[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13258 DEC 22, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 5:10-cr-00014-RS-LB-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
BRENDA LEE MCCALLISTER,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(December 22, 2010)
Before HULL, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Brenda Lee McCallister appeals her sentence of 128-months’ imprisonment
after pleading guilty under 21 U.S.C. § 846 to conspiracy to distribute and
possession with intent to distribute more than 500 grams of a mixture and
substance containing methamphetamine, and more than 50 grams of actual
methamphetamine. On appeal, she argues that the district court committed clear
error by denying her request for a role reduction pursuant to U.S.S.G. § 3B1.2.
She believes that the record entitles her to a four-level reduction as a minimal
participant in the conspiracy, or, alternatively, a two-level reduction as a minor
participant. We disagree and affirm.
We review a district court’s denial of a role reduction for clear error. United
States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir.), cert. denied, 130 S.Ct.
2123 (2010). “[T]he proponent of the downward adjustment bears the burden at
all times of establishing her role in the offense by a preponderance of the
evidence.” United States v. De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en
banc). The district court need not make any specific or supplemental findings
prior to its ultimate decision on a defendant’s role in an offense. Id. at 939.
Generally, a defendant is responsible for her own acts and those reasonably
foreseeable actions taken by others in furtherance of the jointly undertaken
criminal activity. See U.S.S.G. § 1B1.3(a)(1)(B). Nevertheless, a defendant may
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be entitled to a role reduction under U.S.S.G. § 3B1.2.1 These reductions are
available for defendants who participate in the underlying offense in such a way
that makes them “substantially less culpable than the average participant.”
U.S.S.G. § 3B1.2, cmt. n.3(A) (emphasis added).
Under § 3B1.2(a),“minimal participant[s]” are eligible for a four-level
reduction. This applies to those defendants that are “plainly among the least
culpable” of those involved in the group activity. U.S.S.G. § 3B1.2(a), cmt. n.4.
It can be inferred that a defendant is a minimal participant if she lacks an
understanding of the operation of the organization and the activities of others. See
id. Such reductions are to be given “infrequently.” Id.
A “minor participant” may be granted a two-level reduction. U.S.S.G.
§ 3B1.2(b). Such a designation is appropriate if a defendant is “less culpable than
most other participants, but [her] role could not be described as minimal.”
U.S.S.G. § 3B1.2, cmt. n.5.
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In full, U.S.S.G. § 3B1.2 reads:
Based on the defendant's role in the offense, decrease the offense
level as follows:
(a) If the defendant was a minimal participant in any criminal
activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
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The process for analyzing whether a defendant should receive a § 3B1.2
reduction is well settled. De Varon, 175 F.3d at 934.
“First and foremost, the district court must measure the
defendant’s role against her relevant conduct, that is, the
conduct for which she has been held accountable under
U.S.S.G. § 1B1.3. The Guidelines and our case precedent
plainly require the district court to undertake this method
of analysis in every case where a role adjustment is at
issue. Second, where the record evidence is sufficient, the
district court may also measure the defendant’s conduct
against that of other participants in the criminal scheme
attributed to the defendant. These principles advance both
the directives of the Guidelines and our case precedent by
recognizing the fact-intensive nature of this inquiry and by
maximizing the discretion of the trial court in determining
the defendant's role in the offense.”
Id. (internal citations omitted).
Here, McCallister failed to demonstrate that the district court committed
clear error. Although much of her argument focuses on the level of involvement
of her co-defendant, McCallister fails to diminish her own role in the admitted
conspiracy. McCallister repeatedly describes herself only as a “drug mule,” but
that label fails to capture her involvement in the enterprise. She completed five
sales of methamphetamine to one confidential informant in less than two weeks.
More than 60 grams of the drugs and $4,700 dollars changed hands in 12 days.
Furthermore, she made at least two trips with her co-defendant to purchase
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methamphetamine from a supplier. McCallister admitted, in a signed statement,
that the government could prove that she conspired with others to possess and
distribute more than five-hundred grams of methamphetamine over a five-month
period. These undisputed facts demonstrate that McCallister’s role and the
relevant conduct attributed to her are the same. Therefore, the district court
committed no error in determining that a role reduction was not appropriate.
After thoroughly reviewing the record, including the transcript of the
sentencing proceedings, we conclude that the district court engaged in a
meaningful consideration of McCallister’s request for a minimal participant or
minor participant reduction and committed no clear error. McCallister’s actual
role matched the conduct for which she is being held accountable. Despite her
repeated emphasis on the need to compare her role with that of her co-defendant, it
is always “possible that none are minor or minimal participants.” De Varon, 175
F.3d at 944. This is such a case.
AFFIRMED.
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