United States v. Cantrell , 433 F.3d 1269 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-30562
v.  D.C. No.
NEWTON JAMES CANTRELL, SR., CR-03-00027-SEH
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-30563
v.  D.C. No.
ANGELA DANIEL WALKER, CR-03-00027-SEH
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-30565
v.  D.C. No.
JACK V. COVERSUP, CR-03-00027-SEH
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-30567
v.  D.C. No.
THERESA ANN WALKER, CR-03-00027-SEH
Defendant-Appellant.

675
676 UNITED STATES v. CANTRELL
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-30568
v.  D.C. No.
JEANINE LUCILLE RENZ, CR-03-00027-SEH
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-30026
v.  D.C. No.
JAMES DANIEL MURPHY, CR-03-00027-SEH
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 04-30028
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00027-SEH
DONNA SHAWL CANTRELL,
OPINION
Defendant-Appellant.

Appeals from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
June 13, 2005—Seattle, Washington
Filed January 13, 2006
Before: Harry Pregerson, Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
UNITED STATES v. CANTRELL 677
Opinion by Judge Gould
UNITED STATES v. CANTRELL 681
COUNSEL
Palmer A. Hoovestal, Helena, Montana, for defendant-
appellant Newton J. Cantrell.
Daniel P. Buckley, Bozeman, Montana, for defendant-
appellant Angela D. Walker.
Mark D. Meyer, Great Falls, Montana, for defendant-
appellant Theresa A. Walker.
J. Mayo Ashley, Helena, Montana, for defendant-appellant
Jack P. Coversup.
James B. Obie, Helena, Montana, for defendant-appellant Jea-
nine L. Renz.
Marcia K. Hurd, Assistant United States Attorney, Billings,
Montana, for the plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Newton Cantrell (“N. Cantrell”), Angela Walker (“A.
Walker”), Theresa Walker (“T. Walker”), Jack Coversup
(“Coversup”), and Jeanine Renz (“Renz”) challenge the sen-
tences they received as a result of their jury convictions for
conspiracy to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846, and other related charges. N.
Cantrell argues that his sentence is unconstitutional in light of
the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005), which rendered the federal Sentencing
Guidelines advisory. A. Walker, T. Walker, Coversup, and
Renz assert that the district court misapplied the Guidelines in
imposing their sentences. We have jurisdiction under 28
U.S.C. § 1291, and we affirm in part and remand in part.
682 UNITED STATES v. CANTRELL
I
In 1997, law enforcement officials from the Federal Bureau
of Investigation and local and tribal police departments
launched a five-year investigation of N. Cantrell, his wife,
Donna Cantrell (“D. Cantrell”), their daughters, T. Walker
and A. Walker, and various of their relatives and friends who
were believed to be involved in a conspiracy to distribute
methamphetamine and marijuana in and around the Fort Peck
Indian Reservation and northeastern Montana. N. Cantrell,
Coversup, T. Walker, Renz, Murphy, and A. Walker were
eventually arrested and indicted for narcotics and firearms
offenses, including a charge of “knowingly and unlawfully
conspir[ing] to distribute 500 grams or more of . . . metham-
phetamine . . . in violation of Title 21 U.S.C. § 841(a)(1), all
in violation of Title 21 U.S.C. § 846.” They pled not guilty
and proceeded to trial, where all the defendants, with the
exception of Coversup, were convicted by a jury on the
methamphetamine conspiracy charge. The jury acquitted
Coversup of the methamphetamine conspiracy charge, but
found him guilty of “possessi[on] with intent to distribute less
than 50 grams of methamphetamine.”
After trial the district court conducted sentencing proceed-
ings for each defendant.
The district court held an evidentiary hearing for N. Can-
trell and then attributed him with 15 kilograms or more of
methamphetamine for a base offense level of 38. The district
court also found that N. Cantrell was a leader in the drug con-
spiracy and applied a two-level enhancement under U.S.S.G.
§ 3B1.1(c). Based on this total offense level of 40, N. Cantrell
received 330 months of imprisonment for his drug offenses
and 60 months for his conviction on a firearm charge, for a
total sentence of 390 months, followed by 5 years of super-
vised release.
A. Walker objected to the Presentence Report (“PSR”) pre-
pared by the probation office, which attributed to her 350 to
UNITED STATES v. CANTRELL 683
500 grams of methamphetamine, and calculated her base
offense level as 30. A. Walker argued that the proper base
offense level was 24, based on a drug quantity of between 40
and 50 grams of methamphetamine and that she was entitled
to a § 3B1.2(b) two-level downward adjustment for her minor
role in the offense. The government in turn offered testimony
from Mario Morales (“Morales”) to establish that the drug
quantity attributable to A. Walker was at least 1.5 but less
than 5 kilograms and that the proper base offense level was
34.
Morales testified that from about 1998 to 2002, he had
acted as a drug trafficking middleman, selling narcotics on
behalf of some drug suppliers to the Cantrells. He reported
that the Cantrells had initially purchased a pound of metham-
phetamine and two pounds of marijuana every six weeks, but
that by 2002 they had increased the quantity and frequency of
their purchases to two pounds of methamphetamine and two
pounds of marijuana every two weeks. The Cantrells paid
Morales $500-$600 for his go-between services, and the sup-
pliers gave him narcotics for his personal use.
Morales testified that A. Walker accompanied D. Cantrell
on several occasions when D. Cantrell came to his residence
in Wapato, Washington, to pick up drugs. He also testified
that A. Walker was present when the purchase money was
exchanged.
During his cross-examination of Morales, A. Walker’s
defense counsel questioned Morales about his substance
abuse, and how drugs might have affected his memory. Over
the government’s objection, A. Walker’s counsel was also
allowed to impeach Morales with allegedly inconsistent state-
ments Morales earlier had made to the police about the iden-
tity of individuals who had come to his house, and about
whether he had received money from the drug suppliers for
acting as the middleman between them and the Cantrells.
684 UNITED STATES v. CANTRELL
A. Walker’s counsel then pressed Morales to give him an
“accurate” answer as to the number of times A. Walker had
come on a drug pick-up, and Morales responded that she had
come five or six times, even while admitting that he might
have previously told law enforcement it was “four, five, or six
times.”1 The government eventually objected to the repetitive
questioning, and the district court sustained the objection,
stating that it would make a determination about the number
1
The following testimony was given:
Q: How many times did you meet Angie?
A: Probably about — I’m going to say — say, at the most six
times.
Q: Well, Mr. Morales, that’s — This is an important question.
I’m asking you not to guess or speculate.
A: Well, I’m going to say six times then.
Q: When you say, “I’m going to say six times,” it leaves me with
the impression that —
THE COURT: Wait a minute. Wait a minute, counsel. We don’t
need your comments on your view of the evidence. Just ask ques-
tions, please.
Q: When you were interviewed by [law enforcement] did you
also tell [them] six times?
A: I said five or six times, four, five, or six times. But I’m — It’s
— It’s — I’d say six times.
Q: If you told [law enforcement] something other than six times,
and that’s reflected in the report, would the report be inaccurate,
or would the report be accurate?
[objection by prosecution, question withdrawn by defense]
Q: If I represent to you that the report says five times, and you’re
now saying six times, can you be sure that either one is correct?
PROSECUTION: Your Honor, I’m going to object. We are
repeating this line of questioning over and over. The court can
look at his testimony and make a decision. He has said five to six
times.
THE COURT: Yes. I’ll make a determination about this.
UNITED STATES v. CANTRELL 685
of trips made by A. Walker based on the testimony already in
the record.
A. Walker’s counsel returned to his earlier line of question-
ing, asking Morales about specific details of the trips made by
A. Walker, such as the quantity of drugs purchased and
whether A. Walker had arranged any of the purchases. The
government objected on the ground that defense counsel was
eliciting testimony cumulative of testimony already in the
record, and the district court responded by telling defense
counsel:
[W]e do need to stick to the issues here. This court
is, I’m satisfied, able to make a determination about
the credibility of this witness. And the essential issue
before this court is the quantity of drugs to be attri-
buted to this defendant. And insofar as this witness’s
testimony is concerned, it appears to the court that
the essential issues are how many times did she
come there to get drugs and what was the quantity of
drugs obtained on each occasion. Beyond that, the
other matters that have been asked about go to credi-
bility, for all practical purposes.
When counsel protested that he needed to explore “[i]f
there is an occasion that [Morales] cannot recall . . . or if
there’s an occasion that is iffy in [Morales’s] mind,” the dis-
trict court asked Morales directly about the purpose of A.
Walker’s visits and the drug quantities obtained on the visits:
THE COURT: Well, let’s just ask the man: Did these
people ever come to your house, that is, Angela
Walker, did she ever come to your house on an occa-
sion when they did not pick up drugs?
A: No.
686 UNITED STATES v. CANTRELL
THE COURT: And how much was the least quantity
of methamphetamine picked up on any one of these
occasions that Angela Walker came to your house?
A: The least would be one pound.
THE COURT: All right. I think we have those two
matters established, counsel.
A. Walker’s counsel continued to protest that he “want[ed] to
make sure that [Morales] c[ould] recall every single time that
he’s saying — maybe five, maybe six, because it makes a dif-
ference. It’s 440 grams every time he says that.” The district
court agreed to allow counsel to inquire about the number of
visits with the caveat that counsel limit his inquiry to that
issue and not go “back into what is clear on this record.”
Despite the district court’s instruction, A. Walker’s counsel
questioned Morales about what had happened on each of A.
Walker’s visits to Morales’s house rather than the number of
visits A. Walker had made. The government objected, and the
district court again explained to A. Walker’s counsel that: (1)
it was satisfied that it could make a determination as to Mora-
les’s credibility “on the basis of the record that’s already been
presented to [the district] court today, plus four other times
that [Morales] ha[d] appeared before [the district] court under
oath”; and (2) “[t]he only remaining issue about which there
seems to be any dispute is whether she came on five occa-
sions or six occasions.”
Thereafter, A. Walker’s counsel assured the court that he
understood, but still did not alter his line of questioning. The
government lodged its fourth objection and the district court
told counsel that he would have to “move to another topic”
unless he kept his “questions within the scope of the matter
that the court ha[d] allowed [him] to address.” A. Walker’s
counsel argued once more that it was necessary for him to
establish whether each trip Morales had attested to had in fact
UNITED STATES v. CANTRELL 687
occurred because each trip meant another pound of metham-
phetamine would be attributed to his client. The district court
informed counsel that he had one last opportunity to ask a
direct question about the number of trips, and counsel asked
Morales if there was any possibility that A. Walker had made
less than five trips. When Morales said no, the district court
ended the cross-examination.
In resolving the factual dispute over the drug quantity
attributable to A. Walker, the district court stated that it had
“taken into account the trial record of this case over which [it
had] presided,” and “the testimony of Mr. Morales, who testi-
fied under oath” at A. Walker’s sentencing proceedings. The
district court explained that it had found the information given
by Morales to be reliable because there were no significant or
meaningful discrepancies between his testimony and testi-
mony provided by other witnesses at trial, and because Mora-
les’s testimony in other proceedings where he had testified
under oath before the district court had also been consistent
with the trial record in its essential components. The district
court further noted that the jury had found A. Walker guilty
of participation in the conspiracy and had attributed to her
personally a minimum of 500 grams of methamphetamine.
The district court found that at least 1.5 but less than 5 kilo-
grams of methamphetamine were attributable to A. Walker,
for a base offense level of 34. After denying A. Walker’s
request for a minor role adjustment under § 3B1.2(b), the dis-
trict court determined that the applicable Guidelines range
was 151-188 months, and sentenced A. Walker to 165 months
in prison, with five years of supervised release.
T. Walker objected at her sentencing hearing to her PSR,
which found her responsible for 907.2 grams of methamphet-
amine, for a base offense level of 32. T. Walker argued that
she should be held responsible for less than 50 grams of
methamphetamine, and that the district court should use a
base offense level of 24 in selecting her sentence. She also
688 UNITED STATES v. CANTRELL
argued that she was entitled to a § 3B1.2 minimal or minor
role adjustment.
The government presented testimony from Morales to sup-
port the drug quantity and base offense level recommended in
T. Walker’s PSR. Morales testified that T. Walker had come
to his house with her mother and sisters for drug pick-ups on
three to four occasions, and that each pick-up involved “[a]t
least one pound or two pounds of meth and two pounds of
marijuana.” He also testified that T. Walker was present when
the purchase money was exchanged.
The district court found T. Walker responsible for 500
grams or more of methamphetamine, resulting in a base
offense level of 32. The district court denied the requested
§ 3B1.2 downward adjustment, and sentenced T. Walker to
130 months in prison and 5 years of supervised release.
Coversup’s PSR stated that he was not entitled to a
§ 3E1.1(a) downward adjustment for acceptance of responsi-
bility, and recommended a base offense level of 24, with a
two-point enhancement because Coversup possessed a
weapon in the commission of his offenses, for a total offense
level of 26. During his sentencing proceedings, Coversup
objected to the statement in the PSR that he was ineligible for
the acceptance of responsibility adjustment, and argued that
he was also entitled to a four-level downward adjustment
under § 3B1.2(a) for his minimal participation in the conspir-
acy. The district court rejected his contentions, and, using the
recommended offense level of 26 and the resulting 63- to 78-
month Guidelines range, gave Coversup a sentence of 71
months in prison with three years of supervised release.
Renz’s PSR attributed between 50 and 200 grams of
methamphetamine to Renz, but the district court found her
responsible for 500 grams or more of the drug. Setting the
base offense level at 32, the district court applied a two-level
§ 3B1.2(b) minor role in the offense reduction and a two-level
UNITED STATES v. CANTRELL 689
“safety valve” reduction pursuant to § 5C1.2 and 18 U.S.C.
§ 3553(f), for a total offense level of 28. Renz ultimately
received a sentence of 92 months in prison and 5 years of
supervised release.
The defendants timely appealed their convictions and sen-
tences. We affirmed their convictions in a previously filed
memorandum disposition, and address only their sentencing
issues in this published opinion.
II
[1] We begin by outlining the contours of the applicable
sentencing regime in the aftermath of the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005),
which was decided while this consolidated case was pending
on direct review. In Booker, the Supreme Court held that the
use of extra-verdict factual findings to impose a sentence
under the mandatory Guidelines violates the Sixth Amend-
ment. Id. at 756. The Court remedied this constitutional viola-
tion by making the Guidelines advisory; the Court excised the
provisions of the Sentencing Reform Act requiring sentencing
courts to sentence within the applicable Guidelines range sub-
ject only to limited “departure” authority, 18 U.S.C.
§ 3553(b)(1), and appellate courts to review de novo the exer-
cise of this departure power, id. § 3742(e). See Booker, 125
S. Ct. at 764-65 (“With these two sections [that make the
Guidelines mandatory] excised . . . , the remainder of the Act
satisfies the Court’s constitutional requirements.”); United
States v. Ameline, 409 F.3d 1073, 1074, 1077-78 (9th Cir.
2005) (en banc). In place of de novo review, the Court
instructed appellate courts to review sentences for “unreason-
ableness” in light of the sentencing factors in 18 U.S.C.
§ 3553(a). See Booker, 125 S. Ct. at 765-67.
Our court has since issued several opinions implementing
the Supreme Court’s mandates in Booker. First, in Ameline,
we held
690 UNITED STATES v. CANTRELL
that when we are faced with an unpreserved Booker
error that may have affected a defendant’s substan-
tial rights, and the record is insufficiently clear to
conduct a complete plain error analysis, a limited
remand to the district court is appropriate for the
purpose of ascertaining whether the sentence
imposed would have been materially different had
the district court known that the sentencing guide-
lines were advisory.
409 F.3d at 1074.
Subsequently, in United States v. Kimbrew, we said that we
would continue to address challenges to a district court’s
interpretation and application of the Guidelines, notwithstand-
ing that the Guidelines are now effectively advisory, because
the district courts, while not bound to apply the Guidelines,
“should still consult them for advice as to the appropriate sen-
tence.” 406 F.3d 1149, 1152 (9th Cir. 2005) (citing Booker,
125 S. Ct. at 767). We also clarified in United States v.
Moreno-Hernandez that the limited remands provided for in
Ameline are available to defendants “in all pending direct
criminal appeals involving unpreserved Booker error, whether
[they implicate the Sixth Amendment or just the nonconstitu-
tional error that the sentence was imposed under guidelines
believed to be mandatory].” 419 F.3d 906, 916 (9th Cir.), cert.
denied, 126 S. Ct. 636 (2005). With these principles in mind,
we turn to the Guidelines-related issues arising from this con-
solidated appeal.
A
Although the defendants did not raise the issue of Booker
error in the district court or on appeal, we ordered the parties
to file supplemental briefs pursuant to Ameline, 409 F.3d at
1084 (“When faced with an unpreserved Booker/Fanfan error,
the reviewing panel must first determine if an eligible party
wants to pursue the subject.”). With the exception of N. Can-
UNITED STATES v. CANTRELL 691
trell, all the defendants responded in the negative.2 Thus, we
review only N. Cantrell’s case for plain Booker error. Because
we conclude that “it is not possible to reliably determine from
the record whether the sentence imposed [on N. Cantrell]
would have been materially different had the district court
known that the Guidelines were advisory, we will remand to
the sentencing court.” Id. Accordingly the district court will
have the opportunity to decide in the first instance if it would
have sentenced otherwise under a discretionary sentencing
regime.
B
A. Walker, T. Walker, Coversup, and Renz do not argue
that their sentences, imposed under a mandatory Guidelines
system, violate Booker. Instead, they challenge only the dis-
trict court’s application of the Guidelines to their individual
cases. Although these defendants do not assert Booker error,
Booker’s remedial holdings apply to all cases pending on
direct review. See Booker, 125 S. Ct. at 769. We therefore
evaluate A. Walker, T. Walker, Coversup and Renz’s timely
challenges to the district court’s application of the Guidelines
in light of the new review procedures prescribed by Booker.
Booker’s mandate that appellate courts should review sen-
tences for “reasonableness,” 125 S. Ct. 765-67, applies only
to our review of the ultimate sentence; after Booker we con-
tinue to review “the district court’s interpretation of the Sen-
tencing Guidelines de novo, the district court’s application of
the Sentencing Guidelines to the facts of [a] case for abuse of
discretion, and the district court’s factual findings for clear
error.” Kimbrew, 406 F.3d at 1151.
2
D. Cantrell and James Murphy are co-defendants in this consolidated
appeal, but we have no reason to review their sentences in this opinion
because they responded that they did not want a remand under Ameline,
and raised no other sentencing errors.
The government also responded that it would not seek an Ameline
remand.
692 UNITED STATES v. CANTRELL
[2] If we determine that the sentence resulted from an
incorrect application of the Sentencing Guidelines, and further
that the error in application was not harmless, we will remand
to the district court for further sentencing proceedings just as
we would have under the pre-Booker sentencing regime. See
18 U.S.C. § 3742(f)(1); Williams v. United States, 503 U.S.
193, 202-03 (1992) (explaining that 18 U.S.C. § 3742(f)(1)
requires remand if sentencing court misapplied Guidelines
and error affected sentence imposed). We do not suggest that
district courts are bound to sentence within the applicable
Guidelines ranges when sentencing, because the Guidelines
are now advisory. Booker, 125 S. Ct. at 764. Rather, we are
stressing that district courts still “must consult [the] Guide-
lines and take them into account when sentencing,” even
though they now have the discretion to impose non-
Guidelines sentences. Id. at 767 (citing 18 U.S.C.
§ 3553(a)(4), (5)).
[3] This continuing duty of district courts to consult the
Guidelines is statutory. Although the Court in Booker excised
the mandatory aspects of the Guidelines in 18 U.S.C.
§§ 3553(b)(1) and 3742(e), it left the remainder of the Sen-
tencing Reform Act intact to “function[ ] independently.” Id.
at 764. This means that 18 U.S.C. § 3553(a) is still operative,
and requires district courts to take the applicable Guidelines
range into consideration when sentencing, along with other
sentencing factors enumerated by Congress.3 See Booker, 125
3
We do not here decide whether the district court must calculate the
applicable Guidelines range in every situation. See United States v.
Crosby, 397 F.3d 103, 112 (2d Cir. 2005) (describing circumstances in
which the “precise calculation of the applicable Guidelines range may not
be necessary”) abrogated on other grounds by United States v. Lake, 419
F.3d 111, 113 (2d Cir. 2005). Rather, “to comply with Booker’s mandate
that district courts ‘take [the Guidelines] into account when sentencing,’
courts normally must determine and consider the correct Guidelines
range.” United States v. Menyweather, No. 03-50496, 2005 WL 3440800,
slip op. at 16488 (9th Cir. Dec. 16, 2005) (alteration in original) (quoting
Booker, 125 S. Ct. at 767). We leave open the question whether, and under
what circumstances, district courts may find it unnecessary to calculate the
applicable Guidelines range.
UNITED STATES v. CANTRELL 693
S. Ct. at 764-65 (“Without the ‘mandatory’ provision, the Act
nonetheless requires judges to take account of the Guidelines
together with other sentencing goals.” (citing § 3553(a)));
Ameline, 409 F.3d at 1085-86 (addressing district court’s pro-
cedural error in calculating defendant’s base offense level
because “the base offense level . . . remains the starting point
for determining the applicable guideline range for an offense”
even in the discretionary Guidelines system); see also United
States v. Mashek, 406 F.3d 1012, 1016 n.4 (8th Cir. 2005)
(“The appropriate guidelines range, though now calculated
under an advisory system, remains the critical starting point
for the imposition of a sentence under § 3553(a).”); United
States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005)
(“This consultation requirement [in § 3553(a) that survives
Booker], at a minimum, obliges the district court to calculate
correctly the sentencing range prescribed by the Guidelines.
. . . In other words, as was the case before Booker, the district
court must calculate the Guidelines range accurately. A misin-
terpretation of the Guidelines by a district court ‘effectively
means that [the district court] has not properly consulted the
Guidelines.’ ” (quoting United States v. Hazelwood, 398 F.3d
792, 801 (6th Cir. 2005)) (alteration in original); Hazelwood,
398 F.3d at 801 (“[R]egardless of whether the Guidelines are
mandatory or merely advisory, district courts are required by
statute to consult them . . . .” (citing 18 U.S.C. § 3553(a)).
[4] Title 18 U.S.C. § 3742(a) and (f) have also survived
Booker. Section 3742(a) provides for appeals by defendants
and by the government “if the sentence . . . was imposed as
a result of an incorrect application of the sentencing guide-
lines.” Section 3742(f) requires a remand to the district court
in the event the court of appeals determines that such misap-
plication error occurred. See Mashek, 406 F.3d at 1015
(“[Section] 3742(f) does not provide for a reviewing court to
affirm a sentence based on its overall reasonableness when it
was imposed as a result of an incorrect application of the
guidelines. Instead, § 3742(f)(1) commands the reviewing
court to remand a case where the district court incorrectly
694 UNITED STATES v. CANTRELL
applied the guidelines.”); United States v. Villegas, 404 F.3d
355, 362 (5th Cir. 2005) (per curiam) (“The survival of
[§ 3742(a) and (f)] counsels that we maintain our review of
the district court’s interpretation and application of the Guide-
lines when it has imposed a sentence under the Guidelines.”).
Accordingly, we hold that a material error4 by the district
court in calculating the applicable Guidelines range is grounds
for resentencing, just as it was before Booker.
[5] If, on the other hand, our review leads us to conclude
that the district court committed no error in applying the
Guidelines, we will next consider challenges to the reason-
ableness of the overall sentence in light of all the 18 U.S.C.
§ 3553(a) factors, including the applicable Guidelines range.
Stated another way, the new reasonableness standard of
review established in Booker comes into play only if there
was no material error in the district court’s calculation of the
appropriate Guidelines range. See Kimbrew, 406 F.3d at 1154
(vacating and remanding for resentencing based on Guide-
lines application error, without considering reasonableness of
sentence).
In sum, our review of the district court’s application of the
Guidelines is the same as it was under the pre-Booker sen-
tencing regime. If there was material error in the Guidelines
calculation that serves as the starting point for the district
court’s sentencing decision, we will remand for resentencing
pursuant to 18 U.S.C. § 3742(f), without reaching the ques-
tion of whether the sentence as a whole is reasonable in light
of § 3553(a). See Kimbrew, 406 F.3d at 1154. In the absence
of Guidelines application error, however, we will then pro-
4
As noted above, such application errors are still subject to harmless and
plain error review. See Booker, 125 S. Ct. at 769; Williams, 503 U.S. at
202-03; Menyweather, slip op. at 16495 (recognizing that “any error
would be harmless to the government in this case” because “the district
court could—and would—impose the same sentence again under the now-
advisory Guidelines regime”); Mashek, 406 F.3d at 1017; Hazelwood, 398
F.3d at 801.
UNITED STATES v. CANTRELL 695
ceed to address challenges to the reasonableness of the sen-
tence.5 See generally Menyweather, slip op. at 16488-89.
5
The law in the circuits that have thus far addressed this issue is some-
what in disarray. The two-part review procedure we outline here, requiring
our consideration of alleged Guidelines misapplication errors before we
consider the reasonableness of the sentence in light of § 3553(a), is consis-
tent with the procedures used by the Fifth, Sixth, Eighth and Eleventh Cir-
cuits. See United States v. Gibson, 409 F.3d 325, 338-39 (6th Cir. 2005)
(“Once we conclude that the district court has properly consulted the Sen-
tencing Guidelines, we review the sentence for reasonableness.”); Mashek,
406 F.3d at 1016-17 (explaining that appellate court will only review sen-
tence for reasonableness after determining that there was no error in dis-
trict court’s application of Guidelines); Crawford, 407 F.3d at 1179
(“[T]he district court must calculate the Guidelines range accurately. . . .
After it has made this calculation, the district court may impose a more
severe or more lenient sentence as long as the sentence is reasonable
. . . .”); Villegas, 404 F.3d at 361-62 & n.7 (explaining that procedure used
for reviewing sentences after Booker will be similar to two-step procedure
used before Booker for reviewing Guidelines departures; reviewing court
will inquire whether the Guidelines range was properly calculated before
assessing whether the overall sentence was reasonable).
The Second and D.C. Circuits, however, review claims of error in the
district court’s application of the Guidelines as one factor in the course of
reviewing the reasonableness of a sentence as a whole. See United States
v. Price, 409 F.3d 436, 442-43 (D.C. Cir. 2005) (stating that review is for
reasonableness and that “[i]n deciding whether a sentence is reasonable,
we must also consider whether the District Court committed legal error.
. . . A failure to follow the strictures of the Sentencing Guidelines is
among the errors that might cause a sentence to be overturned on appeal”);
United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (stating that
review is for reasonableness and that “[a]n error in determining the appli-
cable Guideline range or the availability of departure authority would be
the type of procedural error that could render a sentence unreasonable
under Booker”). Finally, the Tenth Circuit has held that the reasonableness
standard of review applies only to sentences imposed after Booker, under
the newly discretionary sentencing scheme. See United States v. Souser,
405 F.3d 1162, 1165 (10th Cir. 2005) (“[R]eviewing [a sentence imposed
before Booker] for reasonableness — a standard of review compatible
only with the review of a discretionary decision below — is inappropri-
ate.”).
696 UNITED STATES v. CANTRELL
We now apply this two-step review procedure in addressing
individual claims of Guidelines application error asserted by
A. Walker, T. Walker, Coversup and Renz. Because the
defendants have alleged only that the district court improperly
applied the Guidelines, and did not raise any general reason-
ableness challenges after Booker, we do not reach the second
step of the analysis, which would otherwise require a determi-
nation of whether the defendants’ sentences are reasonable in
light of § 3553(a). See United States v. Mathijssen, 406 F.3d
496, 498 (8th Cir. 2005).
1
A. Walker contends that the procedure employed by the
district court in determining the quantity of methamphetamine
attributable to her for the purpose of calculating her base
offense level was erroneous and violated her due process
rights. She also contends that the district court erred in refus-
ing to grant her a minor participant downward adjustment
under § 3B1.2(b) of the Guidelines. We reject both conten-
tions.
[6] A. Walker argues that the district court violated her due
process rights by precluding her from conducting “meaningful
questioning” into the reliability of Mario Morales’s testimony
during her sentencing hearing. This assertion is unsupported
by the record, which shows that A. Walker was permitted to
make an extensive attack on Morales’s reliability by inquiring
about his drug use and about allegedly inconsistent statements
he previously made to law enforcement. The district court
only interjected to curtail cross-examination when it became
apparent that A. Walker’s repetitive questions were not
adding anything to the existing record. See United States v.
Weiner, 578 F.2d 757, 766 (9th Cir. 1978) (per curiam) (hold-
ing that a district court “in its discretion may limit cross-
examination in order to preclude repetitive questioning, upon
determining that a particular subject has been exhausted,”
even during the trial phase when defendants actually have a
UNITED STATES v. CANTRELL 697
constitutional right to confront witnesses and more extensive
due process rights than they have at sentencing); see also
United States v. Adams, 694 F.2d 200, 202-03 (9th Cir. 1982)
(holding that sentencing court did not violate defendants’ due
process rights when it reasonably refused to recall a witness
for cross-examination). Defense counsel kept inquiring about
the same details of A. Walker’s visits to Morales’s home, and
Morales’s responses were always the same; Morales consis-
tently stated that A. Walker had visited his house with D.
Cantrell on five to six occasions, and that D. Cantrell would
purchase a minimum of one pound of methamphetamine on
each visit. Because the district court did not unreasonably
restrict A. Walker’s ability to test Morales’s reliability
through cross-examination, the question is whether the district
court abused its discretion in determining that Morales’s testi-
mony was sufficiently reliable to satisfy the due process con-
cern that a defendant not “be sentenced on the basis of
materially incorrect information.” See United States v. Petty,
982 F.2d 1365, 1369-70 (9th Cir. 1993), amended by 992 F.2d
1015 (9th Cir. 1993).
[7] Notwithstanding the evidence of Morales’s substance
abuse and the alleged discrepancies between his testimony at
the sentencing proceedings and earlier statements he made to
the police, the district court had an adequate basis for con-
cluding that Morales’s statements were sufficiently reliable.
Morales’s statements were given under oath, and much of his
testimony relating to the details of the drug pick-ups made by
A. Walker was corroborated by trial testimony from A. Walk-
er’s sister, Carmen Cantrell. Also, the district court pointed to
the fact that Morales had testified reliably on previous occa-
sions before the court. Given these facts, we hold that the dis-
trict court did not abuse its discretion by relying on Morales’s
testimony. See United States v. Johansson, 249 F.3d 848, 857
(9th Cir. 2001) (holding that defendant’s due process interests
at sentencing were protected where district court allowed par-
ties an opportunity to develop evidence and submit memo-
randa, and held an evidentiary hearing where both sides had
698 UNITED STATES v. CANTRELL
the opportunity to present witnesses and argue); United States
v. Chee, 110 F.3d 1489, 1492-93 (9th Cir. 1997) (holding that
evidence was sufficiently reliable because there was corrobo-
ration); Petty, 982 F.2d at 1369 (same).
A. Walker’s second argument also fails because she has not
met her burden of proving her entitlement to a § 3B1.2(b)
minor participant adjustment. “Whether a defendant is a
‘minor’ or ‘minimal’ participant in the criminal activity is a
factual determination subject to the clearly erroneous stan-
dard.” United States v. Sanchez, 908 F.2d 1443, 1448-49 (9th
Cir. 1990) (internal quotation marks omitted). “The defendant
bears the burden of proving that he [or she] is entitled to a
downward adjustment based on his [or her] role in the
offense.” United States v. Awad, 371 F.3d 583, 591 (9th Cir.
2004).
Section 3B1.2 instructs the district court as follows:
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.
[8] While a comparison to the conduct of a hypothetical
average participant may be appropriate in determining
whether a downward adjustment is warranted at all, the rele-
vant comparison in determining which of the § 3B1.2 adjust-
ments to grant a given defendant “is to the conduct of co-
UNITED STATES v. CANTRELL 699
participants in the case at hand.” United States v. Petti, 973
F.2d 1441, 1447 (9th Cir. 1992); see also United States v.
Johnson, 297 F.3d 845, 874 (9th Cir. 2002) (“[A] defendant’s
culpability is to be measured against his co-participants, not
a hypothetical ‘average participant.’ ”). It is not enough that
a defendant was less culpable than his or her co-participants,
or even that he or she was among the least culpable of the
group, because a minimal or minor participant adjustment
under § 3B1.2 is available only if the defendant was “substan-
tially” less culpable than his or her co-participants. Id. at 874
& n.37; United States v. Benitez, 34 F.3d 1489, 1497-98 (9th
Cir. 1994).
A “minor participant” within the meaning of § 3B1.2(b) is
a defendant “who is less culpable than most other participants,
but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2, cmt. n.5. The determination whether to apply this
adjustment “is heavily dependent upon the facts of the partic-
ular case.” Id. cmt. n.3(C).
[9] A. Walker claims that the district court erred in denying
her the minor participant adjustment based on testimony that
she had gone on several drug pick-ups despite its acknowl-
edgment that she was not the principal person making these
trips and the fact that she was in possession of lesser quanti-
ties of drugs and money at the time of arrest than her co-
defendants. However, as we have already explained, “merely
being less culpable than one’s co-participants does not auto-
matically result in minor [participant] status.” United States v.
Andrus, 925 F.2d 335, 338 (9th Cir. 1991). In denying A.
Walker’s request for a minor participant adjustment, the dis-
trict court considered A. Walker’s role in the conspiracy and
found that:
[T]he record as a whole . . . . clearly establishe[d]
that [A. Walker] went to [pick up drugs] on several
occasions, whether [she was] the principal person
going or not is not the test. It is clear that [she was]
700 UNITED STATES v. CANTRELL
making these trips voluntarily and that [she was] on
those trips facilitating the return of very large quanti-
ties of methamphetamine to our state for distribution
on one of our reservations or perhaps on more than
one of our reservations.
[A. Walker’s] acting as a drug courier and a
facilitator of this extensive operation, cannot, in the
view of this court, be said to be either minor or mini-
mal. [She is], in the view of this court, and [was] a
significant participant in this ongoing illegal activity.
The district court also determined that A. Walker was respon-
sible for between 1.5 and 5 kilograms of methamphetamine.
[10] The district court’s findings are supported by the
jury’s verdict that A. Walker was responsible for a minimum
of 500 grams of methamphetamine, and testimony from the
trial and the sentencing hearing that A. Walker went on sev-
eral drug pick-ups, each of which involved a minimum of a
pound of methamphetamine. There was also testimony at trial
that A. Walker regularly helped to repackage and sell large
quantities of drugs. We hold that the district court’s decision
regarding A. Walker’s minor participant status was not clearly
erroneous. See SEC v. Rubera, 350 F.3d 1084, 1093-94 (9th
Cir. 2003) (“So long as the district court’s view of the evi-
dence is plausible in light of the record viewed in its entirety,
it cannot be clearly erroneous . . . .”).
2
T. Walker asserts that the district court erred in attributing
to her 500 grams or more of methamphetamine in computing
her base offense level, arguing that there was no evidence that
she was personally connected to or could reasonably have
foreseen that this amount was involved in the conspiracy. We
disagree.
UNITED STATES v. CANTRELL 701
[11] The crux of T. Walker’s argument is that the district
court should have disregarded the testimony Morales gave at
her sentencing regarding her participation in the drug pick-ups
because it was unreliable. See Petty, 982 F.2d at 1369. As
explained above in Part II.B.1, however, Morales’s testimony
was sufficiently reliable for due process purposes because
Morales had previously shown himself to be a credible wit-
ness. Additionally, even though there was no evidence
directly corroborating Morales’s testimony at sentencing
about T. Walker’s role in the drug pick-ups, there was other
evidence establishing that she was significantly involved in
the conspiracy: T. Walker was arrested with over forty-six
grams of methamphetamine hidden on her person in pre-
packaged amounts, and there was trial testimony that she had
obtained sizeable amounts of methamphetamine and mari-
juana from D. Cantrell on at least two other occasions.6 Based
on the record as a whole, we hold that the district court did
not clearly err in attributing T. Walker with 500 or more
grams of methamphetamine.
3
Coversup first asserts that the district court erred in refus-
ing to give him a reduction for his acceptance of responsibil-
ity. Section 3E1.1(a) of the Guidelines provides for a two-
level downward adjustment where “the defendant clearly
demonstrates acceptance of responsibility for his offense.”
While we review de novo the district court’s interpretation of
the Guidelines, Kimbrew, 406 F.3d at 1151, “[a] district
court’s decision about whether a defendant has accepted
responsibility is a factual determination reviewed for clear
error.” United States v. Velasco-Medina, 305 F.3d 839, 853
(9th Cir. 2002) (internal quotation marks omitted). “[T]he
determination of the sentencing judge is entitled to great def-
erence on review” because “[t]he sentencing judge is in a
6
Bernadine Bear testified that she saw T. Walker picking up a pound of
marijuana and an ounce of methamphetamine on two different occasions.
702 UNITED STATES v. CANTRELL
unique position to evaluate a defendant’s acceptance of
responsibility.” U.S.S.G. § 3E1.1, cmt. n.5.
The district court denied Coversup’s request for the accep-
tance of responsibility adjustment on the grounds that: (1)
Coversup had gone to trial, not just to preserve his constitu-
tional suppression claim, but also to deny factual guilt; and
(2) Coversup had not truthfully admitted the conduct compris-
ing the offense of conviction. We hold that the first ground
cited by the district court was erroneous, but affirm its denial
of the adjustment on the second ground.
[12] Although Coversup’s counsel acknowledged at the
sentencing hearing that the acceptance of responsibility
adjustment does not ordinarily apply to a defendant who
chooses to go to trial, he argued that Coversup was neverthe-
less entitled to the reduction under the exception to this gen-
eral rule, set forth in the second application note to § 3E1.1.
This note describes the circumstances under which a defen-
dant may be eligible for an acceptance of responsibility
adjustment even though he or she goes to trial, stating in rele-
vant part: “In rare situations a defendant may clearly demon-
strate an acceptance of responsibility for his criminal conduct
even though he exercises his constitutional right to a trial.
This may occur, for example, where a defendant goes to trial
to assert and preserve issues that do not relate to factual guilt
. . . .” U.S.S.G. § 3E1.1, cmt. n.2.
The district court disagreed with counsel that the exception
in the second application note applied, interpreting the excep-
tion to mean that the acceptance of responsibility adjustment
is only “available [to a defendant who chooses to go to trial]
in the rare case where the defendant has gone to trial to pre-
serve a constitutional issue solely, not denying factual guilt.”
We confronted this same issue in United States v. McKinney,
another case where “the district court appeared to assume, that
a defendant who goes to trial can only receive the reduction
if the trial is limited to issues unrelated to factual guilt.” 15
UNITED STATES v. CANTRELL 703
F.3d 849, 853 (9th Cir. 1994). There we explained that the
second application note “itself makes clear that the example
[of a defendant going to trial to assert issue unrelated to fac-
tual guilt] was not intended to be exhaustive,” and held that
“in appropriate circumstances the reduction is also available
in cases in which the defendant manifests genuine contrition
for his acts but nonetheless contests his factual guilt at trial.”
Id. This rule, we explained, would best serve the “primary
goal of the reduction [which] is to reward defendants who are
genuinely contrite.” Id. Here, as in McKinney, we conclude
that the district court misconstrued § 3E1.1 when it concluded
that the second application note exception did not apply
because Coversup raised nonconstitutional issues at trial.
[13] However, Coversup does not qualify for the adjust-
ment because he has not otherwise met his burden of showing
that he accepted responsibility for his crime. See United States
v. Nielsen, 371 F.3d 574, 582 (9th Cir. 2004). Under the third
application note for § 3E1.1, entry of a guilty plea prior to
trial, combined with truthful admission of the conduct com-
prising the offense of conviction and additional relevant con-
duct, constitutes “significant evidence” of contrition. U.S.S.G.
§ 3E1.1, cmt. n.3. “Thus, a defendant’s choice to go to trial
deprives the defendant of this ‘significant evidence.’ ” United
States v. Ochoa-Gaytan, 265 F.3d 837, 843 (9th Cir. 2001).
However, in Ochoa-Gaytan, we held that “[e]ven without the
‘significant evidence’ of a guilty plea, a defendant who
chooses to go to trial may still exhibit sufficient contrition to
merit an adjustment under § 3E1.1.” Id. We added that “[i]n
this regard, it is important to note that the first application
note to § 3E1.1 provides a non-exhaustive list of criteria —
other than a guilty plea — which a sentencing court should
consider in determining whether a defendant has manifested
acceptance of responsibility.” Id.
[14] Subsection (a) of the first application note for § 3E1.1
provides that it is “appropriate” for the district court to con-
sider whether the defendant has “truthfully admitt[ed] the
704 UNITED STATES v. CANTRELL
conduct comprising the offense(s) of conviction, and truth-
fully admitt[ed] or not falsely den[ied] any additional relevant
conduct for which the defendant is accountable under § 1B1.3
(Relevant Conduct).” U.S.S.G. § 3E1.1, cmt. n.1(a). The dis-
trict court in this case found that Coversup had not met this
criteria, and Coversup did not object to that finding or argue
that there were other relevant factors weighing in favor of
acceptance of responsibility either before the district court or
in his briefing on appeal. Under these circumstances, the dis-
trict court did not clearly err in concluding that Coversup had
not accepted responsibility for his offenses, and its denial of
the downward adjustment was proper.
Coversup’s second assertion on appeal is that the district
court erred in denying him a downward adjustment for his
minimal participation in the conspiracy. A defendant is a
“minimal participant” within the meaning of § 3B1.2(a) when
he or she is “plainly among the least culpable of those
involved in the conduct of a group.” § 3B1.2, cmt. n.4. Cover-
sup argues that the district court should have found that he
was a minimal participant in the conspiracy because the jury
convicted him only of possession with intent to distribute,
while acquitting him of the conspiracy charge. This argument
is unpersuasive.
In United States v. Webster, we held that a defendant seek-
ing a § 3B1.2 downward adjustment where he or she was the
sole participant in the offense of conviction must show that:
(i) the defendant, although not charged or convicted, would
otherwise be accountable for criminal conduct involving more
than one participant; and (ii) the defendant’s culpability for
such conduct was relatively minor compared to that of the
other participants. 996 F.2d 209, 212 (9th Cir. 1993) (per
curiam); see also United States v. Demers, 13 F.3d 1381,
1385-86 (9th Cir. 1994) (“[B]y mandating a fact-based
inquiry into the relative seriousness of the defendant’s offense
of conviction compared to his [or her] actual criminal con-
duct, the [Guidelines] commentary expressly allows for a
UNITED STATES v. CANTRELL 705
downward adjustment for a courier convicted of possession
with intent to distribute, provided his [or her] role and culpa-
bility in the trafficking scheme are sufficiently minor com-
pared to that of the other participants.”).
[15] Coversup is ineligible for a minimal participant adjust-
ment because he cannot satisfy the first prong of the Webster
test. Although we have held that a defendant who is the “sole
participant” in the offense of his or her conviction is not
excluded from receiving a downward adjustment under
§ 3B1.2, such a defendant must produce evidence of his or her
participation in a larger conspiracy to qualify for the reduc-
tion. See Webster, 996 F.2d at 212 (explaining that defendant
“must, at a minimum” show that the relevant conduct for
which he or she would “be otherwise accountable involved
more than one participant”); United States v. Walker, 993
F.2d 196, 200 (9th Cir. 1993) (affirming denial of adjustment
where defendant was “the only defendant involved in both
counts of conviction” and “no evidence of a larger conspiracy
was offered at trial or at sentencing”). Coversup repeatedly
disclaimed any involvement in the conspiracy in his argu-
ments to the district court and on appeal. During his sentenc-
ing proceedings, Coversup objected to the PSR’s description
of his offense because it included references to the conspir-
acy, and he urged the district court not to consider any evi-
dence of the conspiracy in making its sentencing decisions.
Additionally, in his briefing to this court, Coversup argued
that he “clearly was not a participant in the overall, long
standing [sic] conspiracy” but “was instead merely ‘in the
wrong place at the wrong time.’ ” Coversup cannot avail him-
self of a downward adjustment for minimal participation in
the larger methamphetamine conspiracy involving his co-
defendants while asserting at the same time that he never par-
ticipated in said conspiracy. The district court did not clearly
err in declining to grant Coversup a § 3B1.2(a) minimal par-
ticipant adjustment.7
7
Because Coversup did not present sufficient evidence linking himself
to the larger conspiracy, it was unnecessary for the district court to reach
706 UNITED STATES v. CANTRELL
4
Like T. Walker, Renz contends that the district court
clearly erred in calculating her base offense level using a drug
quantity of 500 or more grams of methamphetamine. We
reject this contention because the district court’s finding that
Renz could be held responsible for the multiple pounds of
methamphetamine attributable to the conspiracy as a whole is
plausible in light of the evidence in the record.
[16] Witnesses at trial attested to having seen Renz weigh-
ing and repackaging methamphetamine at D. Cantrell’s resi-
dence on different occasions. The trial testimony and
undisputed statements in the PSR also indicate that Renz dis-
tributed methamphetamine for D. Cantrell. This evidence of
Renz’s direct involvement in the packaging and distribution
activities of the conspiracy leads us to the conclusion that the
district court’s finding that Renz was responsible for 500 or
more grams of methamphetamine was not clearly erroneous.
III
[17] Because we cannot determine from our review of the
record whether N. Cantrell was prejudiced by the asserted
Booker error, we remand his case with instructions that the
district court follow the procedures outlined in Ameline, 409
F.3d at 1084-85. As for T. Walker, A. Walker, Coversup, and
Renz, we reject their claims of Guidelines application error
for the reasons stated above, and affirm their sentences.
AFFIRMED in part, REMANDED in part.
the question of his relative culpability, and we will affirm its decision on
the ground stated above. See United States v. Cortez-Arias, 403 F.3d 1111,
1114 n.7 (9th Cir.) amended by 425 F.3d 547 (9th Cir. 2005) (“Under our
circuit’s law we may . . . affirm on any ground supported by the record
even if it differs from the rationale of the district court.”) (internal quota-
tion marks omitted).