United States Court of Appeals

For the Eighth Circuit

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No. 13-1599

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Claude Dukes, Jr.

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: September 23, 2013

 Filed: November 5, 2013

[Unpublished]

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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.

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PER CURIAM.

Less than two weeks after he completed serving a fifteen-year sentence for

armed robbery in July 2008, Claude Dukes, Jr., joined an ongoing conspiracy to

distribute cocaine base (crack cocaine) in the Eastern District of Arkansas. Dukes

and nine others were charged with conspiracy to possess with intent to distribute and

distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and 846. Dukes pleaded guilty to that charge one week before trial. In the Plea

Agreement, the parties agreed that the conspiracy existed from March 2008 through

October 2009, that Dukes knowingly joined the conspiracy “at the time it was first

reached or at some time later while it was still in effect,” and “that the amount of

controlled substance is between 28 grams but less than 112 grams of cocaine base.” 

The stipulated amount produced a base offense level of 26, see U.S.S.G.

§ 2D1.1(c)(7), and a mandatory minimum sentence of five years in prison, see 21

U.S.C. § 841(b)(1)(B)(iii). 

The district court sentenced Dukes to 63 months in prison, the bottom of his

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advisory guidelines range of 63 to 78 months. Dukes appeals the sentence, arguing

the court committed clear procedural error in denying a four- or two-level reduction

because he was a minimal or minor participant in the conspiracy offense. See

U.S.S.G. § 3B1.2(a) and (b). Dukes argues he is entitled to a role-in-the-offense

reduction because he did not organize or manage the conspiracy, was incarcerated

when the conspiracy began, did not procure the crack, and only participated in two

sales during the conspiracy’s entire 19-month duration. 

At the change-of-plea hearing, Dukes agreed with the prosecutor’s summary

of what the government could prove at trial, including Dukes’s direct participation

in two crack cocaine sales to confidential informants: On July 18, 2008, when an

informant went to conspirator Joe Brandon’s residence to complete the purchase of

one ounce of crack cocaine for $700, Brandon was not present. Dukes handed the

informant 28.1 grams of crack and received the purchase money in exchange. The

second sale occurred in November 2008, when Brandon directed an informant to

contact Dukes to buy crack. Dukes referred the informant to conspirator Frederick

Taylor, who confirmed he had spoken with Dukes and then sold the informant one

The HonorableBrian S. Miller, Chief Judge ofthe United States DistrictCourt

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for the Eastern District of Arkansas.

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ounce of crack (27.5 grams) for $750. At sentencing, when Dukes complained to the

court that he was being held responsible for more than his role in the conspiracy, the

prosecutor advised the court that, if Dukes were accountable for the total drug

quantity attributable to Brandon, the base offense level would be 32. 

A four-level minimal participant reduction is proper when the defendant

establishes that he was “plainly among the least culpable of those involved in the

conduct of a group.” U.S.S.G. § 3B1.2, comment. (n.4). The two-level minor

participant reduction is for a defendant “who is less culpable than most other

participants, but whose role could not be described as minimal.” Id., comment. (n.5). 

We review the district court’s role-in-the-offense determination for clear error; Dukes

bearsthe burden of proving that he was a minimal or minor participant. United States

v. Pinkin, 675 F.3d 1088, 1090 (8th Cir. 2012). 

“When a defendant is part of jointly undertaken criminal activity with others,

the sentencing court must determine what the defendant’s relevant conduct was . . . . 

[T]hat same relevant conduct is used not only in determining the defendant’s base

offense level, but also for any role in the offense adjustments . . . .” United States v.

McCarthy, 97 F.3d 1562, 1574 (8th Cir. 1996), cert. denied, 519 U.S. 1139 and 520

U.S. 1133 (1997). Here, as in United States v. Speller, Dukes benefitted when the

district court included as relevant conduct only the two sales in which he personally

participated in determining his base offense level, “and then asksthe court to consider

all the other drugs involved in the conspiracy in determining [his] role in the offense,”

in effect, a “double reduction.” 356 F.3d 904, 907 (8th Cir. 2004). The district court

committed no clear error in denying Dukes a role-in-the-offense reduction.

The judgment of the district court is affirmed.

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