U.S. v. Thomas

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 2, 1992
• Docket: 91-8581
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-8581 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT BRUCE THOMAS,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas

( June 2, 1992)

Before POLITZ, Chief Judge, SMITH and WIENER, Circuit Judges.

POLITZ, Chief Judge:

Having pleaded guilty to possession with intent to distribute

marihuana, 21 U.S.C. § 841(a)(1), and money-laundering, 18 U.S.C.

§§ 1956(a)(1)(B)(i), 2, and sentenced to concurrent 72-month and

60-month terms followed by three years supervised release, Robert

Bruce Thomas appeals his sentence, contending that the district

court erred in calculating his base offense level and by refusing

to decrease his offense level for minor or minimal participation. Finding no error, we affirm.

Background

Thomas was charged in three counts of a 44-count indictment

involving 29 defendants accused of operating an international drug

ring. Pursuant to a plea agreement he entered guilty pleas to

possession with intent to distribute marihuana and money-

laundering. The charges were based on his involvement in a

45-kilogram marihuana transaction. The presentence report

recommended, however, that Thomas's sentencing level be calculated

using the l50 kilograms of cocaine equivalency attributed to the

full conspiracy. Thomas objected and argued at the sentencing

hearing that his involvement was limited to the single marihuana

transaction and was minimal or minor. U.S.S.G. § 3B1.2. The court

granted a two-point reduction for acceptance of responsibility but

declined to decrease the offense level for minor or minimal

participation. The court found that Thomas was an average

participant. Refusing to impute the entire drug ring volume to

Thomas, the court estimated that the amount of drug activity

reasonably foreseeable by Thomas was double the amount of his

45-kilogram marihuana transaction, thus placing him at the level of

80 to 100 kilograms of marihuana. He was sentenced accordingly and

timely appealed.

Analysis

2 Thomas's challenge to the district court's application of the

sentencing guidelines is reviewed de novo. United States v.

Glavan-Revuelta, 958 F.2d 66 (5th Cir. 1992). The court's factual

findings in sentencing are reviewed under the clearly erroneous

standard. United States v. Lokey, 945 F.2d 825 (5th Cir. 1991).

Our review requires that we determine from the record whether the

sentence "(1) was imposed in violation of law; (2) was imposed as

a result of an incorrect application of the sentencing guidelines;

or (3) is outside the applicable guideline range. . . ." 18 U.S.C.

§ 3742(e).

Thomas maintains that his base offense level should be

determined including only the amount involved in the single

transaction for which he pleaded guilty. In controlled substance

convictions, however, the sentence is based not only on the amount

involved in the offense for which the defendant was convicted, but

also on the contraband involved in "acts . . . that were part of

the same course of conduct or common scheme or plan as the offense

of conviction." U.S.S.G. § 1B1.3(a)(2). Conspirators may be

sentenced on the basis of the conduct of coconspirators taken in

furtherance of the conspiracy if that conduct was known or

reasonably foreseeable. U.S.S.G. § 1B1.3 comment (n.1). The

sentencing court is to make an approximation of the controlled

substance reasonably foreseeable by the defendant. See U.S.S.G.

§ 2D1.4 comment (n.2); United States v. Puma, 937 F.2d 151 (5th

3 Cir. 1991), cert. denied, 112 S.Ct. 1165 (1992).1 In arriving at

this estimate the court may consider any information that has

"sufficient indicia of reliability to support its probable

accuracy." U.S.S.G. § 6A1.3, p.s.; United States v. Angulo, 927

F.2d 202 (5th Cir. 1991); see also United States v. Singleton, 946

F.2d 23 (5th Cir. 1991), cert. denied, 112 S.Ct. 1231 (1992)

(hearsay expressly sanctioned).

The court a` quo considered the factual resume of the guilty

plea and the presentence report. Drug trade ledgers reflect that

Thomas was assigned a code number and had bought substantial

quantities of cocaine over a period of time. Regarding the

money-laundering count, Thomas used the $20,000 he received to

purchase more marihuana. The district court's quantitative finding

in the instant case is not clearly erroneous. We previously have

observed that an individual dealing in a sizable amount of

controlled substances ordinarily would be presumed to recognize

that the drug organization with which he deals extends beyond his

universe of involvement. United States v. Devine, 934 F.2d 1325

(5th Cir. 1991).

Thomas also contends that he is entitled to a decrease in his

offense level computation for his minor or minimal participation in

1 Section 2D1.1 is the guideline applicable to Thomas's conviction under 21 U.S.C. § 841(a). The comments to this section direct that "[i]f the amount seized does not reflect the scale of the offense, see Application Note 2 of the Commentary to § 2D1.4." U.S.S.G. § 2D1.1 comment (n.12). See United States v. Angulo, 927 F.2d 202 (5th Cir. 1991) (outlining the application of the guideline provisions).

4 the conspiracy because the volume of controlled substance

attributed to him was a small fraction of the operation's total

drug trade and because others with whom he worked had more active

roles. See U.S.S.G. § 3B1.2. A minimal participant is "plainly

among the least culpable of those involved in the conduct of the

group." U.S.S.G. § 3B1.2 comment (n.1). "[A] minor participant

means 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). Even if other codefendants were

more culpable, that does not automatically qualify Thomas for

either minor or minimal status. Each participant must be

separately assessed. See United States v. Mueller, 902 F.2d 336

(5th Cir. 1990). A defendant's participation is not minor unless

he is "substantially less culpable than the average participant."

U.S.S.G. § 3B1.2 comment (n.3).

We are not persuaded that either classification applies to

Thomas. He had been selling large amounts of controlled substances

to the conspiracy leader for several years and regularly appeared

on the drug-trade ledgers along with the other distributors. The

record contains ample support for the court's factual finding that

Thomas was an average participant. We will not disturb that

finding.

For the reasons assigned, the decision of the district court

is AFFIRMED.