UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO.

BRIEF FOR APPELLANT xxxxxxxxxxxxx

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ANTHONY xxxxxxx and

xxxxxxxxxxxx, Defendants-Appellants.

JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. §§ 401, 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(4).

ISSUES PRESENTED FOR REVIEW

The issues presented to this Court for review are contained in the Brief for Appellant Carlitta O. xxxxxxxxx filed with this brief as well as the following issues:

I. Whether the district court erred in denying Defendants a jury trial where federal statute specifically entitles an accused in a criminal contempt proceeding arising out of a case brought pursuant to Title VII of the Civil Rights Act of 1964 to a jury trial.

II. Whether evidence consisting solely of Dr. xxxxxxxx's annual evaluation of Ms. xxxxxxxx's poor work performance, which evaluation may have been written prior to the district court's order prohibiting retaliation against Ms. xxxxxxxx, was sufficient to support a finding beyond a reasonable doubt that Dr. xxxxxxxx wilfully retaliated against Ms. xxxxxxxx for her testimony in the Neal case.

III. Whether the district court should have applied the rule of lenity in this case where it was not clear whether prohibited "retaliation" in the district court's order could encompass an annual performance evaluation of Ms. xxxxxxxx by her supervisor, Dr. xxxxxxxx.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are contained in the addendum to this brief.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On February 27, 1996, a grand jury returned a two-count indictment against Appellant, Derrick Hill. Count One of the indictment charged Mr. Hill with distributing five grams or more of cocaine base on April 4, 1995, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Count Two charged that the distribution occurred within one thousand feet of a school in violation of 21 U.S.C. § 860(a). (App. 6-7) ⁽¹⁾.

On August 1, 1996, Mr. Hill entered a plea of guilty to Count One of the indictment. A Presentence Investigation Report was prepared and the court heard presentence arguments on October 10, 1996. On October 17, 1996, the Honorable Thomas P. Jackson sentenced Mr. Hill to 70 months imprisonment, to be followed by a five-year term of supervised release. (App. 32-35).

B. Statement of Facts

On April 4, 1995, the government's "cooperating individual" ("CI") called a pager number, given to him by Shawn Burton, to arrange the purchase of an ounce of crack cocaine. Derrick Hill returned the page. ⁽²⁾ (6/10/96 Tr. 3). The CI and Mr. Hill discussed arrangements for the purchase. "The [CI] could hear Mr. Burton's voice in the background and defendant Hill was evidently consulting with him about the sale." (PSR 4). Mr. Hill then told the CI that it would take about an hour to get the crack. (PSR 4).

Later that day, as arranged, the CI drove to the neighborhood of 21st and M Streets, N.E., to meet Mr. Hill and purchase the crack. Mr. Hill asked the CI to wait in the car a few minutes while Mr. Hill went to a nearby apartment to look for Shawn Burton. Mr. Hill returned and informed the CI that Shawn Burton had left to pay a phone bill and would return in 20 minutes. Mr. Hill told the CI to come back at that time. (6/10/96 Tr. 3-4; PSR 4).

When the CI returned, Mr. Hill told him that they would have to drive to Benning Road to find Shawn Burton. A few minutes later, Mr. Hill informed the CI that Shawn Burton was returning and that the CI should wait. (6/10/96 Tr. 3-4; PSR 4).

The CI waited in his car. Some twenty minutes later, Shawn Burton appeared and told the CI that he (Mr. Burton) would send Mr. Hill back down. Mr. Burton stood back from the CI's car during this conversation so as to avoid being filmed by a hidden camera, which he suspected was in the car. (App. 18; PSR 5, 15). Mr. Hill then returned and told the CI that they had only 24 grams of crack, ⁽³⁾ which they would sell for $950. The CI handed Mr. Hill $1,000 and Mr. Hill went back to the apartment for the cocaine and change. When he returned, Mr. Hill handed the CI a bag containing $50 change and a packet of crack cocaine. (6/10/96 Tr. 4, 5; PSR 4).

