United States v. Michelle Leigh Dunn ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-4165
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Michelle Leigh Dunn, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: May 6, 1999
Filed: May 11, 1999
___________
Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, and BEAM, Circuit
Judges.
___________
PER CURIAM.
Based on her participation in the May 1995 burning of property belonging to a
predominately African-American church in Shirley, Arkansas, Michelle Leigh Dunn
pleaded guilty to conspiracy to deny civil rights, in violation of 18 U.S.C. § 241. She
appeals, challenging the 30-month sentence imposed by the district court.1 We affirm.
1
The Honorable Henry Woods, United States District Judge for the Eastern
District of Arkansas.
In her objections to the presentence report (PSR), Dunn argued that she was
entitled to a 4-level minimal-participant reduction under U.S. Sentencing Guidelines
Manual § 3B1.2(a) (1998). After Dunn’s counsel reiterated the details of Dunn’s role
in the offense, the court replied that it would not grant Dunn a minimal-participant
reduction unless the government agreed to it, and overruled Dunn’s objection. On
appeal, Dunn argues that the district court did not recognize its ability to grant a role
reduction; alternatively, Dunn argues that the district court clearly erred in denying her
the role reduction.
Contrary to Dunn’s first argument, we conclude the district court’s statements,
taken as a whole, indicate it was aware of its authority to grant her a role reduction.
See United States v. Nichols, 151 F.3d 850, 855 (8th Cir. 1998).
As for the second argument, we review for clear error the district court’s factual
determinations concerning role in the offense, and for abuse of discretion the court’s
decision to deny a minimal-role adjustment. See United States v. Snoddy, 139 F.3d
1224, 1226-27 & n.1 (8th Cir. 1998). Section 3B1.2(a) provides for a 4-level reduction
where, “[b]ased on the defendant’s role in the offense . . . the defendant was a minimal
participant.” Before it can grant such a reduction--which it should do infrequently--the
district court must find the defendant to be “%plainly among the least culpable of those
involved in the conduct of a group.&” United States v. Turk, 21 F.3d 309, 314 (8th Cir.
1994) (quoting U.S.S.G. § 3B1.2, comment. (n.1)). We conclude that Dunn failed to
meet her burden of proving that she was entitled to the reduction. See United States
v. Thompson, 60 F.3d 514, 517 (8th Cir. 1995) (burden on defendant).
Based on defense counsel’s summation at sentencing, Dunn’s involvement in
virtually all of the acts undertaken in furtherance of the conspiracy--approving of the
plan to burn the property, accompanying her codefendants during the preparation for
and commission of the offense, and agreeing to keep the offense secret afterward--was,
we conclude, not an “isolated unsubstantial instance.” See Nichols, 151 F.3d at 854
-2-
(concluding defendant was not entitled to role reduction based on her involvement in
virtually all acts of conspiracy to rob bank; defendant’s “involvement was not an
isolated unsubstantial instance” (quoted case omitted)). We further note that Dunn
never challenged the PSR’s factual account, which attributed to Dunn and a
codefendant the plan to use gasoline to burn the property. See United States v. Jones,
145 F.3d 959, 963 (8th Cir.) (defendant who is concededly less culpable than his
codefendants is not entitled to minor-participant reduction if he was deeply involved
in criminal acts), cert. denied, 119 S. Ct. 457 (1998).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-