United States v. Smith , 298 F. App'x 484 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0646n.06
Filed: October 22, 2008
No. 07-5178
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
LONNIE SMITH, ) THE WESTERN DISTRICT OF
) TENNESSEE
Defendant-Appellant. )
)
)
Before: CLAY and KETHLEDGE, Circuit Judges, and OLIVER, District Judge.*
KETHLEDGE, Circuit Judge. Defendant Lonnie Smith appeals his sentence following his
guilty plea to federal drug and firearms charges. Smith asserts that the district court erred in denying
him an offense-level reduction, under U.S.S.G. § 3B1.2(b), for being a “minor participant” in the
underlying marijuana-trafficking scheme. We disagree, and affirm.
I.
In November 2004, investigators with the Organized Crime Unit of the Memphis Police
Department received information from a reliable informant that marijuana was being stored and sold
at a residence there. The residence’s utility records were in Smith’s name.
*
The Honorable Solomon Oliver, Jr., United States District Court Judge for the Northern
District of Ohio, sitting by designation.
No. 07-5178
United States v. Lonnie Smith
On November 18, 2004, investigators surveilled the residence and observed Smith loading
several boxes into an older-model Ford van. Smith then drove away in the van, and was pulled over
by uniformed officers for not wearing his seat belt. Smith exited the van and walked toward the
officers, dropping a marijuana cigarette. The officers asked Smith if he needed it back, and Smith
replied, “I ain’t worried about that. There’s plenty more of that in the van.”
The officers approached the van and noticed a strong odor of marijuana. They requested a
K-9 unit, which arrived and alerted on the boxes in the van. Investigators found approximately 665
pounds of marijuana in thirteen boxes in the van, and a .38 caliber revolver under the driver’s seat.
The police then executed a search warrant on the residence, finding drug paraphernalia, scales,
plastic bags, and an additional nine pounds of marijuana.
On June 14, 2005, a federal grand jury sitting in the Western District of Tennessee returned
a three-count indictment against Smith, charging him with being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g), and two counts of unlawful possession with intent to distribute
a controlled substance in violation of 21 U.S.C. § 841(a)(1). Smith pled guilty to the charges.
The probation office prepared a presentence report, which recited the offense conduct
described above. The report calculated Smith’s offense level under the Sentencing Guidelines to be
25, with a criminal history category of VI, resulting in an advisory guideline range of 110 to 137
months’ incarceration.
Smith objected to the presentence report’s description of the offense conduct. He asserted
the description was incomplete because it did not mention that he had told the officers at the scene
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No. 07-5178
United States v. Lonnie Smith
that the drugs were not his and that a pit bulldog found in the van belonged to someone else. Smith
did not otherwise dispute the presentence report’s description of the offense conduct.
Smith also objected to the presentence report’s calculation of his offense level. Smith argued
he was entitled to a two-level reduction for being a “minor participant” in the offense under U.S.S.G.
§ 3B1.2(b).
At Smith’s sentencing hearing, the district court rejected Smith’s argument that he was a
minor participant in the offense. The court reasoned that the facts set forth in the presentence
report–including that Smith was seen loading boxes from the residence into the van, that Smith’s
name was on the utility records of the residence, and that there was a search warrant executed on the
residence which revealed drug paraphernalia, scales, bags, and an additional nine pounds of
marijuana–all indicated that Smith was “more than simply a conduit” and gave “some indication that
there may have been some selling going on.” Accordingly, the district court denied the requested
reduction, and sentenced Smith to 110 months’ incarceration followed by four years of supervised
release.
Smith now appeals, challenging only the district court’s denial of his request for a two-level
reduction as a minor participant under U.S.S.G. § 3B1.2(b).
II.
The Sentencing Guidelines provide for “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.” U.S.S.G. § 3B1.2 cmt. n. 3(A). Section 3B1.2 provides:
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No. 07-5178
United States v. Lonnie Smith
Based on the defendant’s role in the offense, decrease the offense
level as follows:
(a) If the defendant was a minimal participant in any criminal
activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
U.S.S.G. § 3B1.2.
The reduction for a minimal participant “is intended to cover defendants who are plainly
among the least culpable of those involved in the conduct of a group.” Id. cmt. n. 4. A reduction
for a minor participant–which is the relevant definition here–“applies to a defendant . . . who is less
culpable than most other participants, but whose role could not be described as minimal.”
Id. cmt. n. 5. The “salient issue is the role the defendant played in relation to the activity for which
the court held him or her accountable.” United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001).
“A defendant whose role has ‘importance in the overall scheme’ for which he is being held
accountable is not a minor participant within the meaning of § 3B1.2.” United States v. Salas, 455
F.3d 637, 643 (6th Cir. 2006) (quoting Salgado, 250 F.3d at 458).
We review a district court’s denial of an offense-level adjustment for clear error. Salgado,
250 F.3d at 458. Clear error leaves us “with the definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co., 333 U.S. 364 (1948). Under this standard,
we will not reverse the district court’s finding “simply because we would have decided the case
differently.” Easley v. Cromartie, 532 U.S. 234, 242 (2001). Thus, with respect to § 3B1.2,
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No. 07-5178
United States v. Lonnie Smith
“[s]imply because the court could have applied a minor role adjustment . . . does not mean that the
district court was required to apply the adjustment.” Salas, 455 F.3d at 643.
Moreover, the defendant bears the burden of proving by a preponderance of the evidence that
he was a minor participant in the offense. Id. The issue, therefore, is whether the district court
clearly erred in holding that Smith failed to prove by a preponderance of the evidence that he was
a minor participant in the offense.
The district court made no such error. It was Smith’s burden to prove he was a minor
participant. He presented little or no evidence, other than his own testimony, to meet it. Smith
asserted he was “merely a person that was being used to move these drugs from one point to
another,” whose role “was much lesser than [the] person that these drugs belonged to.” He also
asserted that he did not own the marijuana, the residence in which it was stored, or the vehicle in
which he was stopped.
But Smith does not dispute that, in November 2004, the Memphis Police received
information from a reliable informant that marijuana was being stored at and sold from a residence
in Memphis; that the utilities for the residence were in his name; that police observed him loading
boxes from the residence into the vehicle; that he knew the boxes contained marijuana; that he drove
away from the residence with 665 pounds of marijuana in the vehicle and a revolver under the
driver’s seat; or that police found drug paraphernalia, scales, plastic bags, and an additional nine
pounds of marijuana in the residence.
The evidence, therefore, left the district court with ample basis to conclude that Smith’s “role
ha[d] ‘importance to the overall scheme’ for which he was held accountable[.]” Salas, 455 F.3d at
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643 (quoting Salgado, 250 F.3d at 458). And, more to the point, it left the court with ample basis
to find that Smith had not met his burden of proving the contrary. Consequently, the district court
did not clearly err in denying the requested reduction.
III.
For the foregoing reasons, we affirm Smith’s sentence.
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