said, under USSG § 3B1.2, “‘when the relevant conduct of the larger conspiracy
is not taken into account in establishing a defendant’s base offense level, a reduction . . .
is not warranted.’” See Aplt’s Br., Ex.. C. at 3 (district court’s sentencing memorandum)
(quoting United States v. James, 157 F.3d 1218, 1220 (10th Cir. 1998)). Applying James,
the court reasoned that because Mr. White “is only held accountable for the amounts he
participated in distributing -not the relevant conduct attributable to the conspiracy,” a
reduction based on Mr. White’s reduced role in the offense was not warranted. Id. at 3-4.
Second, the court said, even if a § 3B1.2 reduction were authorized under James, the facts
of this case did not warrant one:
Even if this precedent [James] did not foreclose the adjustment sought by [Mr.] White, he would not be entitled to a reduction for [a lesser role under USSG § 3B1.2] as his purported role as “middleman” does not automatically entitle him to a reduction . . . .
Id. at 4 (citations omitted).
4 The court sentenced Mr. White to concurrent terms of imprisonment of seventy
months.
II. DISCUSSION
On appeal, Mr. White argues that the district court misread our decision in James.
According to Mr. White, because no evidence was presented that he was involved in a
larger conspiracy and because there is no indication that the district court already reduced
his role in the offense by disregarding his relevant conduct in the larger conspiracy, James
does not foreclose a reduction in his offense level under USSG § 3B1.2. Mr. White also
challenges the district court’s evaluation of the evidence regarding his involvement in the
offenses. According to Mr. White, he was merely a middleman in the first transaction
and had little or no involvement in the second transaction. He insists that this slight
involvement warrants a § 3B1.2 reduction.
We need not decide whether our decision in James forecloses a reduction in Mr.
White’s offense level under U.S.S.G. § 3B1.2 because the record supports the district
court’s alternative factual finding--that, even in the absence of James, Mr. White was not
entitled to the two-level reduction as a minor participant. The determination of whether a
defendant was a minor participant must be made on a case-by-case basis, and no one
factor is dispositive. See United States v.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 27 1999 THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 98-3355
v. (D.C. CIV-98-40045-O1-SAC) (District of Kansas) MARK B. WHITE,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BALDOCK ,and HENRY, Circuit Judges.
The defendant Mark B. White appeals the district court’s denial of his request for a
two-level reduction in his offense level pursuant to § 3B1.2(b) of the United States
Sentencing Guidelines. He argues that he was a minor participant in the offenses 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. which he was convicted. We conclude that the district court properly denied his request
and affirm his sentence.1
I. BACKGROUND
The government charged Mr. White with various drug offenses. In August 1998,
he pleaded guilty to one count of distributing cocaine base on February 23, 1998 and one
count of distributing cocaine base on February 25, 1998, both in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C.§ 2.
The presentence report describes the facts underlying these offenses. On February
23, 1998, Mr. White came to the residence of a confidential informant. There, Mr. White
met a special agent of the Kansas Bureau of Investigation, who was working undercover.
Mr. White and the special agent agreed that the agent would purchase $300 of cocaine
base. At Mr. White’s direction, the group proceeded to another residence, where they met
the codefendant Christopher Bell. En route, Mr. White was given $300 to buy cocaine
base. They then traveled to Mr. White’s residence. While the special agent waited
outside, Mr. White and Mr. Bell entered the residence. Shortly thereafter, Mr. White left
his residence and gave the special agent a package containing 2.23 grams of cocaine base.
1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
2 The special agent paid Mr. White $20 for completing the transaction.
The confidential informant then arranged another purchase of cocaine base with
Mr. White, this time for $200. Pursuant to that arrangement, the confidential informant
and the special agent came to Mr. White’s residence on February 25, 1998. Mr. White’s
son Marcus White answered the door and let them in. Although the informant and the
agent observed Mr. White in the residence, they began negotiating the transaction with his
son. Mr. White’s son displayed a handful of small chunks of cocaine base (later
determined to weigh 3.57 grams), and the agent agreed that he would pay $400 for this
amount. After the agent asked about obtaining a container for the packages, Mr. White
found a plastic bag, assisted the agent in transferring the cocaine base to the bag, and tied
the bag for the agent.
The confidential informant then told the special agent that an agreement had been
reached for Mr. White to receive another $20 for setting up the transaction. The agent
left Mr. White’s residence to get the $20. When he returned, he gave the money to Mr.
