UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JAMES ANTHONY CLARK, a/k/a 

Jamie, 

Defendant - Appellant. 

No. 12-3008 

(D.C. No. 2:09-CR-20119-JWL-8) 

(D. Kan.) 

ORDER AND JUDGMENT*

Before TYMKOVICH, EBEL, and MATHESON, Circuit Judges. 

James Clark was indicted on one count of conspiracy to distribute and possess 

with intent to distribute cocaine, methamphetamine (“meth”), and marijuana. A special 

jury verdict indicated that he was convicted of the charge as to meth and marijuana. The 

district court sentenced him to 292 months in prison. 

Mr. Clark appeals only his sentence. He argues (1) there was a fatal variance 

between his indictment and the evidence; (2) the district court’s drug quantity calculation 

 

*This order is not binding precedent, except under the doctrines of law of the case, 

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 18, 2013

Elisabeth A. Shumaker 

Clerk of Court
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at sentencing was incorrect; and (3) the court erred by refusing to give him a two-level 

downward offense adjustment for his minor role in the conspiracy. He also moves to file 

a supplemental pro se brief. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 

U.S.C. § 3742(a)(2), we affirm Mr. Clark’s sentence and deny his motion. 

I. BACKGROUND

Mr. Clark was indicted on a single count of conspiring “to distribute and possess 

with intent to distribute more than 5 kilograms of a mixture and substance containing a 

detectable amount of cocaine; . . . more than 50 grams of meth; and . . . a mixture and 

substance containing a detectable amount of marijuana,” in violation of 21 U.S.C. 

§ 841(a)(1), (b)(1)(A)(ii)(II), (b)(1)(A)(viii), and (b)(1)(D). ROA, Vol. I at 55. The 

indictment also charged him with aiding and abetting the conspiracy under 18 U.S.C. § 2. 

Several conspiracy members cooperated with the Government. Defendants Justin Selby 

and Alfred Anaya were tried with Mr. Clark. 

A. Evidence at Trial 

Evidence at trial showed an extensive drug trafficking organization (“DTO”) that 

bought, sold, and transported marijuana, cocaine, and meth. Esteban MagallonMaldanado and Cesar Bonilla-Montiel headed the DTO, which included about twenty 

individuals. Curtis Crow ran operations for the DTO in Kansas. The evidence included 

testimony from several witnesses and records of multiple hotel, airline, and car rental 

costs incurred by the DTO for drug transportation. 
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Mr. Crow testified that Mr. Clark, a friend since childhood, was heavily involved 

with the DTO and knew about his drug dealing. Mr. Crow explained that Mr. Clark 

worked for him in the DTO and handled his drug sales when he was out of town. On one 

occasion, Mr. Clark collected $7,000 from a drug buyer for Mr. Crow while he was out of 

town. 

Mr. Clark’s relationship with the DTO began in October 2008, when Mr. Crow 

and Tyson Ledford traveled to California to sample marijuana and meet with suppliers. 

Mr. Crow and Mr. Ledford testified that Mr. Clark joined them on the trip, during which 

he tested marijuana and met with suppliers at a restaurant. Mr. Ledford added that, 

during the trip, Mr. Crow paid the expenses and gambling costs for the group. Mr. Clark 

and Mr. Ledford flew home ahead of Mr. Crow, and Mr. Clark picked him up from the 

train station when he returned to Kansas. Mr. Crow testified that he paid Mr. Clark with 

a half-pound of marijuana for taking the trip. 

Mr. Crow also testified that, in November 2008, Mr. Clark agreed to rent a car in 

his own name and drive it to California with Mr. Crow to exchange $75,000 cash for 80 

pounds of marijuana. Mr. Clark initially planned to transport all 80 pounds back to 

Kansas in the rented car for a $5,000 payment from Mr. Crow. During the trip to 

California, Mr. Clark helped Mr. Crow and other DTO members package the drugs. He 

then heard about a cocaine shipment that the DTO had lost as it was being smuggled from 

Mexico to California. Mr. Bonilla-Montiel and Mr. Crow testified that, after learning this 

information, Mr. Clark got cold feet and had to be convinced to transport half of what he 
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had originally agreed—40 pounds—in exchange for 3 pounds of marijuana from Mr. 

