United States v. Marcus Jones ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1888
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United States of America
Plaintiff - Appellee
v.
Marcus Alan Jones
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: January 11, 2022
Filed: February 18, 2022
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Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
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GRUENDER, Circuit Judge.
Marcus Jones was a courier for a drug-trafficking operation. Jones
transported large amounts of methamphetamine from California to Arkansas to fill
the dealer’s orders and large amounts of money back to California to the supplier.
In January and February of 2019, Jones made at least seven or eight round trips
transporting drugs and money. He purchased most of the airline tickets himself.
During one of those trips, Jones was questioned by police at the airport because he
was carrying $21,000. In May 2019, Jones was arrested at a bus stop in New Mexico
with 4.395 kilograms of methamphetamine duct-taped to his body.
After Jones waived his right to indictment, the Government filed an
information charging him with conspiracy to distribute methamphetamine. See 21
U.S.C. §§ 841(a)(1), 846. Jones pleaded guilty. Jones requested a minor-role
adjustment under U.S.S.G. § 3B1.2(b), but the district court1 denied his request. It
considered the unobjected-to facts in the presentence investigation report, explicitly
compared Jones’s role to that of another courier, noted the § 3B1.2 cmt. n.3(C)
factors, and ultimately concluded that he did not meet his burden to show “that he
was less culpable than the average participant.” Jones appeals.
We review a district court’s determination that the defendant is not entitled to
a minor-role reduction under § 3B1.2(b) for clear error. United States v. Ramirez-
Maldonado, 928 F.3d 702, 708 (8th Cir. 2019). The defendant bears “the burden of
establishing [his] entitlement to a minor-role reduction.” United States v. Durham,
836 F.3d 903, 911 (8th Cir. 2016). “The Guidelines direct district courts to decrease
the offense level by two levels ‘[i]f the defendant was a minor participant in any
criminal activity.’” Ramirez-Maldonado, 928 F.3d at 708 (quoting § 3B1.2(b)). In
determining whether to apply the reduction, “[t]he district court should consider . . .
the defendant’s knowledge, planning, authority, responsibility, and benefit from the
illegal scheme.” United States v. Kearby, 943 F.3d 969, 977-78 (5th Cir. 2019); see
§ 3B1.2 cmt. n.3(C); United States v. Waddell, 831 F.3d 958, 960 (8th Cir. 2016).
“The fact that a defendant performs an essential or indispensable role in the criminal
activity is not determinative.” § 3B1.2 cmt. n.3(C). The reduction applies to “a
defendant who plays a part in committing the offense that makes him substantially
less culpable than the average participant in the criminal activity,” § 3B1.2 cmt.
n.3(A), even if his “role could not be described as minimal,” § 3B1.2 cmt. n.5.
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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Jones argues that the district court clearly erred in denying the minor-role
reduction because the guideline requires the district court to determine whether
Jones was “substantially less culpable than the average participant in the criminal
activity,” whereas he argues that the district court considered only the relative
culpability of Jones and another courier. See § 3B1.2 cmt. n.3(A) (emphasis added).
As Jones notes, there were participants in the conspiracy who were not couriers.
Jones also argues that the denial was clearly erroneous because the district court
failed to address the factors in § 3B1.2 cmt. n.3(C). We disagree.
We have previously held that it was not clear error to deny a minor-role
reduction to a defendant who was involved in a conspiracy “for at least three
months” and delivered drugs “on at least one if not two occasions.” Ramirez-
Maldonado, 928 F.3d at 708. We have also explained that “merely showing the
defendant was less culpable than other participants is not enough to entitle the
defendant to the adjustment if the defendant was deeply involved in the offense.”
United States v. Cubillos, 474 F.3d 1114, 1120 (8th Cir. 2007) (internal quotation
marks omitted); see also United States v. Deans, 590 F.3d 907, 910 (8th Cir. 2010);
United States v. Lopez-Vargas, 457 F.3d 828, 831 (8th Cir. 2006). Jones argues that
the 2015 amendment to § 3B1.2 abrogated Cubillos, Deans, and Lopez-Vargas by
clarifying that a defendant may receive a minor-role adjustment if he “is
substantially less culpable than the average participant in the criminal activity,” even
if he “performs an essential or indispensable role in the criminal activity.” See
U.S.S.G. Supp. to App. C, Amend. 794 (effective Nov. 1, 2015). But the reasoning
in Cubillos, Deans, and Lopez-Vargas does not contradict the amended guideline.
Someone who is “less culpable” but still “deeply involved,” Cubillos, 474 F.3d at
1120, is not “substantially less culpable than the average participant in the criminal
activity,” see § 3B1.2 cmt. n.3(A) (emphasis added), and just because someone’s
role is essential does not mean that he is “deeply involved.” See United States v.
Hernandez Lopez, --- F.4th ---, No. 20-3468, slip op. at 4 (8th Cir. Jan. 31, 2022)
(reiterating after the 2015 amendment that a defendant “less culpable” than his co-
conspirators is not entitled to a minor-role reduction if he was nonetheless “deeply
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involved in the offense”); United States v. Bandstra, 999 F.3d 1099, 1102 (8th Cir.
2021) (same).
Jones’s role in the conspiracy was to transport drugs and money between the
methamphetamine supplier in California and at least one dealer in Arkansas. He
also had contact with another dealer in Arkansas who received and distributed
methamphetamine that came from California. Jones was involved in the conspiracy
for at least five months, making at least seven or eight round trips in January and
February 2019. Jones claims he was paid only $200 for each trip, which would
suggest that he received little benefit for his part in the conspiracy. See Kearby, 943
F.3d at 977-78; § 3B1.2 cmt. n.3(C). Jones purchased most of his airline tickets
himself, and he transported $21,000 during one of the trips. In the days leading up
to Jones’s arrest, he made or received fifty-six phone calls and text messages with
the supplier. When Jones was arrested in May 2019, he had 4.395 kilograms of
methamphetamine duct-taped to his body. Compared to two other couriers who
were involved in the conspiracy, Jones was the only one caught with both money
and drugs, see Hernandez Lopez, slip op. at 5, he made more trips between California
and Northwest Arkansas or Tulsa than they did, and he was caught with more than
twice as many drugs as the other courier who was caught with drugs.
From these facts, it was not clear error for the district court to find that Jones
was not entitled to a minor-role reduction. Although the district court explicitly
compared Jones’s culpability only to another courier and not to the supplier and
dealers, and it did not discuss every § 3B1.2 cmt. n.3(C) factor at length, it did not
need to make extensive findings. See United States v. Nkome, 987 F.3d 1262, 1274
(10th Cir. 2021). And the district court correctly stated that application of the minor-
role reduction “comes down to whether . . . Jones [was] an average participant when
we compare the . . . relative culpability of all of the other defendants,” not just other
couriers. Considering “the totality of the circumstances,” see § 3B1.2 cmt. n.3(C),
it was not clearly erroneous for the district court to conclude that Jones was not
substantially “less culpable than the average participant” and to deny the minor-role
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reduction. See § 3B1.2 cmt. n.3(A); Ramirez-Maldonado, 928 F.3d at 708; Cubillos,
474 F.3d at 1120.
For the foregoing reasons, we affirm Jones’s sentence.
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