United States v. Bowen

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 15, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 04-4314
JASON BOWEN,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:04-CR-00203 BSJ)

Kent R. Hart, Assistant Federal Public Defender (Scott Keith Wilson, Assistant
Federal Public Defender and Steven B. Killpack, Federal Public Defender, on the
briefs), Salt Lake City, Utah, for defendant-appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (Paul M. Warner,
United States Attorney, with her on the brief), District of Utah, for plaintiff-
appellee.

Before BRISCOE, ANDERSON, and O’BRIEN, Circuit Judges.

BRISCOE, Circuit Judge.

Jason Bowen appeals his jury conviction of one count of possession of five
grams or more of methamphetamine with the intent to distribute, in violation of

21 U.S.C. § 841(a)(1). He raises four issues: (1) the evidence was insufficient to

support his conviction; (2) the district court’s instruction on constructive

possession prejudiced his defense; (3) the district court erred in concluding it

lacked authority to adjust his sentence for a mitigating role in the offense; and (4)

the district court applied the sentencing guidelines in a mandatory fashion, in

violation of United States v. Booker, 125 S.Ct. 738 (2005). We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

On the night of February 16, 2004, Jack Guenon, a police officer employed

by the city of Midvale, Utah, stopped a white Honda Civic after he noticed the

vehicle had a broken tail light. Officer Guenon approached the driver’s side of

the vehicle and spoke with the driver, Phillip King. He also observed an

individual sitting in the passenger seat who was later identified as Jason Bowen.

Officer Guenon immediately noticed that the vehicle’s steering column was

broken and the ignition was punched out. As a result, he suspected that the

vehicle was stolen.

Officer Guenon began his investigation by checking the status of King’s

driver’s license and calling for backup. He also asked dispatch to contact the

registered owner of the vehicle, Deborah Blanchard, in an effort to determine

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whether either King or Bowen was authorized to drive the vehicle.

When Officers Bettridge and Richardson arrived, Officer Guenon relayed

his observations to them and asked Officer Bettridge to assist him in questioning

the occupants of the Honda Civic. While Officer Guenon approached the driver’s

side of the vehicle, Officer Bettridge walked to the passenger side, stopping at the

right rear quarter panel so that he could see both King and Bowen. After Officer

Guenon asked King to step out of the vehicle, he questioned King about the

ownership of the vehicle and informed King that his driver’s license was

suspended. King told Officer Guenon that he had borrowed the car from a friend.

Meanwhile, dispatch informed Officer Guenon that Deborah Blanchard did not

know either King or Bowen. Officer Guenon then told King that he believed that

the vehicle might be stolen and requested King’s consent to search his person for

weapons.

Although nothing was found as a result of his search of King, Officer

Guenon decided to handcuff King out of concern for officer safety. As he

handcuffed King, Officer Guenon testified that he noticed that Bowen, who was

still seated in the vehicle, was “moving around quite a bit.” Vol. II at 25.

Officer Guenon testified that Bowen “was moving his hands, he was looking

backwards, he was extremely nervous,” and that he saw Bowen “lean forward into

his seat going towards the bottom part of the seat.” Id. According to Officer

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Guenon, he did not know if Bowen was going for a weapon, or if he was

concealing something. Id. Officer Bettridge also noticed Bowen’s movements.

He testified that as he approached the passenger door, Bowen “bent down,” and

that although he could not see Bowen’s hands, it “looked like [Bowen] was

placing something on the seat or trying to hide something.” Id. at 61. He further

testified that it looked like Bowen was placing something on the floor and that

“[i]t could have been anywhere in the middle or the passenger side. Once

[Bowen] moved down I couldn’t see where his hands were.” Id. at 70.

Officer Bettridge directed Bowen to step out of the vehicle, walk to the rear

of the vehicle, and place his hands on his head. He testified that Bowen appeared

nervous and that his body was moving quite a bit. Officer Bettridge asked Bowen

if he had any weapons and Bowen responded that he had a knife in his pocket.