Crow and $4,500 from Mr. Bonilla-Montiel. 

In 2009, Mr. Clark began distributing marijuana for Mr. Crow in Kansas. Mr. 

Crow estimated that he supplied Mr. Clark with 20 pounds of marijuana in 2-3 pound 

increments. Mr. Crow also “fronted” smaller amounts of cocaine to Mr. Clark on credit, 

which Mr. Clark was supposed to repay after he had sold the cocaine. Mr. Ledford 

testified that he bought marijuana directly from Mr. Clark and that he saw marijuana and 

cocaine at Mr. Clark’s house. Tiffani DuPaul, Mr. Clark’s ex-girlfriend, and Noah 

Adams, another DTO member, also testified that Mr. Clark sold marijuana, cocaine, and 

meth for Mr. Crow, and that they saw marijuana and cocaine at Mr. Clark’s house. 

On March 21, 2009, Mr. Clark accompanied Mr. Crow and other DTO members 

on a test ride in Mr. Crow’s stepfather’s plane. Mr. Bonilla-Montiel and Mr. Ledford 

testified that, during this gathering, Mr. Clark agreed to attend aviation school so that he 

could pilot the plane if the DTO decided to purchase it to transport drugs. 

On April 8, 2009, Mr. Clark overdosed on cocaine and heroin. Rachel Teasley, a 

friend with whom Mr. Clark used drugs that weekend, testified that she and her boyfriend 

supplied the heroin, and Mr. Clark supplied them with marijuana and cocaine. She also 

testified that, after his overdose, he returned to her home where he tried to sell cocaine to 

her and her boyfriend. He also asked her if she knew anyone who would buy some meth. 

After his overdose, Mr. Clark owed $10,000 to Mr. Crow. To repay the debt, Mr. 

Clark worked for Mr. Crow. Mr. Crow, Mr. Ledford, and Mr. Adams all testified that, as 
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part of his debt repayment, Mr. Clark registered in his name a Honda Ridgeline truck that the 

DTO used for drug transportation. Mr. Ledford added that Mr. Clark told him the Ridgeline 

had hidden components for transportation of drugs that the police could not detect. 

Mr. Crow testified that, also after the overdose, Mr. Clark managed Mr. Crow’s 

sales of meth to another DTO member, Justin Selby, while Mr. Crow was in California. 

Mr. Bonilla-Montiel testified that before this trip, Mr. Crow left with Mr. Clark a green 

box that stored marijuana, cocaine, and meth. When Mr. Bonilla-Montiel and Mr. Crow 

returned from California, they went to Mr. Clark’s house to pick up the drug-sale 

proceeds and the remaining drugs. Mr. Clark did not have enough money to pay for the 

drugs that he had used, so Mr. Crow asked Mr. Clark to drive a shipment from California 

to Kansas to work off that debt. 

In late April 2009, Mr. Crow no longer wanted to do business with Mr. Clark and 

took over distribution to Mr. Clark’s customers. Mr. Clark relocated from Kansas to 

Florida, where officers arrested him on other charges. 

B. Rule 29 Motion and Conviction 

After the prosecution presented its evidence, Mr. Clark moved for a directed 

verdict of acquittal under Federal Rule of Criminal Procedure 29. The district court 

overruled his motion, stating that there was “evidence from which a reasonable jury could 

find [Mr. Clark guilty] beyond a reasonable doubt.” Aplee. Br. at Attach. 1. He renewed 

his motion at the close of evidence, and the court again denied it. 
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The jury found Mr. Clark guilty of the single count of conspiracy charged in the 

indictment. The jury also completed a special verdict form, which found that Mr. Clark 

had “conspired to distribute and possess with intent to distribute . . . [m]ore than 50 

grams of methamphetamine” and “[a] mixture and substance containing a detectable 

amount of marijuana,” but not “[m]ore than 5 kilograms of a mixture and substance 

containing a detectable amount of cocaine.” ROA, Vol. I at 298. 

C. Sentencing 

The U.S. Probation Office’s presentence investigation report (“PSR”) for Mr. 

Clark attributed 82 pounds of marijuana and a half-pound of meth to Mr. Clark to reach a 

base offense level of 28. It also added a two-level enhancement for use of a firearm and a 

two-level enhancement for obstruction of justice. Combined with his criminal history 

level of V, this offense level of 32 yielded a Guidelines range of 188 to 235 months of 

imprisonment. 

