UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. xx-3156

BRIEF FOR APPELLANT xxxxxxxxx

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxxxxxxxx and

xxxxxxxxxxxxxxxxxx, 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 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. xxxxxx's annual evaluation of Ms. xxxxxxx's poor work performance, which evaluation may have been written prior to the district court's order prohibiting retaliation against Ms. xxxxxxx, was sufficient to support a finding beyond a reasonable doubt that Dr. xxxxxx wilfully retaliated against Ms. xxxxxxx 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. xxxxxxx by her supervisor, Dr. xxxxxx.

STATUTES AND REGULATIONS

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

On February 27, 1996, a grand jury returned a two-count indictment against Appellant, Derrick xxxxxx. Count One of the indictment charged Mr. xxxxxx 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. xxxxxx 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. xxxxxx 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 xxxxx, to arrange the purchase of an ounce of crack cocaine. Derrick xxxxxx returned the page.² (6/10/96 Tr. 3). The CI and Mr. xxxxxx discussed arrangements for the purchase. "The [CI] could hear Mr. xxxxx's voice in the background and defendant xxxxxx was evidently consulting with him about the sale." (PSR 4). Mr. xxxxxx 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. xxxxxx and purchase the crack. Mr. xxxxxx asked the CI to wait in the car a few minutes while Mr. xxxxxx went to a nearby apartment to look for Shawn xxxxx. Mr. xxxxxx returned and informed the CI that Shawn xxxxx had left to pay a phone bill and would return in 20 minutes. Mr. xxxxxx told the CI to come back at that time. (6/10/96 Tr. 3-4; PSR 4).

When the CI returned, Mr. xxxxxx told him that they would have to drive to Benning Road to find Shawn xxxxx. A few minutes later, Mr. xxxxxx informed the CI that Shawn xxxxx 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 xxxxx appeared and told the CI that he (Mr. xxxxx) would send Mr. xxxxxx back down. Mr. xxxxx 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. xxxxxx 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. xxxxxx $1,000 and Mr. xxxxxx went back to the apartment for the cocaine and change. When he returned, Mr. xxxxxx 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. xxxxxx 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. xxxxxx 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. xxxxxx played in this sale compared to that of Shawn xxxxx. (App. 16-20, 26-29; see 10/10/96 Tr. 2-10; 10/17/96 Tr. 2-5, 6-8). Mr. xxxxxx 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. xxxxxx 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. xxxxxx 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. xxxxxx 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. xxxxxx's role as a "minor participant" based solely on a finding that Mr. xxxxxx 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. xxxxxx'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.

A. Standard of Review

Whether the district court applied the correct legal

standard in determining Mr. xxxxxx'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. xxxxxx 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.

Than Other Participants

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. xxxxxx 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. xxxxxx and Shawn xxxxx.⁵(10/17/96 Tr. 6). This discussion contains neither consideration of this specific criminal conduct nor the fact-specific relative culpabilities of Mr. xxxxxx and Shawn xxxxx. Instead, the court appeared to use its finding that Mr. xxxxxx 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. xxxxxx'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. xxxxxx 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. xxxxxx'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

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. xxxxxx'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. xxxxxx was a "minor participant" in the transaction.

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

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

In contrast to the role of Mr. xxxxxx, Shawn xxxxx had total control over the transaction and simply used Mr. xxxxxx as the front person in his (xxxxx'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 xxxxx set up the contact between the CI and Mr. xxxxxx by providing the pager number, he approved the crack sale (Mr. xxxxxx 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 xxxxx. From beginning to end, the transaction was controlled solely by Shawn xxxxx, with Mr. xxxxxx 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. xxxxxx and Shawn xxxxx and the relatively minor culpability of Mr. xxxxxx.

CONCLUSION

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

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