After obtaining consent to search Bowen, Officer Bettridge found a Swiss Army

knife, along with a rolled-up package of about thirty “teener” zip lock baggies in

Bowen’s left coat pocket. 1 In Bowen’s right pants pocket, Officer Bettridge

1
Officer Guenon testified that “teener baggies” are used for distributing
methamphetamine. Based on his experience, he stated that the quantity of bags
found on Bowen was consistent with an individual interested in selling a
controlled substance, as opposed to merely personal use. Further, he noted that
Bowen’s teener baggies contained a stamp of a devil on them, and that dealers
used such characters to distinguish their drugs from other dealers. Officer
Bettridge described the teener bags as “clear with the little red heads striped all
the way across them numerous times.” Vol. II at 64.

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located a smaller teener bag. Officer Bettridge testified that after he discovered

the teener baggies, Bowen became “even more agitated and nervous,” and started

saying “no, no, no, no.” Id. at 63.

After King gave his consent to search the vehicle, Officer Guenon called

for a canine unit. When the canine unit arrived, Officer Guenon informed the

officer accompanying the drug dog that there may be narcotics in the car because

of the large number of teener bags found on Bowen’s person. The dog alerted

around the driver’s seat area, next to the center console. Based on Bowen’s

movements, which he had observed, Officer Guenon first looked underneath the

passenger’s seat and found an individual teener bag with the same red devil head

stamp as the bags found in Bowen’s coat pocket. Officer Guenon next searched

underneath the seat cover of the driver’s seat, and discovered a small, round

object inside a plastic bag, later identified as 24.3 grams of methamphetamine.

Bowen was charged with possession with intent to distribute

methamphetamine. King, the driver of the vehicle, was not charged. At Bowen’s

trial, King admitted that he had been a methamphetamine addict since 1993, and

that when the February 16 traffic stop occurred he was on parole for a prior drug

conviction involving methamphetamine. King also testified that a parole board

had concluded that he had violated his parole due to his constructive possession

of the drugs found during the February 16 traffic stop. King stated that he had

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three additional prior drug convictions for possessing methamphetamine. When

questioned about the methamphetamine found in the Honda Civic, King testified

that the methamphetamine was not his, he did not place it there, and that he did

not have any idea how the methamphetamine got there.

King testified that a total of five people had access to the Honda Civic

between February 3 and February 16. King explained that Jim Blanchard (the ex-

husband of Deborah Blanchard) initially loaned the car to an individual named

Jesse Searle to use and to make repairs. According to King, Searle was driving

the Honda Civic when he was arrested on February 3, 2004, for possession of

methamphetamine. When Searle was arrested, Jim Blanchard called Kim Griffiths

and asked him and King to pick up the vehicle so that it would not be impounded.

King claimed that police officers at the scene allowed them to take the vehicle

and drive it back to Searle’s residence. 2

King testified that, following Searle’s arrest, Jim Blanchard let him use the

Honda Civic whenever Griffiths was not using it. King testified that on February

16 he picked up the Honda Civic and drove it to Wendy Racine’s residence.

2
At trial, Officer Aaron Jones testified that he was present at Searle’s arrest,
and that he and the other officers thoroughly searched the car before releasing it
to King and Griffiths. Officer Jones testified that he specifically recalled
searching under the seat covers.

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When he arrived at Racine’s home, Bowen was sitting on the front porch. 3

According to King, Bowen told him that Racine had the only key to the house, but

that she had left to go grocery shopping. It was after the two had located her and

were returning to her home that Officer Guenon pulled them over.

II.

A. Sufficiency of the Evidence

Bowen contends that the government presented insufficient evidence for the

jury to conclude beyond a reasonable doubt that he constructively possessed the

methamphetamine. Specifically, he argues that a jury could not plausibly infer

from the evidence that he was aware of the drugs which were found under the seat

cover of the driver’s seat.

“We review sufficiency of the evidence claims de novo, asking only

whether, taking the evidence–both direct and circumstantial, together with

reasonable inferences to be drawn therefrom–in the light most favorable to the

government, a reasonable jury could find [Bowen] guilty beyond a reasonable

doubt.” United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000) (internal

quotations omitted). “We do not question the jury’s credibility determinations or

3
The record reflects that Bowen’s girlfriend lived with Racine.

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its conclusions about the weight of the evidence.” Id. “‘The evidence necessary

to support a verdict need not conclusively exclude every other reasonable

hypothesis and need not negate all possibilities except guilt. Instead, the

evidence only has to reasonably support the jury’s finding of guilt beyond a

reasonable doubt.’” United States v. Pulido-Jacobo, 377 F.3d 1124, 1129 (10th

Cir. 2004) (citation omitted).

