UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 99-4842

JAMES EARL WHITNEY, JR.,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CR-99-63)

Argued: May 1, 2000

Decided: June 5, 2000

Before WILKINSON, Chief Judge, and WILKINS

and LUTTIG, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Alessandra DeBlasio, Assistant United States Attorney,

Alexandria, Virginia, for Appellant. Robert Charles Neeley, Jr., ROBINSON & ANDERSON, Norfolk, Virginia, for Appellee. ON

BRIEF: Helen F. Fahey, United States Attorney, Alexandria, Virginia; Laura P. Tayman, Assistant United States Attorney, Norfolk,

Virginia, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Government appeals James Earl Whitney, Jr.'s sentence for

possession with the intent to distribute 50 grams or more of cocaine

base, see 21 U.S.C.A. § 841(a)(1) (West 1999), arguing that the district court erred in reducing Whitney's offense level four levels for

being a minimal participant, see U.S. Sentencing Guidelines Manual

§ 3B1.2(a) (1998), and in departing downward six levels for aberrant

behavior. We vacate Whitney's sentence and remand for resentencing.

I.

Whitney was stopped in Capeville, Virginia by a Virginia State

trooper for several traffic violations. With Whitney were two passengers, one of whom owned the automobile Whitney was driving. All

three men consented to a search of the vehicle. The resulting search

produced two plastic bags containing a total of 113.1 grams of

cocaine base, 184 plastic bags containing a total of 22.6 grams of

cocaine base, and one plastic bag containing 60.5 grams of cocaine.

Whitney admitted ownership of the drugs and was arrested. Whitney

informed Virginia troopers that he was transporting the drugs--which

had a street value of $23,000--to North Carolina for an unidentified

associate for $600.

Whitney pled guilty to possessing with the intent to distribute 50

or more grams of cocaine base. Based on the amount of drugs found

in the search, the presentence report (PSR) set Whitney's base offense

level at 32. See id. § 2D1.1(c)(4). The PSR recommended a threelevel reduction for acceptance of responsibility, see id. § 3E1.1, and

a two-level reduction pursuant to the "safety valve" provision of the

sentencing guidelines, see id. § 2D1.1(b)(6), bringing the adjusted

offense level to 27. The PSR recommended no enhancement or reduc-

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tion of Whitney's offense level based on his role in the offense. Whitney's Criminal History Category of I, combined with the

recommended offense level of 27, produced a guideline range of 70

to 87 months incarceration.

Whitney requested a downward departure at the sentencing hearing

on the basis that his criminal conduct constituted aberrant behavior.

In support of his request, Whitney offered testimony concerning his

good character. Over the Government's objection, the district court

stated that it was granting a downward departure based on aberrant

behavior. Inexplicably, Whitney was sentenced to a split sentence of

35 months imprisonment and 35 months home confinement. The

Government subsequently moved for correction of sentence, see Fed.

R. Crim. P. 35(c), asserting that the guidelines do not permit a 70-

month sentence of imprisonment to be satisfied in part by a term of

home detention, see U.S.S.G. § 5C1.1(f). The district court subsequently vacated the sentence.

At resentencing, the court sua sponte granted Whitney a four-level

reduction for being a minimal participant in the criminal activity, see

id. § 3B1.2(a), thereby adjusting Whitney's offense level from 27 to

23. The court also departed downward six levels, finding that Whitney's crime constituted a single act of aberrant behavior. Determining

that the guideline range was 24-30 months imprisonment for offense

level 17 with a Criminal History Category of I, the district court sentenced Whitney to 26 months imprisonment. The Government

objected to both the offense level reduction and the downward departure.

II.

The Government first argues that the district court erred in granting

Whitney a four-level reduction for being a minimal participant. We

agree.

A defendant who was only a minimal participant in his criminal

activity is entitled to a four-level reduction. See id. However, a defendant's status as a drug courier does not in itself entitle the defendant

to a minimal participant reduction. See United States v. White, 875

F.2d 427, 434 (4th Cir. 1989). Rather, whether a drug courier is enti-

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tled to the reduction depends upon the extent of his involvement in

the drug activity, i.e., the degree of his culpability. See id. In determining whether a defendant is entitled to a minimal participant reduction, a court must consider the defendant's conduct relative to the

conduct of others involved in the same criminal activity as well as his

conduct relative to the elements of conviction. See United States v.

Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). In considering the

defendant's conduct relative to the elements of conviction, a court

must decide "whether the defendant's conduct is material or essential

to committing the offense." Id. (internal quotation marks omitted).

The defendant bears the burden of demonstrating by a preponderance of the evidence his entitlement to an offense level reduction. See

United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990). We

review a determination by a district court of the defendant's role in

an offense for clear error. See United States v. Love, 134 F.3d 595,

606 (4th Cir. 1998).

Here, the evidence in the record does not support a reasonable

inference that Whitney was only a minimal participant in the criminal

activity. Although the evidence demonstrates that Whitney was transporting drugs, Whitney produced no further evidence concerning the

extent of his involvement in the criminal activity or the extent of the

other unidentified participants involved with him. Accordingly, the

district court clearly erred in finding that Whitney was a minimal participant.

III.

The Government next contends that the district court erred in granting Whitney a downward departure for aberrant behavior. We agree.

We discussed the circumstances that justify a downward departure

for aberrant behavior in United States v. Glick , 946 F.2d 335 (4th Cir.

1991):

 Following congressional direction, the Sentencing Commission designed the guidelines to produce an appropriate

sentence for a first offender. Aberrant behavior, therefore,

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means something more than merely a first offense. A single

act of aberrant behavior suggests a spontaneous and seemingly thoughtless act rather than one which was the result of

substantial planning because an act which occurs suddenly

and is not the result of a continued reflective process is one

for which the defendant may be arguably less accountable.

Glick, 946 F.2d at 338 (citation & internal quotation marks omitted).

A defendant seeking a downward departure bears the burden of establishing the mitigating factor by a preponderance of the evidence. See

United States v. Sheffer, 896 F.2d 842, 846 (4th Cir. 1990). In reviewing a decision by the district court to depart, this court applies a "unitary abuse-of-discretion standard." Koon v. United States, 518 U.S.

81, 100 (1996) (internal quotation marks omitted). Legal errors and

clearly erroneous factual findings constitute abuses of discretion. See

United States v. DeBeir, 186 F.3d 561, 566-67 (4th Cir. 1999).

Here, no evidence in the record gives rise to a reasonable inference

that Whitney's decision to commit the crime of which he was convicted was spontaneous or rash rather than the result of a continued

reflective process. Whitney's status as a first-time drug offender does

not bear on the questions of how much thought went into his decision

to commit the crime and how much planning by Whitney was

involved. Accordingly, the district court abused its discretion in determining that Whitney met his burden of establishing that his criminal

behavior was aberrant so as to justify the downward departure.

IV.

In sum, the district court erred in granting Whitney a four-level

reduction for minimal participation and in departing downward six

levels on the basis that Whitney's criminal conduct constituted aberrant behavior. We therefore vacate Whitney's sentence and remand

for resentencing consistent with this opinion.

VACATED AND REMANDED

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