[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 3, 2008
No. 07-15622 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00035-CR-BAE-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFERY L. LEWIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 3, 2008)
Before ANDERSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Jeffrey L. Lewis appeals his 180-month sentence imposed for distribution of
a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Lewis contends
that the district court erroneously failed to consider his minimal conduct and apply
a two-level minor role adjustment pursuant to U.S.S.G. § 3B1.2(b). We AFFIRM
the sentence of the district court.
I. BACKGROUND
On 8 January 2005, Lewis arranged the purchase of crack cocaine by two
confidential informants. R3 at 30. Lewis then drove with the confidential
informants to another location where he acted as the middleman for a second
purchase of crack cocaine. Id. at 30-31. The total amount of crack cocaine
involved was 52.12 grams. Id. at 31.
Lewis was indicted for one count of distribution of 50 grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1), which carried a statutory
minimum of ten years to life imprisonment. R1-1, 2. The government agreed to
let Lewis plead guilty to a lesser included offense of distribution of an unspecified
quantity of cocaine base, which subjected him to a significantly reduced sentence
of not more than twenty years imprisonment with no minimum mandatory
imprisonment. R1-37; R3 at 20. Although there would be no drug quantity
threshold for penalty enhancing purposes, Lewis acknowledged in the written plea
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agreement that he knowingly distributed 52.12 grams of cocaine base and that this
total drug quantity would be used for sentencing purposes. R1-37 at 6. In
addition, the government promised to recommend a two-level reduction for being a
minor participant based on Lewis’s understanding that such a reduction was
“completely within the sentencing court’s discretion.” Id. at 3, 5.
At his guilty plea hearing in May 2006, Lewis admitted that he willingly
helped the confidential informants purchase cocaine two times. R3 at 31. The
government advised the court that it would recommend a two-level reduction as a
minor participant based upon Lewis’s role as essentially a middleman. Id. at 24.
Lewis affirmed that he understood the plea agreement. Id. at 25.
At the sentencing hearing in August 2006, Lewis objected to the probation
officer’s inclusion of a prior offense in his criminal history calculation. R2 at 4-7;
Addendum to the Presentence Report. Lewis did not object to the probation
officer’s determination that no role reduction applied. Nor did Lewis object to the
court’s establishment of Lewis’s offense level without a role reduction, which set
the advisory guidelines range between 151 to 188 months of imprisonment. Id. at
12. Although Lewis argued the court should consider his minimal role in the
offense as a mitigating factor, he did not specifically argue that he was entitled to a
§ 3B1.2 reduction. Id. at 13. The prosecutor noted that Lewis would have been
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eligible for life without parole under the original charge, and that the favorable plea
bargain recognized Lewis’s role as a middleman. Id. at 15-16. Lewis
acknowledged that he had “received some benefit from that” and asked the court to
“give him somewhat of a break on the number of months.” Id. at 16-17. The
sentencing judge stated that he had examined all factors of 18 U.S.C. § 3553. Id. at
17. Based on Lewis’s lengthy criminal record, the sizable quantity of crack
cocaine distributed, and the very favorable plea bargain he received, Lewis was
sentenced to 180 months of imprisonment. Id. at 17-18. Besides his previous
objections to the presentence report, Lewis made no further objections to the
district court’s findings of fact or conclusions of law. Id. at 19-20.
II. DISCUSSION
On appeal, Lewis argues that the district court clearly erred in failing to
analyze Lewis’s role and make factual findings as to why Lewis was not entitled to
a two-level § 3B1.2(b) minor role reduction. Because Lewis did not object on
these grounds in the district court, our review is limited to plain error. See United
States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005). We have “discretion to
correct an error under the plain error standard where (1) an error occurred, (2) the
error was plain, (3) the error affected substantial rights, and (4) the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
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Under § 3B1.2(b), a defendant’s base offense level may be decreased two
levels “[i]f the defendant was a minor participant in any criminal activity.”
U.S.S.G. § 3B1.2(b) (Nov. 2002). A defendant’s role in the offense should be
evaluated based on all relevant conduct and not just on the acts cited in the count of
conviction. United States v. Rodriguez De Varon, 175 F.3d 930, 940-41 (11th Cir.
1999). This means a defendant’s role must be measured against the relevant
conduct attributed to the defendant in calculating his base offense level. Id. at 941.
