United States v. Howerton ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41324
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY HOWERTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-01-CR-312-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Jerry Howerton appeals the sentence imposed pursuant to his
guilty-plea conviction for conspiracy to possess with the intent
to distribute methamphetamine. He argues that the district court
erred in denying him a downward adjustment based on a mitigating
role.
We review the district court’s determination that Howerton
did not play a minor or minimal role in the offense for clear
error. See United States v. Brown, 54 F.3d 234, 240 (5th Cir.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-41324
-2-
1995). A “minimal participant” is one who is “plainly among the
least culpable of those involved in the conduct of a group” and
who demonstrates a lack of knowledge or understanding of the
scope and structure of the enterprise. U.S.S.G. § 3B1.2,
comment. (n.4). A “minor participant” is one who is “less
culpable than most other participants, but one whose role could
not be described as minimal.” § 3B1.2, comment. (n.5).
To merit an adjustment under § 3B1.2, the defendant must have
been “substantially less culpable” than the average participant.
§ 3B1.2, comment. (n.3(A)).
The district court obviously credited the testimony of the
DEA agent over Howerton’s self-serving testimony that all he was
capable of doing was watching the children. The court was free
to make this credibility choice. See United States v. Davis, 76
F.3d 82, 85 (5th Cir. 1996). Although the DEA agent did offer
testimony suggesting that Howerton’s role was not as great as his
wife’s, an adjustment is “not appropriate simply because a
defendant does less than other participants; in order to qualify
as a minor participant, a defendant must have been peripheral to
the advancement of the illicit activity.” United States v.
Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001).
The district court did not clearly err in determining that
Howerton did not play a minor or minimal role in the offense.
See Brown, 54 F.3d at 240. The judgment of the district court is
AFFIRMED.