United States v. Cummings , 2 F. App'x 324 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4428
LORI NICOLE CUMMINGS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-99-12)
Submitted: December 20, 2000
Decided: January 24, 2001
Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, Brian J.
Kornbrath, Assistant Federal Public Defender, Charleston, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, Mon-
ica K. Schwartz, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
2 UNITED STATES v. CUMMINGS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lori Cummings was convicted pursuant to her guilty plea for inter-
state travel to promote drug trafficking, in violation of 18 U.S.C.
§ 1952(a) (1994), and aiding and abetting, 18 U.S.C. § 2 (1994).
Cummings was sentenced to fifty-four months of incarceration with
three years of supervised release. Her incarceration period was
reduced to forty-one months when the district court, at resentencing,
found that Cummings was entitled to a safety valve reduction under
U.S. Sentencing Guidelines Manual § 2D.1(b)(6) (1998). Cummings
appeals the sentence imposed on resentencing, asserting that she is
entitled to a two-level adjustment as a minor participant under USSG
§ 3B1.2(2).
In 1995, Cummings became a girlfriend of Calvin Dyess. Over the
next three years, Cummings, Dyess, and Dyess’ associates made four
drug purchasing trips. Cummings claimed that during the first three
trips she was unaware of illegal motives or activities, but the district
court found Cummings unconvincing. Cummings admits to knowing
that the purpose of the fourth trip was to purchase and transport drugs.
On these four trips, Cummings drove her car from West Virginia to
New Jersey, where her car would be filled with drugs while she
waited in a hotel, and she would then drive herself, Dyess’ associates,
and the drugs back to West Virginia. On the fourth trip, to which
Cummings admits knowing involvement in interstate drug trafficking,
Cummings drove part of the return trip home, transporting a brick of
cocaine powder weighing approximately two kilograms. The district
court found that Cummings was involved in these criminal activities
either knowingly or with willful blindness to their criminal nature.
On appeal, Cummings must show that the district court clearly
erred in declining to award her a two-level reduction for her role in
the offense. United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.
UNITED STATES v. CUMMINGS 3
1989); see United States v. Reavis, 48 F.3d 763, 770 (4th Cir. 1995).
This Cummings cannot do.
To qualify for a minor participant reduction, a defendant must be
"less culpable than most other participants [in the offense]." USSG
§ 3B1.2, cmt. n.3. However, if a defendant is convicted of a signifi-
cantly less serious offense than is warranted by her criminal conduct,
she is not ordinarily entitled to a reduction. USSG § 3B1.2, cmt. n.4.
Additionally, to assess culpability, "courts not only compare the
defendant’s culpability to that of other participants, but also ‘mea-
sur[e] each participant’s individual acts and relative culpability
against the elements of the offense of conviction.’" Reavis, 48 F.3d
at 769 (quoting Daughtrey, 874 F.2d at 216). In conducting this anal-
ysis, courts look to whether "the defendant’s conduct is material or
essential to committing the offense." United States v. Akinkoye, 185
F.3d 192, 202 (4th Cir. 1999), cert. denied, ___ U.S. ___, 120 S. Ct.
1714 (2000) (quoting United States v. Palinkas, 938 F.2d 456, 460
(4th Cir. 1991), judgment vacated on other grounds by Kochekian v.
United States, 503 U.S. 931 (1992), op. reinstated by United States
v. Kochekian, 977 F.2d 905 (1992)).
Here, Cummings was charged only with interstate travel to pro-
mote drug trafficking, rather than a more serious charge of conspir-
acy. Thus, even though her involvement in the drug trafficking was
less serious than that of Dyess and other members of the conspiracy,
she was charged with and convicted of an offense less serious than
that faced by the most culpable members of the conspiracy. Further,
Cummings was a primary participant in transporting the drugs, the
offense for which she was convicted. Thus, we conclude that the dis-
trict court did not err in declining to apply the minor role adjustment.
We dispense with oral argument because the facts and the legal
contentions are adequately presented in the materials before the court
and argument would not aid in the decisional process.
AFFIRMED