United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2482 

___________

United States of America, *

*

Appellee, *

*

v. *

*

Erika Boksan, *

*

Appellant. *

____________ Appeals from the United States

District Court for the

No. 01-2484 Southern District of Iowa

____________

United States of America, *

*

Appellee, *

v. *

*

Victor Boksan, *

*

Appellant. *

___________

Submitted: December 11, 2001

Filed: June 11, 2002

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1

The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota, sitting by designation.

2

The Honorable Harold D. Vietor, United States District Judge for the Southern

District of Iowa.

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____________

Before McMILLIAN and MURPHY, Circuit Judges, and BATTEY,1

 District Judge.

___________

McMILLIAN, Circuit Judge.

Victor and Erika Boksan appeal from final judgments entered in the United

States District Court2

 for the Southern District of Iowa sentencing each appellant to

twenty-four months in prison based upon their pleas of guilty to conspiracy to

distribute marijuana. See United States v. Boksan, No. Cr. 00-230 (S.D. Iowa June 1,

2001) (judgments). For reversal, Victor and Erika argue that the district court erred

in determining that they were minor participants in the drug conspiracy rather than

minimal participants. For the reasons set forth below, we affirm the judgments of the

district court.

Jurisdiction was proper in the district court pursuant to 18 U.S.C. § 3231. This

court has jurisdiction pursuant to 18 U.S.C. § 3742(a) (sentencing appeals by

defendants). The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(b).

I. Background

In September 2000, Warren Babiar offered to pay Erika $5,000 to transport a

U-Haul truck purportedly filled with less than 100 pounds of marijuana from Arizona

to Connecticut. Erika declined to actually drive the truck, but she agreed to find

another driver for Babiar. On October 3, 2000, Erika asked her husband, Victor, to
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help her find a driver for Babiar. That same day, Victor asked Zoran Antunovic if he

would drive the truck. Antunovic agreed. 

On October 4, 2000, Antunovic met with Victor and Erika to discuss the details

of the delivery. In Victor’s presence, Erika gave Antunovic $2,000 for driving the

truck, a map of his driving route, and written instructions on where to deliver the

truck. On October 5, 2000, Erika gave Antunovic an additional $3,000 and told him

to check in twice daily until the delivery was made. 

On October 6, 2000, Antunovic left to pick up the truck and twice called Victor

to check in, as he had been instructed. Antunovic checked in with Victor again on

October 7 and 8, 2000. Erika kept in telephone contact with Babiar two or three

times each day. 

On October 9, 2000, Antunovic called Victor to tell him that the truck had

broken down en route. Victor passed this information along to Erika, who notified

Babiar. After speaking with Erika, Victor instructed Antunovic to get the truck

repaired or put it into storage as soon as possible. For the next two days, Antunovic

stayed in contact with Victor, Victor relayed the information to Erika, and Erika

updated Babiar.

On October 10, 2000, Antunovic consented to a search of the U-Haul truck by

law enforcement officers who were responding to reports of possible suspicious

activity. The law enforcement officers seized from the truck six refrigerator boxes

filled with a total of 990 pounds (449.06 kilograms) of marijuana and placed

Antunovic under arrest. After Antunovic disclosed to law enforcement that he had

been working for Victor and Erika, the officers taped telephone conversations

between Antunovic and Victor and ultimately arrested Victor and Erika on

October 13, 2000. 
3

Erica and Victor were represented by separate counsel at sentencing and on

appeal. 

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On October 25, 2000, a federal grand jury indicted Victor and Erika along with

Babiar and Antunovic for conspiracy to distribute more than 100 kilograms of

marijuana. Babiar eventually was convicted at trial. On March 9, 2001,Victor, Erika,

and Antunovic each pleaded guilty to conspiracy to distribute marijuana in violation

of 21 U.S.C. § 841 (b)(1)(A) and (B). Victor objected to his presentence

investigation report – which recommended a two-level reduction for his minor role

– and asked the district court for a four-level reduction for a minimal role in the

offense. Erika also objected to her presentence report – which did not recommend

any reduction for her role in the offense – and asked the district court for “possibly

a two or three point reduction” in her offense level.3

 

At the sentencing hearing on June 1, 2001, the district court adopted the factual

findings contained in the presentence investigation report for Victor, concluded that

Victor was a minor participant in the offense, and reduced his offense level by two

levels. See Sentencing Tr. at 15-16. With respect to Erika, the district court made the

following factual findings: 

If you slice things very finely, there may be some slight difference

between the roles of Erika Boksan and Victor Boksan, but not all that

much. And certainly another participant in this conspiracy was Mr.

Babiar, and I think it’s quite clear that, compared to Mr. Babiar, Erika

Boksan’s role was minor, and I’m going to give her the two-level

reduction for being a minor participant.