“To establish a violation of 21 U.S.C. § 841(a)(1), the Government must

prove the defendant: (1) possessed the controlled substance; (2) knew he

possessed the controlled substance; and (3) intended to distribute or dispense the

controlled substance.” United States v. McKissick, 204 F.3d 1282, 1291 (10th

Cir. 2000) (citing United States v. Dozal, 173 F.3d 787, 797 (10th Cir. 1999)).

“The possession of the controlled substance may be actual or constructive.”

United States v. Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir. 2004).

“[A] person has constructive possession of an item when he ‘knowingly

holds the power and ability to exercise dominion and control over it.’” United

States v. Lopez, 372 F.3d 1207, 1211 (10th Cir. 2004) (citations omitted).

“Dominion, control, and knowledge, in most cases, may be inferred if a defendant

had exclusive possession of the premises; however joint occupancy alone cannot

sustain such an inference.” United States v. Mills, 29 F.3d 545, 549 (10th Cir.

1994) . “To prove constructive possession when there is joint occupancy of a

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vehicle, the government must present direct or circumstantial evidence to show

some connection or nexus individually linking the defendant to the contraband.”

United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998)

(citations omitted). “The government must present some evidence supporting at

least a plausible inference that the defendant had knowledge of and access to the

... contraband.” Id. (citations and internal quotations omitted).

Bowen argues that the prosecution relied on conjecture and speculation,

piling inference upon inference, to establish that he constructively possessed the

methamphetamine. As described in more detail below, he argues that his brief

occupancy of the Honda Civic, his nervousness around the police, his reaching

underneath the passenger’s seat, and the teener baggies found in his pockets were

insufficient to sustain his conviction.

First, Bowen emphasizes that several people had access to the Honda Civic

in the days prior to the arrest, including people who had a history of

methamphetamine possession and distribution. Bowen specifically refers to

Searle’s arrest for possession of methamphetamine two weeks earlier while he

was driving the vehicle, King’s criminal history for using methamphetamine, and

Griffiths’ concession at trial that he had used methamphetamine before. As

regards Searle’s arrest, Bowen argues that it was possible that officers involved in

that arrest overlooked the drugs that were later found in the car on February 16.

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Bowen also argues that between the two occupants of the car, it was more likely

that the drugs belonged to King. King had primary control over the car, he had a

lengthy criminal drug history, he was literally sitting on the drugs, and he was

later found by a parole board to have constructively possessed the drugs in

question. In short, Bowen argues that the government presented insufficient

evidence to establish some connection or nexus which individually linked him to

the drugs.

Second, Bowen asserts that his nervous demeanor was a normal response to

an encounter with the police. At most, Bowen claims that he was only nervous

because he did not want the teener baggies to be found on his person, not because

he was nervous about the drugs hidden in the car. Thus, he contends that his

concern that the teener baggies would be found fully explained his nervous

response to the officer’s questioning.

Third, although he does not dispute that he made movements underneath the

passenger’s seat, Bowen states that no one testified that he made any movements

toward the driver’s seat. Bowen argues that at no time did King see him touch the

driver’s seat from the moment he entered the car until the police pulled the car

over and detained both of them. In addition, he points out that Officers Guenon

and Bettridge closely watched him during the traffic stop, but that neither officer

saw him make any movements toward the driver’s seat.

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 Lastly, Bowen argues that the teener bags found on his person cannot be

connected to the car or the drugs in the car. He maintains that the government

lacked evidence demonstrating that he possessed or even used drugs when he

entered the car. In support, Bowen notes that King testified that he did not see

anything that would give him the impression that Bowen was connected to the

drugs under the seat cover.

Admittedly, this case involves some unusual circumstances, i.e., the large

number of people with access to the Honda Civic prior to Bowen’s arrest, Searle’s

arrest two weeks earlier for possession of methamphetamine when he was driving

the same vehicle, King’s criminal history involving methamphetamine, and the

government’s failure to charge King. While there is little direct evidence to

establish that Bowen knowingly possessed the drugs, we conclude that there was

sufficient circumstantial evidence to establish the necessary nexus between

Bowen and the drugs found in the car.