Both Mr. Clark and the Government objected to the drug quantity calculation. Mr. 

Clark also objected to not receiving a two-level “minor participant” reduction under 

U.S.S.G. § 3B1.2(b). The Government sought a two-level increase for Mr. Clark’s 

managerial role in the conspiracy under § 3B1.1(c). 

At the sentencing hearing, the district court heard evidence and argument from 

each side. The Government presented a table outlining all of the conspiracy’s 

transactions between October 2008, when Mr. Clark joined the DTO, and September 21, 
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2009, when the conspiracy ended. Perry Williams, the DEA case agent for the 

investigation of the DTO, testified about the evidence supporting the table calculations. 

The district court determined that “the drug quantities shown . . . on the first seven 

lines” of the Government’s table—transactions that took place between October 2008, 

when Mr. Clark joined the conspiracy, and April 21, 2009, when he withdrew—were 

“within the scope of his agreement and foreseeable to him.” ROA, Vol. II at 3567. This 

relevant conduct included 182.3 kg of marijuana, 15 kg of cocaine, and 11 kg of meth. The 

sentencing court added a two-level enhancement for use of a firearm, for a final offense level 

of 36. ROA, Vol. II at 3566, 3571. Combined with Mr. Clark’s criminal history level of 

V, this yielded a Guidelines range of 292-365 months of imprisonment. Further details 

regarding the relevant conduct determination will be presented below. 

The court denied the Government’s motion seeking a two-level increase for 

managerial role and Mr. Clark’s request for a “minor participant” reduction. It noted that 

he “played numerous roles . . . and was an integral member of the conspiracy.” Id. at 

3571. The court considered the total amount of drugs for which Mr. Clark was 

accountable, the role he played in the conspiracy, and his criminal history before 

sentencing him to 292 months of imprisonment, the bottom of the Guidelines range. 

II. DISCUSSION

Mr. Clark first argues that a fatal variance occurred at trial—the Government 

failed to prove the single conspiracy alleged in the indictment. But he does not challenge 

his conviction, only his sentence. Second, he contends that his sentence was based on 
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co-conspirator conduct that was improperly attributed to him. Third, he argues that the 

district court erred by failing to apply a downward adjustment for the minor role that he 

played. Finally, he moves for permission to file a pro se supplemental brief. 

A. Variance 

“A variance arises when the evidence adduced at trial establishes facts different 

from those alleged in an indictment.” Dunn v. United States, 442 U.S. 100, 105 (1979). 

A variance is only “fatal”—reversible error— if the defendant’s substantial rights were 

prejudiced. United States v. Powell, 982 F.2d 1422, 1431 (10th Cir. 1992). 

The variance claim here argues insufficient evidence to support the jury’s finding 

of a single conspiracy as indicted. See United States v. Windrix, 405 F.3d 1146, 1153 

(10th Cir. 2005). “Where an indictment charges a single conspiracy, but the evidence 

presented at trial proves only the existence of multiple conspiracies, a variance occurs.” 

United States v. Caldwell, 589 F.3d 1323, 1328 (10th Cir. 2009). Mr. Clark says that 

happened here. We disagree. 

We review de novo whether there was a variance. Id. In doing so, “we view the 

evidence and draw all reasonable inferences therefrom in the light most favorable to the 

government, asking whether a reasonable jury could have found [the defendant] guilty of 

the charged conspirac[y] beyond a reasonable doubt.” United States v. Carnagie, 533 

F.3d 1231, 1237 (10th Cir. 2008) (stating standard of review for a variance claim). 

Mr. Clark argues that a variance between the conspiracy charged and the evidence 

demonstrates that Mr. Clark was involved in two small meth and marijuana conspiracies 
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and not one single conspiracy. He further argues that the district court’s attribution of 

drug amounts to him was clearly erroneous and that he was thereby substantially 

prejudiced at sentencing. In particular, he argues that the alleged variance shows that 

drug amounts from activities of individuals with whom he did not conspire were wrongly 

imputed to him. 

