United States v. Nkome ( 2021 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH February 17, 2021
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 18-3261
v.
GLADYS NKOME,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:17-CR-20021-DDC-2)
Kayla Gassmann, Appellate Attorney (Melody Brannon, Federal Public Defender,
David M. Magariel, Assistant Federal Public Defender, with her on the briefs),
Office of the Federal Public Defender, Kansas City, Kansas, for Defendant-
Appellant.
Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United
States Attorney, and James A. Brown, Assistant United States Attorney, with him
on the brief), Office of the United States Attorney, District of Kansas, Topeka,
Kansas, for Plaintiff-Appellee.
Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
HOLMES, Circuit Judge.
Defendant-Appellant Gladys Nkome challenges the district court’s denial of
a mitigating-role adjustment under United States Sentencing Guideline
(“Guidelines” or “U.S.S.G.”) § 3B1.2. After careful consideration of Ms.
Nkome’s arguments, we conclude that the district court did not err. Therefore,
exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
A
Prior to her arrest in May 2017, Ms. Nkome participated in an international
“advance-fee” conspiracy managed by individuals located in the Republic of
Cameroon. R., Vol. III, at 94, 124 (Amended Presentence Investigation Report,
filed Feb. 19, 2019). The Cameroon-based organizers created websites that
purportedly sold legal and illegal goods. They convinced prospective online
buyers to wire purchase money to fictitious U.S.-based sellers. A U.S.-based
individual posing as a seller—a so-called “money mule”—would retrieve the
wired money, take a percentage, and send the remainder overseas to the
conspiracy’s organizers. Id. at 94. The buyers would never receive the items that
they sought to purchase.
For approximately thirteen months, Ms. Nkome used at least thirty-five (35)
fraudulent identities to collect $357,078.74 in wire transfers connected to the
2
conspiracy. Id. at 124. Ms. Nkome’s co-defendant, Roderich Nkarakwi, 1 also
engaged in money-mule activities in furtherance of the conspiracy, but his
conspiratorial conduct extended beyond that role. Mr. Nkarakwi communicated
with conspirators in Cameroon and directly facilitated Ms. Nkome’s money-mule
activity by, among other things, helping her to obtain her false identities. After
each transaction, Ms. Nkome transferred seventy to eighty percent of her proceeds
to the conspiracy’s organizers outside the U.S. Between 2014 and 2017, Mr.
Nkarakwi also regularly participated in this conspiracy. He collected at least
$481,578.01 and used no fewer than ninety-five (95) different false identities.
Mr. Nkarakwi also retained twenty to thirty percent of the gross proceeds from his
money-mule activities and remitted the rest (i.e., seventy to eighty percent)
overseas to conspirators.
B
In May 2017, a federal grand jury sitting in the U.S. District Court for the
District of Kansas returned a six-count indictment against Ms. Nkome and Mr.
Nkarakwi, charging them with conspiracy to commit wire fraud under 18 U.S.C.
1
As we discuss infra, the district court found relevant to its analysis of
Ms. Nkome’s knowledge of the criminal conspiracy’s scope and structure the fact
that she and Mr. Nkarakwi—who undisputedly played more roles in the
conspiracy than Ms. Nkome—had had a personal relationship; indeed, he was the
father of her child. See R., Vol. II, at 119, 127.
3
§ 1349 (count I) and several substantive wire-fraud offenses in violation of 18
U.S.C. § 1343 (counts II through VI).
Ms. Nkome pleaded guilty in April 2018 to the indictment’s conspiracy
count without a written plea agreement. The U.S. Probation Office prepared a
Presentence Investigation Report (“PSR”) 2 that set Ms. Nkome’s base offense
level at seven, pursuant to U.S.S.G. § 2B1.1(a)(1). The PSR purported to take
into account solely Ms. Nkome’s own activities involving her “use of false
identities to pick up wire transfer monies” (as opposed to basing the amount on
the loss caused by the overall conspiracy) in calculating the loss amount
attributable to her. R., Vol. III, at 124. It elevated her adjusted offense level by
twelve, pursuant to U.S.S.G. § 2B1.1(b)(1)(G), based on a loss amount of between
$250,000 and $550,000. After making additional offense-level adjustments, not
relevant here, the PSR set her total adjustment offense level at twenty. With a
criminal history category of I, the PSR set Ms. Nkome’s advisory Guidelines
sentencing range at thirty-three to forty-one months’ imprisonment.
Ms. Nkome objected to certain aspects of the PSR and subsequently filed a
sentencing memorandum to support her position. As relevant here, Ms. Nkome
contended that the Probation Office should have recommended her for a
2
The Probation Office relied on the 2016 edition of the Guidelines in
preparing the PSR. Because this decision has not been challenged on appeal, we
also rely on that edition in resolving the sentencing issues in this appeal.
4
mitigating-role adjustment pursuant to U.S.S.G. § 3B1.2 3 and argued that the loss
amount that the office attributed to her was unreasonable. More specifically, as
to the mitigating-role adjustment, Ms. Nkome contended she should have received
the adjustment because she was merely “a ‘money mule’ and her role was limited
to picking up money at certain locations and sending the majority of the funds on
to others.” R., Vol. III, at 169. Ms. Nkome perceived the various participants in
the conspiracy as falling into tiers of culpability—with the “Leader organizer” at
the top and the “Money mule” at the bottom. Id. at 169–70. And, when her
limited role was considered in a totality-of-the-circumstances analysis, Ms.
Nkome reasoned that the PSR should have recommended her for a mitigating-role
adjustment. See id. at 169–70. The Probation Office, however, disagreed. It
reasoned that, “though comparisons of Ms. Nkome to people who performed other
roles [in the conspiracy] may be helpful in distinguishing duties, the comparisons
do not demonstrate that [Ms. Nkome] was substantially less culpable than the
average participant,” which is a necessary showing for a mitigating-role
3
Briefly stated, the Guidelines authorize a four-level reduction for a
defendant who was “a minimal participant in any criminal activity,” a two-level
reduction for a defendant who was “a minor participant” in the criminal activity,
and a three-level reduction for a defendant whose participation in the criminal
activity was of an “intermediate” level—between “minimal” and “minor.”
U.S.S.G. § 3B1.2 & cmt. n.3(C).
5
adjustment. Id. at 172. The Probation Office found that, in terms of culpability,
Ms. Nkome was “an average participant.” Id.
C
The district court conducted a sentencing hearing. There, the court heard
testimony from the law-enforcement case agent concerning the nature of the
fraudulent conspiracy and Ms. Nkome’s role in it, and then heard arguments from
the parties. Partway through the hearing the parties reached an agreement
concerning the loss amount, stipulating that the loss was “more than [$]95,000 but
less than [$]150,000.” R., Vol. II, at 89. However, Ms. Nkome maintained her
objection regarding the mitigating-role adjustment.
Based on its consideration of the testimonial evidence, the PSR’s findings,
and the parties’ arguments, the district court determined Ms. Nkome did not
qualify for a U.S.S.G. § 3B1.2 reduction. Id. at 126–30. It reached this decision
in part by applying five non-exhaustive factors set out in Note 3(C) of the
Guidelines commentary. Briefly stated, these factors inquire into the extent to
which the defendant: (1) understood the scope and structure of the criminal
activity; (2) planned or organized the criminal activity; (3) exercised decision-
making authority regarding the activity; (4) participated in the criminal activity
and possessed discretion and responsibility concerning it; and (5) stood to benefit
from the criminal activity. See U.S.S.G. § 3B1.2, cmt. n.3(C).
6
The district court reasoned that, under the view of the record “most
favorable” to Ms. Nkome, the first factor would be no more than “neutral,” but
the court ultimately found that “the evidence [made] it more likely than not that
[Ms. Nkome] understood how [the] conspiracy worked and . . . [her role] in it.”
R., Vol. II, at 126–27. In this regard, the court noted “particularly given [Ms.
Nkome’s] long run participation in [the conspiracy], her connection to her
co-defendant [i.e., Mr. Nkarakwi] who played more positions in the conspiracy
than she did, I think it is more likely on balance than not that she understood well
how this conspiracy worked.” Id. at 127. Next, the court found that factors two
and three supported Ms. Nkome’s position because the evidence did not establish
that she either planned the activity or exercised authority over those who did. Id.
at 127–28 (observing that, based on the parties’ arguments, it is “not persuasive to
believe that she played a significant organizing or planning role or that she
exercised authority or influenced those who did”).
