United States v. Solorio-Menera

1 The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
2 The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2100
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Northern
v. * District of Iowa.
*
Kevin Johnson, * [PUBLISHED]
*
Appellant. *
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Submitted: February 11, 2004
Filed: March 4, 2004
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Before BYE and HEANEY, Circuit Judges, and HOVLAND 1 District Court Judge.
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HOVLAND, District Judge.
Kevin Johnson pled guilty to distributing cocaine base within 1,000 feet of a
protected location in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(B), and 860(a).
The district court 2 denied Johnson’s request for a mitigating role reduction under the
United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 3B1.2 and

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sentenced Johnson to 165 months imprisonment. Johnson contends that the district
court erred in denying his request for a minor participant reduction. We affirm.
I. FACTUAL BACKGROUND
The Government charged Johnson and a co-defendant, Dawan Taylor, in a
four- count indictment involving the sale of crack cocaine in the Dubuque, Iowa area.
Johnson was charged with two counts of distributing cocaine base within 1,000 feet
of a protected location in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(B), and
860(a). Johnson pled guilty to count four, which charged him with distributing 23.99
grams of cocaine base within 1,000 feet of a protected location. The remaining count
was dismissed after the sentencing hearing, but Johnson admitted to distributing
21.03 grams of cocaine base as alleged in the count. At the sentencing hearing, the
district court assigned Johnson a base offense level of 34. He received a three-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, which resulted in
an adjusted offense level of 31. Johnson had a criminal history category VI, with a
sentencing range of 188 to 235 months. The district court departed downward from
the Sentencing Guidelines based upon a substantial assistance motion filed by the
Government pursuant to U.S.S.G. § 5K1.1 and Johnson was sentenced to 165 months
of imprisonment. The district court denied Johnson’s request for a minor participant
reduction under U.S.S.G. § 3B1.2.
II. LEGAL DISCUSSION
It is well-established that a district court’s determination of whether a
defendant was a minor participant may only be reversed if clearly erroneous. United
States v. Lopez-Arce, 267 F.3d 775, 784 (8 th Cir. 2001). This court “will ordinarily
affirm the trial court’s decision [denying a reduction for the defendant’s role in the
offense] unless it is not supported by substantial evidence, it evolves from an
erroneous conception of the applicable law or [the Court is] left with a firm

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conviction that a mistake has been made after having considered the entire record.”
United States v. Wallraff, 705 F.2d 980, 987 (8 th Cir. 1983). Whether a defendant
qualifies for a mitigating role reduction is a question of fact. United States v.
Thurmon, 278 F.3d 790, 792 (8th Cir. 2002).
The United States Sentencing Commission Guidelines provide for a two-level
reduction in a defendant’s total offense level if he “was a minor participant in any
criminal activity.” U.S.S.G. § 3B1.2(b). See United States v. Martinez, 168 F.3d
1043, 1048 (8 th Cir. 1999)(a defendant who establishes that he was a minor
participant in the offense can be granted a two-level reduction). A minor participant
has been defined as one “who is less culpable than most other participants whose role
could not be described as minimal.” U.S.S.G. § 3B1.2, cmt. n. 3.
The defendant has the burden to prove that he is entitled to a minor participant
role reduction. United States v. Surratt, 172 F.3d 559, 567 (8th Cir. 1999). “To
determine whether [Johnson] was entitled to a reduction for his role in the offense,
we must first define the relevant conduct for which he was held accountable when the
district court assessed his base offense level.” Thurmon, 278 F.3d at 792. The “same
relevant conduct is used not only in determining the defendant’s base offense level,
but also for any role in the offense adjustments made pursuant to Chapter 3 of the
Guidelines.” United States v. McCarthy, 97 F.3d 1562, 1574 (8th Cir. 1996). “The
propriety of a downward adjustment is determined by comparing the acts of each
participant in relation to the relevant conduct for which the participant is held
accountable and by measuring each participant’s individual acts and relative
culpability against the elements of the offense.” United States v. Ramos-Torres, 187
F.3d at 915. Reduction for a defendant’s role in an offense is not warranted when the
defendant “was not sentenced upon the entire conspiracy but only upon his own
actions.” Id. That a defendant may be less criminally culpable than other participants
in the crime does not mean that the defendant is automatically entitled to a role
reduction. See United States v. Logan, 49 F.3d 352, 360 (8 th Cir. 1995).

