United States v. Jones

25 F.4th 1077

UNITED STATES of America, Plaintiff - Appellee

v.Marcus Alan JONES, Defendant - Appellant

No. 21-1888

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2022

Filed: February 18, 2022

Brandon T. Carter, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Arkansas, Fort Smith, AR, for Plaintiff-Appellee.

Marcus Alan Jones, Federal Correctional Institution, Adelanto, CA, Pro Se.

Matthew A. Kezhaya, Kezhaya Law PLC, Bentonville, AR, for Defendant-Appellant.

Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.

GRUENDER, Circuit Judge.

Marcus Jones was a courier for a drug-trafficking operation. Jones transported large amounts of methamphetamine from California to Arkansas to fill the dealer's orders and large amounts of money back to California to the supplier. In January and February of 2019, Jones made at least seven or eight round trips transporting drugs and money. He purchased most of the airline tickets himself. During one of those trips, Jones was questioned by police at the airport because he was carrying $21,000. In May 2019, Jones was arrested at a bus stop in New Mexico with 4.395 kilograms of methamphetamine duct-taped to his body.

After Jones waived his right to indictment, the Government filed an information charging him with conspiracy to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. Jones pleaded guilty. Jones requested a minor-role adjustment under U.S.S.G. § 3B1.2(b), but the district court¹ denied his request. It considered the unobjected-to facts in the presentence investigation report, explicitly compared Jones's role to that of another courier, noted the § 3B1.2 cmt. n.3(C) factors, and ultimately concluded that he did not meet his burden to show "that he was less culpable than the average participant." Jones appeals.

We review a district court's determination that the defendant is not entitled to a minor-role reduction under § 3B1.2(b) for clear error. United States v. Ramirez-Maldonado , 928 F.3d 702, 708 (8th Cir. 2019). The defendant bears "the burden of establishing [his] entitlement to a minor-role reduction." United States v. Durham , 836 F.3d 903, 911 (8th Cir. 2016). "The Guidelines direct district courts to decrease the offense level by two levels ‘[i]f the defendant was a minor participant in any criminal activity.’ " Ramirez-Maldonado , 928 F.3d at 708 (quoting § 3B1.2(b) ). In determining whether to apply the reduction, "[t]he district court should consider ... the defendant's knowledge, planning, authority, responsibility, and benefit from the illegal scheme." United States v. Kearby , 943 F.3d 969, 977-78 (5th Cir. 2019) ; see § 3B1.2 cmt. n.3(C); United States v. Waddell , 831 F.3d 958, 960 (8th Cir. 2016). "The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative." § 3B1.2 cmt. n.3(C). The reduction applies to "a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant in the criminal activity," § 3B1.2 cmt. n.3(A), even if his "role could not be described as minimal," § 3B1.2 cmt. n.5.

Jones argues that the district court clearly erred in denying the minor-role reduction because the guideline requires the district court to determine whether Jones was "substantially less culpable than the average participant in the criminal activity," whereas he argues that the district court considered only the relative culpability of Jones and another courier . See § 3B1.2 cmt. n.3(A) (emphasis added). As Jones notes, there were participants in the conspiracy who were not couriers. Jones also argues that the denial was clearly erroneous because the district court failed to address the factors in § 3B1.2 cmt. n.3(C). We disagree.

We have previously held that it was not clear error to deny a minor-role reduction to a defendant who was involved in a conspiracy "for at least three months" and delivered drugs "on at least one if not two occasions." Ramirez-Maldonado , 928 F.3d at 708. We have also explained that "merely 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. Cubillos , 474 F.3d 1114, 1120 (8th Cir. 2007) (internal quotation marks omitted); see also United States v. Deans , 590 F.3d 907, 910 (8th Cir. 2010) ; United States v. Lopez-Vargas , 457 F.3d 828, 831 (8th Cir. 2006). Jones argues that the 2015 amendment to § 3B1.2 abrogated Cubillos , Deans , and Lopez-Vargas by clarifying that a defendant may receive a minor-role adjustment if he "is substantially less culpable than the average participant in the criminal activity," even if he "performs an essential or indispensable role in the criminal activity." See U.S.S.G. Supp. to App. C, Amend. 794 (effective Nov. 1, 2015). But the reasoning in Cubillos , Deans , and Lopez-Vargas does not contradict the amended guideline. Someone who is "less culpable" but still "deeply involved," Cubillos , 474 F.3d at 1120, is not "substantially less culpable than the average participant in the criminal activity," see § 3B1.2 cmt. n.3(A) (emphasis added), and just because someone's role is essential does not mean that he is "deeply involved." See United States v. Hernandez Lopez , 24 F.4th 1205, 1208–09, No. 20-3468 (8th Cir. Jan. 31, 2022) (reiterating after the 2015 amendment that a defendant "less culpable" than his coconspirators is not entitled to a minor-role reduction if he was nonetheless "deeply involved in the offense"); United States v. Bandstra , 999 F.3d 1099, 1102 (8th Cir. 2021) (same).

Jones's role in the conspiracy was to transport drugs and money between the methamphetamine supplier in California and at least one dealer in Arkansas. He also had contact with another dealer in Arkansas who received and distributed methamphetamine that came from California. Jones was involved in the conspiracy for at least five months, making at least seven or eight round trips in January and February 2019. Jones claims he was paid only $200 for each trip, which would suggest that he received little benefit for his part in the conspiracy. See Kearby , 943 F.3d at 977-78 ; § 3B1.2 cmt. n.3(C). Jones purchased most of his airline tickets himself, and he transported $21,000 during one of the trips. In the days leading up to Jones's arrest, he made or received fifty-six phone calls and text messages with the supplier. When Jones was arrested in May 2019, he had 4.395 kilograms of methamphetamine duct-taped to his body. Compared to two other couriers who were involved in the conspiracy, Jones was the only one caught with both money and drugs, see Hernandez Lopez, 24 F.4th at 1209, he made more trips between California and Northwest Arkansas or Tulsa than they did, and he was caught with more than twice as many drugs as the...