As for the fourth factor, the court found that “this is the factor on which
[Ms. Nkome] does the worst” because “[s]he was a meaningful[,] repeating[,]
persistent participator.” Id. at 128. The court clarified that it was “not
particularly persuaded by arguments that say [Ms. Nkome] played an integral role
because most of these transactions or conspiracies need everyone in every role.
So the fact that the money wouldn’t have gotten claimed without her is not
7
particularly meaningful[.]” Id. However, the court said that upon “look[ing] at
the nature and extent of [Ms. Nkome’s] participation in this activity spread over a
substantial period of time going in . . . to claim money by herself, it seems . . .
that she does have a significant role in [the conspiracy] whether it is integral or
not.” Id.
Finally, the court found that the fifth, and last factor, did “not favor [Ms.
Nkome].” Id. at 129. More specifically, concerning the extent to which Ms.
Nkome stood to benefit from the criminal activity, the court reasoned as follows:
Like many things that happen in conspiracies and criminal
activity generally, the exact amount of loss that Ms. Nkome
imposed upon members of the public is not clear. The parties
agree that it’s somewhere between 95- and 150,000 dollars, and
also appear to agree she profited in the range of 20 to 30 percent
of that gross theft or gross loss. At the 20 percent at the low end
of that, her takeaway was $19,000. At the 30 percent on the high
end her takeaway was $45,000. That’s a significant benefit and
it is a benefit that is -- that is a piece of the action. The more of
it she did, the better she did. And so this factor in my judgment,
based on the evidence pertaining to it given the long running and
persistent nature of it and the degree of the benefit that we know
she derived, does not favor [Ms. Nkome].
Id. at 128–29.
In reaching its ultimate conclusion regarding the inapplicability of the
adjustment, the court observed that the Guidelines did not oblige it to
mechanically add up the five factors; the adjustment determination was “not a
scoreboard kind of thing.” Id. at 129. Rather, said the court, the Guidelines
8
intend for the court to ground its determination on “the totality of the
circumstances.” Id. And though the court acknowledged that only “three of the
factors disfavor the defendant” and that “the first factor [made for] a little closer
call” than the other two against the defendant, it ultimately found that Ms. Nkome
had not established that she qualified for a mitigating-role adjustment. Id.
The court reasoned as follows:
The exact structure of this from the evidence I heard and the
undisputed facts in the presentence report aren’t altogether clear,
but it seems that this was a conspiracy in an organization that had
relatively sophisticated people at the top of it and then a bunch
of piece workers, people who may have applied more
sophisticated skills like building a website or creating falsified
documents or going in to claim the money, but that does not
make them any less culpable than the defendant’s culpability
here.
So while I’m -- it’s a relatively close question on whether she
deserves a minor two-level reduction, I do not find it close on
whether she deserves a reduction at the minimal level or
intermediate. And given the defendant bears the burden on this,
I’m overruling the objection.
Id. at 129–30 (emphasis added). When Ms. Nkome’s counsel inquired whether
the court had intended by its remarks to deny all mitigating-role
adjustments—including the lowest (i.e., two-level) downward adjustment—the
court shed further light on its reasoning:
I think at the two-level it is a relatively close question. But when
I look at the key concept that is expressed in that [Guidelines]
commentary section that says is the defendant substantially less
9
culpable than the average participant in this criminal activity
[i.e., Note 3(C)], to me and the way -- on the totality of the
circumstances the way I evaluate this conspiracy is there was
someone more culpable than Ms. Nkome at the top but then there
were a bunch of people of relatively equal culpability. And I
cannot say with that view of the conspiracy that [Ms. Nkome] is
substantially less culpable than the average participant, and so
that’s why I overruled the objection.
Id. at 131–32.
After applying all of the Guidelines adjustments, the court found that Ms.
Nkome’s “total offense level [wa]s down from what the presentence report found
to 16 with a criminal history of one,” which “produce[d] a guideline range of 21
to 27 months.” Id. at 142. Having then considered the sentencing factors of 18
U.S.C. § 3553(a), the court sentenced Ms. Nkome to the bottom of that
range—that is, to twenty-one months’ imprisonment.
Ms. Nkome has timely appealed, arguing that the court erred in denying her
request for a mitigating-role reduction pursuant to U.S.S.G. § 3B1.2.
II
A
“[W]e review sentences for reasonableness under a deferential
abuse-of-discretion standard.” United States v. Alapizco-Valenzuela, 546 F.3d
1208, 1214 (10th Cir. 2008); accord United States v. Cookson, 922 F.3d 1079,
1090 (10th Cir. 2019). “Reasonableness includes both procedural and substantive
components.” United States v. Masek, 588 F.3d 1283, 1290 (10th Cir. 2009).
10
“The procedural component concerns how the district court calculated and
explained the sentence, whereas the substantive component concerns whether the
length of the sentence is reasonable in light of the statutory factors under 18
U.S.C. § 3553(a).” United States v. Adams, 751 F.3d 1175, 1181 (10th Cir.
2014).
Ms. Nkome’s challenges implicate the procedural reasonableness of her
sentence because, at bottom, she alleges that the district court committed legal
and factual error in calculating her Guidelines sentence—more specifically, that
the court’s denial of her mitigating-role adjustment rested on legal error and
inadequate factual evidence. Though the overarching standard for our review of
the procedural reasonableness of the court’s sentence is abuse of discretion,
“[t]his standard is not monolithic.” United States v. Arias-Mercedes, 901 F.3d 1,
5 (1st Cir. 2018). “[W]e review de novo the district court’s legal conclusions
regarding the guidelines and review its factual findings for clear error.” United
States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012); accord United States v.
Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014).
The court’s denial of a mitigating-role adjustment is a factual determination
and, accordingly, we review it for clear error. See United States v. Delgado-
Lopez, 974 F.3d 1188, 1191 (10th Cir. 2020); United States v. Martinez, 512 F.3d
1268, 1275 (10th Cir. 2008); see also U.S.S.G. § 3B1.2, cmt. n.3(C) (noting that
11
whether to apply a mitigating-role adjustment is “a determination that is heavily
dependent upon the facts of the particular case”). But, we recognize that “[a]
district court commits legal error when it applies the ‘wrong test’ in making a
factual finding at sentencing.” Delgado-Lopez, 974 F.3d at 1194 (quoting United
States v. Yurek, 925 F.3d 423, 446 (10th Cir. 2019)). And “[a]n error of law is
per se an abuse of discretion.” United States v. Lopez-Avila, 665 F.3d 1216, 1219
(10th Cir. 2011); accord United States v. Clark, 981 F.3d 1154, 1162 (10th Cir.
2020).
“The defendant bears the burden of proving by a preponderance of the
evidence whether an adjustment under § 3B1.2 is warranted.” United States v.
Salas, 756 F.3d 1196, 1207 (10th Cir. 2014); see United States v. Ayers, 84 F.3d
382, 383 (10th Cir. 1996) (“[I]t is the defendant’s burden to establish by a
preponderance of the evidence that he or she is entitled to an offense reduction.”).
Before considering Ms. Nkome’s specific arguments, we examine the relevant
Guidelines provisions.
B
The Guidelines instruct district courts to decrease by four levels a
defendant’s offense level when “the defendant was a minimal participant in any
criminal activity,” U.S.S.G. § 3B1.2(a), by two levels when “the defendant was a
minor participant,” id. § 3B1.2(b), and by three levels when the defendant’s
12
participation in the criminal activity was of an “intermediate” level—between
“minimal” and “minor,” id. § 3B1.2 & cmt. n.3(C).
The Guidelines commentary plays a significant role in elaborating on the
adjustment’s meaning. “Commentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”
United States v. Boyd, 721 F.3d 1259, 1261 (10th Cir. 2013) (quoting United
States v. Nacchio, 573 F.3d 1062, 1066–67 (10th Cir. 2009)); see also Stinson v.
United States, 508 U.S. 36, 45 (1993) (explaining that if an application note’s
interpretation of the Guidelines does not violate the Constitution or a federal
statute, we must give it “controlling weight unless it is plainly erroneous or
inconsistent with the regulation.” (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945))).
