United States v. Karl W. Brubaker ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2310
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Karl William Brubaker, *
*
Appellant. *
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Submitted: February 11, 2004
Filed: April 7, 2004
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Before BYE, HEANEY, Circuit Judges, and HOVLAND,1 District Judge.
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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.
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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).
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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.
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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.
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