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A defendant who is convicted of a “sole participant” offense may be eligible
for a reduction in his or her base offense level for a mitigating role under U.S.S.G. §
3B1.2 if the defendant shows the following: “(1) that ‘relevant conduct,’ within the
meaning of section 1B1.3(a)(1), for which the defendant would otherwise be
accountable involved more than one participant (as defined in section 3B1.1,
application note 1); and (2) that the defendant’s culpability for such conduct was
relatively minor compared to that of the other participant or participants.” United
States v. Snoddy, 139 F.3d 1224, 1231 (8th Cir. 1998).
To satisfy the first prong of the Snoddy test, “[t]here must be multiple actors
involved in a concerted criminal activity.” United States v. Jimenez, 282 F.3d 597,
600-01(8th Cir. 2002). The description in the presentence report (PSR) of the offense
conduct in this case, which Johnson did not contest, indicates that he was the only
participant in the offense, namely the distribution of cocaine base.
Johnson contends that he was merely a minor participant in two controlled
buys. Johnson argues that but for the conduct of two other individuals, co-defendant
Taylor and Billy D. Williams, the two controlled buys could not have occurred. This
is the same argument Johnson advanced at the sentencing hearing. The district court
inquired as to whether Johnson was the one who supplied the crack cocaine for each
of the controlled buys and Johnson’s counsel responded that he was. From a review
of the transcript of the sentencing hearing, it is clear that the district court found that
Johnson was essential to the commission of the controlled buys. We believe that the
evidence clearly supports the factual finding that Johnson was not a minor participant
in the drug transactions.
The record also reveals that Johnson was not entitled to a mitigating role
reduction because he was “deeply involved” in the offense. See United States v.
Jones, 145 F.3d 959, 963 (8 th Cir. 1998)(no role reduction for a less culpable
defendant who is “deeply involved” in criminal acts); United States v. Thompson, 60

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F.3d 514, 518 (8 th Cir. 1995)(even a defendant who is less culpable than a co-
defendant is not entitled to the minor participant reduction if he or she is “deeply
involved” in the criminal acts); United States v. Pospisil, 186 F.3d 1023, 1032 (8 th
Cir. 1999). The uncontested facts in the presentence report show that on February 25,
2002, Johnson personally obtained and distributed 21 grams of cocaine base to a
confidential informant (PSR ¶ 12); on March 1, 2002, Johnson personally distributed
over 50 grams of cocaine base, including 24 grams sold to an undercover drug
enforcement agent, and he attempted to obtain additional quantities from other drug
dealers to sell to the undercover agent (PSR ¶ 13); and Johnson had negotiated with
the undercover agent about trading drugs for guns in the future (PSR ¶ 13). The
uncontested facts show that Johnson was solely responsible for the distribution of
more than 70 grams of cocaine base in the Dubuque, Iowa area. He also agreed to
swap crack cocaine for guns in the future.
Even if we were to assume that there were other participants in the controlled
buys, Johnson presented no evidence to show that he was less culpable than the
average participant who sells drugs. This Court has held that, under the second prong
of Snoddy, a defendant who conducted drug sales both with and without other
individuals present does not establish that he is entitled to a minor participant
reduction. United States v. Williams, 185 F.3d 945, 946 (8th Cir. 1999); see United
States v. Thurmon, 278 F.3d 790, 793 (8th Cir. 2002). The district court found that
Johnson played a significant role in carrying out the drug transactions. We conclude
that he has not satisfied the second prong of the Snoddy test. United States v. Monk,
312 F.3d 389, 390-91 (8th Cir. 2003) (holding that the failure to offer evidence that
would show the defendant was substantially less culpable than the average participant
does not satisfy the second prong of Snoddy). A review of the entire record does not
support a downward adjustment for the defendant’s role in the criminal activity.
We conclude that Johnson has failed to satisfy both prongs of the Snoddy test
and has failed to sustain the burden of proving that he is entitled to a minor

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participant role reduction. Johnson has not shown that there were any other
participants in the controlled drug transactions, nor has he demonstrated that his
conduct was substantially less culpable than the average participant. The district
court’s decision to deny a reduction for a mitigating role in the offense is supported
by substantial evidence. The district court did not err in denying Johnson a minor
participant reduction. We affirm.
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