The applicable commentary note defines a “participant” as “a person who is
criminally responsible for the commission of the offense, but need not have been
convicted.” U.S.S.G. § 3B1.1, cmt. n.1 (defining “participant” as to the
aggravating-role adjustment); see id. § 3B1.2, cmt. n.1 (noting that, for purposes
of § 3B1.2, “participant” “has the meaning given that term” in § 3B1.1, the
aggravating-role adjustment); accord United States v. Lacey, 86 F.3d 956, 968
(10th Cir. 1996). Notably, the commentary further clarifies that “[t]he
13
determination of the defendant’s role in the offense is to be made on the basis of
all conduct within the scope of [U.S.S.G.] § 1B1.3 (Relevant Conduct) . . . and
not solely on the basis of elements and acts cited in the count of conviction.”
U.S.S.G., Ch. 3, Pt.B, intro. cmt.; accord United States v. VanMeter, 278 F.3d
1156, 1166 (10th Cir. 2002); see United States v. Harris, 148 F. App’x 690,
693–94 (10th Cir. 2005) (unpublished) (“Once a defendant’s relevant conduct for
sentencing purposes is determined, the same relevant conduct is used not only in
determining the defendant’s base offense level but also for any role in the offense
adjustments.”).
Accordingly, where a defendant’s criminal conduct involved a “jointly
undertaken criminal activity”—such as a conspiracy, as here—a sentencing
court’s assessment of a defendant’s role in the offense may involve in certain
instances consideration of the conduct of uncharged coconspirators, as well as the
conduct of charged, codefendant conspirators. U.S.S.G. § 1B1.3(a)(1)(B) & cmt.
(3)(A); see United States v. Roach, 978 F.2d 573, 576 (10th Cir. 1992) (upholding
district court’s finding that unindicted conspirator was a participant for purposes
of an aggravating role enhancement); see also United States v. Garrison, 133 F.3d
831, 844 n.22, 846 (11th Cir. 1998); cf. Lacey, 86 F.3d at 968 (ruling that “even
though a jury did not find [defendant’s two coconspirators] guilty beyond a
reasonable doubt, the district court was not foreclosed from finding by a
14
preponderance of the evidence that they were ‘criminally responsible’ and thus
participants in [defendant’s] drug conspiracy”). As particularly relevant to the
questions before us, the commentary makes clear that § 3B1.2 “provides a range
of adjustments for a defendant who plays a part in committing the offense that
makes him substantially less culpable than the average participant in the criminal
activity.” U.S.S.G. § 3B1.2, cmt. n.3(A) (emphasis added). The commentary
further clarifies the meaning of the key terms. A minimal participant is a
“defendant[] who [is] plainly among the least culpable of those involved in the
conduct of a group.” Id., cmt. n.4. A “defendant’s lack of knowledge or
understanding of the scope and structure of the enterprise and of the activities of
others is indicative of a role as a minimal participant.” Id. A minor participant is
a defendant “who is less culpable than most other participants in the criminal
activity, but whose role could not be described as minimal.” Id., cmt. n.5.
And, as noted, a downward adjustment also is authorized for a defendant
whose culpability is of an “intermediate” level—falling somewhere between the
culpability of the minimal and minor participant. Id., cmt. n.3(C) & n.5. “The
determination whether to apply [a minimal-role adjustment, a minor-role
adjustment], or an intermediate adjustment, is based on the totality of the
circumstances and involves a determination that is heavily dependent upon the
facts of the particular case.” Id., cmt. n.3(C).
15
Significantly, on November 1, 2015, the Sentencing Commission
promulgated Amendment 794. U.S.S.G. Supp. to App. C., Amend. 794 (Nov. 1,
2015). The amendment effectively revised the commentary to specify that courts
are to determine whether a defendant is eligible for a § 3B1.2 reduction by
comparing the defendant with other participants in the same criminal activity.
The Commission indicated that this revision was in response to “a circuit conflict
and other case law that may be discouraging courts from applying the adjustment
in otherwise appropriate circumstances.” Id. According to the Commission, this
split stemmed from differences concerning how to determine an “average
participant.” Id.
Some circuits “concluded that the ‘average participant’ means only those
persons who actually participated in the criminal activity at issue in the
defendant’s case, so that the defendant’s relative culpability is determined only by
reference to his or her co-participants in the case at hand.” Id. But others
“concluded that the ‘average participant’ also includes the ‘universe of persons
participating in similar crimes.’” Id. (quoting United States v. Santos, 357 F.3d
136, 142 (1st Cir. 2004)). “Under this latter approach, courts will ordinarily
consider the defendant’s culpability relative both to his co-participants and to the
16
typical offender.” Id. The Commission adopted the former view, 4 “revising the
commentary to specify that, when determining [the applicability of a] mitigating-
role adjustment, the defendant is to be compared with other participants ‘in the
criminal activity’”—that is, those involved in the same criminal activity at issue
in the defendant’s case. Id.Amendment 794 also “provide[d] a non-exhaustive list of factors for the
court to consider in determining whether to apply a mitigating-role adjustment
and, if so, the amount of the adjustment.” Id. In explaining the rationale for this
revision, the Commission explained that it “was persuaded by public comment
and a detailed review of cases involving low-level offenders, particularly in fraud
cases, that providing a list of factors will give the courts a common framework
for determining whether to apply a mitigating-role adjustment . . . and will help
promote consistency.” Id.4
In our persuasive unpublished decision in United States v. Moreno,
696 F. App’x 886 (10th Cir. 2017) (unpublished)—though we ultimately applied
the 2014, pre-amendment Guidelines—we discussed at some length the import of
Amendment 794. See id. at 889–90. Specifically, we observed that, prior to the
amendment, our cases had determined that “both comparators were
relevant”—that is, both criminal participants in the specific criminal activity at
issue and typical participants involved in the same type of criminal activity. Id.As the panel noted there, “the Sentencing Commission amended the commentary
(Amendment 794) to specify only an internal comparison is permitted,” that is to
say a comparison of participants involved in the same criminal activity. Id. at
889.
17
Along with its introductory commentary, this list—as it appears in the
Guidelines—states as follows:
In determining whether to apply subsection (a) [i.e., minimal-
participant] or (b) [i.e., minor-participant], or an intermediate
adjustment, the court should consider the following
non-exhaustive list of factors:
(i) the degree to which the defendant understood the scope
and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning
or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the exercise of
decision-making authority;
(iv) the nature and extent of the defendant’s participation in
the commission of the criminal activity, including the acts
the defendant performed and the responsibility and
discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the
criminal activity.
U.S.S.G. § 3B1.2, cmt. n.3(C).
And, relevant for our purposes, another product of Amendment 794 was
two clarifying comments that the Commission placed immediately after the list.
The first provides as follows: “For example, a defendant who does not have a
proprietary interest in the criminal activity and who is simply being paid to
perform certain tasks should be considered for an adjustment under this
guideline.” Id. And the second clarifies how much significance should attach to
18
the fact that a defendant played a key role in the criminal activity: “The fact that
a defendant performs an essential or indispensable role in the criminal activity is
not determinative. Such a defendant may receive an adjustment under this
guideline if he or she is substantially less culpable than the average participant in
the criminal activity.” Id.
Against this backdrop, we turn to assay Ms. Nkome’s arguments.
III
Ms. Nkome makes two arguments challenging the district court’s denial of
her request for a mitigating-role adjustment under U.S.S.G. § 3B1.2. First, she
contends that, in assessing whether she qualified for the mitigating-role
adjustment, the court committed legal error. Specifically, she asserts the
following: “Instead of analyzing Ms. Nkome’s role compared to the other
participants in the criminal activity, the district court looked at the commentary
factors in isolation. In doing so, it looked at Ms. Nkome’s culpability, but did not
compare her culpability to others in the conspiracy.” Aplt.’s Opening Br. at 11;
see also Aplt.’s Reply Br. at 5 (“Discussing Ms. Nkome’s conduct under each
[commentary] factor, isolated from any comparison to other participants, does not
satisfy the district court’s obligation to compare Ms. Nkome’s role and culpability
to the other participants.”).
