UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-40377
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
VERSUS
ABDUL KAREM LUGMAN
Defendant-Appellant
Appeal from the United States District Court
For the Eastern District of Texas
November 25, 1997
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
I.
FACTS AND PROCEDURAL HISTORY
On February 19, 1996, Appellant Abdul Karem Lugman was
traveling in a car driven by Nicholas Parson, when deputies of the
Henderson County, Texas, Sheriff’s Department attempted to stop
them for a traffic violation. Lugman and Parson attempted to evade
the sheriff’s deputies, leading them on a high-speed chase ending
when Parson lost control of the car, which flipped and landed on
the hood of the deputies’ patrol car. The Presentence
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Investigation Report (“PSR”) indicates that the deputies observed
Lugman stick his arm out of the window of the car during the chase,
as though he were throwing something out. At the place along the
road where the deputies observed Lugman stick his arm out of the
window, they discovered two plastic bags containing a substance,
which upon analysis proved to be 32.41 grams of crack cocaine.
On October 28, 1996, pursuant to a plea agreement, Lugman
entered a plea of guilty to one count of possession with intent to
distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
In his plea agreement, Lugman agreed to cooperate fully with law
enforcement and in return the United States Attorney agreed to
inform the court and probation office of the extent and value of
his cooperation and to recommed a three-level reduction in Lugman’s
base offense level for his acceptance of responsibility. It was
understood that these recommendations were not binding on the
district court.
In the PSR the probation office added two levels to Lugman’s
base offense level for Reckless Endangerment During Flight under
U.S.S.G. § 3C1.2, on the basis that Parson’s attempt to evade
capture was attributable to Lugman. Lugman objected to the § 3C1.2
enhancement and to the probation officer’s refusal to recommend a
two-level decrease in the base offense level under U.S.S.G. § 3B1.2
on the basis that Lugman was a minimal participant. Lugman also
made a motion for downward departure under U.S.S.G. § 5K2.0,
because the government did not make a motion for downward departure
under U.S.S.G. § 5K1.1, in exchange for Lugman’s cooperation with
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them in the investigation and prosecution of other drug
traffickers. Lugman had apparently assisted local authorities in
Texas to make cases against other drug traffickers. However, those
cases had not been resolved and the government refused to request
a downward departure under § 5K1.1 until they were, whereupon the
government would make a motion to reduce Lugman’s sentence under
Fed. R. Crim. P. 35. 1 Lugman’s concern, naturally, was that the
cases might not be resolved within the one-year time limit for
motions under Rule 35.
On March 21, 1997, the district court overruled Lugman’s
objections, denied his motion for downward departure and sentenced
him to seventy-eight (78) months confinement, the minimum allowed
under his offense level as calculated by the probation office.
Lugman appeals assigning the following errors:
1. The district court erred by denying Lugman’s motion for a
downward departure under U.S.S.G. § 5K2.0;
2. The district court erred by adding a two-level enhancement to
Lugman’s base offense level for obstruction of
justice/reckless endangerment during flight under U.S.S.G. §
3C1.2;
3. The district court erred by refusing to decrease Lugman’s base
offense level by two-levels under U.S.S.G. § 3B1.2 for being
a minimal participant.
II.
LAW & ANALYSIS
A.
1
Rule 35 provides that : “The court, on motion of the Government made
within one year after the imposition of the sentence, may reduce a sentence
to reflect a defendant’s subsequent, substantial assistance in the
investigation or prosecution of another person who has committed an offense
...”