 

Id. at 13. The district court also ordered three-level reductions for Victor and Erika

for timely acceptance of responsibility, resulting in a total offense level of 21 for each

of them. The district court then granted to Victor and Erika each a downward

departure for substantial assistance to the government, and sentenced each of them
4

The district court reduced Antunovic’s offense level by four levels as a

minimal participant and by three levels for timely acceptance of responsibility,

resulting in a total offense level of 19, and sentenced him to eighteen months

imprisonment.

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to twenty-four months imprisonment and three years of supervised release.4

 Victor

and Erika now appeal the district court’s findings that they were minor participants

in the offense. 

II. Discussion

U.S.S.G. § 3B1.2 authorizes a sentencing court to reduce the offense level

between two and four levels to reflect the defendant's mitigating role in the offense.

Victor and Erika argue that, because they were involved only once in this drug

enterprise and their only role was to find a driver for the drug delivery, the district

court should have reduced their offense levels by three or four points because their

roles either were minimal or somewhere between minimal and minor. Victor adds

that while he and Erika both were minimally involved in the conspiracy, he

participated to an even lesser extent than Erika, and is therefore even more deserving

of a greater reduction in offense level. 

Whether a defendant qualifies for a reduction for his or her role in the offense

is a question of fact. See United States v. Thurmon, 278 F.3d 790, 792 (8th Cir.

2002). We therefore review the district court's determinations regarding Victor’s and

Erika’s roles in the offense for clear error. See United States v. Snoddy, 139 F.3d

1224 (8th Cir. 1998) (applying clear error standard to district court’s denial on factual

grounds of downward adjustment for role); United States v. McCarthy, 97 F.3d 1562,

1579 (8th Cir. 1996) (same). For the following reasons, we hold that the district court

did not clearly err in sentencing Victor and Erika as minor participants rather than as

minimal participants. 
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A defendant’s eligibility for a reduction for role in the offense is determined

by comparing the defendant’s acts to the acts of the other conspirators. See United

States v. Ramos-Torres, 187 F.3d 909, 915 (8th Cir. 1999). A four-level reduction

for minimal participation, pursuant to U.S.S.G. § 3B1.2 (a), 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, cmt. 4. This role reduction for minimal participation was intended

to be used infrequently, and should be reserved for cases where the defendant does

not know or understand the scope of the illegal enterprise or where the defendant’s

involvement was insignificant. See id.; United States v. O’Dell, 204 F.3d 829, 837

(8th Cir. 2000); United States v. Correa, 167 F.3d 414, 416-17 (8th Cir. 1999). In

contrast, a two-level reduction for minor participation in an offense, pursuant to

U.S.S.G. § 3B1.2(b), is appropriate for defendants who are “less culpable than most

other participants, but whose role could not be described as minimal.” U.S.S.G.

§ 3B1.2, cmt. 5. Thus, a defendant who was less involved than other conspirators but

nevertheless understood the scope of the conspiracy and played a central role in the

conspiracy would be eligible for a two-level reduction, not a four-level reduction.

See United States v. White, 241 F.3d 1015, 1024 (8th Cir. 2001) (White). A threelevel reduction is reserved for defendants whose conduct falls between a minor and

a minimal role. 

In the instant case, while Victor and Erika may have understood less about the

scope of the conspiracy than Babiar, who was more actively involved with the

marijuana, misrepresented the quantity of marijuana being delivered, and set the

conspiracy in motion, they certainly knew more than Antunovic. Furthermore, Victor

and Erika worked as a team to recruit Antunovic into the conspiracy. See United

States v. Jankowski, 194 F.3d 878, 882 (8th Cir. 1999) (Jankowski) (affirming

finding of minor participant where defendant knew scope of conspiracy and recruited

another person into conspiracy). Victor and Erika continued to work as a team to

supervise Antunovic, and together provided him with money, a map and instructions

on an ongoing basis. In so doing, Victor and Erika played the central role of
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connecting the more culpable supplier, Babiar, with the less culpable delivery person,

Antunovic. Antunovic, who received a role reduction as a minimal participant, had

no involvement in planning or organizing the trip and no supervisory authority. 

Comparing their level of involvement to that of the other conspirators, it was

appropriate for the district court to sentence Victor and Erika as participants who

were less active in the conspiracy than others but “whose role could not be described

as minimal.” U.S.S.G. § 3B1.2, cmt. 5. We therefore cannot say that the district

court clearly erred in sentencing Victor and Erika as minor participants rather than

as minimal participants. See White, 241 F.3d at 1024; Jankowski, 194 F.3d at 882.

III. Conclusion

For the aforementioned reasons, we affirm the judgments of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.