19
And, second, Ms. Nkome contends that the district court committed clear
error in making the factual determination that she did not qualify for a mitigating-
role adjustment. In particular, Ms. Nkome asserts that the court “incorrectly
found that Ms. Nkome fell within an amorphous middle group” of criminal
participants of comparably equal culpability. Aplt.’s Opening Br. at 11. Ms.
Nkome contends that, at bottom, she was no more than “a minor participant in a
vast conspiracy that spanned multiple continents and involved scores of
individuals more culpable than her.” Id.
We carefully consider Ms. Nkome’s two arguments below but find them
wanting: she has not adequately shouldered her burden of demonstrating that the
district court erred in denying her request for a mitigating-role adjustment.
A
Ms. Nkome contends that the district court’s mode of analysis in
determining whether she qualified for a mitigating-role adjustment was legally
erroneous. She argues that, “[i]nstead of conducting a comparison using the
non-exhaustive list of factors contained in the commentary as a guide”—that is, a
comparison between her culpability and the culpability of the other participants in
20
the criminal activity at issue—the district court assessed “Ms. Nkome’s role in
isolation.” Id. at 17. 5
5
One might make a cogent argument that Ms. Nkome forfeited this
legal challenge before the district court and therefore—instead of reviewing this
legal question de novo (under the overarching abuse-of-discretion standard)—we
should review it only for plain error. See Yurek, 925 F.3d at 444–45; see also
United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007) (noting that “the
requirement of contemporaneous objection to procedural errors is consistent with
our precedent and represents a reasonable burden on defendants”); United States
v. Gantt, 679 F.3d 1240, 1247 (10th Cir. 2012). It is true that Ms. Nkome
vigorously objected to the PSR’s recommended denial of the § 3B1.2 mitigating-
role adjustment, and, in this regard, she also filed a sentencing memorandum
advancing this challenge. Later, Ms. Nkome orally urged the district court to
apply this downward adjustment at her sentencing hearing. However, like the
legal challenge of the defendant in Yurek, Ms. Nkome’s legal challenge is
“alleging an error in the district court’s explanation, not in the content of the
presentence report. So objecting to the presentence report would not have alerted
the district court to an error in its explanation.” 925 F.3d at 444. And, after the
district court offered its explanation for denying a mitigating-role adjustment to
Ms. Nkome and announced its sentence, Ms. Nkome did not specifically object on
the ground that the court’s explanation—viz., its comparative analysis—was
legally deficient. Instead, in response to the district court’s call for “any final
objections,” Ms. Nkome merely asserted, “I’ll object to the procedural . . .
reasonableness of the sentence and just sort of incorporate my comments from
earlier.” R., Vol. II, at 145. This general, enigmatic assertion was likely
incapable of alerting the district court to the legal error Ms. Nkome asserts now.
In this regard, her earlier comments at the sentencing hearing that Ms. Nkome
references in the quoted passage could not possibly have alerted the district court
to any purported deficiencies in its explanation because the court had yet to offer
it. However, we will not definitively opine on whether Ms. Nkome forfeited her
legal challenge or pursue the matter further because, even if she did forfeit the
challenge, the government did not bring Ms. Nkome’s possible forfeiture to our
attention and thereby “forfeited the right to object” to her forfeiture. United
States v. McGehee, 672 F.3d 860, 873 n.5 (10th Cir. 2012); see United States v.
Rodebaugh, 798 F.3d 1281, 1306 (10th Cir. 2015) (Bacharach, J., joined by
Moritz, J., writing for the court in dissent) (discussing the concept of the
(continued...)
21
As a general matter, it cannot be gainsaid that, in assessing a defendant’s
fitness for a § 3B1.2 adjustment, the sentencing court “must focus on whether the
defendant ‘is substantially less culpable than the average participant in the
criminal activity.’” Yurek, 925 F.3d at 445 (quoting U.S.S.G. § 3B1.2, cmt.
n.3(C)). Indeed, as we noted in Yurek, “[t]he crux of § 3B1.2 is a defendant’s
relative culpability.” Id. at 446. Moreover, as a consequence of Amendment 794,
it is clear that the Sentencing Commission has provided courts in the commentary
with a “framework” of five non-exhaustive factors to employ in conducting this
comparative analysis. U.S.S.G. Supp. to App. C., Amend. 794. More
specifically, the commentary indicates that sentencing courts “should consider”
these factors in this analysis. U.S.S.G. § 3B1.2, cmt. n.3(C).
However, as we have noted in the § 3B1.2 context, “[w]e do not require a
district court ‘to make detailed findings, or explain why a particular adjustment
[under the guidelines] is or is not appropriate.’” United States v. Bowen, 437
F.3d 1009, 1019 (10th Cir. 2006) (quoting United States v. Maldonado–Campos,
920 F.2d 714, 718 (10th Cir. 1990)); see also United States v. Herriman, 739 F.3d
5(...continued)
government’s “waiver or forfeiture of the waiver” and collecting cases). With the
matter in this posture, we exercise our discretion to “overlook” any potential
forfeiture by Ms. Nkome of her legal challenge, McGee, 672 F.3d at 873 n.5, and
review it de novo.
22
1250, 1262 (10th Cir. 2014) (observing that this Bowen principle is “well-
established”). It is only “when it is apparent from the court’s optional discussion
that its factual finding may be based upon an incorrect legal standard” that we are
obliged to “remand for reconsideration in light of the correct legal standard.”
Bowen, 437 F.3d at 1019 (quoting Maldonado-Campos, 920 F.2d at 718); accord
Delgado-Lopez, 974 F.3d at 1193. Moreover, in reviewing a sentencing court’s
pronouncements, “[w]e ‘traditionally presume, absent some indication in the
record suggesting otherwise, that trial judges . . . know the law and apply it in
making their decisions.”’ United States v. Chavez-Meza, 854 F.3d 655, 659 (10th
Cir. 2017) (quoting United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th
Cir. 2007), affirmed on other grounds, 138 S. Ct. 1959 (2018)); accord United
States v. Vann, 776 F.3d 746, 756 (10th Cir. 2015).
Having carefully reviewed the record, we cannot agree with Ms. Nkome’s
contention that the district court only considered her role “in isolation,” Aplt.’s
Opening Br. at 17, and did not compare her culpability to other participants’
culpability in her criminal scheme. For example, recall that in considering the
first of the five non-exhaustive factors of the Guidelines commentary, the court
compared Ms. Nkome’s participation in the criminal conspiracy to her
codefendant, Mr. Nkarakwi, and was able to draw inferences in part from this
comparison regarding Ms. Nkome’s knowledge of the structure and scope of the
23
scheme. More specifically, the court put it this way: “[P]articularly given [Ms.
Nkome’s] long run participation in [the conspiracy], [and] her connection to her
co-defendant [i.e., Mr. Nkarakwi] who played more positions in the conspiracy
than she did, I think it is more likely on balance than not that she understood well
how this conspiracy worked.” R., Vol. II, at 127.
Moreover, in considering the fifth non-exhaustive factor—which calls for
an inquiry into the extent to which the defendant benefitted from the criminal
scheme—the court observed that the parties “appear to agree [Ms. Nkome]
profited in the range of 20 to 30 percent of that gross theft or gross loss. . . .
That’s a significant benefit[,] . . . that is a piece of the action.” Id. at 129. It
seems quite logical to us that, in assessing Ms. Nkome’s “piece of the action,” as
a measure of her culpability and eligibility for a mitigating-role adjustment, the
court necessarily was simultaneously—albeit tacitly—comparing Ms. Nkome’s
culpability to that of other participants in the criminal scheme who got a larger
share of the action. And, though we will discuss them in somewhat greater detail
infra, the court’s concluding comments in denying the adjustment leave us with
no doubt that the court’s attention was centered on comparing Ms. Nkome’s
criminal culpability with other participants in a criminal conspiracy populated by
some “relatively sophisticated people at the top . . . and then a bunch of piece
workers.” Id. at 130. The court stated in closing: “I cannot say with that view of
24
the conspiracy that [Ms. Nkome] is substantially less culpable than the average
participant.” Id. at 132.