First and foremost, Officer Guenon testified that the large quantity of

teener baggies discovered on Bowen, along with the markings on the bags, were

consistent with the distribution of methamphetamine. Further, a teener baggie

with the same devil markings as the ones found in Bowen’s pocket was found

under the passenger seat. Officer Guenon also estimated that the amount of

methamphetamine recovered from the Honda Civic was more likely for

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distribution than for personal use because it would yield close to one-hundred

dosage units. This testimony, coupled with the fact that no teener baggies were

found on King’s person, established a strong link between Bowen and the

methamphetamine found in the car.

Other pieces of evidence lend further support. Officer Guenon and

Bettridge both observed Bowen make furtive movements around the passenger

seat and toward the middle of the car after King was removed from the car.

Although their testimony did not indicate that Bowen’s movements were directed

toward the driver’s seat, his actions support a conclusion that Bowen was

attempting to conceal something toward the middle of the car. Indeed, Bowen

had several opportunities to hide the drugs. Bowen could have hidden the drugs

before Officer Guenon pulled over the Honda Civic, while Officer Guenon called

for backup and ran a records check on King’s driver’s license, or after King

stepped out of the vehicle to talk with Officer Guenon or when the officers

observed Bowen moving around in the car. Officer Guenon discovered the drugs

under a seat cover on the driver’s seat, and more specifically, on the side close to

the middle console which was easily within Bowen’s reach. Bowen’s proximity

to the drugs would be insufficient evidence, when considered in isolation, to

establish his knowledge of the methamphetamine. See Valadez-Gallegos, 162

F.3d at 1262 (concluding that a defendant’s presence and proximity to drugs,

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alone, is insufficient to support a conviction on a constructive possession theory).

But when considered with the rest of the evidence presented, his close proximity

to the drugs is probative.

Contrary to Bowen’s arguments, the circumstantial evidence in this case did

not require the jury to pile inference upon inference. Instead, the evidence was

sufficient to convict Bowen of possession of methamphetamine with intent to

distribute.

B. Constructive Possession Instruction

Bowen contends that the district court erred in instructing the jury on

constructive possession. Specifically, Bowen asserts that one paragraph of the

district court’s instruction permitted the jury to infer his knowledge of the

concealed drugs from his mere proximity to the drugs or from an act of

concealment. Bowen believes that this error was prejudicial because there was a

lack of direct evidence that he had knowledge of the drugs, and because the

prosecutor referred to the instruction during closing arguments.

We review de novo whether, as a whole, the district court’s instructions

correctly stated the governing law and provided the jury with an ample

understanding of the issues and applicable standards. United States v. Cerrato-

Reyes, 176 F.3d 1253, 1262 (10th Cir. 1999) (citation omitted). “An instructional

error is harmless unless the error had a substantial influence on the outcome of

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the trial or if the court is left in grave doubt as to its influence.” United States v.

Cota-Meza, 367 F.3d 1218, 1221 (10th Cir. 2004) (citation omitted).

The challenged instruction, Jury Instruction Number 22, stated in its

entirety:

Before you may find the defendant guilty of the offense
charged in Count 1 of the Indictment, you must find beyond a
reasonable doubt that he possessed a controlled substance.
The law recognizes two kinds of possession: actual possession
and constructive possession.
“Actual Possession” is direct physical control, as by holding an
object, or keeping it on or around one’s person.
“Constructive Possession” is indirect control, as by knowingly
having the power to exercise dominion or control over an object
although someone or something else may actually be holding it. A
person who, although not in actual possession, knowingly has both
the power and the intention at a given time to exercise dominion or
control over an object, either directly or through another person or
persons, is then in constructive possession of it.
In a situation where the object is found in a place (such as a
room or car) occupied by more than one person, you may not infer
control over the object based solely on joint occupancy. Mere
control over the place in which the object is found is not sufficient to
establish constructive possession. Instead, in this situation, the
government must prove some connection or nexus between the
defendant and the object, and must offer evidence supporting at least
a plausible inference that the defendant has knowledge of and access
to the object.
In addition to knowingly having the power or ability to control
an object, the government must prove an act on the part of the
defendant by which that power or ability is manifested and
implemented, such as an act placing the object within easy reach of
the defendant, or an act concealing the object from view.
Merely being present with others who have possession of an

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 object is not “constructive possession.” In addition, momentary or
transitory control of an object, without criminal intent, is not
“constructive possession.” You should not find that the defendant
possessed the object if he possessed it only momentarily, and either
did not know that he possessed it or lacked criminal intent to possess
it.
You may find that the defendant “possessed”
methamphetamine as the term is used in these instructions if the
government proves beyond a reasonable doubt that the defendant had
actual or constructive possession of methamphetamine.