On August 1, 1996, Mr. Hill pled guilty to distribution of five grams or more of cocaine. At a presentencing hearing on October 10, 1996, the district court heard arguments regarding the Presentence Investigation Report. Mr. Hill sought a two-level reduction in his offense level of 25 pursuant to U.S.S.G. § 3B1.2(b) for his role as a "minor participant" in the crack sale or, in the alternative, a downward departure pursuant to U.S.S.G. § 5K2.0 based on his minor role. His counsel argued that the facts clearly show the minor role Mr. Hill played in this sale compared to that of Shawn Burton. (App. 16-20, 26-29; see 10/10/96 Tr. 2-10; 10/17/96 Tr. 2-5, 6-8). Mr. Hill further sought a reduction in his criminal history points due the fact that there was no record showing that he was on probation at the time of this offense. Mr. Hill also requested a departure from the guidelines by substituting a period of community confinement for part of his term of imprisonment. ⁽⁴⁾ (App. 20, 21-22).

The district court found that Mr. Hill was a "broker" in this drug transaction (10/10/96 Tr. 2, 11-13; 10/17/96 Tr. 3, 6) and, based on that finding, denied the request for an offense-level reduction. The court also denied his requests for a reduction in criminal history points and for a substitution of community confinement for imprisonment. (10/10/96 Tr. 18-21). The court then sentenced Mr. Hill to seventy months, at the bottom of the guideline range. (10/17/96 Tr. 14).

SUMMARY OF ARGUMENT

The sentencing court applied the wrong legal standard when it denied an offense-level reduction for Mr. Hill's role as a "minor participant" based solely on a finding that Mr. Hill was a "broker" in the drug transaction. The "minor participant" provision of U.S.S.G. § 3B1.2(b) directs sentencing courts to grant a two-level reduction to "a participant who is less culpable than other participants." Because even a person who is more than a "broker" may be less culpable than other participants, this Court must remand in order for the district court to properly consider Mr. Hill's relative culpability.

In addition, the sentence must be vacated because the record clearly shows that the district court misapplied the law to the facts in denying the "minor participant" reduction.

ARGUMENT

THE DISTRICT COURT ERRED WHEN IT APPLIED THE WRONG LEGAL STANDARD AND DENIED MR. HILL A TWO-LEVEL REDUCTION FOR HIS MINOR ROLE IN THE OFFENSE.

A. Standard of Review

Whether the district court applied the correct legal standard in determining Mr. Hill's status as a "minor participant" under U.S.S.G. § 3B1.2(b) is a legal question reviewed de novo by this Court. United States v. Edwards, 98 F.3d 1364, 1370 (D.C. Cir. 1996) (citing United States v. Kim, 23 F.3d 513, 516-17 (D.C. Cir. 1994)).

The district court's finding that Mr. Hill was a "broker" is a factual finding reviewed for clear error. Kim, 23 F.3d at 517. Where the proper legal standard was used, this Court is "to give 'due deference' to the district court's application of the guidelines to the facts." Id.

B. The Guidelines Require a District Court to Grant a Two-Level Offense Reduction to "Any Participant Who is Less Culpable" Than Other Participants

The Sentencing Guidelines require a court to decrease an offense level by two points where the defendant was a "minor participant" in the criminal activity:

Based on the defendant's role in the offense, decrease the offense level as follows:

. . .

(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

U.S.S.G. § 3B1.2(b). The Application Notes define the term "minor participant" as "any participant who is less culpable than most other participants, but whose role could not be described as minimal." Id., Commentary (n.3).

In determining whether a defendant is a "minor participant" under § 3B1.2(b), the sentencing court is "to consider a defendant's culpability relative to that of his comrades, not to that of a hypothetical courier or other prototypical criminal." United States v. Washington, No. 95-3097, slip op. at 59 (D.C. Cir. Feb. 21, 1997). The fact that a defendant played a particular role does not by itself qualify or disqualify a defendant for an offense-level reduction under § 3B1.2(b). See United States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir. 1991); United States v. Edwards, 98 F.3d 1364, 1370 (D.C. Cir. 1996). Rather, it is the defendant's conduct relative to the conduct of others that is at issue in these decisions. In Caballero, this Court remanded the case to the district court for reconsideration where the court had granted a minor-participant adjustment solely because of defendant's status as a courier.

This Court has further recognized that § 3B1.2(b) "issue[s] an unequivocal directive" to "decrease by 2 levels" if the defendant was a "minor participant." United States v. Mitchell, 49 F.3d 769, 785 (D.C. Cir.), cert. denied, 116 S. Ct. 327 (1995). In Mitchell, the defendant had not requested a minor role adjustment before the district court. Nonetheless, this Court found plain error and vacated the defendant's sentence because the district court found that his "'level of culpability [was] not as great'" as that of the other participants, which "place[d] Mitchell squarely in the 'minor participant' category." Id. at 784.

