U.S. v. Daughtrey

• Citation: 874 F.2d 213
• Decision Date: 11 May 1989
• Docket Number: No. 88-5151,88-5151
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne DAUGHTREY, a/k/a Kenneth Wayne Daughtry, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 213

874 F.2d 213

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne DAUGHTREY, a/k/a Kenneth Wayne Daughtry Defendant-Appellant.

No. 88-5151.

United States Court of Appeals Fourth Circuit.

Argued March 10, 1989.

Decided May 11, 1989.

Calvin Richard Depew, Jr. (Rabinowitz, Rafal, Swartz & Gilbert, P.C., Norfolk, Va., on brief), for defendant-appellant.

Harvey Lee Bryant, III, Asst. U.S. Atty., Norfolk, Va. (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before HALL, PHILLIPS and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:

Kenneth Wayne Daughtrey appeals the sentence imposed after he entered a plea of guilty to passing counterfeit bills in violation of 18 U.S.C.A. Sec. 472 (West 1976). Since the offenses were committed after November 1, 1987, the sentence was governed by the Sentencing Reform Act of 1984, 18 U.S.C.A. Secs. 3551, et seq. (West 1985 & Supp.1989). Among other things, this Act authorized the creation of the United States Sentencing Commission, charged with promulgating sentencing guidelines for most federal courts. 18 U.S.C.A. Sec. 3551(a). This appeal presents the issue of whether Kenneth should have been sentenced as a minimal or minor participant under Guideline Sec. 3B1.2. The district court determined that he was neither and sentenced him as a participant. Since the issue involves an application of the guidelines to the facts, we review applying the due deference standard set forth in 18 U.S.C.A. Sec. 3742(e). We affirm.

I.

The uncontradicted facts demonstrate that during the last week in March 1988 Alan Daughtrey, Kenneth's brother, purchased fifty counterfeit $20 bills for the sum of $400, which he passed at business establishments in several cities. On April 8 Alan purchased an additional fifty counterfeit $20 bills and passed them at various locations. Again, on April 10 he purchased $3,000 in counterfeit bills and passed a number of them during the next few days. On April 17 Alan, concerned that the police might be on the lookout for his vehicle, contacted Kenneth about participating in this activity. Kenneth agreed to assist and Alan agreed to pay him $100 for each trip they made to various stores and shopping centers. On that day the brothers traveled in Kenneth's vehicle to Roanoke Rapids, North Carolina, where they passed a total of fifty counterfeit bills. Alan paid Kenneth $100 for his efforts. The next day they traveled to Greenville, North Carolina, where they again passed fifty counterfeit bills, and Alan once again paid Kenneth $100. On each trip Alan and Kenneth separately entered various stores and each passed counterfeit bills.

On April 22 Alan secured an additional $3,500 in counterfeit $20 bills. During the next several days he and Kenneth traveled to various cities and passed approximately $2,000 in counterfeit bills. Kenneth was paid $100 for each trip. On April 25, now under surveillance by Secret Service agents, they traveled to the Greenbriar Shopping Mall in Chesapeake, Virginia where they divided the remaining counterfeit bills between them and entered the mall. Kenneth was observed passing counterfeit bills in three stores and Alan in three others before they were arrested. A search revealed that each was personally in possession of both counterfeit and legitimate bills.

Kenneth pled guilty to a one-count indictment charging him with passing three counterfeit $20 bills in violation of section 472. Properly applying Guideline Sec. 1B1.3 (Relevant Conduct), the district court calculated Kenneth's sentence based on the passing of the three counterfeit bills for which he was indicted, as well as those passed by Alan and Kenneth from April 17 until their arrest. The calculation did not include Alan's acts of misconduct committed prior to April 17. Under Guideline Sec. 2B5.1(a) (Offenses Involving Counterfeit Obligations of the United States), Kenneth's base offense level was 9. Pursuant to Guideline Sec. 2B5.1(b)(1) one additional level was added for passing more than $2,000 but not more than $5,000 in counterfeit bills, totaling a base offense level of 10. The district court then reduced the offense level by 2 pursuant to Guideline Sec. 3E1.1, finding that Kenneth had accepted responsibility for his acts. Thus his net offense level was 8. Finally, after determining that Kenneth's criminal history category was IV, the district judge sentenced him to 16 months incarceration, a sentence which was within the appropriate guideline range.

