United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2059
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Sherron Donta Pinkin, *
*
Defendant - Appellant. *
___________
Submitted: January 9, 2012
Filed: April 3, 2012
___________
Before WOLLMAN, LOKEN, and GRUENDER, Circuit Judges.
___________
LOKEN, Circuit Judge.
Sherron Donta Pinkin pleaded guilty to participating in a conspiracy
orchestrated by Kenyatta Cornelous to transport cocaine to Davenport, Iowa, convert
it to crack cocaine, and distribute over thirty kilograms of cocaine base, all in
violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Pinkin appeals his 235-month prison
sentence, the bottom of the advisory guidelines range, arguing the district court1
committed procedural error in denying two- and four-level reductions for his minor
role in the conspiracy, see U.S.S.G. §§ 3B1.2(b) and 2D1.1(a)(5), and in assessing
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
one criminal history point for a prior state court conviction for possession of
marijuana that was, he contends, relevant conduct in the cocaine conspiracy under
U.S.S.G. § 4A1.2(a)(1). We affirm.
Cornelous recruited Pinkin in Gary, Indiana, in 2003. Pinkin remained a
conspirator until September 2005, when officers conducting a warrant search of
conspirator Ricky Randle’s house in Davenport found Pinkin with a small amount of
marijuana that led to the state court conviction. As a conspirator, Pinkin would
accompany Cornelous to Davenport with large quantities of cocaine, usually one
kilogram each trip, and stay behind after Cornelous left because Pinkin was one of
two people Cornelous trusted to “handle my . . . drug activities.” When in Davenport,
Pinkin usually stayed with Randle, a major Cornelous customer. Pinkin would
answer calls to Cornelous’s phone, sell between one and nine ounces of cocaine base
to Cornelous’s smaller customers, and collect customer payments. At sentencing,
Cornelous testified that Pinkin made approximately ten trips from Gary to Davenport.
Randle testified that, when Pinkin stayed at Randle’s house, “he sold a lot of drugs”
in addition to what Randle was selling. Randle’s cousin, Prentice Spraggins, testified
that he moved to Randle’s house in June 2005 and saw Randle selling crack that he
obtained from Cornelous and Pinkin.
1. Role in the Offense. Accepting the Presentence Investigation Report’s
recommendation, for base offense level purposes the district court attributed to Pinkin
30.15 kilograms of the 31.51 kilograms attributed to Cornelous, resulting in an
advisory guidelines total offense level of 37 after other adjustments that are not at
issue. The drug quantity finding is also not at issue. Rather, Pinkin argues he is
entitled to a minor participant reduction because he was “less culpable than most
other participants, but [his] role could not be described as minimal.” U.S.S.G.
§ 3B1.2(b) comment. (n.5). Pinkin has the burden of proof on this issue, which is a
question of fact we review for clear error. See United States v. Bush, 352 F.3d 1177,
1181-82 (8th Cir. 2003).
-2-
“A defendant’s role in the offense is measured by the relevant conduct for
which he is held responsible. Once the district court has determined the relevant
conduct, each participant’s actions should be compared against the other participants,
and each participant’s culpability should be evaluated in relation to the elements of
the offense.” United States v. Deans, 590 F.3d 907, 909 (8th Cir. 2010). Here,
Pinkin’s relevant conduct included nearly all drug quantities attributable to the
conspiracy’s organizer and leader, Cornelous. The testimony at sentencing
established that Pinkin was not personally involved in the distribution of all quantities
and that he doubtless sold far less than major customer Randle, who is now serving
a life sentence. But, as the district court recognized, that does not end the inquiry.
“[M]erely showing the defendant was less culpable than other participants is not
enough to entitle the defendant to the adjustment if the defendant was ‘deeply
involved’ in the offense.” United States v. Rodriguez-Ramos, 663 F.3d 356, 367 (8th
Cir. 2011) (quotation omitted). Numerous cases have concluded that a conspirator
who was a purchaser and dealer of significant quantities of cocaine was “deeply
involved,” even if the overall conspiracy offense included other quantities. See, e.g.,
United States v. Bradley, 643 F.3d 1121, 1129 (8th Cir. 2011).
In arguing he was a minor participant, Pinkin primarily compares his conduct
to that of Edward Jones, who served as Cornelous’s driver in transporting large
quantities from Gary to Davenport and who received a minor role adjustment. The
district court rejected the comparison, observing that Pinkin “ran the [Davenport]
operation while Cornelous was out of town,” a role in the offense that “goes beyond
the simple act of being a driver” and “cannot be called mitigating.” We agree. Pinkin
sold substantial quantities of crack cocaine, collected money from customers and
other dealers, and had extensive knowledge of the conspiracy. He was at least as
culpable as many of the conspirators in Davenport. Indeed, he was not significantly
less culpable than major customer Randle: Cornelous “fronted” crack cocaine to
both, and one of Pinkin’s duties in Davenport was to collect Randle’s drug debts to
-3-
Cornelous. The district court did not clearly err in denying Pinkin a minor participant
role-in-the-offense reduction.
2. The Prior Marijuana Conviction. When calculating criminal history
points, a sentencing court is to consider “any sentence previously imposed . . . for
conduct not part of the instant offense,” defined as conduct other than “relevant
conduct” under U.S.S.G. § 1B1.3. U.S.S.G. § 4A1.2(a)(1) & comment. (n.1); United
States v. Davidson, 195 F.3d 402, 409 (8th Cir. 1999), cert. denied, 529 U.S. 1093
(2000). When as in this case the “instant offense” is a drug conspiracy, and the prior
conviction was for a drug-related offense committed during the conspiracy period, the
question is whether the prior conduct was a “severable, distinct offense.” United
States v. Stone, 325 F.3d 1030, 1032 (8th Cir. 2003). Relevant factors include
“temporal and geographical proximity, common victims, common scheme, charge in
the indictment, and whether the prior conviction is used to prove the instant offense.”
United States v. Ault, 598 F.3d 1039, 1041 (8th Cir. 2010).
Pinkin argues his prior state court conviction “meets all of the tests for relevant
conduct” and therefore the district court erred in assessing a criminal history point for
his marijuana possession conviction, which placed him in Criminal History Category
II instead of Category I. The conviction was based on 1.7 grams of marijuana found
in Pinkin’s possession during a September 2005 warrant search of conspirator
Randle’s home. Without question, there is temporal and geographic proximity -- the
warrant search was part of the investigation of the broad conspiracy, and Pinkin’s
arrest ended his participation in the conspiracy. However, the small amount of
marijuana Pinkin possessed was neither charged in the conspiracy indictment nor
included in his offense conduct for purposes of calculating his base offense level.
Nor did Pinkin present evidence the conspiracy dealt with marijuana, or that his
possession of marijuana furthered the conspiracy in any way. The only conspirator
who testified about marijuana was Randle, who said he had occasionally smoked
marijuana for personal use but did not sell it. On this record, as in Davidson, Stone,
-4-
Ault, and United States v. Boroughf, 649 F.3d 887, 890-91 (8th Cir. 2011), we
conclude that the district court did not clearly err in finding that Pinkin’s marijuana
possession conviction was for a separate and distinct offense and in adding one
criminal history point for that offense.
The judgment of the district court is affirmed.
______________________________
-5-