U.S. v. Snoddy

• Decision Date: 06 April 1998
• Docket Number: No. 97-3366,97-3366
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marc A. SNODDY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1224

139 F.3d 1224

UNITED STATES of America, Plaintiff-Appellee, v. Marc A. SNODDY, Defendant-Appellant.

No. 97-3366.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1998.

Decided April 6, 1998.

David R. Stickman, Omaha, NE, argued (Jennifer L. Gilg, on the brief), for Defendant-Appellant.

Nancy A. Svoboda, Omaha, NE, argued, for Plaintiff-Appellee.

Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, ^* District Judge.

BENNETT, District Judge.

When, if ever, can a criminal defendant who pleads guilty to a sole participant offense obtain a reduction in sentence pursuant to U.S.S.G. § 3B1.2(b) for being a "minor participant"? The defendant here--who pleaded guilty to possession of marijuana with intent to distribute it after being caught with a truckload of the controlled substance--claims that his role as a "mule" was minor compared to the other players in the marijuana distribution scheme. Despite the government's agreement to a "minor participant" reduction in a plea agreement, and the defendant's uncontested evidence of his minor role offered at sentencing, the sentencing judge concluded that the defendant could not receive a "minor participant" reduction, because he was charged with a sole participant offense rather than conspiracy to distribute the marijuana.

On appeal, we reverse and remand.

I. BACKGROUND

It is undisputed that defendant-appellant Marc Snoddy was arrested February 9, 1997, by a border patrol agent at a roving border patrol checkpoint in Falfurrias, Texas, when the border patrol agent discovered thirty-seven kilograms of marijuana built into the false front of the bed of the pickup truck Snoddy was driving. The marijuana was discovered after the border patrol agent, suspicious of Snoddy's behavior, brought over a drug dog, which alerted to the presence of controlled substances in Snoddy's vehicle. Snoddy was indicted in the Southern District of Texas on a charge of possession of the marijuana with intent to distribute it. Pursuant to Rule 20 of the Federal Rules of Criminal Procedure, Snoddy agreed to plead guilty to the indictment and the case was transferred to the District of Nebraska.

As part of the plea agreement, the government agreed to recommend that Snoddy receive a two-level reduction in his base offense level pursuant to U.S.S.G. § 3B1.2 for being a "minor" participant in the offense. The presentence investigation report (PSR) by the probation office, however, did not include this agreed reduction. Instead, the PSR calculated Snoddy's offense level as 18, based on the amount of marijuana found in his possession, and recommended only a three-level reduction for acceptance of responsibility. The PSR stated that the probation office was not aware of other participants in the offense with which Snoddy was charged. Snoddy filed a formal objection to the failure to include in the PSR the agreed reduction for his minor participation and the district judge set the matter down for hearing.

At the hearing, Snoddy presented uncontested evidence that he was not the only participant in a scheme to distribute marijuana and that his role in the scheme consisted only of transporting the marijuana from Texas to Nebraska. Specifically, Snoddy presented evidence that he was recruited by a co-worker Snoddy knew only as Enrique at his place of work in Omaha, Nebraska, to drive a truckload of marijuana from McAllen, Texas, to Omaha. Snoddy agreed, and Snoddy and Enrique flew from Omaha to Houston, then on to McAllen, where they checked into a hotel room. While Snoddy waited in the room, Enrique made some telephone calls, conducted in Spanish, and then left the room for fifteen or twenty minutes. When Enrique returned, he gave Snoddy a set of keys and pointed out a pick-up truck in the parking lot. Enrique told Snoddy to leave McAllen at first light and to drive the truck to Omaha. Snoddy never learned the details of how or from whom Enrique purchased the marijuana nor what Enrique intended to do with the marijuana in Omaha. As instructed, Snoddy left for Omaha the next morning, but he was stopped and arrested in Falfurrias, Texas. Much of Snoddy's version of events was corroborated by testimony of an investigator for the federal public defender's office, which was proffered by Snoddy's counsel and received into evidence without objection at the sentencing hearing.

At sentencing before the United States District Court for the District of Nebraska, the government stood by the plea agreement and did not dispute the evidence that Snoddy was just a "mule" in the distribution scheme. Although the sentencing judge stated that he would have no difficulty recognizing that Snoddy's participation was minor had he been charged with conspiracy, the sentencing judge nonetheless denied the request for a two-level reduction for minor participation. The court's reasoning was as follows:

[Snoddy] can't be a minor role [sic] in an offense that charges him with possession with intent to distribute, but it doesn't say he did it with anybody else, or in conjunction with anybody else, and I'm not quarreling or taking exception to the fact that what you're telling me is true, that's the way it occurred.

