990 F.2d 72 (2nd Cir. 1993), 1226, United States v. Speenburgh

Docket Nº:1226, Docket 92-1716.
Citation:990 F.2d 72
Party Name:UNITED STATES of America, Appellee, v. Larry SPEENBURGH, Defendant-Appellant.
Case Date:April 06, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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990 F.2d 72 (2nd Cir. 1993)

UNITED STATES of America, Appellee,

v.

Larry SPEENBURGH, Defendant-Appellant.

No. 1226, Docket 92-1716.

United States Court of Appeals, Second Circuit

April 6, 1993

Argued March 11, 1993.

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Michael A. Jacobs (Jacobs & Jacobs, Stamford, NY, on the brief), for defendant-appellant.

Joshua W. Nesbitt, Asst. U.S. Atty. (Gary L. Sharpe, U.S. Atty., Albany, NY, on the brief), for appellee.

Before NEWMAN and CARDAMONE, Circuit Judges, and METZNER, [*] District Judge.

JON O. NEWMAN, Circuit Judge:

This appeal presents the issue whether section 3B1.2 of the Sentencing Guidelines, which reduces the offense level for a defendant whose role in the offense was minor or minimal, applies where the only participant, in addition to the defendant, is a Government informant. The appeal also presents the issue whether, if a role adjustment is not available, a district court is authorized to grant a downward departure. These issues arise on an appeal by Larry Speenburgh from the November 18, 1992, judgment of the District Court for the Northern District of New York (Con. G. Cholakis, Judge) sentencing him to 31 months' imprisonment and three years of supervised release upon his plea of guilty to a firearms offense. We hold that section 3B1.2 does not apply to offenses involving only one criminally responsible participant; however, we vacate the judgment and remand the case for the District Court to consider whether a departure is merited on the facts of this case.

Background

James Rowe was working as a confidential Government informant in a sting operation targeted against Ray Baker. Speenburgh, a childhood friend of Rowe, was present at a discussion between Rowe and Baker. After an unsuccessful attempt to entice Baker into making a bomb for him, Rowe told Speenburgh that he needed a sawed-off shotgun. Speenburgh replied that he had one hidden in a trailer. Several days later, Rowe purchased the shotgun from Speenburgh for $20. Rowe also purchased from Speenburgh two "eight balls" of what he believed was crystal methamphetamine for $450; lab tests revealed that it was in fact ephedrine, a non-controlled substance. Rowe later purchased for $175 two additional shotguns that Speenburgh sawed off in Rowe's presence.

Speenburgh was charged in a five count indictment. Count One charged him with possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d) (1988). Counts Two and Four each alleged that Speenburgh illegally made a short-barreled shotgun, in violation of 26 U.S.C. §§ 5822, 5861(f) (1988). Counts Three and Five charged Speenburgh with obliterating the serial numbers of these shotguns, in violation of 26 U.S.C. §§ 5842, 5861(g) (1988). Speenburgh pled guilty to Count Two of the indictment.

Discussion

Speenburgh asserts that he merits a downward adjustment for a mitigating role in the offense because his involvement was passive and under the direction of Rowe. Specifically, Speenburgh argues that Rowe was the moving force behind the offense because Rowe initiated the crime by seeking a sawed-off shotgun, instructed Speenburgh that he needed a gun with an obliterated serial number, made the decision where to cut the barrel, and planned to distribute the weapons. Speenburgh also contends that the limited compensation he received supports a finding that his participation was minor or minimal.

The basis upon which the District Court relied when it rejected Speenburgh's argument is not clear from the record. In the District Court, Speenburgh made a motion for both an adjustment for his minor or minimal role in the offense under section 3B1.2 and a downward departure based on the Government's conduct in procuring his criminal behavior. The Government responded that section 3B1.2 does not apply

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as a matter of law and, alternatively, that Speenburgh did not qualify as a minor or minimal participant whether under section 3B1.2 or as a departure. Judge Cholakis denied the motion without indicating whether he thought, as a matter of fact, that Speenburgh's role was not minor or...

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