Opinion
No. 00-40053-01-RDR.
January 17, 2001.
MEMORANDUM AND ORDER
On January 12, 2001 the court sentenced the defendant. The purpose of this memorandum and order is to memorialize the rulings made by the court during the sentencing hearing.
The defendant entered a plea of guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. The government filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The defendant raised two objections to the presentence report.
OBJECTIONS TO PRESENTENCE REPORT
Amount of methamphetamine
The defendant contends that her offense level should be based on 1,499 grams of methamphetamine, the amount used by the court in her co-defendant's case. The court and probation office agree. The defendant's offense level shall be based on this amount, meaning that her base offense level is 32.
Role in the Offense
The defendant next asserts that she is entitled to a two-level reduction of her offense level under U.S.S.G. § 3B1.2(b) based upon her role in the offense. She contends she is entitled to this reduction because she was a minor participant. The government and the probation office disagree. They contend that she was an essential participant in the drug activity at issue.
Section 3B1.2 "vests the district court with discretion to grant a base offense level reduction if it finds a defendant is less culpable relative to other participants in a given offense." United States v. Santistevan, 39 F.3d 250, 254 (10th Cir. 1994). Subsection 3B1.2(a) provides a four-level reduction if the defendant acted as a "minimal participant" in the offense. Similarly, subsection 3B1.2(b) provides a two-level reduction if the defendant acted as a "minor participant" in the offense. The Commentary states that subsection (a)'s "minimal participant" reduction should be used infrequently and only applies to defendants "who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. § 3B1.2, comment. n. 1. Subsection (b)'s "minor participant" reduction, on the other hand, applies to any "participant who is less culpable than most other participants, but whose role could not be described as minimal." Id., n. 3. The defendant has the burden of proving by a preponderance of the evidence that she acted as a minor participant in the offense. United States v. Lockhart, 37 F.3d 1451, 1455 (10th Cir. 1994).
The record shows that the defendant was an active and integral participant in the distribution of methamphetamine. By her own admission, she received and distributed seventeen shipments of methamphetamine. It is difficult to characterize these activities as minor. The court agrees with the probation office that the defendant is not entitled to a reduction as a minor participant.
MOTION FOR DOWNWARD DEPARTURE
The government seeks a downward departure of the sentence based upon the substantial assistance provided by the defendant. The government asserts that an appropriate sentence would be 84 months. The defendant argues that her sentence should be reduced to 39 months.
With the aforementioned rulings, the defendant's guideline range is 97 to 121 months. After a careful review of the circumstances of this case, the court has determined that the defendant's sentence should be 60 months. The court believes that this sentence adequately addresses the harm caused by the defendant, her prior criminal history, and the substantial assistance she has provided to the government.
IT IS SO ORDERED.