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§ 5K2.0 Downward Departure
U.S.S.G. § 5K2.0 allows the district court to make a downward
departure from the guidelines “if the court finds ‘that there
exists [a] ... mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described.’” To the extent that the
district court’s decision not to depart downward in this case
involves a determination of whether § 5K2.0 can apply in cases of
substantial assistance is a question of law reviewed for abuse of
discretion. Koon v. United States, --- U.S. ---, 116 S. Ct. 2035,
2047 (1996)(noting that a district court by definition abuses its
discretion when it makes an error of law, and therefore a unitary
abuse of discretion standard of review is sufficient).2 Likewise,
if, as a matter of law, § 5K2.0 may be applied to make a downward
departure in a case of substantial assistance, then the
determination of whether the facts warrant a downward departure
under § 5K2.0 “will in most cases be due substantial deference, for
it embodies the traditional exercise of discretion by a sentencing
court.” Id. at 2046. Yet, this Court has gone even further in the
context of downward departures under § 5K2.0, stating that:
[w]e may only review a trial court’s refusal to grant a
downward departure from the Guidelines if the refusal was
based on a violation of the law ... Thus, we have
2
Although Koon involves a challenge to a district court decision to
grant a downward departure, Koon does not distinquish, for purposes of the
standard of review, between a decision to grant and a decision to deny the
downward departure. Therefore, in either case, the standard of review is
for abuse of discretion.
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jurisdiction if a district court’s refusal to depart
downward is premised upon the court’s mistaken conclusion
that the Guidelines do not permit such departure, but we
have no jurisdiction if the court’s refusal is based on
its determination that departure is not warranted on the
facts of the case.
United States v. Palmer, 122 F.2d 215, 222 (5th Cir. 1997), citing
United States v. Mitchell, 964 F.2d 454, 462 (5th Cir. 1992). This
rule of deferential review is a recognition that review even for
abuse of discretion, might become a chance to second-guess the
district court.
In this case the district court specifically found that there
were no factors not taken into consideration by the Guidelines as
to warrant a downward departure. The district court was apparently
satisfied that any assistance Lugman had rendered or might render
in aid of law enforcement would be adequately accounted for by the
government’s Rule 35 motion, if warranted. The district court
denied Lugman’s motion for downward departure on the basis that the
facts adduced by Appellant as proof of his substantial assistance
did not yet warrant such a departure. Therefore, this court lacks
jurisdiction to review that wholly discretionary conclusion.3
B.
§ 3C1.2 Reckless Endangerment Enhancement
We review the district court’s factual finding that Lugman’s
conduct amounted to reckless endangerment during flight under §
3C1.2 for clear error. United States v. Campbell, 42 F.3d 1199
3
Since the district court properly refused to grant a downward
departure under § 5K2.0, we need not reach the question of whether
substantial assistance may ever be a basis for downward departure under 1
5K2.0.
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(9th Cir. 1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1814, 131
L. Ed. 2d 738 (1995). See also United States v. Tello, 9 F.3d
1119, 1122 (5th Cir. 1993)(finding of obstructive conduct reviewed
for clear error), citing United States v. Ainsworth, 932 F.2d 358,
362 (5th Cir. 1991), cert. denied, 502 U.S. 928, 112 S. Ct. 346,
116 L. Ed. 2d 286 (1991).
Appellant does not contest that Parson’s attempt to evade the
sheriff’s deputies and the ensuing high speed chase amounted to
reckless endangerment during flight. Rather, Appellant contests
the district court’s finding that he was cupable for the conduct of
Parsons. Application note 5 to § 3C1.2 states that “[u]nder this
section, the defendant is accountable for his own conduct and for
conduct that he aided or abetted, counseled, commanded, induced,
procured, or willfully caused.” U.S.S.G. § 3C1.2 (n.5). The
district court adopted the PSR’s findings in their entirety. In
the PSR, in response to Appellant’s objection to the §3C1.2
enhancement, the probation officer stated that the defendant was
responsible for Parson’s conduct pursuant to U.S.S.G. §
1B1.3(a)(1)(B).4 The probation officer stated that the fact that
4
§1B1.3 provides that for purposes of enhancement under § 3C1.2 the
defendant is responsible for ...
(1)(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and omissions of others
in furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
6
Lugman agreed to travel with Parson, knowing cocaine was inside the
car, makes § 1B1.3 (a)(1)(B) applicable.
