United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3728
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United States of America, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Russell James Hodge, * [UNPUBLISHED]
*
Appellee. *
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Submitted: June 28, 2005
Filed: July 13, 2005
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Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
Russell Hodge pleaded guilty to (1) being an unlawful user of a controlled
substance while in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and
924(a)(2); and (2) conspiring to manufacture, distribute, and possess with intent to
distribute 500 grams or more of actual (pure) methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846, and conspiring to distribute pseudoephedrine knowing
it would be used to manufacture methamphetamine, in violation of 21 U.S.C.
§§ 841(c)(2) and 846. After granting Hodge a minor-role reduction over the
government’s objection, the district court sentenced Hodge to 84 months
imprisonment and 5 years supervised release. The government appeals, arguing that
the district court incorrectly granted Hodge the minor-role reduction. We reverse and
remand for resentencing.
Initially, we reject Hodge’s contention that United States v. Booker, 125 S. Ct.
738 (2005), renders the appeal moot by making the Guidelines advisory: the
Guidelines range is still a factor that the district court must consider in sentencing a
defendant. See Booker, 125 S. Ct. at 757 (sentencing court is required to consider
Guidelines ranges, but the court is permitted to tailor sentence in light of other
statutory concerns as well); United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.
2005) (district court must continue to determine appropriate Guidelines range as it did
pre-Booker, before it considers other 18 U.S.C. § 3553(a) factors). We review the
application of the Guidelines de novo and the district court’s factual findings for clear
error. See Mathijssen, 406 F.3d at 498.
Upon conducting such review, we conclude the district court clearly erred in
finding that Hodge played a minor role in the conspiracy. The court failed to consider
and discuss Hodge’s role--his admitted provision of thousands of pseudoephedrine
pills during the course of the conspiracy--in the pseudoephedrine-distribution
objective of the charged conspiracy, as compared to the other participants and the
elements of that offense. See U.S.S.G. § 3B1.2, comment. (n.5) (minor participant
is one “who is less culpable than most other participants, but whose role could not be
described as minimal”); United States v. Johnson, 408 F.3d 535, 538-39 (8th Cir.
2005) (propriety of § 3B1.2 adjustment is determined by comparing acts of each
participant in relation to relevant conduct for which participant is held accountable
and by measuring each participant’s individual acts and relative culpability against
elements of offense); United States v. Johnson, 358 F.3d 1016, 1018 (8th Cir. 2004)
(defendant has burden of proving entitlement to minor-role reduction).
Further, we cannot be certain that the district court’s error was harmless,
because it is unclear to us whether the district court would have imposed the same
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sentence absent the error. We therefore reverse the sentence and remand to the
district court to resentence Hodge in accordance with this opinion, under the now
advisory Guidelines regime. See United States v. Hadash, 408 F.3d 1080, 1082 (8th
Cir. 2005) (appellate court remands for resentencing pursuant to 18 U.S.C.
§ 3742(f)(1) when Guidelines are incorrectly applied unless error was harmless;
remand is unnecessary if district court would have imposed same sentence absent
application error).
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