United States v. Balogun ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 9 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-2186
RAHEEM BUKOLA BALOGUN, (D.C. No. CR-95-352-04-JP)
(D. New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**
Defendant Raheem Bukola Balogun pleaded guilty to various federal charges
relating to the interstate transportation of more than one kilogram of heroin. The district
court sentenced Balogun to 135 months imprisonment to be followed by five years 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This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1.9. The case is therefore ordered
submitted without oral argument.
supervised release. Challenging his sentence, Balogun argues that the district court erred
by not affording him a reduction in his base offense level under U.S.S.G. § 3B1.2(a), for
being a minimal or minor participant in the criminal activity. We exercise jurisdiction
under 18 U.S.C. § 3742(a), and affirm.
We review a district court’s refusal to find a defendant a minimal or minor
participant for clear error. United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir. 1994).
As an adjustment for a minimal or minor role does not concern a departure under the
guidelines, the district court is not required to announce the reasons supporting a factual
finding under U.S.S.G. § 3B1.2(a). See United States v. Maldonado-Campos, 920 F.2d
714, 717-18 (10th Cir. 1990).
Relying on United States v. Mondaine, 956 F.2d 939, 942-43 (10th Cir. 1992) and
United States v. Pettit, 903 F.2d 1336, 1341 (10th Cir. 1990), Balogun contends that a
district court can look only at the defendant’s role in the offense for which he was
convicted in connection with the requested minimal- or minor-role adjustment. He argues
that the district court improperly “used conduct on a previous [heroin transportation] trip
for the basis of its ruling.”
Balogun correctly argues the rule of law set forth in Pettit and applied in
Mondaine, that a court is limited to considering a defendant’s role in the offense of
conviction in determining whether to allow for a minimal- or minor-role adjustment.
However, as explained in Mondaine, the application commentary for U.S.S.G. § 3B1.2
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was amended to state that the determination of a defendant’s role in the offense is to be
made on the basis of all relevant conduct, and not solely on the basis of the offense of
conviction. See Mondaine, 956 F.2d at 943 n. 2. As the criminal activity in this case
occurred after the effective date of the amendment, November 1, 1990, the amended
commentary applies. See Stinson v. United States, 113 S. Ct. 1913, 1919 (1993) (stating
that amended commentary is binding on federal courts).
We have reviewed the parties’ briefs and the record in this case, particularly the
evidence presented at the sentencing hearing. We conclude that the district court did not
clearly err in finding that Balogun played more than a minimal or minor role in the
offense, considering all relevant conduct. Thus, the district court did not err in denying
Balogun a minimal- or minor-role adjustment.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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