Admittedly, the court’s on-the-record culpability comparisons were not
extensive. But they did not have to be. See, e.g., Bowen, 437 F.3d at 1019. The
court did make some comparisons between Ms. Nkome’s culpable role and that of
other participants in the conspiracy. As such, it cannot be said that the court
completely failed to conform its (optional) analysis to the Guidelines’ comparison
mandate. In other words, if the court committed legal error, it did not do so
patently. Cf. Yurek, 925 F.3d at 446 (“By failing to consider Mrs. Yurek’s
relative culpability, the district court applied the wrong test when denying a
mitigating-role adjustment. As the government admits, the district court’s
application of the wrong test constitutes an error that was plain.”).
Consequently, Ms. Nkome is obligated to clearly identify in what way the
court’s analysis was legally deficient—viz., to tell us what more the court needed
to do to avoid legal error. Ms. Nkome, however, has struggled—and ultimately
failed—to do this. Notably, though her opening brief organizes its discussion of
the supposed legal deficiencies of the court’s comparative analysis under headings
with respect to the five non-exhaustive factors of the Guidelines commentary, Ms.
Nkome repeatedly said in oral argument that she was not asserting that the district
court was legally required to expressly conduct a comparative culpability analysis
25
with reference to each of the five factors. See Aplt.’s Reply Br. at 7 (“Our point
is not that the district court individually erred on each factor, but that the district
court conducted the wrong overall analysis by failing to compare Ms. Nkome’s
culpability to other participants in the offense.”). 6
Nonetheless, in seeking to illuminate the supposed legal deficiency of the
court’s comparative analysis, Ms. Nkome points to our decision in Yurek and the
Seventh Circuit’s decision in United States v. Hill, 563 F.3d 572 (7th Cir. 2009).
Yet neither case avails her. Yurek did address a circumstance where the district
court committed legal error—that is, it “applied the wrong test when denying a
mitigating-role adjustment.” 925 F.3d at 446. However, the legal error there
consisted of a clear violation of the Guidelines directive concerning what legal
significance courts should attach to a defendant’s “essential or indispensable role
in the criminal activity.” U.S.S.G. § 3B1.2, cmt. n.3(C); see Yurek, 925 F.3d at
446. As we have noted supra, the Guidelines commentary provides the following:
6
Taking into account Bowen’s instruction that courts ordinarily are not
required to offer detailed findings when denying Guidelines adjustments, Ms.
Nkome’s disclaimer in this regard is likely wise. See Bowen, 437 F.3d at 1019;
see also United States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018) (“[The
defendant] argues that the district court erred because it did not consider or
mention the five factors listed in § 3B1.2, cmt. n.3(C), and failed to mention other
factors it did consider when it concluded that [the defendant] did not qualify for a
minor-role adjustment. But the district court was not obligated to tick off the
factors on the record to show that it considered them . . . .”); accord United States
v. Daneshvar, 925 F.3d 766, 790 (6th Cir. 2019).
26
“The fact that a defendant performs an essential or indispensable role in the
criminal activity is not determinative. Such a defendant may receive an
adjustment under this guideline if he or she is substantially less culpable than the
average participant in the criminal activity.” U.S.S.G. § 3B1.2, cmt. n.3(C).
Nevertheless, the district court in Yurek assigned “determinative” effect in
denying a mitigating-role adjustment to its factual finding that the defendant’s
role in the criminal activity “had been essential,” and we consequently held that
this was legal error. 925 F.3d at 446. We are hard pressed to see how Yurek’s
holding illustrates the nature of the district court’s alleged legal failing here. In
finding fault with the district court’s comparative culpability analysis, Ms. Nkome
does not even hint that she alleges the same or similar legal error to the one that
we identified in Yurek. Indeed, she would not have gotten out of the starting
blocks if she had attempted to do so, because the district court here expressly
noted that it was “not particularly persuaded by arguments that say [Ms. Nkome]
played an integral role” in the conspiracy. R., Vol. II, at 128. And, though she
forcefully reminds us of Yurek’s observation that “[t]he crux of § 3B1.2 is a
defendant’s relative culpability,” Yurek, 925 F.3d at 446, this general
statement—important as it is—tells us nothing about the specific way in which
the district court supposedly committed legal error in assessing Ms. Nkome’s
relative culpability. Therefore, Yurek does not avail Ms. Nkome.
27
Neither does Hill. Contrary to Ms. Nkome’s assertion, the district court’s
analysis here does not present an analogous concern to the one that the Seventh
Circuit confronted in Hill. There, though the district court had made “a factual
determination normally entitled to deferential review,” in denying the defendant a
mitigating-role adjustment, the Seventh Circuit nevertheless remanded the matter
for reconsideration, stating that it “cannot be confident that [the court’s] analysis
was guided by the appropriate factors.” Hill, 563 F.3d at 579. More specifically,
the Seventh Circuit lacked confidence in the court’s factual analysis because the
defendant there had successfully demonstrated that the court’s analytical approach
was infected with legal error. Specifically, the defendant had shown that “the
[sentencing] court’s approach . . . reflect[ed] an inclination to divorce the offense
of conviction from the surrounding facts,” and the Seventh Circuit had concluded
that this tendency had led the court to erroneously disregard relevant conduct, as
the Guidelines define it (i.e., U.S.S.G. § 1B1.3), in concluding that the defendant
was legally ineligible for a mitigating-role adjustment. Id. at 578–79.
Hill, however, does not aid Ms. Nkome. Unlike the Hill defendant, Ms.
Nkome has not clearly identified a purported legal error in the district court’s
comparative analysis—let alone successfully established that error. Thus, Ms.
Nkome has given us no reason to lack confidence that the district court’s analysis
here was guided by the appropriate legal considerations. Stated otherwise, unlike
28
the Seventh Circuit in Hill, we have no reason to lack confidence that the district
court understood the Guidelines directive to compare the defendant’s role to other
participants in the criminal activity.
All of this is not to say that—in the portion of her briefing devoted to the
district court’s ostensible legal error—Ms. Nkome does not spill ink making
arguments. But, in essence, Ms. Nkome’s arguments are misguided or inapposite.
She objects to the lack of detail in the district court’s comparative analysis, but, at
least on this record, this argument (for reasons outlined supra) is a non-starter
under Bowen and its progeny. See Bowen, 437 F.3d at 1019.
In substance, Ms. Nkome primarily complains about how the district court
exercised its judgment in identifying criminal participants with whom to compare
Ms. Nkome’s culpability and about the results of such (as she sees it) flawed
comparisons. See, e.g., Aplt.’s Opening Br. at 17–18 (objecting that, after the
district court compared Ms. Nkome’s culpable conduct to Mr. Nkarakwi’s in
assaying her knowledge of the scope and structure of the criminal scheme, the
court failed to take the “necessary step of comparing that knowledge to other
participants,” like “the regional organizers and the document forgers”); see also
Aplt.’s Reply Br. at 6–7 (objecting to the district court’s alleged failure to
“compare her participation to that of the international or regional organizers, who
had participated for a much longer period of time, across multiple countries, who
29
performed more and more important tasks, were involved with more victims and
participants”). But such arguments implicate the sufficiency of the court’s
factual—not legal—analysis. See Arias-Mercedes, 901 F.3d at 7–8 (in discussing
the court’s factual analysis, subject to the clear-error standard, noting that “a
district court must still exercise judgment to identify the universe of participants
involved in the particular conduct that forms the basis of the defendant’s
sentence” and must subsequently decide where a defendant and her “cohorts can
be located on a continuum” of culpability). As such, Ms. Nkome does not get the
benefit of the more-rigorous de novo review. We review such arguments only
under the deferential clear-error standard. See, e.g., Delgado-Lopez, 974 F.3d at
1191; Martinez, 512 F.3d at 1275. And we address her factual challenge infra.
In sum, on this record where the district court did make some comparisons
between Ms. Nkome’s culpable role and that of other participants in the
conspiracy comprising her offense conduct, and Ms. Nkome has not clearly
pinpointed the source of any legal error in the court’s analysis, we must presume
that the court fully understood the legal boundaries attending its comparative
analysis and did not trespass them. See Chavez-Meza, 854 F.3d at 659 (noting the
traditional presumption that sentencing courts know the law and follow it).