White’s son, and then left again.
After Mr. White pleaded guilty to the two cocaine distribution counts (charging
violations of 21 U.S.C. § 841(a)(1) and the aiding and abetting statute, 18 U.S.C. § 2) the
presentence report arrived at a base offense level of twenty-six. Mr. White objected to
the probation officer’s failure to reduce the offense level pursuant to USSG § 3B1.2. He
argued that his involvement in the February 25, 1998 transaction “was minimal at best,”
3 Rec. vol. III, at 29, ¶ 97 (Presentence Investigation Report). As to the February 23, 1998
transaction, Mr. White maintained that he was “simply asked to put the undercover agent
in touch with where the agent would be able to purchase the cocaine. It was never Mark
White’s cocaine to sell.” Id.
The district court overruled Mr. White’s objection to the presentence report,
concluding that he was not entitled to an offense level reduction for two reasons. First,
the court said, under USSG § 3B1.2, “‘when the relevant conduct of the larger conspiracy
is not taken into account in establishing a defendant’s base offense level, a reduction . . .
is not warranted.’” See Aplt’s Br., Ex.. C. at 3 (district court’s sentencing memorandum)
(quoting United States v. James, 157 F.3d 1218, 1220 (10th Cir. 1998)). Applying James,
the court reasoned that because Mr. White “is only held accountable for the amounts he
participated in distributing -not the relevant conduct attributable to the conspiracy,” a
reduction based on Mr. White’s reduced role in the offense was not warranted. Id. at 3-4.
Second, the court said, even if a § 3B1.2 reduction were authorized under James, the facts
of this case did not warrant one:
Even if this precedent [James] did not foreclose the adjustment sought by [Mr.] White, he would not be entitled to a reduction for [a lesser role under USSG § 3B1.2] as his purported role as “middleman” does not automatically entitle him to a reduction . . . .
Id. at 4 (citations omitted).
4 The court sentenced Mr. White to concurrent terms of imprisonment of seventy
months.
II. DISCUSSION
On appeal, Mr. White argues that the district court misread our decision in James.
According to Mr. White, because no evidence was presented that he was involved in a
larger conspiracy and because there is no indication that the district court already reduced
his role in the offense by disregarding his relevant conduct in the larger conspiracy, James
does not foreclose a reduction in his offense level under USSG § 3B1.2. Mr. White also
challenges the district court’s evaluation of the evidence regarding his involvement in the
offenses. According to Mr. White, he was merely a middleman in the first transaction
and had little or no involvement in the second transaction. He insists that this slight
involvement warrants a § 3B1.2 reduction.
We need not decide whether our decision in James forecloses a reduction in Mr.
White’s offense level under U.S.S.G. § 3B1.2 because the record supports the district
court’s alternative factual finding--that, even in the absence of James, Mr. White was not
entitled to the two-level reduction as a minor participant. The determination of whether a
defendant was a minor participant must be made on a case-by-case basis, and no one
factor is dispositive. See United States v. Calderon-Porras, 911 F.2d 421, 423 (10th Cir.
1990). Accordingly, we have rejected arguments that defendants who function as
5 couriers or middlemen are necessarily entitled to § 3B1.2 reductions. See id.; see also
United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999); (“[A] defendant is not
necessarily entitled to a sentence reduction under § 3B1.2 solely because he can show that
he was a middleman); United States v. Garcia, 987 F.2d 1459, 1461 (10th Cir. 1993)
(affirming district court finding that the defendant was “simply in the middle with a lot of
other people and he deserve[d] neither an increase or a decrease based on his role in the
offense.”). Here, Mr. White was involved in two separate drug transactions, and, as the
presentence report notes, “participated in the distribution [of cocaine base] either by
brokering the transaction or assisting the agent in packaging the cocaine base.” Rec. vol.
III, at 30, ¶ 100. In light of this involvement, the district court’s denial of the two-level
reduction under § 3B1.2 is not clearly erroneous. See United States v. Santistevan, 39
F.3d 250, 254 (10th Cir. 1994) (concluding that the fact that the defendant was involved
in multiple drug transactions was a factor weighing against offense level reduction under
§ 3B1.2).
III. CONCLUSION
We therefore affirm Mr. White’s sentence.
Entered for the Court
Robert H. Henry Circuit Judge