Vol. I, Doc. 33 (emphasis added).

Bowen complains that the italicized portion of Instruction Number 22

provided a “formula for conviction” because it supplied the jury with specific

examples of the evidence which would support a plausible inference that he had

knowledge of the methamphetamine. According to Bowen, the instruction is

prejudicial because it equates “knowingly having the power or ability to control

an object” with “an act of placing the object within easy reach” or “an act of

concealing the object.” Bowen asserts that the instruction prejudiced his defense

because the prosecution failed to present any evidence that he placed the

methamphetamine within his reach or that he otherwise concealed the drugs. He

also argues that during closing arguments the prosecutor quoted the challenged

portion of the instruction and stated: “that’s what happened in this case, that the

object was in reach of Mr. Bowen, and was concealed from view under the seat

cover of the driver’s seat.” Vol. III at 58.

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 We are not persuaded by Bowen’s arguments. 4 The requirement that the

government establish that Bowen committed an act by which his power and ability

to control the drugs was manifested and implemented was set forth in United

States v. Medina-Ramos, 834 F.2d 874 (10th Cir. 1987). When addressing

constructive possession, we stated: “Knowingly holding the ability to control an

object, and the acts by which that ability is manifested and implemented, are thus

the means by which a crime is committed through constructive possession.” Id. at

876. A little over a year later, in United States v. Cardenas, 864 F.2d 1528 (10th

Cir. 1989), we addressed the Medina-Ramos language. At issue in Cardenas was

whether there was sufficient evidence to prove that the defendant possessed a

firearm located in a truck. Id. at 1533. Although the defendant admitted that he

knew the gun was in the truck, he argued, citing to Medina-Ramos, that “in

addition to knowingly holding the ability to control an object, there must be an act

by which that ability is manifested and implemented.” Id. We agreed with the

defendant, but concluded that the “act” requirement was satisfied: “The placement

of the gun within inches of Cardenas’ hands, together with the act of concealment

of the gun behind the potato chip bag, satisfy the requisite act manifesting

4
The government maintains this issue should be reviewed for plain error
because Bowen’s objection at the instruction conference was unclear. We need
not resolve this issue because Bowen’s argument also fails under harmless error
review.

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Cardenas’ power to exercise dominion and control.” Id. Thus, in Cardenas, we

focused on two of the defendant’s acts: (1) the act of placing the object within

easy reach; and (2) the act of concealing the object.

We conclude that the challenged portion of Instruction Number 22 is a

correct statement of the law, as the language substantially follows Cardenas and

Medina-Ramos. Further, the emphasis on a defendant’s “acts” is entirely

consistent with our more recent decisions on constructive possession, which

require the government to present evidence supporting a plausible inference of

knowledge and access to the contraband or “some connection or nexus . . . linking

the defendant to the contraband.” E.g., Valadez-Gallegos, 162 F.3d at 1262.

While we agree that the district court must exercise care when including

illustrative examples of constructive possession in an instruction, the instruction

challenged here was a correct statement of the law. The examples assisted the

jury’s understanding of constructive possession, informing them that they could

consider a defendant’s acts of placement and concealment, among others, to infer

knowledge of the power or ability to control an object. See Instr. No. 22 (“such

as an act placing the object within easy reach of the defendant, or an act

concealing the object from view”) (emphasis added). The examples were worded

broadly and did not too closely track the specific facts presented in Bowen’s case.

Equally important, the examples provided did not unduly emphasize the

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prosecution’s theory of the case, or usurp the jury’s fact finding role.

C. Denial of Mitigating Role Adjustment

Bowen contends that, even though he was the only participant charged, the

Sentencing Guidelines permitted the district court to adjust his base level score

for playing a mitigating role in the crime. He argues that we should remand his

case for resentencing because the district court erroneously concluded that it

lacked the authority to adjust his sentence based upon a minor or minimal

participant status.

We review for clear error the district court’s refusal to award a defendant

minor or minimal participant status. United States v. Chavez, 229 F.3d 946, 956

(10th Cir. 2000); see also U.S.S.G. § 3B1.2 n.3(C). However, when reviewing a

district court’s application of the sentencing guidelines, we review legal questions

de novo. United States v. Leach, 417 F.3d 1099, 1105 (10th Cir. 2005) (citing

United States v. Doe, 398 F.3d 1254, 1257 (10th Cir. 2005)). We do not require a

district court “to make detailed findings, or explain why a particular adjustment

[under the guidelines] is or is not appropriate.” United States v. Maldonado-

Campos, 920 F.2d 714, 718 (10th Cir. 1990) (citation omitted). But “when it is

apparent from the court’s optional discussion that its factual finding may be based

upon an incorrect legal standard, we must remand for reconsideration in light of

the correct legal standard.” Id.

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 The Guidelines’ mitigating role adjustment provides “a range of

adjustments for a defendant who plays a part in committing the offense that

makes him substantially less culpable than the average participant.” U.S.S.G. §

3B1.2 n. 3(A). The adjustment “is not applicable unless more than one

participant was involved in the offense.” U.S.S.G. § 3B1.2 n. 2. Thus, “an

adjustment . . . may not apply to a defendant who is the only defendant convicted

of an offense unless that offense involved other participants in addition to the

defendant and the defendant otherwise qualifies for such an adjustment.” Id.

(emphasis added). 5

Prior to sentencing, Bowen filed a motion for a downward departure based

upon an alleged disparity in treatment between King and himself. Vol. I, Doc. 43,

at 5-8. Bowen’s motion asserted that the government failed to charge King with a

crime even though “the conduct of Mr. King was the same conduct-if not more

culpable-than his own.” Id. At sentencing, Bowen’s counsel informed the district

court that she had recently filed a motion for a mitigating role adjustment under §

3B1.2(a), and that this motion was in conjunction with her prior motion for a

5
The Guidelines define a “participant” as “a person who is criminally
responsible for the commission of the offense, but need not have been convicted.”
U.S.S.G. § 3B1.1 n.1; see also United States v. Manthei, 913 F.2d 1130, 1136
(5th Cir. 1990) (“The Guidelines do not require that a ‘participant’ be charged in
the offense of conviction in order to be considered; they provide just the
opposite.”); United States v. Mendoza, 341 F.3d 687, 693 (8th Cir. 2003) (same);
United States v. Cohen, 946 F.2d 430, 436 (6th Cir. 1991) (same).

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downward departure based on disparity of treatment. The district court

responded: “Yeah, I’ve seen that. The practical problem there is it’s a little

difficult to talk about a minor role if you’re the only one charged. That’s kind of

tough, it seems to me, but I’m happy to have you make your record.” Vol. IV at

3. Bowen’s counsel proceeded to argue that Bowen qualified for a mitigating role

adjustment, maintaining that whether or not the government decided to charge

King, King still had a role as the driver of the Honda Civic, as the person sitting

on the drugs, and as the person with prior drug convictions. Id. She contended

that King had “at least . . . the same, if not a more culpable role in the offense” as

Bowen, and therefore, the district court should consider King’s role as a basis for

a downward departure or as a mitigating role in the offense. Id. at 5.

In response, the government stated:

. . . I have not received that [supplemental] document [on a
mitigating role adjustment], but I think the Court recognized that the
fact that nobody else was charged, I don’t believe the guidelines
allow for a mitigating role when the defendant before the Court is the
only one charged with the criminal conduct that has been prosecuted.
....
With regard to the other grounds for downward departure, I guess
one is disparate treatment and that was addressed in my response that
there may be reasons for not charging Mr. King and that really isn’t
relevant under the guidelines to the sentencing here.

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Vol. IV. at 7. 6 The district court denied both of Bowen’s motions. The district

court ruled that the government’s legal position on the disparate treatment issue

was correct. As regards its denial of Bowen’s motion for a mitigating role

adjustment, the court ruled on the merits of the motion without any mention of a

lack of authority to rule. Id. at 7-8. 7

Bowen argues that the district court’s reasons for denying his motion for a

mitigating role adjustment were unclear. Aplt. Br. at 45. See Maldonado-

Campos, 920 F.2d at 714 (stating that “a district court is not required to announce

the reasons supporting a factual finding concerning a role-in-the-offense

adjustment under § 3B1.2”). Bowen also argues that the district court’s

statements at sentencing, as well as the prosecutor’s representation that Bowen

was not eligible for a mitigating role adjustment, lend support to the conclusion

that the district court thought it did not have authority to grant Bowen a

mitigating role adjustment.

6
The government concedes that its position at the sentencing hearing
concerning the applicability of § 3B1.2 to Bowen was erroneous. App. Br. at 47
n. 11.
7
The district court also filed a written judgment on the disparate treatment
motion, which stated: “The Court finds that disparate treatment of an uncharged
accomplice is an impermissible basis for departure under the sentencing
guidelines. Furthermore, the Court finds that in this case the facts do not support
such a ground for departure.” Vol. I, Doc. 48, at 3.

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 We conclude that the district court stopped short of holding that it lacked

the authority to adjust Bowen’s sentence under § 3B1.2(a) because he was the

only person charged with a crime. But see United States v. Yager, 328 F.3d 1008,

1009-10 (8th Cir. 2003) (remanding where the district court expressly stated that

it did not believe that it had the “authority to entertain a role reduction

departure”). Although the district court commented that it would be difficult to

apply the mitigating role adjustment in such a situation, this comment could

simply mean that the fact that Bowen was charged and King was not would cut

against Bowen’s argument that he was less culpable than King. The court

proceeded to listen to Bowen’s arguments on the issue, and then denied the

motion without any express factual findings. Further, there is no indication that

the district court adopted the government’s position on the issue. But even if the

district court based its ruling on an erroneous conclusion that it was without

authority to grant a mitigating role adjustment, remand is unnecessary because

Bowen failed to demonstrate that he qualified for a mitigating role adjustment.

Bowen requested a four-level decrease as a minimal participant under §

3B1.2(a), claiming that, compared to King, he was a lesser participant. “A

defendant has the burden of establishing, by a preponderance of the evidence, that

he is entitled to a reduction in [his] base offense level under § 3B1.2.” United

States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999). “A defendant is not

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entitled to a minimal participant adjustment if he plays a ‘significant role’ in

facilitating a drug trafficking scheme.” Virgen-Chavarin, 350 F.3d at 1131

(citing United States v. Ayers, 84 F.3d 382, 384 (10th Cir. 1996)). The relevant

guideline application note is instructive: “[Subsection (a)] is intended to cover

defendants who are plainly among the least culpable of those involved in the

conduct of a group. . . . It is intended that the downward adjustment for a

minimal participant will be used infrequently.” 8 U.S.S.G. § 3B1.2 n. 4.

“We have said that in order to weigh relative culpability, ‘evidence must

exist of other participants and their role in the criminal activity.’” United States

v. Sukiz-Grado, 22 F.3d 1006, 1009 (10th Cir. 1994). Bowen never offered an

explanation to the district court as to what role King allegedly played in the

offense, nor did he establish that his own role made him less culpable than King.

Rather, he merely pointed out the undisputed facts that King drove the Honda

Civic on the night of the traffic stop, Officer Guenon discovered

methamphetamine under the driver’s seat, and that King had a criminal history of

methamphetamine use. From these statements, Bowen asserted that “the conduct

of Mr. King was the same conduct–if not more culpable–than his own.” Vol. I. at

43. Bowen’s attempt to demonstrate that he and King were similarly situated

does not qualify Bowen for a minimal participant adjustment. To qualify for this

adjustment, Bowen must show that, when compared to King, he was “plainly . . .

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the least culpable,” 8 U.S.S.G. § 3B1.2 n.4, or “substantially less culpable,” id. at

§ 3B1.2 n. 3(A). Bowen has failed to carry that burden. Instead, the evidence

elicited at trial indicates Bowen was more culpable than King.

D. Mandatory Application of the Guidelines

Finally, Bowen argues that the district court’s mandatory application of the

Guidelines to his sentence constituted plain error under Booker. We have

determined that non-constitutional Booker error occurs when a district court

applies “the Guidelines in a mandatory fashion, as opposed to a discretionary

fashion, even though the resulting sentence was calculated solely upon facts that

were admitted by the defendant, found by the jury, or based upon the fact of a

prior conviction.” United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th

Cir. 2005) (citation omitted). Here, Bowen concedes that he did not raise the

non-constitutional Booker error below, so we review for plain error. Id. (citation

omitted).