30
B
We now turn to Ms. Nkome’s second challenge. She alleges that the
district court erred in finding her ineligible for a mitigating-role adjustment. As
noted, we use the clear-error standard in reviewing this type of challenge. See,
e.g., United States v. Llantada, 815 F.3d 679, 685 (10th Cir. 2016). Under this
deferential standard, “[i]f the ‘court’s account of the evidence is plausible in light
of the record viewed in its entirety,’ we may not reverse it even if we might have
weighed the evidence differently.” United States v. Piper, 839 F.3d 1261, 1271
(10th Cir. 2016) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985)); see United States v. Torres, 53 F.3d 1129, 1140 (10th Cir. 1995) (“To
constitute clear error, we must be convinced that the sentencing court’s finding is
simply not plausible or permissible in light of the entire record on appeal,
remembering that we are not free to substitute our judgment for that of the district
judge.” (citing Anderson, 470 U.S. at 573)). It is fair to say that, under the clear-
error standard, “battles over a defendant’s status and over the scope of the
criminal enterprise will almost always be won or lost in the district court.”
United States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995).
Recall that to qualify for a mitigating-role adjustment, a defendant has the
burden of establishing by a preponderance of the evidence that she was
“substantially less culpable than the average participant.” United States v.
31
Salazar-Samaniega, 361 F.3d 1271, 1277 (10th Cir. 2004) (quoting U.S.S.G.
§ 3B1.2, cmt. n.3(A)). This is a requirement of considerable consequence. In this
regard, “[w]e have [ ] held that a defendant is not entitled to a reduction under
3B1.2 simply because he is the least culpable among several participants in a
jointly undertaken criminal enterprise.” United States v. Lockhart, 37 F.3d 1451,
1455 (10th Cir. 1994); accord Adams, 751 F.3d at 1179; see United States v.
Moreno, 696 F. App’x 886, 894 (10th Cir. 2017) (unpublished) (noting the fact
that some participants were “admittedly, more culpable than [the defendant] . . .
does not end the debate”); see also United States v. Castro, 843 F.3d 608, 612
(5th Cir. 2016) (“Amendment 794 does not provide an affirmative right to a
§ 3B1.2 reduction to every actor but the criminal mastermind.” (quoting United
States v. Gomez-Valle, 828 F.3d 324, 331 (5th Cir. 2016))).
As relevant here, the question of a defendant’s qualification for a
mitigating-role adjustment—where the defendant’s participation in a conspiracy is
merely as a courier or mule—has arisen most frequently in the drug-trafficking
context. There, we have “consistently” held that courier or mule status does not
invariably qualify a defendant for a mitigating-role adjustment. Martinez, 512
F.3d at 1276 (“[W]e have consistently ‘refused to adopt a per se rule allowing a
downward adjustment based solely on a defendant’s status as a drug courier.’”
(quoting United States v. Rangel–Arreola, 991 F.2d 1519, 1524 (10th Cir.
32
1993))); see Salas, 756 F.3d at 1207 (“[Defendant’s] courier status alone does not
entitle him to an adjustment for a minor or minimal role.”); United States v.
Calderon-Porras, 911 F.2d 421, 423–24 (10th Cir. 1990) (“The mere fact that a
defendant is a courier in a drug-smuggling operation does not entitle that
defendant to be classified as a minimal participant.”). Consequently, we think
that the district court here would not have been obliged to grant Ms. Nkome a
mitigating-role adjustment simply because she was a “money mule.”
To better understand the foundation for the district court’s mitigating-role
determination and related factual findings, a somewhat detailed consideration of
the proceedings leading up to the sentencing hearing will be helpful. In objecting
to the PSR before the district court, Ms. Nkome contended that she should receive
a mitigating-role adjustment because she was merely “a ‘money mule’ and her
role was limited to picking up money at certain locations and sending the majority
of the funds on to others.” R., Vol. III, at 169. Using as a touchstone the
relevant conduct that the PSR described, Ms. Nkome perceived the various
participants in the fraudulent conspiracy as falling into tiers of culpability, with
the money mule tier representing the lowest level of culpability.
Specifically, in descending order of culpability—as the PSR’s Addendum
recorded it—Ms. Nkome reasoned that the participants fell into the following
tiers: “Leader organizer”—those “who set up the operation, recruit others to
33
participate, and play a large role in directing and controlling the flow of the
money in the operation”; “Online scammers”— those who “use email accounts or
other forms of communication to communicate with victims and actively work to
convince them of the legitimacy of the items they are purporting to sell”;
“Identify forgers”—those who “create fake identification documents that appear
real by using real state driver’s license forms” and “sell the documents to various
people involved in the scheme”; “Mid-level organizers”—those who “recruit the
‘money mules’ and help provide them with the fake documents they need to pick
up the money” and “communicate with higher ups in the organization to see
where funds are being sent and pass that information on to their mules to let them
know when and where to pick up the money and with what identity”; and “Money
Mules”—those who “act at the direction of others to pick up funds sent to various
false names.” Id. at 169–70. 7 Ms. Nkome asserted that she fell into this last,
7
In her appellate briefing, Ms. Nkome uses different terminology in
sorting the conspiracy’s participants for purposes of assessing their relative
culpability: “The conspiracy involved (at least) four categories of defendants: (1)
international organizers; (2) regional organizers; (3) document forgers; and (4)
money mules.” Aplt.’s Opening Br. at 3. But Ms. Nkome does not suggest that
this different terminology bespeaks a different substantive direction in her
challenge to the court’s denial of her request for a mitigating-role adjustment.
She still assigns herself to the lowest rung of the culpability ladder: money mule.
And she still contends that her codefendant, Mr. Nkarakwi, occupied a higher
place in the culpability hierarchy than she did—asserting that he “acted as a
regional organizer.” Id. at 4.
34
lowest tier of culpability and, by comparison, suggested that her codefendant, Mr.
Nkarakwi, was in a tier above her—that is to say, he was a mid-level organizer.
Ms. Nkome also purported to fortify her claim to a mitigating-role
adjustment by summarizing her role in the fraudulent conspiracy with tacit
reference to the five non-exhaustive factors of Note 3(C) of § 3B1.2. 8 As
8
For ready reference, along with their prefatory commentary, we
repeat those five non-exhaustive factors here:
In determining whether to apply subsection (a) [i.e., minimal-
participant] or (b) [i.e., minor-participant], or an intermediate
adjustment, the court should consider the following
non-exhaustive list of factors:
(i) the degree to which the defendant understood the scope
and structure of the criminal activity;
(ii) the degree to which the defendant participated in
planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the exercise of
decision-making authority;
(iv) the nature and extent of the defendant’s participation in
the commission of the criminal activity, including the
acts the defendant performed and the responsibility and
discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from
the criminal activity.
U.S.S.G. § 3B1.2, cmt. n.3(C).
35
recounted in the PSR’s Addendum, Ms. Nkome characterized her role in the
following manner:
Ms. Nkome did not understand the scope and structure of the
organization, nor did she participate in it. There is no evidence
that Ms. Nkome participated in the planning or organization of
the organization. Ms. Nkome did not interact with any victims.
She did not benefit substantially from the criminal activity. She
simply went to various businesses, presented as the person who
was to pick up the funds and sent the money up the chain.
R., Vol. III, at 170. Notably, Ms. Nkome acknowledged that “[s]he received a cut
of the money for her role,” but reasoned that this fact did not undermine her claim
to a mitigating-role adjustment. Id. In this regard, she seemingly attempted to
downplay the amount of her share of the proceeds of the fraud, noting that
“assuming the PSR is correct, Ms. Nkome would have received 20–30% of the
loss associated to her.” Id. at 171 (emphasis added).
In sum, in objecting to the PSR, Ms. Nkome argued that the evidence
established her “less culpable status in the conspiracy” and her entitlement to a
mitigating-role adjustment. Id. The Probation Office, however, disagreed. Its
reasoning helpfully frames the district court’s subsequent findings at the
sentencing hearing:
The defendant outlines the conduct of various individuals such
as leaders and organizers, online scammers, identity forgers, etc.
Obviously, this type of scheme can be widespread and involves
organization at higher levels. However, one person’s role does
not necessarily define that of another, and though comparisons of
Ms. Nkome to people who performed other roles may be helpful
36
in distinguishing duties, the comparisons do not demonstrate that
she was substantially less culpable than the average participant.