At the sentencing hearing Kenneth argued that he was entitled to an offense level reduction of 4 for having been only a minimal participant in the criminal activity; alternatively, he sought a 2-level reduction claiming to have been a minor participant. Guideline Secs. 3B1.2(a), (b). The government, while objecting to a 4-level minimal participant reduction, concurred that a 2-level minor participant reduction was warranted. Both parties asserted that Kenneth was not as culpable as Alan because the scheme was Alan's idea and he supplied the counterfeit bills, and because Kenneth did not receive a full share of the illegal proceeds. The probation officer who prepared the presentence investigation did not recommend that Kenneth receive an offense level reduction under either the minor or minimal participant provision. The district judge rejected both the defendant's and government's recommendations and sentenced Kenneth as a participant, ¹ stating that he did not "feel that you can consider [Daughtrey's participation] a minor role or a minimal role."

II.

Assessing the relative culpability of each defendant engaged in a concerted course of criminal activity is a long recognized legitimate endeavor. Since many offenses are defined in general terms and encompass a variety of conduct, a judge should be able to make a distinction at sentencing between individuals who violated the same statute but nevertheless participated in the crime in ways so different that significant degrees of culpability exist.

Congress recognized this legitimate need to distinguish between significant levels of criminal culpability. It specifically directed the Sentencing Commission, "in establishing categories of defendants for use in the guidelines and policy statements governing the imposition of sentences [to take] into account only to the extent ... relevan[t] [a defendant's] ... role in the offense." 28 U.S.C.A. Sec. 994(d)(9) (West Supp.1988).

Pursuant to this congressional directive the Sentencing Commission promulgated Guideline Secs. 3B1.1. and 3B1.2 (Role in the Offense) which provide offense level adjustments for aggravating and mitigating roles in offenses committed by more than one participant. ² The Introductory Commentary to these guidelines states: "When an offense is committed by more than one participant, Sec. 3B1.1 or Sec. 3B1.2 (or neither) may apply." Guideline Sec. 3B, Introductory Commentary. Thus, a district court's application of these guidelines begins with the understanding that the participation by more than one individual in a course of criminal misconduct does not necessarily mean that one will be considered more or less culpable than another for Role in the Offense purposes. This premise is reinforced by Guideline Sec. 3B1.4 and its Commentary, which state:

Sec. 3B1.4. In any other case, no adjustment is made for role in the offense.

Commentary

Many offenses are committed by a single individual or by individuals of roughly equal culpability so that none of them will receive an adjustment under this Part. In addition, some participants in a criminal organization may receive increases under Sec. 3B1.1 (Role in the Offense) while others receive decreases under Sec. 3B1.2 (Role in the Offense) and still other participants receive no adjustment.

Multiple participants in the same offense may be found to have the same or different levels of culpability depending on the particular circumstances of the case. Whether Role in the Offense adjustments are warranted is to be determined not only by comparing the acts of each participant in relation to the relevant conduct for which the participant is held accountable, see Guideline Sec. 1B1.3, but also by measuring each participant's individual acts and relative culpability against the elements of the offense of conviction. See United States v. Mora-Estrada, 867 F.2d 213, 216 (5th Cir.1989); United States v. Buenrostro, 868 F.2d 135 (5th Cir.1989). The sentencing judge's knowledge of previous cases will likely aid in the final determination of whether, against this objective standard, a defendant's degree of participation in the offense warrants a Role in the Offense adjustment.

Thus, where three individuals participate in the commission of an offense, all three, for purposes of Role in the Offense adjustments, may properly be sentenced as participants, none of the three receiving an upward or downward offense level adjustment. For example, if three individuals had entered a bank with the intent to commit robbery and one stood guard at the door, another sprayed paint on the camera, and the third gathered the money from a teller's cage, no adjustment for Role in the Offense would be warranted. Even if one of the participants deserved an aggravating adjustment because of other acts he committed, the other participants would not be entitled to minimal or minor Role in the Offense adjustments.

III.

Review of a district court's determination to make a Role in the Offense adjustment is governed by section 3742(e), which provides:

(e) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is outside the applicable guideline range, and is unreasonable, having regard for--

(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of...