[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
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U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15326 MAY 06, 2003
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-00030-CR-004
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN JETER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(May 6, 2003)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Appellant, a federal prisoner currently serving a 168-month sentence
imposed following a plea of guilty to conspiracy to manufacture
methamphetamine, in violation 21 U.S.C. § 846, challenges his sentence on the
ground that the district court, in applying the Sentencing Guidelines, erred in
denying him a minor role adjustment pursuant to U.S.S.G. § 4B1.1.
Appellant is a career offender. Under the Guidelines, a defendant is a career
offender if the following three elements are present (as they are here):
(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction, (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense, and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1. While a career offender’s criminal history category is always
Category VI, § 4B1.1 indicates that with respect to the defendant’s offense level,
as distinguished from his criminal history category, “[i]f an adjustment from §
3E1.1 (Acceptance of Responsibility) applies, [a court must] decrease the offense
level by the number of levels corresponding to that adjustment.” U.S.S.G. §
4B1.1.
In contending that the court should have granted him a minor role
adjustment under § 4B1.1, appellant relies on the rule of lenity. The rule of lenity
applies if a statute – in this instance, a sentencing guideline – is ambiguous.
United States v. Johnson, 155 F.3d 682, 685 (11th Cir. 1998). Because § 4B1.1,
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by its express terms, only authorizes an adjustment based on acceptance of
responsibility, and does not mention the minor role adjustment, and since “the
inclusion of one implies the exclusion of others,” United States v. Koonce, 991
F.2d 693, 698 (11th Cir. 1993), the guideline is not ambiguous and the rule of
lenity does not apply. Johnson, 155 F.3d at 685.
In a previous opinion, we appeared to join several sister circuits in holding
that the minor role adjustment is not available to a defendant sentenced under the
career offender provision. See id. at 684 & n.4 (citing to the First, Seventh,
Eighth, and Ninth Circuits, all of which have held that mitigating role adjustments
do not apply in the career offender scenario). Today we make it clear that minor
role adjustments are not available to defendants sentenced under § 4B1.1.
Appellant’s sentence is, accordingly,
AFFIRMED.
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