UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-20736

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

KAMORU ATANDA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

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(July 24, 1995)

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:

Contending that, pursuant to § 3B1.2 of the Sentencing

Guidelines, he was entitled to a downward adjustment in his offense

level because of his claimed minimal or minor role in a conspiracy,

Kamoru Atanda appeals his sentence. We AFFIRM.

I.

Atanda pleaded guilty to: (1) conspiracy to defraud the United

States by obtaining, and aiding in obtaining, the payment of false

claims, in violation of 18 U.S.C. § 286; and, (2) making and filing

false, fictitious or fraudulent claims against the United States,

or causing others to do so, in violation of 18 U.S.C. §§ 287 and 2.

The basis of the indictment was a massive conspiracy to file

false 1990 income tax returns; approximately 558 false returns were
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filed, with the amount of claimed refunds totalling approximately

$1.6 million. Atanda's role in the conspiracy consisted primarily

of recruiting individuals to pose as taxpayers, assisting them in

filing false returns, applying for refund anticipation loans, and

cashing the refund checks. He also filed a false income tax return

in his own name, and obtained a refund of $2,944. 

The presentence investigation report recommended that, based

on the act of filing a false tax return in his own name, Atanda

receive a base offense level of six; a one-level increase for the

loss of $2,944; a two-level increase for obstruction of justice

because he failed to appear for trial; and, a two-level increase

because the offense involved more than minimal planning. Atanda

objected, seeking a § 3B1.2 reduction in his offense level on the

basis that he had a minimal, or, alternatively, minor role in the

offense. The district court found that Atanda's role in filing the

false return in his own name was not minimal or minor, and denied

his reduction request. It stated:

I find that the conclusion reached in the

Presentence Report is the proper one under the law.

If Mr. Atanda is, as the Court has ruled,

responsible only for one tax return, as to that one

tax return, he is neither a minimal nor a minor

player. And, therefore, it is the judgment of the

Court that your objection must be overruled.[6 R 3]

....

[The Court] also recognizes that you did have

a limited role in the overall conspiracy although

with regard to the one tax return, a significant

role. 

The court sentenced Atanda to, inter alia, 12 months imprisonment

on each count, with the sentences to be served concurrently.
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II.

Atanda contends that the district court misapplied the

guidelines in refusing to grant a § 3B1.2 reduction, maintaining

that the district court misapplied the guidelines by considering

only his conduct of filing a false return in his own name, instead

of considering his role in the overall conspiracy in comparison to

his co-conspirators. This is an issue of first impression in our

circuit.

A sentence imposed under the guidelines will be upheld if it

is the result of the correct application of the guidelines to

factual findings that are not clearly erroneous. E.g., United

States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.), cert. denied, 115

S. Ct. 214 (1994). Of course, we subject the application of the

guidelines to plenary review. E.g., United States v. Cheramie, 51

F.3d 538, 542 (5th Cir. 1995). 

Section 3B1.2 provides that a district court must reduce a

defendant's offense level by four levels if it determines that he

is a minimal participant in the offense for which he was convicted,

or by two levels if the defendant was a minor participant.

U.S.S.G. § 3B1.2; United States v. Gadison, 8 F.3d 186, 197 (5th

Cir. 1993). The defendant bears the burden of proving that his

role in the offense was minor or minimal. E.g., United States v.

Brown, 7 F.3d 1155, 1160 n.2 (5th Cir. 1993). In making the

determination, the court must take into account the broad context
1 A defendant should be considered a minor participant if he is

"less culpable than most other participants, but [his] role could

not be described as minimal." U.S.S.G. § 3B1.2, comment. (n.3).

A defendant is not entitled to a minor participant reduction unless

he is substantially less culpable than the average participant.

Gadison, 8 F.3d at 197 (quoting Buenrostro, 868 F.2d. at 138

(quoting U.S.S.G. § § 3B1.2, comment. (backg'd.))). However, the

fact that other co-defendants were more culpable does not

automatically qualify a defendant for either minor or minimal

participant status. See United States v. Thomas, 963 F.2d 63, 65

(5th Cir. 1992).

2 Atanda filed the claim using a social security number issued

previously to him, but with the name misspelled, as evidenced by

the variation of Atanda's name in the indictment.

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of the defendant's crime. United States v. Buenrostro, 868 F.2d

135, 138 (5th Cir. 1989), cert. denied, 495 U.S. 923 (1990).1 

In pleading guilty to two counts, Atanda admitted not only his

involvement in the overall conspiracy, but also filing a false tax

return in his own name. The thirty-third count of the superseding

indictment provided:

On or about April 16, 1991, defendant[] KAMORU

ATANDA, [and three other defendants] knowingly made

and presented to the IRS ... a claim against the

United States ... by preparing, or causing to be

prepared, and filing or causing to be filed a

fraudulent federal income tax return in the name of

Kamoru Atamada claiming a refund in the amount of

$2,944.00

All in violation of 18 U.S.C. §§287 and 2. 

Thus, the second count to which Atanda pleaded guilty involved the

filing of a tax return in his own name.2

Atanda's contention that he was entitled to a downward

adjustment fails to acknowledge his participation in filing this

return. Relying upon this return, as opposed to his involvement in

the conspiracy, takes into consideration the fact that Atanda was
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not involved in most of the transactions associated with the

overall conspiracy. As a result, the amount of the loss utilized

in calculating Atanda's offense level was only the $2,944 for his

claim, not the $1.6 million accumulated claims of the conspiracy.

To take the larger conspiracy into account only for

purposes of making a downward adjustment in the

base level would produce the absurd result that a

defendant involved both as a minor participant in a

larger ... scheme for which [he] was not convicted,

and as a major participant in a smaller scheme for

which [he] was convicted, would receive a shorter

sentence than a defendant involved solely in the

smaller scheme.

United States v. Olibrices, 979 F.2d 1557, 1560 (D.C. Cir. 1992).

We join the other circuits that have addressed this issue, and

conclude that when a sentence is based on an activity in which a

defendant was actually involved, § 3B1.2 does not require a

reduction in the base offense level even though the defendant's

activity in a larger conspiracy may have been minor or minimal.

See United States v. Lampkins, 47 F.3d 175, 180-81 (7th Cir.),

cert. denied, 115 S. Ct. 1440 and 115 S. Ct. 1810 (1995); United

States v. Lucht, 18 F.3d 541, 555 (8th Cir.), cert. denied, ___

U.S. ___, 115 S. Ct. 363 (1994); Olibrices, 979 F.2d at 1561. 

III.

For the foregoing reasons, the sentence is

AFFIRMED.