Furthermore, as evidence that Lugman aided, counseled, or
commanded the conduct of Parson, the PSR cites the records of the
Henderson County Sheriff’s Department, which contained an
investigator’s notes of an interview with Lugman on February 20,
1996. The investigator’s notes revealed that Lugman, upon being
given Miranda warnings, stated that Parson was unaware of the drugs
which Lugman had on him, when Lugman got in the car. When the
sheriff’s deputies attempted to stop Parson, according to the
investigator’s notes, Lugman informed Parson that he had drugs on
him, and that Parson needed to do something or they were going to
jail. Therefore, according to the investigator’s notes of his
interview with Lugman, it was Lugman’s idea to run from the
deputies.
Lugman insists that it was an abuse of discretion for the
district court to adopt that portion of the PSR, which relies on
the investigator’s notes of his interview with Lugman. Nowhere in
his brief does Lugman maintain that the investigators notes are
inaccurate or false. Rather, he would apparently have this Court
rule that the investigators notes do not provide adequate
evidentiary basis for that portion of the PSR relied on by the
district court, regardless of whether they are accurate or not.
However, this Court has stated that:
A presentence report generally bears sufficient indicia
detection or responsibility for that offense.”
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of reliability to be considered as evidence by the
district court in resolving disputed facts. [citations
omitted] A district court may adopt facts contained in
the PSR without further inquiry if the facts have an
adequate evidentiary basis and the defendant does not
present rebuttal evidence. [citations omitted] The
defendant bears the burden of showing that the
information in the PSR relied on by the district court is
materially untrue.
United States v. Valencia, 44 F.3d 269, 274 (5th Cir.
1995)(emphasis added).
Lugman was aware of the probation officer’s reliance on the
investigator’s notes before he was sentenced, yet Lugman did not
present any evidence which would cast doubt on the truthfulness or
accuracy of the investigator’s notes. Lugman has presented no
evidence that the investigator’s account of his interview with
Lugman on February 20, 1996, is somehow defective. Therefore, the
investigator’s notes, in point of fact, do provide adequate
evidentiary basis for the PSR’s conclusion that it was Lugman’s
idea that Parson attempt to evade the sheriff’s deputies, and
therefore, any reckless conduct committed by Parson may be
attributed to Lugman for purposes of enhancement under § 3C1.2.
Hence, the district court was correct in its adoption of the PSR’s
findings which rely on the investigator’s notes of his February 20,
1996, interview with Lugman.
C.
§ 3B1.2 Decrease for Minimal Participants
This Court reviews a district court decision not to reduce the
defendant’s base offense level because of his minimal role in the
offense for clear error. United States v. Giraldi, 86 F.3d 1368,
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1378 (5th Cir. 1996), citing United States v. Watson, 988 F.2d 544,
550 (5th Cir. 1993). Section 3B1.2 allows a four-point reduction
in the defendant’s base offense level, if he was a minimal
participant in the criminal activity. The government in the plea
agreement with Lugman agreed not to oppose a finding by the
probation officer or the district court that Lugman was a minor
participant pursuant to § 3B1.2. However, it was also clear that
the plea agreement was not and could not be binding on the United
States Probation Office or the district court.
There was no clear error in the district court’s conclusion
that Lugman was not a minimal participant. “A downward adjustment
under § 3B1.2 is appropriate where a defendant was substantially
less culpable than the average participant.” Giraldi, supra, 86
F.3d at 1378, citing United States v. Gadison, 8 F.3d 186, 197 (5th
Cir. 1993). Parson and Lugman were the only participants, and, as
between them, little difference in their respective culpability can
be discerned. Lugman did not drive the car, but the evidence
indicated that he actively participated in the decision to flee.
Lugman also admitted that Parson was unaware that Lugman had any
drugs on him when Lugman got in the car. Finally, Lugman was
observed actually throwing the cocaine from the car. We cannot say
on this record that the district court committed clear error by
finding that Lugman was not a minimal participant within the
meaning of § 3B1.2.
III.
CONCLUSION
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Finding no error in the sentence imposed upon Appellant, we
affirm.
AFFIRMED.
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