The evidence at trial included testimony that Mr. Clark sold meth, cocaine, and 

marijuana for Mr. Crow; transported $75,000 in drug proceeds to California; collected 

$7,000 as drug payment from DTO members; received cocaine from the DTO on credit 

and distributed it to others; registered in his name the DTO’s Ridgeline, which he knew 

had hidden compartments for drugs; and introduced Mr. Crow to new customers. This 

evidence was sufficient for a reasonable jury to convict Mr. Clark of the single 

conspiracy as charged beyond a reasonable doubt. We conclude there was no variance as 

Mr. Clark contends and that his reliance on this argument to challenge his sentence fails. 

B. Relevant Conduct 

Mr. Clark also challenges the district court’s relevant conduct calculation, arguing 

that it should not have included drug transactions that either were not part of his jointly 

undertaken criminal activity or were not foreseeable to him. 

1. Legal background 

 “The sentencing judge’s assessment of the drug quantity attributable to a 

convicted conspirator is a fact finding determined by a preponderance of the evidence 

which we review for clear error.” United States v. Arias-Santos, 39 F.3d 1070, 1078 
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(10th Cir. 1994). A clearly erroneous determination must be “simply not plausible or 

permissible in light of the entire record on appeal.” United States v. Morales, 108 F.3d 

1213, 1225 (10th Cir. 1997) (quotations omitted). 

District courts calculate sentences by first determining the Guidelines section 

applicable to the statute under which the defendant was convicted. U.S.S.G. 

§ 1B1.1(a)(1). The jury convicted Mr. Clark under 21 U.S.C. § 846 for conspiracy to 

possess with intent to distribute marijuana and meth. Section 2D1.1 of the Guidelines 

applies to “Unlawful Manufacturing, Importing, Exporting, or Trafficking” of drugs, 

including conspiracy to possess with intent to distribute. Under that Guideline, the 

amount of drugs attributable to Mr. Clark determines his base offense level. Id.

§ 2D1.1(a)(5). 

“The government has the burden of proving the quantity of drugs for sentencing 

purposes by a preponderance of the evidence.” United States v. Hooks, 65 F.3d 850, 854 

(10th Cir. 1995) (quotations omitted). The drug amount attributable to Mr. Clark at 

sentencing is not necessarily the overall amount involved in the conspiracy for which he 

was convicted or the amount from the transactions in which he personally participated. 

Instead, the sentencing court considers a set of factors known as “relevant conduct.” 

U.S.S.G. § 1B1.3. 

Relevant conduct includes “all acts and omissions committed, aided, abetted, 

counseled, commanded, induced, procured, or willfully caused by the defendant” and “all 

reasonably foreseeable acts and omissions of others in furtherance of [a] jointly 
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undertaken criminal activity.” Id. § 1B1.3(a)(1)(A), (B). A defendant is therefore 

“accountable for all quantities of contraband with which he was directly involved and . . . all 

reasonably foreseeable quantities of contraband that were within the scope of the criminal 

activity that he jointly undertook.” Id. §1B1.3, cmt. n.2. Each member of a conspiracy may 

have had a different scope of jointly undertaken criminal activity and therefore different 

relevant conduct. See United States v. Melton, 131 F.3d 1400, 1404 (10th Cir. 1997); see 

also U.S.S.G. § 1B1.3, cmt. n.2. 

The district court may find, by a preponderance of the evidence, that transactions 

were part of the defendant’s jointly undertaken criminal activity even if they were not 

part of the charged or convicted conspiracy. U.S.S.G. § 1B1.3(a)(1)(B) (defining “jointly 

undertaken criminal activity” as “a criminal plan, scheme, endeavor, or enterprise 

undertaken by the defendant in concert with others, whether or not charged as 

conspiracy”). 

2. The district court’s determination of Mr. Clark’s relevant conduct 

At the sentencing hearing, the district court heard evidence and argument from 

both Mr. Clark and the Government. The Government argued that the drug quantity 

calculation in the PSR was too low because it did not include all of the drug transactions 

that took place after Mr. Clark entered the conspiracy. It presented testimony and 

evidence to argue that the drug transactions reflected in the drug table it prepared were 

foreseeable to Mr. Clark and accurately reflected his involvement in the DTO. The 
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Government said it was not attempting to attribute all of the DTO’s drug transactions to 

Mr. Clark and had made specific determinations for each defendant. 