But when it comes up on a Rule 20 I have to take the indictment as it reads, I can't change the indictment, and I don't think it's appropriate to recap the charges that are contained in the indictment for purposes of sentencing.

It's for that reason that I am going to deny your objection; not that I don't believe, if this had been charged as a conspiracy to distribute less than fifty kilograms, I don't think I would have a difficulty recognizing that in that conspiracy his role was a minor role.

But I don't believe that I can find that where he is charged in a one count indictment, with being the sole perpetrator of the crime, that his role is other than a sole perpetrator, and under Rule 20 he has to admit to the crime charged or he has to go back to Texas for disposition or trial.

Transcript of Sentencing Proceedings, pp. 29-30. The sentencing judge therefore adopted the recommendations in the PSR and reduced Snoddy's base offense level only by three levels for acceptance of responsibility. Snoddy was sentenced to 30 months of imprisonment, the bottom of the applicable 30 to 37-months guideline range, followed by three years of supervised release. Snoddy asserts that his guideline range with the further two-level reduction for minor participation would have been 24 to 30 months.

On appeal, Snoddy contends that he is entitled to a two-level reduction of his base offense for being only a "minor participant" pursuant to U.S.S.G. § 3B1.2(b). He contends that neither the language of the applicable guidelines nor any judicial decisions of this court prohibit him from receiving such a reduction because he was charged with possession with intent to distribute a controlled substance rather than conspiracy to distribute it. Indeed, he asserts that this court has upheld such a reduction for persons charged only with possession or distribution offenses rather than conspiracy. Snoddy also argues that the sentencing judge mistakenly equated his plea pursuant to Rule 20 with an agreement to accept all adverse sentencing guidelines while abandoning all mitigating ones. Snoddy prays for reversal of the district court's sentence, upon de novo review, and remand for resentencing under a "correct" interpretation of the Sentencing Guidelines.

The government argues that the sentencing judge exercised his discretion not to apply the downward adjustment pursuant to U.S.S.G. § 3B1.2, because Snoddy had not demonstrated that he indeed played only a "minor role" in the offense with which he was charged. The government contends that the threshold requirement for a "minor participant" reduction was not satisfied, because inherent in such a reduction is a finding that the defendant is less culpable than other participants. Thus, the government contends that there was no "clear error" in the district judge's refusal to apply the reduction, because the government contends that the district judge's decision rested upon a factual determination that the appellant had not been a minor participant, not on some incorrect legal interpretation of the guidelines.

II. LEGAL ANALYSIS

A. Standard Of Review

It is well-established that this court reviews a district court's factual findings at sentencing for clear error. See, e.g., United States v. Covington, 133 F.3d 639, 642 & 643-44 (8th Cir.1998) (this court's review of factual determinations with respect to offenses in the criminal history computation pursuant to U.S.S.G. § 4B1.1 " 'are subject to a "clearly erroneous" standard of review,' " quoting United States v. Lowe, 930 F.2d 645, 646-47 (8th Cir.1991), as are findings as to the identity of drugs attributable to a defendant); United States v. Whatley, 133 F.3d 601, 606 (8th Cir.1998) (this court reviews for clear error factual findings for sentencing); United States v. Dierling, 131 F.3d 722, 736 (8th Cir.1997) (appellate review of sentencing findings is for clear error); United States v. Wells, 127 F.3d 739, 744 (8th Cir.1997) (when the challenge to a guidelines sentence was by the government, this court reviewed the district court's findings of fact for clear error); United States v. Darden, 70 F.3d 1507, 1544 (8th Cir.1995) (same), cert. denied, 517 U.S. 1149, 116 S.Ct. 1449, 134 L.Ed.2d 569, and cert. denied, 518 U.S. 1026, 116 S.Ct. 2567, 135 L.Ed.2d 1084 (1996). This "clear error" standard applies specifically to the district court's denial on factual grounds of a "minor participant" reduction pursuant to U.S.S.G. § 3B1.2. See United States v. Holloway, 128 F.3d 1254, 1258 (8th Cir.1997); United States v. Chatman, 119 F.3d 1335, 1341 (8th Cir.1997) (noting that the burden is on the defendant to demonstrate that he or she is entitled to a "minor participant" reduction pursuant to U.S.S.G. § 3B1.2,...