Court: Court of Appeals for the Tenth Circuit; September 26, 1994; Federal Appellate Court
Unpublished opinions may now be cited if they hold persuasive value on a material issue, provided a copy is attached to the citing document or is furnished to the Court and all parties during oral argument. This change was established by a General Order on November 29, 1993, which temporarily suspended a prior rule until December 31, 1995.
In the case of United States v. Brad White, the Tenth Circuit Court affirmed White's sentence of eighty-four months' imprisonment for conspiracy to distribute marijuana under 21 U.S.C. § 846. White appealed, arguing that the district court incorrectly declined to reduce his offense level for minor participation and acceptance of responsibility, citing the relevant U.S. Sentencing Guidelines (USSG) sections 3B1.2(b) and 3E1.1(a).
The background of the case reveals that White was arrested following a Drug Enforcement Administration investigation and initially faced multiple charges, including two counts of cocaine distribution. He pled guilty to a single-count information for marijuana conspiracy shortly before trial. His bail was revoked after he tested positive for cocaine use, which he denied.
At sentencing, a probation officer prepared a presentence report (PSR) that included relevant conduct involving cocaine trafficking, despite White's lack of cooperation. The district court accepted testimony from a coconspirator, Mark Clair, whose credibility was affirmed by the court. The PSR detailed several drug transactions involving White and Clair, including introductions to drug sources and participation in cocaine sales. Notably, White was found to have facilitated drug transactions and received payment for introducing Clair to a cocaine supplier, which he denied. The court adopted the PSR's findings, leading to the affirmation of White's sentence.
Mark Clair sold at least 10 one-ounce quantities of cocaine to Brad White, while Gary Boughten reported selling 28 ounces intended for White. Additionally, 25 pounds of marijuana intended for White were seized from Jesus Peyrefitte's residence, with White admitting to regularly purchasing marijuana from Peyrefitte. The total drugs associated with White during the conspiracy amount to 3,413.3 grams of cocaine and 11.34 kilograms of marijuana, equating to 694 kilograms of marijuana equivalent.
White argued that the court erred by denying him a two-point reduction for being a minor participant, claiming he was merely a 'nickel and dime' dealer and less culpable than others. He asserted that his role should be assessed in comparison to other conspirators or an average conspiratorial relationship. However, the burden of proof rested on White to demonstrate by a preponderance of the evidence that he was a minor participant, a determination that is fact-based and typically upheld unless clearly erroneous.
The court concluded that White's participation was not minor, noting his significant drug dealings and pivotal role in facilitating major transactions, including introducing Clair to Peyrefitte, which was integral to ongoing drug trafficking.
In a separate point, White claimed that he deserved a two-point reduction for acceptance of responsibility due to his guilty plea and admissions regarding the offense. He contended that his lack of cooperation with the probation officer did not negate this acceptance, referencing USSG 3E1.1's provision that a defendant is not required to admit to all relevant conduct to qualify for a reduction.
A two-level reduction in sentencing is available under USSG 3E1.1 if a defendant demonstrates clear acceptance of responsibility, but a guilty plea alone does not guarantee this adjustment. The court may assess the genuineness of a defendant's acceptance based on the timing of their statements and their willingness to terminate criminal conduct. The sentencing judge's evaluation is given significant deference, and the defendant carries the burden to prove acceptance by a preponderance of the evidence.
In Mr. White's case, the district court did not err in denying the reduction. His argument regarding penalization for not discussing his involvement in the cocaine conspiracy was not presented at trial and therefore was not considered on appeal. Additionally, his refusal to cooperate with the probation officer about both cocaine and marijuana offenses undermined his claim of acceptance. His late expression of remorse also raised doubts about his sincerity.
The court also considered White's violation of bail conditions related to drug use, which he argued should not factor into the acceptance of responsibility assessment. However, he did not raise this argument during sentencing and contradicted himself regarding the extent of his cocaine use. Even if these points were addressed, the court's findings would likely remain unchanged under deferential review.
White's continued denial of receiving payments related to his involvement further disqualified him from the acceptance reduction, as the court found evidence of payment credible. Consequently, the district court's sentence was affirmed.
This order and judgment is not considered binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. Citation of such orders is generally disfavored but allowed under specific conditions established in a General Order from November 29, 1993. The Presentence Report (PSR) only includes the 25 pounds of marijuana seized from Peyrefitte’s residence and does not account for other marijuana White purchased during the conspiracy. It also reflects only cocaine quantities that White directly bought or brokered, excluding a kilo purchased by Clair from Peyrefitte. Additionally, Clair testified to purchasing more cocaine from Peyrefitte that was not included in the PSR quantities attributed to White. The district court made a credibility determination regarding Clair's testimony, which is given significant deference in appellate review.
The Fifth, Seventh, and Eleventh Circuits support the district court's discretion in refusing adjustments based on a defendant's drug use while on bail, regardless of its relation to the conviction. The court may assess the timing of a defendant's statements for genuineness in acceptance of responsibility and voluntary withdrawal from criminal conduct is relevant. The sentencing judge’s evaluation of a defendant's acceptance of responsibility is reviewed under a clear error standard. White failed to demonstrate by a preponderance of the evidence that he had accepted responsibility, leading to the conclusion that he was not entitled to a two-level reduction.
White's claim of being penalized for not discussing his cocaine involvement was not preserved for appeal, as it was raised for the first time post-trial. His refusal to cooperate with the probation officer regarding both cocaine and marijuana offenses justified the denial of a reduction for acceptance of responsibility. His late admission of guilt and expression of remorse cast doubt on the sincerity of his acceptance. The district court also considered White's drug use while on bail, which violated his conditions of release.
White contends that the court incorrectly considered his cocaine use in denying a reduction for acceptance of responsibility and asserts he should have received a reduction based on his rehabilitative efforts, specifically his engagement with the AA 12-step program. However, he did not raise these arguments during the trial. His claim that cocaine addiction hindered his ability to change contradicts a prior statement to a probation officer where he described himself as an occasional user. Even if these arguments were addressed, the court would likely uphold the district court's finding that White did not genuinely accept responsibility. Furthermore, White's ongoing denial of demanding or receiving payments for introducing Clair to Peyrefitte contradicts the district court's credibility assessment, which found evidence of payment, disqualifying him from the acceptance of responsibility reduction. Consequently, the district court's sentence is affirmed. The order is not binding precedent except under certain legal doctrines, and its citation is generally disfavored. Additionally, the presentence report (PSR) does not account for all marijuana quantities purchased by White, and the cocaine calculations only include amounts directly attributable to him. The district court's credibility determination regarding payment is afforded significant deference. Lastly, courts have upheld refusals to adjust sentences based on drug use while on bail, regardless of its relation to the offense.