“‘Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.’” Id. at 732 (citation omitted). The

first and second prongs are satisfied when the sentencing court applies the

Guidelines in a mandatory fashion. United States v. Dazey, 403 F.3d 1147, 1174

(10th Cir. 2005). Under the third prong, Bowen has the burden to show “‘a

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reasonable probability that, but for the error claimed, the result of the proceeding

would have been different.’” Gonzalez-Huerta, 403 F.3d at 733, 736 (citations

omitted). The fourth prong is more formidable, “as we will only exercise our

discretion when an error is ‘particularly egregious’ and the failure to remand for

correction would produce a ‘miscarriage of justice.’” United States v. Trujillo-

Terrazas, 405 F.3d 814, 820 (10th Cir. 2005) (citations omitted). Bowen’s

challenge fails on the third and fourth prongs.

This court has recognized at least two ways that a defendant may show that

non-constitutional Booker error affected his substantial rights: (1) evidence of

“the district court’s expressed dissatisfaction with the mandatory Guidelines

sentence”; and (2) evidence of a disconnect between the sentencing factors under

18 U.S.C. § 3553(a) and the imposed sentence. United States v. Clifton, 406 F.3d

1173, 1181 (10th Cir. 2005). Here, Bowen relies on both theories.

First, Bowen argues that the district court’s comments at sentencing

expressed misgivings about the mandatory nature of the Guidelines, as well as a

desire to place him in drug treatment in lieu of sentencing him to prison. He

suggests that these comments, coupled with the imposition of a sentence at the

bottom of the applicable guideline range, demonstrates a likelihood that the

district court would have imposed a lesser sentence under an advisory scheme.

We disagree.

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 The district court’s statements at sentencing do not convince us that the

court was dissatisfied with Bowen’s 87 month sentence or the then-mandatory

guideline scheme. Before sentencing Bowen, the district court stated: “The

guidelines say what they say. It’s 87 to 108 months. So pursuant to the

guidelines in the statute, the Court will sentence you to the custody of the Bureau

of Prisons for a period of 87 months.” Vol. IV at 10. The district court’s offhand

remark, “The guidelines say what they say,” without more, fails to satisfy

Bowen’s burden under the third prong. Bowen also points out that earlier in the

proceeding, the district court talked with him about his drug dependency and

commented: “[I]t would be nice if the Court were in a position to put you in a

program, put you in a hospital, put you in a place where people can help you. I’ll

try to do that with what you’ve got coming here.” Id. These statements show that

the district court took into account Bowen’s methamphetamine addiction in

fashioning an appropriate sentence, as opposed to expressing a desire to impose

drug treatment in lieu of prison. Indeed, the district court recommended at

sentencing that Bowen be placed in an intensive drug rehabilitation program.

Finally, in denying Bowen’s motion for a downward departure, the district court

briefly mentioned that he had “previously given [his] commentary on many

occasions as to the guidelines.” Id. at 7-8. The court’s vague reference to its

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prior comments regarding the Guidelines is insufficient to enable us to discern

what these past views were.

Next, Bowen contends that there is a disconnect between his imposed

sentence and the sentencing factors under 18 U.S.C. § 3553(a). Bowen relies on

his minimal criminal history (including the absence of any drug-related

convictions), the lack of direct evidence to establish that he knew the drugs were

present in the Honda Civic, his alleged mitigating role in the offense, the

prosecutor’s failure to charge King with a crime, and Bowen’s rehabilitative

needs. Again, we conclude that Bowen’s position is without merit. It is clear

from the record that the district court considered many of the factors under §

3553(a). See United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2005)

(stating that we do not require the district court “to consider individually each

factor listed in § 3553(a) before issuing a sentence”) (citation omitted). We also

observe that the district court denied Bowen’s motion for a downward departure

based on an over-representation of his criminal history and on Bowen’s purported

disparate treatment when compared to King. Further, the court made repeated

references to Bowen’s rehabilitative needs, including its statements at sentencing.

Accordingly, we conclude that Bowen has not met his burden on the third

prong of our plain error review. We also conclude that Bowen has not pointed to

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facts which would suggest that our failure to remand for resentencing would

result in a miscarriage of justice.

AFFIRMED.

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