United States v. Karl W. Brubaker ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-2310
    ___________
    United States of America,               *
    *
    Appellee,          *
    * Appeal from the United States
    v.                                * District Court for the
    * District of Minnesota.
    Karl William Brubaker,                  *
    *
    Appellant.          *
    ___________
    Submitted: February 11, 2004
    Filed: April 7, 2004
    ___________
    Before BYE, HEANEY, Circuit Judges, and HOVLAND,1 District Judge.
    ___________
    HEANEY, Circuit Judge.
    Karl William Brubaker pled guilty to possession with the intent to distribute
    over 500 grams of a mixture or substance containing a detectable amount of
    methamphetamine, in violation of 
    21 U.S.C. § 841
    (a)(1) and 841(b)(1)(A). At
    sentencing, he moved for a downward adjustment in his offense level due to his
    1
    The Honorable Daniel L. Hovland, United States District Judge for the District
    of North Dakota, sitting by designation.
    limited role in the offense. The district court2 denied the motion and sentenced
    Brubaker to 87 months of imprisonment. On appeal, Brubaker argues the district
    court erred in failing to grant him a mitigating role reduction. We affirm.
    BACKGROUND
    On September 18, 2002, Minneapolis police officers executed a search warrant
    at Brubaker’s apartment. In a bedroom drawer, they found a single package
    containing roughly 450 grams of methamphetamine that tested 92% pure. Officers
    found three other packages of methamphetamine hidden behind a decorative mask on
    Brubaker’s living room wall, and two additional packages on Brubaker’s living room
    table. The methamphetamine found in the living room totaled approximately 89
    grams, and its purity was much lower than that of the larger quantity found in
    Brubaker’s bedroom.
    Brubaker admitted ownership of the smaller packages of methamphetamine,
    but maintained that he was only safeguarding the larger package for an unnamed
    person. According to him, “the large quantity that was found in the bedroom was
    dropped off for someone by someone for someone else, and was not mine.” (Change
    of Plea Hr’g at 27-28.) Brubaker thus admitted guilt to the offense of possessing
    methamphetamine with intent to distribute it, but argued at sentencing that his role
    with regard to the majority of the drugs was so limited as to warrant a reduction in his
    offense level.
    At sentencing, the government did not present any additional evidence to rebut
    Brubaker’s assertion that he was merely a drop point for the large quantity of nearly-
    pure methamphetamine.         Rather, it directed the court to the remaining
    2
    The Honorable David S. Doty, United States District Judge for the District of
    Minnesota.
    -2-
    methamphetamine, which was packaged in a manner consistent with an intent to
    redistribute, and Brubaker’s insinuation that he paid the rent for his apartment from
    the proceeds of his illicit activity. The government argued that these facts suggested
    Brubaker was a methamphetamine dealer, and were at least inconsistent with his
    claim of being a minor participant in the offense. The district court found that
    Brubaker had failed to present facts sufficient to warrant a role reduction, and,
    following other adjustments, sentenced Brubaker to 87 months of imprisonment.
    ANALYSIS
    “Application of the sentencing guidelines is reviewed de novo, but factual
    determinations are reviewed for clear error.” United States v. Nambo-Barajas, 
    338 F.3d 956
    , 963 (8th Cir. 2003). Whether a defendant qualifies for a reduction in his
    offense level in recognition of his minor or minimal participation in the offense is
    typically a question of fact. Id.; see also United States v. Field, 
    110 F.3d 587
    , 590
    (8th Cir. 1997) (“Because the evaluation of a participant’s status in the offense
    involves a factual determination, we must accept the district court’s findings
    regarding a defendant’s role in the offense unless they are clearly erroneous.”).
    Brubaker argues that there was no dispute before the district court as to the relevant
    facts, only the application of the sentencing guidelines, and that we should thus
    review the matter de novo. Cf. United States v. McGarr, 
    330 F.3d 1048
    , 1050 (8th
    Cir. 2003) (reviewing the district court’s application of the guidelines de novo where
    underlying facts were undisputed). We disagree. Although the district court was
    presented with uncontested evidence, it was still required to draw inferences and
    make factual determinations based on that evidence. Accordingly, in this case we
    adhere to our general rule, and we review the district court’s determination as to
    Brubaker’s role for clear error. United States v. Camacho, 
    348 F.3d 696
    , 700-01 (8th
    Cir. 2003).
    -3-
    United State Sentencing Guideline section 3B1.2 requires the district court to
    reduce a defendant’s offense level four levels if the defendant was a minimal
    participant in the offense, and two levels if the defendant was a minor participant. A
    minimal participant is someone who is “plainly among the least culpable of those
    involved in the conduct of a group,” USSG § 3B1.2, comment. (n.4), while a minor
    participant is someone “less culpable than most other participants, but whose role
    could not be described as minimal,” id., comment. (n.5). The burden is on the
    defendant to prove he is eligible for a mitigating role reduction, United States v.
    Lopez-Arce, 
    267 F.3d 775
    , 784 (8th Cir. 2001), and the district court is not required
    to apply the reduction “based solely on the defendant’s bare assertion,” USSG
    § 3B1.2, comment. (n.3(C)).
    Brubaker’s contention that he was merely storing the large quantity of
    methamphetamine is based mainly on his own statement that “the large quantity that
    was found in the bedroom was dropped off for someone by someone for someone
    else, and was not mine.” (Change of Plea Hr’g at 27-28.) Other than his own
    assertion, he adduced no evidence to support this claim. The weight and credibility
    of this statement was for the district court to decide, and we do not fault the district
    court for finding it less than compelling. Even if the district court had determined
    that Brubaker’s possession of the large quantity of methamphetamine was transient,
    other factors support the conclusion that Brubaker’s role was not minor: additional
    quantities of methamphetamine were found in his apartment; Brubaker admitted
    ownership of these drugs; both the large quantity that he disputes owning and the
    smaller packages which he admits owning were methamphetamine; the smaller
    quantities were packaged in a manner indicative of an intent to redistribute; and
    Brubaker himself was a drug dealer. Lastly, as detailed in the Presentence Report,
    Brubaker stated that he was allowing his apartment to be used as a drop point for the
    large quantity of methamphetamine so that he could purchase some methamphetamine
    from the owner at a discount. We find no error in the district court’s determination
    that Brubaker did not establish he played a minor or minimal role in the offense.
    -4-
    CONCLUSION
    The district court did not err in finding that Brubaker did not qualify for a
    mitigating role reduction pursuant to United States Sentencing Guideline section
    3B1.2, and we thus affirm the district court.
    ______________________________
    -5-