Here, the district court applied the wrong legal standard when it denied Mr. Hill the "minor participant" adjustment solely because the court found that he was a "broker" and "facilitated the transaction." (10/10/96 Tr. 2, 11-13; 10/17/96 Tr. 3, 6). In response to defense counsel's arguments for the adjustment, the court repeatedly commented along the lines of "I can't see him as a minor participant. He is a broker. He is clearly not a mule." (10/10/96 Tr. 2). There is nothing in the record indicating that the district court considered the relative culpabilities of Mr. Hill and Shawn Burton. ⁽⁵⁾ Instead, the court appeared to use its finding that Mr. Hill was a "broker" as a per se determination that he was not a "minor participant."

Although a "district court need not make express findings of relative culpability," it must be "clear that the court assessed the defendant's 'role in the specific criminal conduct' and did not 'gauge his culpability generically.'" Washington, slip op. at 59 (citing Edwards, 98 F.3d at 1370). The district court in this case failed even to meet this more lenient standard as it assessed only Mr. Hill's culpability generically. The court stated to defense counsel:

I have reviewed your memorandum and all of the proceedings leading up to the final presentence report. And, truth be told, I am essentially in agreement with Ms. Cowans [Probation Officer]. I think she has resolved it correctly.(10/10/96 Tr. 2, 12). In an Addendum to the Presentence Investigation Report, which was provided to the district court before its October 10 comments, Ms. Cowans recommends that Mr. Hill be denied the "minor participant" adjustment based on an analysis in direct conflict with this Court's rulings. The report recommended:

We do not believe his role in the instant offense was minor in comparison to that of the other participants. The defendant's role was determined not only by comparing his behavior to that of the other participants in relation to the instant offense behavior, but also by measuring each of these "individual's acts and relative culpability against the elements of the offense of conviction." [United States v. Daughtrey, 874 F.2d 213m [sic] 216 *4th Cir. 1989]. The critical inquiry is not whether the defendant is less culpable than the other participants, but whether his actions were essential to committing the instant offense.

(PSR 15). Clearly, the district court erred when it adopted the reasoning in the Presentence Report. See United States v. Saro, 24 F.3d 283, 290 (D.C. Cir. 1994) ("[I]t was obvious error for the district court to adopt the [presentence] report's calculations without any further comment or analysis, because the legal standard applied by the report seems to conflict with the well-established principles of conspiracy law."). The Presentence Report, and the court, looked to Mr. Hill's "generic" culpability by assessing his acts against the elements of the offense and by considering whether his actions were essential to carrying out the instant offense. ⁽⁶⁾

The proper inquiry for determining whether Mr. Hill was a "minor participant" is whether Mr. Hill was "less culpable" than Shawn Burton, not whether he played a particular kind of role or was essential to carrying out the offense. See Caballero, 936 F.2d at 1299-1300 (remanding where district court's statements at sentencing indicated it applied wrong legal standard and had granted minor role adjustment solely because of defendant's status as a courier); see also United States v. LaValley, 999 F.2d 663, 666 (2d Cir. 1993) (remanding where district court failed to make finding on relative culpability and instead suggested that the guidelines precluded "steerers" or "facilitators" from having minor role status). Because even a person who is a "broker" may be less culpable than other participants, this case should be remanded for consideration of the minor role adjustment under the proper legal standard.

C. Despite the District Court's Finding that Mr. Hill Was a "Broker," Mr. Hill Was Less Culpable in this Transaction than Shawn Burton and Should Receive a Two-Level Offense Reduction

Beyond the court's application of the wrong legal standard for determining "minor participants" under § 3B1.2(b), this Court should find that the sentencing court misapplied that guideline to the facts and remand the case for resentencing with instructions to grant the two-level adjustment. In addition, this Court should instruct the district court to consider a downward departure pursuant to U.S.S.G. § 5K2.0 for Mr. Hill's minor role. See United States v. Bierley, 922 F.2d 1061, 1065 (3d Cir. 1990) (departure under § 5K2.0 available for mitigating role, even when adjustment under § 3B1.2 is not). The facts proffered by the government, together with the facts in the Presentence Investigation Report, demonstrate that Mr. Hill was a "minor participant" in the transaction.

The facts support the district court's finding that Mr. Hill acted as a broker for Shawn Burton only to the extent that a broker is a mere intermediary. And in his role as a broker, Mr. Hill clearly was far less culpable than Shawn Burton. Mr. Hill answered a page that Shawn Burton had set up in order to avoid direct contact with the CI. He then acted at Shawn Burton's direction during the entire course of the drug transaction. He consulted Shawn Burton while setting up the transaction with the CI. Mr. Hill delayed the transaction twice while he waited on Shawn Burton and, in fact, could not act until Burton returned. Mr. Hill then shuttled between Shawn Burton's apartment and the CI's car to finalize the details of the deal, to bring the money to Shawn Burton and to deliver the crack and change to the CI.

Had Mr. Hill been a more sophisticated "broker" in this deal, one with culpability closer to that of Shawn Burton, he would have had more control over the transaction. There is no evidence that Mr. Hill was more than a paid go-between. (10/10/96 Tr. 7). Mr. Hill had no access to the drugs other than through Shawn Burton. Furthermore, there is no evidence that Mr. Hill had any other sources for drugs. Mr. Hill was working solely for Shawn Burton, who directed all his actions.

In contrast to the role of Mr. Hill, Shawn Burton had total control over the transaction and simply used Mr. Hill as the front person in his (Burton's) own drug dealing in order to protect himself. ⁽⁷⁾ See United States v. Foley, 906 F.2d 1261 (8th Cir. 1990)(defendant who sold cocaine for a concealed dealer was deemed "minor participant"). Shawn Burton set up the contact between the CI and Mr. Hill by providing the pager number, he approved the crack sale (Mr. Hill was consulting with him while on the phone with the CI), he set the price, he controlled the drug supply, and he provided change from the CI's payment. The profits from the transaction went to Shawn Burton. From beginning to end, the transaction was controlled solely by Shawn Burton, with Mr. Hill acting at his direction. ⁽⁸⁾

"The application of § 3B1.2 is inherently fact-bound . . . ." Caballero, 936 F.2d at 1299; U.S.S.G. § 3B1.2, Background. The facts here clearly show the differences in culpability between Mr. Hill and Shawn Burton and the relatively minor culpability of Mr. Hill.

CONCLUSION

For the foregoing reasons, Appellant Derrick Hill respectfully requests that this Court remand his case to the district court for resentencing with instructions either to grant an offense-level reduction for his role as a "minor participant" or to reconsider that adjustment under the proper legal standard.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

_________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 17, 1997, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

___________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

1. "App." refers to the Appendix of Appellant filed with this brief. References to the transcripts of the June 10, 1996, October 10, 1996, and October 17, 1996, hearings included in the Appendix are cited as "6/10/96 Tr.," "10/10/96 Tr.," and "10/17/96 Tr.," respectively. References to the Presentence Investigation Report, filed separately with the Court under seal, are cited as "PSR."

2. It is unclear whether Hill and Burton shared a pager or whether this was Hill's pager. Hill told the probation officer that Burton gave out Hill's pager number for this transaction because Burton suspected that the CI was a government agent. (PSR 5). The government, however, proffered that Burton and Hill shared a pager. (6/10/96 Tr. 3).

3. The CI originally asked to buy an ounce of crack cocaine. An ounce equals just over 28 grams.

4. If this case is remanded for resentencing, Mr. Hill may renew these issues before the district court.

5. The only discussion of relative culpability by the district court was in its analogy of a drug "broker" to a real estate broker:

[Mr. Hill] was the broker. It isn't as if he were just a delivery boy. He put the transaction together. If you wanted to sell your house, and [the AUSA] wanted to buy it or was a potential customer, and you had a real estate broker who would work out the details of it, would you regard that real estate broker as less culpable than you if there were something illegal about the transaction?

(10/17/96 Tr. 6). This discussion contains neither consideration of this specific criminal conduct nor the fact-specific relative culpabilities of Mr. Hill and Shawn Burton.

6. It is hard to imagine conduct by a defendant that would not qualify as "essential to committing the instant offense." Even conduct that § 3B1.2 gives as an example of "minimal" conduct, e.g., courier for a single, small drug transaction, U.S.S.G. § 3B1.2, Commentary (n.2), would be an "essential" act in a particular transaction.

7. Because Shawn Burton was cooperating with the government in a separate case at the time, he knew how to avoid detection or conviction in this transaction.

8. Cf. Edwards, 98 F.3d 1364 (defendant not "minor participant" where she played an instrumental role in several transactions, conducted one transaction on her own, received her supply from more than one supplier, and attempted to arrange a separate payment for her role in facilitating one transaction); Washington, slip op. at 59 (defendant not a "minor participant" where he performed same tasks as all others and offered to bring a "hit man" into the drug conspiracy.)