Mr. Clark objected to the court’s consideration of the DTO’s transactions that took 

place after Mr. Clark left Kansas and the attribution of drugs from transactions in which 

he was not directly involved. He argued that he acted “on his own” as a drug addict and 

that he was not a part of the DTO’s “jointly undertaken activity.” ROA, Vol. II at 3544-

45. He contended that he was only following Mr. Crow’s orders “[t]o get his fix in.” Id. 

at 3545. He asked the court to consider the special verdict form on which the jury 

determined that he was not guilty of conspiracy to distribute cocaine. 

Before making its relevant conduct determination, the district court considered the 

totality of the circumstances, the PSR, the Guidelines, the objections and sentencing 

submissions from both parties, and the evidence from trial. The district court relied 

heavily on evidence from trial, which, as detailed previously, included testimony about Mr. 

Clark’s drug dealing and his other actions to benefit the DTO and help the conspiracy meet 

its drug dealing goals. 

The district court found by a preponderance of the evidence that Mr. Clark was 

significantly involved with the DTO through his transporting, storing, delivering, and 

collecting drugs and proceeds at Mr. Crow’s direction. It therefore found that all of the 

DTO’s transactions between October 2008, when Mr. Clark joined, and April 21, 2009, 

when he withdrew, including the DTO’s cocaine sales, were “within the scope of his 
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agreement” and “foreseeable to him,” and attributed the drugs in those transactions to Mr. 

Clark as relevant conduct. ROA, Vol. II at 3565-67. 

3. Analysis 

Mr. Clark argues that several examples in the Guidelines commentary to 

§ 1B1.3 show that he should not be held accountable for the DTO’s transactions in which 

he was not directly involved. U.S.S.G. § 1B1.3, cmt. n.2(c). But those examples apply to 

individuals with very little involvement in a conspiracy.1

 The district court found that 

Mr. Clark was extensively involved with the DTO, acting as a “wingman” for Mr. 

Crow’s Kansas operations. ROA, Vol. II at 3566. The Guidelines examples Mr. Clark 

relies upon do not apply to this case. We conclude, based on our review of the record, 

that the district court’s relevant conduct determination was not clearly erroneous. 

Mr. Clark’s argument that the district court should have attributed only the drug 

quantities for which the jury convicted him also lacks merit. First, the burden of proof 

 1

 Mr. Clark relies, for example on illustration 5, which explains that a defendant 

who “knows about her boyfriend’s ongoing drug activity, but agrees to participate on 

only one occasion by making a delivery for him,” is accountable only for the drugs in that 

one transaction. U.S.S.G. § 1B1.3, cmt. n.2(c)(5). But Mr. Clark was involved in much 

more than just one transaction. Even illustration 7, arguably the most generous 

illustration to Mr. Clark’s circumstances, is unavailing. Illustration 7 explains that a 

defendant recruited by a drug dealer to sell a certain amount of one type of drug is 

accountable only for the drugs he sells even if he knows about the dealer’s larger 

conspiracy. Id. at § 1B1.3, cmt. n.2(c)(7). But this illustration only applies if the 

defendant agrees to nothing more. Here the district court found by a preponderance of 

the evidence that Mr. Clark agreed with the goals of the conspiracy to distribute cocaine, 

meth, and marijuana on a large scale, and there is record evidence supporting that 

conclusion. 
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for relevant conduct at sentencing is preponderance, not the beyond a reasonable doubt 

standard applicable at trial. See United States v. Todd, 515 F.3d 1128, 1137 (10th Cir. 

2008). Second, the district court can find that relevant conduct includes co-conspirator 

conduct that was within the scope of the conspiracy and reasonably foreseeable to the 

defendant even if a jury acquitted the defendant of that conduct. Arias-Santos, 39 F.3d at 

1078. The district court’s determination that Mr. Clark’s relevant conduct included DTO 

transactions that were not part of his conviction was not legal error and, because the 

court’s determination was consistent with the evidence, was not clear factual error. See 

United States v. Torres, 53 F.3d 1129, 1144 (10th Cir. 1995). We therefore affirm the 

district court’s relevant conduct determination. 