The amount of drugs involved is a relevant factor and, under some circumstances,
may be dispositive. Id. at 943. In addition, the defendant’s culpability as
compared to that of any other participants is germane. Id. at 944; see
U.S.S.G. § 3B1.2 cmt. n.5 (minor role reduction appropriate if the defendant was
“less culpable than most other participants”).
A district court is not bound by the government’s recommendation in a plea
agreement. See Federal Rule of Criminal Procedure 11(c)(1)(B). Nor is a district
court required to make any specific factual findings “other than the ultimate
determination of the defendant’s role in the offense.” De Varon, 175 F.3d at 940.
“So long as the basis of the trial court’s decision is supported by the record and
does not involve a misapplication of a rule of law, we believe that it will be rare for
an appellate court to conclude that the sentencing court’s determination is clearly
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erroneous.” Id. at 945 (emphasis in original). A district court’s failure to make
specific factual findings or conclusions of law will not preclude appellate review
where there is adequate evidence to support the district court’s summary rejection
of the defendant’s arguments. See United States v. Villarino, 930 F.2d 1527, 1529
(11th Cir. 1991).
Here, the district court did not make specific factual findings or conclusions
of law about whether Lewis was entitled to a § 3B1.2(b) reduction because Lewis
did not specifically request such a reduction. Nevertheless, meaningful appellate
review is possible because the record contains ample evidence that Lewis was not
entitled to this reduction. Contrary to Lewis’s assertion, the district court did
consider evidence of Lewis’s role in the drug transactions. In fact, it was
undisputed that Lewis acted as a middleman. Because of his role, the district court
correctly noted that Lewis obtained a very favorable plea agreement for a lesser
included offense which avoided the possibility of a life sentence. See R3 at 17.
Lewis’s status as a middleman, however, does not automatically mean that
his role was minor for purposes of § 3B1.2(b). See De Varon, 175 F.3d at 942
(defendant’s status as a drug courier in and of itself is not dispositive of whether he
is entitled to a role reduction). Instead, the proper focus is on Lewis’s role in light
of the relevant conduct attributed to him. Id. In the written plea agreement, Lewis
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acknowledged that he intentionally distributed 52.12 grams of cocaine base, and
that this total drug quantity would be used for sentencing purposes. Lewis’s
relevant conduct used to calculate his base offense level, the distribution of 50
grams or more of cocaine base, was identical to his actual conduct. Lewis was thus
held accountable only for the sizable amount of drugs that he admitted distributing.
Lewis also testified that he willingly helped the confidential informants purchase
the crack cocaine by taking them from one place to another to find a drug dealer.
See R2 at 31. There is no evidence to suggest that these drug transactions could or
would have occurred without Lewis’s involvement. Accordingly, a two-level
reduction did not apply because Lewis did not play a minor role in the conduct for
which he was held accountable. See De Varon, 175 F.3d at 944.
Furthermore, Lewis has not shown that he was any “less culpable than most
other participants” in the drug transactions at issue. U.S.S.G. § 3B1.2 cmt. n.5.
Lewis cannot compare his actions to those of the confidential informants in this
case because they do not qualify as participants for purposes of § 3B1.2(b). See id.
at n.1 (“participant” defined under application notes for § 3B1.1);
U.S.S.G. § 3B1.1 cmt. n.1 (“A person who is not criminally responsible for the
commission of the offense (e.g., an undercover law enforcement officer) is not a
participant.”). Lewis was the only named defendant in the indictment and he has
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offered no evidence concerning the role of any other individuals in these drug
deals. The burden of establishing a minor role in the offense rested on Lewis and
he has failed to meet this burden. See De Varon, 175 F.3d at 946.
Based on the foregoing, we conclude that Lewis was not entitled to a two-
level minor role reduction pursuant to § 3B1.2(b). The district court did not err,
plain or otherwise, in not decreasing Lewis’s offense level for being a minor
participant.
III. CONCLUSION
Lewis challenges his sentence for distribution of a quantity of cocaine base
on grounds that the district court failed to consider his minor role in the drug
transactions and afford him a two-level reduction under § 3B1.2(b). We conclude
that the district court properly based its sentence in part on the quantity of drugs
involved and the favorable plea agreement, which took into consideration the role
Lewis played in the drug transactions. Lewis did not qualify for a two-level minor
role reduction because he did not play a minor role in his relevant conduct of
distributing 52.12 grams of cocaine base, and there was no evidence that he was
less culpable than other participants in the drug transactions. Consequently, the
district court did not err in sentencing Lewis.
AFFIRMED.
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