The U.S. Probation Office deems the defendant to be an average
participant.
Id. at 172. Notably, the Probation Office highlighted that Ms. Nkome was “only
being held accountable for her own conduct; however, she did not perform a
limited function in that regard.” Id. And, though the Probation Office, too,
observed that Ms. Nkome received “a 20%-30% money-mule fee associated” with
her criminal conduct, significantly, it also noted that Ms. Nkome’s codefendant,
Mr. Nkarakwi, received an equivalent share of the ill-gotten gains directly
attributable to his money-mule activities, and that such a share “appears to be a
substantial portion of the proceeds”—that is, a substantial cut, when considering
evidence about the “various role players.” Id. at 172–73. Accordingly,
considering the totality of the evidence, the Probation Office determined that Ms.
Nkome was “an average participant” in the criminal scheme and not a proper
recipient of a mitigating-role adjustment. Id. at 172.
During the sentencing hearing, the court heard testimony from the law-
enforcement case agent concerning the nature of the fraudulent conspiracy and
Ms. Nkome’s role in it and then heard arguments from the parties. As relevant
here, Ms. Nkome re-urged her objection to the PSR’s denial of a mitigating-role
adjustment, noting that “[s]he was simply . . . playing her role as money mule” in
the fraudulent scheme. Id., R., Vol. II, at 112. She also repeated the substance of
37
her arguments contained in the PSR that applied the five non-exhaustive factors
of Note 3(C) to the circumstances of this case. Notably, with respect to the fifth
factor—relating to the amount the defendant benefitted from the offense
conduct—Ms. Nkome acknowledged “the testimony from the agent that it was his
understanding about a 20 to 30 percent cut” of her ill-gotten gains was retained by
Ms. Nkome and that this “is not a tiny amount of money.” Id. at 116.
After hearing the agent’s testimony and the parties’ arguments, and with the
PSR’s findings before it, the district court—as we have explicated in Part I.C
supra—applied Note 3(C)’s five non-exhaustive factors to Ms. Nkome’s
fraudulent conspiracy and determined that she did not qualify for a mitigating-role
adjustment. Recall that the court candidly acknowledged that only “three of the
factors disfavor the defendant”—that is, the first (level of understanding of
criminal activity’s scope and structure), the fourth (level of participation,
discretion, and responsibility in the criminal activity), and the fifth (amount of
benefit from the criminal activity)—and that “the first factor [made for] a little
closer call” than the other two. Id. at 129. But the court observed that the
Guidelines did not oblige it to mechanically add up the five factors; the
adjustment determination was “not a scoreboard kind of thing,” and, based on
“the totality of the circumstances,” Ms. Nkome did not qualify for mitigating-role
adjustment. Id. In this regard, the court reasoned:
38
The exact structure of this [criminal activity] from the evidence
I heard and the undisputed facts in the presentence report aren’t
altogether clear, but it seems that this was a conspiracy in an
organization that had relatively sophisticated people at the top of
it and then a bunch of piece workers, people who may have
applied more sophisticated skills like building a website or
creating falsified documents or going in to claim the money, but
that does not make them any less culpable than the defendant’s
culpability here.
So while I’m -- it’s a relatively close question on whether she
deserves a minor two-level reduction, I do not find it close on
whether she deserves a reduction at the minimal level or
intermediate. And given the defendant bears the burden on this,
I’m overruling the objection.
Id. at 129–30 (emphasis added). And, in response to a question from Ms.
Nkome’s counsel, the court elaborated on this point and made its reasoning
crystalline:
I think at the two-level [i.e., minor-role adjustment] it is a
relatively close question. But when I look at the key concept that
is expressed in that [Guidelines] commentary section that says is
the defendant substantially less culpable than the average
participant in this criminal activity [i.e., Note 3(C)], to me and
the way -- on the totality of the circumstances the way I evaluate
this conspiracy is there was someone more culpable than Ms.
Nkome at the top but then there were a bunch of people of
relatively equal culpability. And I cannot say with that view of
the conspiracy that [Ms. Nkome] is substantially less culpable
than the average participant, and so that’s why I overruled the
objection.
Id. at 131–32.
In substance then, the court divided the criminal participants into two
groups: (1) “the relatively sophisticated people at the top,” and (2) the “piece
39
workers,” who carried out varied tasks in furtherance of the criminal conspiracy.
Id. at 130. The court assigned Ms. Nkome to the latter group and, from the
totality of the evidence, could not discern that she was appreciably less culpable
than the participants in this group—indeed, it found that the participants in this
group were of “relatively equal culpability” to her. Id. at 132. This was so even
though they performed different functions for the conspiracy. In reasoning as
such, the court tacitly evinced its approval of the Probation Office’s conclusion
that, “though comparisons of Ms. Nkome to people who performed other roles
may be helpful in distinguishing duties, the comparisons do not demonstrate that
she was substantially less culpable than the average participant.” R., Vol. III, at
172. 9 In sum, based on this reasoning and related findings, the court denied Ms.
Nkome a mitigating-role adjustment.
We are hard pressed to discern any clear error in the district court’s
mitigating-role determination, and Ms. Nkome’s contrary arguments on appeal are
unavailing. As an overarching matter, Ms. Nkome complains that the district
court erroneously, with little discussion, “grouped Ms. Nkome with unknown
others in an amorphous middle” tier of culpability—below the conspiracy’s
sophisticated leaders—without appropriately distinguishing her role from those in
9
Indeed, the court expressly adopted the PSR’s findings and ordered
them “incorporated into” Ms. Nkome’s sentencing record. R., Vol. II, at 147.
40
this middle tier who were more culpable than she was. Aplt.’s Opening Br. at 22.
And, more specifically, she asserts that an examination of the district court’s
treatment of the Note 3(C) factors that it weighed against her “explains the error”
of the court. Id.
We are nevertheless unpersuaded. At the outset, we note that, insofar as
Ms. Nkome suggests that the district court erred by not conducting a more
fulsome analysis in formulating its culpability groupings of the conspiracy’s
participants, no such detailed analysis was required. See Bowen, 437 F.3d at
1019; see also Diaz, 884 F.3d at 916. Then, turning to the heart of the matter, we
note that Ms. Nkome’s overarching argument effectively faults the district court
for failing to discern from the totality of the evidence something akin to the
multi-tiered culpability hierarchy that she had advanced in her PSR objection,
which distinguished between (among other things) “Mid-level organizers,”
“Identity forgers,” and “Money Mules,” like Ms. Nkome—who occupied the
bottom tier of culpability. See R., Vol. III, at 169–70. But, even assuming that
Ms. Nkome’s multi-tier culpability hierarchy constitutes one plausible
understanding of the factual record, that does not mean that the district court’s
different record assessment is implausible. See, e.g., Piper, 839 F.3d at 1271;
Torres, 53 F.3d at 1140; see also Anderson, 470 U.S. at 574 (“Where there are
41
two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.”).
And indeed the court’s reading of the factual record is not implausible. In
particular, the district court could plausibly find (as the Probation Office
effectively did before it) that the mere fact that other participants performed tasks
in furtherance of the conspiracy that may have required “more sophisticated
skills[,] like building a website or creating falsified documents,” than those of
Ms. Nkome—in “claim[ing] the money” that fraud victims sent through the use of
multiple false identities —did not mean that Ms. Nkome was less culpable than
those other participants. R., Vol. II, at 130. Furthermore, even if these other
participants were marginally more culpable than Ms. Nkome, that would “not end
the debate” concerning the applicability of the mitigating-role adjustment,
Moreno, 696 F. App’x at 894, nor mean that the court’s ultimate denial of the
adjustment was clearly erroneous, see, e.g., Lockhart, 37 F.3d at 1455 (noting that
“a defendant is not entitled to a reduction under 3B1.2 simply because he is the
least culpable among several participants in a jointly undertaken criminal
enterprise”).
Furthermore, Ms. Nkome’s more specific criticisms of the district court’s
consideration of the three Note 3(C) factors that the court weighed against her
evince a similar misunderstanding of the significant latitude that the clear-error
42
standard affords district courts in finding and weighing facts. Beginning with the
first factor, concerning a defendant’s level of understanding of the criminal
activity’s scope and structure, Ms. Nkome says that “the district court erred in
concluding that this factor weighed against [her] when its own analysis
confirmed” that below the participants at the conspiracy’s apex were people like
her codefendant, Mr. Nkarakwi, who played more diverse parts in the conspiracy
than Ms. Nkome did and, consequently, knew more about its scope and structure
than she did. Aplt.’s Opening Br. at 22–23. Yet, the fact that Mr. Nkarakwi’s
more diverse conspiratorial activities allowed him (as well as others like him) to
gain more knowledge about the conspiracy’s scope and structure than Ms. Nkome
would not necessarily render implausible a finding that Ms. Nkome “understood
well how this conspiracy worked,” especially given her “long run participation in”
it. R., Vol. II, at 127. Indeed, rather than undermining such a factual finding of
Ms. Nkome’s understanding, Mr. Nkarakwi’s diverse activities bolstered it on
these facts. That is because the court effectively determined that Ms. Nkome’s
close personal “connection” to Mr. Nkarakwi—not only as a coconspirator, but
also as the father of her child—supported an inference that she would have shared
a reasonable measure of his knowledge of the conspiracy’s scope and structure.
Id.; see id. at 119 (court’s inquiry of defense counsel regarding “[t]he nature of
the relationship between Ms. Nkome and her . . . co-defendant, because I think
43
that might bear on how I evaluate the extent of her knowledge,” and counsel
responding that “I know they have a child in common”). Therefore, Ms. Nkome’s
criticism of the court’s analysis of the first factor is unavailing.
And Ms. Nkome fares no better regarding the fourth factor, which relates to
a defendant’s level of participation, discretion, and responsibility in the criminal
activity. She contends that the district court deemed this her “worst” factor
because its analysis focused too narrowly on the fact she “was a meaningful[,]
repeating[,] persistent participator.” Aplt.’s Opening Br. at 19 (quoting R., Vol.
II, at 124). According to Ms. Nkome, the court thus effectively ignored the
portion of this factor relating to the defendant’s “responsibility and discretion” in
the criminal activity. Id. at 23 (quoting U.S.S.G. § 3B1.2, cmt. n.3(C)). In this
respect, Ms. Nkome reasons, the court erred and caused her prejudice “because
the evidence showed that she had limited responsibility and almost no discretion
in the acts she took.” Id.
However, the fact that the district court did not expressly refer to the
discretion and responsibility facets of the fourth factor does not necessarily mean
that the court did not consider them, and indeed we presume that the court did so
in properly following advisory Guidelines. See, e.g., Chevez-Meza, 854 F.3d at
659; Vann, 776 F.3d at 756. Moreover, it would not be a sign of clear error for
the court to have accorded greater significance in assaying her degree of
44
culpability under this fourth factor to Ms. Nkome’s repeated and substantial
participation in the conspiracy’s activities than to her arguably limited discretion
and responsibility in the conspiracy. See Piper, 839 F.3d at 1271 (noting that,
under the clear-error standard, “we may not reverse [the trial court’s view of the
evidence] even if we might have weighed the evidence differently”); see also
Anderson, 470 U.S. at 574 (noting that “the court of appeals may not reverse it
even though convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently”).
Lastly, as to the fifth factor—regarding the amount a defendant stood to
benefit from the criminal conduct—Ms. Nkome contends that “[t]he district
improperly attributed the full twenty to thirty percent to Ms. Nkome when the
evidence (as well as common sense) showed that this amount was split up by the
domestic parties (the regional organizers, document forgers, and money mules)
before ‘the rest would be forwarded back to Cameroon.’” Aplt.’s Opening Br. at
24 (quoting R., Vol. II, at 107). Furthermore, “[w]hile Ms. Nkome certainly
profited from her involvement” in the criminal activity and made “not a tiny
amount of money” for her criminal labors, as she reasons, it would be wrong to
consider her “a stakeholder in the larger criminal activity.” Id.Yet, not only is Ms. Nkome’s argument regarding this fifth factor curious
and plagued by a preservation problem, it is also otherwise unpersuasive. More
45
specifically, Ms. Nkome never challenged in the district court the accuracy of the
PSR’s clear finding that Ms. Nkome herself received twenty to thirty percent of
the losses that she personally caused through her criminal conduct. Indeed, in
lodging her objections to the PSR, Ms. Nkome “assum[ed]” this finding was
correct. R., Vol. III, at 171. And, during the sentencing hearing, she specifically
acknowledged “the testimony from the agent that it was his understanding about a
20 to 30 percent cut” of her ill-gotten gains was retained by Ms. Nkome and,
without challenging this testimony, conceded that this “is not a tiny amount of
money.” Id., Vol. II, at 116. Not surprisingly then, the court analyzed the fifth
factor by recognizing that Ms. Nkome and the government “agree[d] she profited
in the range of 20 to 30 percent of that gross theft or gross loss.” Id. at 129.
Given Ms. Nkome’s litigation conduct, she forfeited—at the very
least—any challenge based on the court’s ostensible error in calculating her share
of the gain from the conspiracy, if she did not waive the challenge outright.
Compare United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir.
2007) (noting that “forfeiture is the failure to make the timely assertion of a
right”), with United States v. Cruz-Rodriguez, 570 F.3d 1179, 1182 (10th Cir.
2009) (“We conclude that [the defendant] waived appellate review of this
argument by his intentional litigation decisions before the district court.”). And
because Ms. Nkome does not even acknowledge her lack of preservation of this
46
argument in her appellate briefing, much less advance an argument under the
well-established plain-error rubric, she has effectively waived our further
consideration of this argument. See, e.g., United States v. Leffler, 942 F.3d 1192,
1196 (10th Cir. 2019).
As for Ms. Nkome’s contention that she should not have been considered a
“stakeholder” in the conspiracy, the apparent thrust of this argument is that the
district court erred by not finding that Ms. Nkome was “a defendant who does not
have a proprietary interest in the criminal activity and who is simply being paid to
perform certain tasks”—a class of defendants that the Guidelines commentary
provides “should be considered for an adjustment” under § 3B1.2. U.S.S.G.
§ 3B1.2, cmt. n.3(C)(v). 10 We disagree.
The district court’s factual findings—which Ms. Nkome has not
demonstrated are implausible—paint a very different picture of Ms. Nkome’s
financial benefit from the conspiracy. Rather than find, for example, that Ms.
Nkome periodically received small flat-fee payments for performing certain minor
tasks for the conspiracy, the court found that Ms. Nkome had a “significant” share
10
In briefing this argument, Ms. Nkome cites to 3B1.2, cmt. n.3(C)(iv),
see Aplt.’s Opening Br. at 24, but this almost certainly is a mistake because
subpart (iv) deals with a defendant’s participation, discretion, and responsibility
in the criminal activity, whereas subpart (v) addresses the extent of a defendant’s
benefit in the criminal activity and includes the “paid to perform certain tasks”
language that Ms. Nkome quotes in her brief.
47
in the conspiracy’s gross proceeds—that is, “a significant . . . piece of the action”
in the range of “20 to 30 percent.” R., Vol. II, at 129. Notably, the PSR—upon
which the district court expressly relied, see id. at 13, 130—found that Ms.
Nkome’s share was equal to that of her codefendant, Mr. Nkarakwi, for his
money-mule activities, even though he undisputedly played a more extensive role
in furthering the conspiracy’s interests, see R., Vol. III, at 172. Indeed, even Ms.
Nkome has been obliged—before the district court and on appeal—to concede
that she made “not a tiny amount of money” for her conspiratorial endeavors.
Aplt.’s Opening Br. at 24; R., Vol. II, at 116. In light of these findings, the
district court could have quite reasonably rejected any suggestion that the fifth
factor favored Ms. Nkome because she had no “proprietary interest in the criminal
activity.” U.S.S.G. § 3B1.2, cmt. n.3(C)(v). Thus, Ms. Nkome’s arguments
concerning this factor are flawed by preservation concerns and unpersuasive, and
we reject them.
In sum, we discern no merit in Ms. Nkome’s second, factual challenge to
the district court’s denial of a mitigating-role adjustment.
IV
For the foregoing reasons, we AFFIRM the district court’s sentencing
judgment.
48