A. Minor Role 

Under § 3B1.2(b) of the Guidelines, courts may reduce a defendant’s offense level 

by two levels if he was a “minor participant” in the offense. A defendant is eligible for a 

minor-participant reduction only if he “plays a part in committing the offense that makes 

him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, cmt. 

n.3(a). We evaluate this issue based in part on his “knowledge or lack thereof concerning 

the scope and structure of the enterprise and of the activities of others involved in the 

offense.” United States v. Salazar-Samaniega, 361 F.3d 1271, 1277 (10th Cir. 2004) 

(quotations omitted). At sentencing, the district court denied Mr. Clark’s request for a 

minor participant reduction, noting that Mr. Clark “played numerous roles . . . and was an 

integral member of the conspiracy.” ROA, Vol. II at 3571. 
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“We review a sentencing court’s refusal to award a defendant minor or minimal 

participant status for clear error [and] give due deference to the court’s application of the 

sentencing guidelines to the facts.” United States v. Virgen-Chavarin, 350 F.3d 1122, 

1131 (10th Cir. 2003) (quotations omitted). We review whether the district court clearly 

erred in finding that Mr. Clark did not prove by a preponderance of the evidence that he 

was entitled to a minor participation adjustment. United States v. Martinez, 512 F.3d 

1268, 1275 (10th Cir. 2008). 

Mr. Clark argues that he was “substantially less” culpable than Mr. Crow, Mr. 

Magallon-Maldanado, Mr. Bonilla-Montiel, and another conspiracy member, Jaime 

Rodriguez. Aplt. Br. at 41. He maintains that he dealt with no more than 4% of the total 

drugs charged in the conspiracy, was not involved with most of the named 

co-conspirators, and had no knowledge of the meth or cocaine conspiracy. But Mr. Clark 

only compares himself to the DTO leaders and another major player in the organization. 

Several conspiracy members, including Mr. Ledford and Mr. Adams, were less involved 

and less culpable than Mr. Clark based on the evidence from trial. Defendants in midlevel roles in conspiracies are not “substantially less culpable than the average 

participant” and therefore are not entitled to a minor participant reduction. See United 

States v. Garcia, 987 F.2d 1459, 1461 (10th Cir. 1993). 

At sentencing, the district court considered the amount of drugs attributable to Mr. 

Clark, his criminal history, and “the role which he played in this offense,” which “was 

right smack dab in the middle of things.” ROA, Vol. II at 3592. It therefore determined 
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that the minor participation reduction was inappropriate. Mr. Clark provides no 

evidence that the district court’s determination was “not plausible or permissible in light 

of the entire record on appeal.” Morales, 108 F.3d at 1225 (quotations omitted). Based 

on our review of the record, we agree and therefore find no clear error. 

B. Motion To File Supplemental Pro Se Brief

On November 14, 2012, Mr. Clark submitted a pro se supplemental brief arguing 

that the district court erred by denying his request to substitute counsel before trial. On 

November 28, 2012, his counsel submitted, on his behalf, a motion to permit filing of the 

supplemental brief, arguing that the issue was not frivolous but “was not sufficiently 

strong to be included in the opening brief.” Aplt. Mot. at 2. The issue also was omitted 

from the reply brief submitted by Mr. Clark’s counsel. 

We deny Mr. Clark’s motion to permit filing of a supplemental pro se brief. We 

generally deny such filings when the defendant is represented by counsel who vigorously 

argues for the merits of his case through the filing of both an opening and a reply brief. 

See United States v. McDermott, 64 F.3d 1448, 1450 n.1 (10th Cir. 1995) (“[The 

defendant] submitted his own briefs, but to the extent that he raises additional issues, we 

do not address them, invoking our policy of addressing on direct appeal only those issues 

raised by counsel.”); United States v. Guadalupe, 979 F.2d 790, 795 (10th Cir. 

1992) (denying the defendant’s motion for leave to file a supplemental brief because he 

was “represented by thoroughly competent counsel”). 
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III. CONCLUSION

The district court did not commit clear error by (1) attributing to Mr. Clark as 

relevant conduct all of the DTO’s drug transactions while he was a member of the 

conspiracy or (2) denying his request for a downward departure based on minor 

participation. We therefore affirm the district court’s sentence of 292 months in prison. 

We deny his motion to file a pro se supplemental brief. Finally, we grant his motion to 

supplement the record on appeal. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge