## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 2 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ELDON RAY JAMES,

Defendant-Appellant. No. 97-1249

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 97-CR-26-N)

Submitted on the briefs: Michael G. Katz, Federal Public Defender, James P. Moran, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Ap pellant. Henry L. Solano, United States Attorney, John M. Hutchins, Assistant U.S. Attorney, Daniel J. Cassidy, Assistant U.S. Attorne y, Denver, Colorado, for Plaintiff-Appellee.

Before BRORBY , McKAY , and BRISCOE , Circuit Judges.

BRISCOE , Circuit Judge.1 After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- Defendant Eldon Ray James appeals the sentence he r eceived following a plea of guilty to the offense of engaging in the prohibited activities of a Racketeer Influenced and Corrupt Organization (RICO ), in violation of 18 U.S.C. §§ 1962(c) and 1963. We exercise jurisdiction purs uant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm. 1 BACKGROUND On March 28, 1997, James pled guilty to engaging inRICO activities in connection with a drug trafficking enterprise. Pur suant to the terms of the plea agreement, the government agreed to dismiss five ad ditional counts filed in two separate indictments, and to consider, based on the value of James’ assistance, filing a motion for downward departure. In return, James agreed to cooperate with the government. In the agreement, James acknowledged that the government’s evidence was sufficient to establish his involvement in a drug t rafficking enterprise that transported cocaine from California to Colorado fordistribution in numerous counties there. James’ role in the conspiracy was to receive cocaine from a codefendant and distribute it in at least two Color ado counties.-3-

The presentence report prepared by the probation of ficer concluded the enterprise trafficked at least 94 kilograms of coca ine, as well as additional amounts of marijuana, hashish, and methamphetamine. The report calculated James’ base offense level as 27. This figure inclu ded a two-level reduction based on the quantity of drugs directly attributable to J ames himself (as opposed to the amount of drugs attributable to the entire conspira cy), and a three-level reduction for acceptance of responsibility. See U.S.S.G. §§ 3E1.1 and 5C1.2. With a criminal history category of I, James’ guideline ra nge was 70 to 87 months. At sentencing, James moved for downward departure f rom the guideline range, alleging (1) his participation was merely ab errant behavior, (2) he received very little financial gain from the enterprise, (3) he was a minor participant in the conspiracy, and (4) his health and age would put hi m at risk of abuse in prison. The district court rejected James’ motion for reduc tion on all grounds and sentenced him to seventy months’ imprisonment and three years’ supervised release. On appeal, James challenges only the dist rict court’s refusal to grant a two-level reduction for his minor role in the consp iracy. JURISDICTION As a threshold matter, we address this court’s juri sdiction to entertain this appeal. In James’ docketing statement, he framed h is issue on appeal as “[t]he Defendant should have been granted a downwar d departure.” Appellant’s-4-

Docketing Statement at 4. It is well-settled, howe ver, that a defendant may not appeal a sentencing court’s refusal to depart downw ard from a sentence within the guideline range. See United States v. Bromberg , 933 F.2d 895, 896 (10th Cir. 1991). Consequently, our jurisdiction is limited i n these circumstances to reviewing the sentencing court’s decision to ensure the sentence imposed is not the result of an incorrect application of the guide lines or otherwise in violation of the law. See id. at 897; 18 U.S.C. § 3742(a). Because supplemental briefing makes plain that James does in fact assert the dist rict court departed from the law in sentencing him, we have jurisdiction to considerhis appeal. DISCUSSION James contends the sentencing court erred by refusi ng him a two-level downward adjustment under U.S.S.G. § 3B1.2(b) as a minor participant in the criminal enterprise. We review the district court’ s factual findings regarding a defendant’s role in the offense for clear error and give due deference to the court’s application of the sentencing guidelines to the facts. See United States v. Smith , 131 F.3d 1392, 1399 (10th Cir. 1997), cert. denied , 118 S. Ct. 1109 (1998). Section 3B1.2 vests the district court with discret ion to grant a base offense level reduction if it finds a defendant played a mi tigating role in the criminal offense. Section 3B1.2 authorizes a four-level red uction if the defendant was a-5-

“minimal” participant in the criminal activity, a two-level reduction if the defendant was a “minor” participant in the criminal activity, and a three-level reduction if the defendant’s participation was more than minimal but less than minor. A defendant’s role is minor if his role in the enterprise made him substantially less culpable than the average participant. See id. , comments 3 and 4. James argues that, compared to the involvement a nd conduct of his codefendants, his role in the criminal enterprise w as minor, warranting a two-level reduction in his base offense level. James is not entitled to the reduction he seeks. S ection 3B1.2, Application Note 4 states: If a defendant has received a lower offense level b y virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a miti gating role under this section ordinarily is not warranted because su ch defendant is not substantially less culpable than a defendant wh ose only conduct involved the less serious offense. We think the reasoning of Note 4 is applicable here . Although James was not convicted of a less serious offense, he received a less onerous sentence because of his minor role in the enterprise. That is, James’ sentence was based not on the collective amount of drugs distributed by all membe rs of the conspiracy, but only on the amount of drugs distributed by James himself. Any further reduction would cede James an undeserved windfall. See United States v. Lampkins , 47 F.3d 175, 181 n.3 (7th Cir. 1995).-6-

Although this court has not yet spoken on the issue , a number of circuits have held in similar circumstances that a defendantis not entitled to a mitigating role adjustment where the relevant conduct of the c onspiracy was not considered in calculating the base offense level. See United States v. Holley , 82 F.3d 1010, 1011-12 (11th Cir. 1996); United States v. Atanda , 60 F.3d 196, 199 (5th Cir. 1995); Lampkins , 47 F.3d at 180-81; United States v. Gomez , 31 F.3d 28, 31 (2d Cir. 1994); United States v. Lucht , 18 F.3d 541, 555-56 (8th Cir. 1994); United States v. Olibrices , 979 F.2d 1557, 1561 (D.C. Cir. 1992). James urge s us to reject the conclusions of these circuits in favo r of the Ninth Circuit’s holding in United States v. Ruelas that “[t]he defendant’s role in relevant conduct m ay provide a basis for an adjustment even if that cond uct is not used to calculate the defendant’s base offense level.” 106 F.3d 1416, 1419 (9th Cir.), cert. denied , 117 S. Ct. 2470 (1997). This we decline to do. Here, James’ base offense level was predicated onlyon the amount of drugs he personally handled. Thus, the district court ne cessarily took into account James’ minor role in the drug trafficking enterpris e. To provide a further reduction for his role in the enterprise would amou nt to finding James “a minor participant in [his] own conduct,” a finding that w ould “make[] no sense.” Lampkins , 47 F.3d at 181 (footnote omitted); see also Olibrices , 979 F.2d at 1560 (where larger conspiracy was not taken into accountto set the base offense level,2 We note that, if the district court had calculated James’ base offense

level based on the amount of drugs charged to the c onspiracy as a whole - ninety-four kilograms - his sentencing range, even with a downward departure for a minor role, would have been significantly higher. See, e.g. , Olibrices , 979 F.2d at 1561. -7- allowing it to be taken into account for purposes o f a reduction for the mitigating role of the defendant would produce an “absurd resu lt”). As the sentencing court stated, “I don’t think [James] can be said to have a minor or minimal role in distributing the drugs that he himself distributed. Had he been charged and had attributed to him the amount of drugs distributed i n the overall conspiracy, the argument might be different.” 2 R. Vol. 4 at 10 . Therefore, we join the majority of circuits that have addressed this issue and hold that when the relevant conduct of the larg er conspiracy is not taken into account in establishing a defendant’s base offense level, a reduction pursuant to U.S.S.G. § 3B1.2 is not warranted. AFFIRMED.