U.S. v. James, 97-1249
| Decision Date | 02 October 1998 |
| Docket Number | No. 97-1249,97-1249 |
| Citation | 157 F.3d 1218 |
| Parties | 98 CJ C.A.R. 5174 UNITED STATES of America, Plaintiff-Appellee, v. Eldon Ray JAMES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael G. Katz, Federal Public Defender, James P. Moran, Assistant Federal Public Defender, Denver, CO, for Defendant-Appellant.
Henry L. Solano, United States Attorney, John M. Hutchins, Assistant U.S. Attorney, Daniel J. Cassidy, Assistant U.S. Attorney, Denver, CO, for Plaintiff-Appellee.
Before BRORBY, McKAY, and BRISCOE, Circuit Judges.
Defendant Eldon Ray James appeals the sentence he received following a plea of guilty to the offense of engaging in the prohibited activities of a Racketeer Influenced and Corrupt Organization (RICO), in violation of 18 U.S.C. §§ 1962(c) and 1963. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm. 1
On March 28, 1997, James pled guilty to engaging in RICO activities in connection with a drug trafficking enterprise. Pursuant to the terms of the plea agreement, the government agreed to dismiss five additional counts filed in two separate indictments, and to consider, based on the value of James' assistance, filing a motion for downward departure. In return, James agreed to cooperate with the government.
In the agreement, James acknowledged that the government's evidence was sufficient to establish his involvement in a drug trafficking enterprise that transported cocaine from California to Colorado for distribution in numerous counties there. James' role in the conspiracy was to receive cocaine from a codefendant and distribute it in at least two Colorado counties.
The presentence report prepared by the probation officer concluded the enterprise trafficked at least 94 kilograms of cocaine, as well as additional amounts of marijuana, hashish, and methamphetamine. The report calculated James' base offense level as 27. This figure included a two-level reduction based on the quantity of drugs directly attributable to James himself (as opposed to the amount of drugs attributable to the entire conspiracy), and a three-level reduction for acceptance of responsibility. See U.S.S.G. §§ 3E1.1 and 5C1.2. With a criminal history category of I, James' guideline range was 70 to 87 months.
At sentencing, James moved for downward departure from the guideline range, alleging (1) his participation was merely aberrant behavior, (2) he received very little financial gain from the enterprise, (3) he was a minor participant in the conspiracy, and (4) his health and age would put him at risk of abuse in prison. The district court rejected James' motion for reduction on all grounds and sentenced him to seventy months' imprisonment and three years' supervised release. On appeal, James challenges only the district court's refusal to grant a two-level reduction for his minor role in the conspiracy.
As a threshold matter, we address this court's jurisdiction to entertain this appeal. In James' docketing statement, he framed his issue on appeal as "[t]he Defendant should have been granted a downward departure." Appellant's Docketing Statement at 4. It is well-settled, however, that a defendant may not appeal a sentencing court's refusal to depart downward from a sentence within the guideline range. See United States v. Bromberg, 933 F.2d 895, 896 (10th Cir.1991). Consequently, our jurisdiction is limited in these circumstances to reviewing the sentencing court's decision to ensure the sentence imposed is not the result of an incorrect application of the guidelines or otherwise in violation of the law. See id. at 897; 18 U.S.C. § 3742(a). Because supplemental briefing makes plain that James does in fact assert the district court departed from the law in sentencing him, we have jurisdiction to consider his appeal.
James contends the sentencing court erred by refusing him a two-level downward adjustment under U.S.S.G. § 3B1.2(b) as a minor participant in the criminal enterprise. We review the district court's factual findings regarding a defendant's role in the offense for clear error and give due deference to the court's application of the sentencing guidelines to the facts. See United States v. Smith, 131 F.3d 1392, 1399 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1109, 140 L.Ed.2d 162 (1998).
Section 3B1.2 vests the district court with discretion to grant a base offense level reduction if it finds a defendant played a mitigating role in the criminal offense. Section 3B1.2 authorizes a four-level reduction if the defendant was a "minimal" participant in the criminal activity, a two-level reduction if the defendant was a "minor" participant in the criminal activity, and a three-level reduction if the defendant's participation was more than minimal but less than minor. A defendant's role is minor if his role in the enterprise made him substantially less culpable than the average participant. See id., comments 3 and 4. James argues that, compared to the involvement and conduct of his codefendants, his role in the criminal enterprise was minor, warranting a two-level reduction in his base offense level.
James is not entitled to the reduction he seeks. Section 3B1.2, Application Note 4 states:
If a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role under this section ordinarily is not warranted because such defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense.
We think the reasoning of Note 4 is applicable here. Although James was not convicted of a less serious offense, he received a less onerous sentence because of his minor role in the enterprise. That is, James' sentence was based not on the collective amount of drugs distributed by all members of the conspiracy, but only on the amount of drugs distributed by James himself. Any further reduction would cede James an undeserved windfall. See United States v. Lampkins, 47 F.3d 175, 181 n. 3 (7th Cir.1995).
Although this court has not yet spoken on the issue, a number of circuits have held in similar circumstances that a defendant is not entitled to a mitigating role...
To continue reading
Request your trial
-
U.S. v. Rodriguez De Varon
...of symmetry of relevant conduct and acknowledge that several other circuits have adopted this approach. See, e.g., United States v. James, 157 F.3d 1218, 1220 (10th Cir.1998) (holding that defendant's role in the offense is determined on the basis of the relevant conduct attributed to him i......
-
United States v. Madrid
...that he was a minor participant. See United States v. Mendez, 272 F. App'x 703, 705 (10th Cir. 2008)(citing United States v. James, 157 F.3d 1218, 1219 (10th Cir. 1998)). The commentary to the Guidelines, which is authoritative unless it conflicts with federal law, states that the 4-level d......
-
U.S. v. Sierra-Castillo
...170 F.3d 1038, 1039 (10th Cir.1999); United States v. Valdez, 158 F.3d 1140, 1141-42 (10th Cir.1998); United States v. James, 157 F.3d 1218, 1219 (10th Cir.1998). There are both legal and factual components to a district court's definition of the applicable heartland. "Although a district c......
-
U.S. v. Virgen-Chavarin
...comment. (n. 3(C)). We "give due deference to the court's application of the sentencing guidelines to the facts." United States v. James, 157 F.3d 1218, 1219 (10th Cir.1998). 1. The Guidelines' mitigating role adjustment provides that a defendant is eligible to receive between a two and fou......