The HONORABLE MARK W. BENNETT, United States District Judge for

*

the Northern District of Iowa, sitting by designation.

United States Court Of Appeals

FOR THE EIGHTH CIRCUIT

_______________

No. 97-3366

_______________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

District

* of Nebraska

Marc A. Snoddy, *

*

Defendant-Appellant. *

___________

Submitted: March 11, 1998

Filed: April 6, 1998

___________

Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge. *

___________

BENNETT, District Judge.

When, if ever, can a criminal defendant who pleads guilty to a sole

participant offense obtain a reduction in sentence pursuant to U.S.S.G. §

3B1.2(b) for being a
2

“minor participant”? The defendant here—who pleaded guilty to possession

of marijuana with intent to distribute it after being caught with a

truckload of the controlled substance—claims that his role as a “mule” was

minor compared to the other players in the marijuana distribution scheme.

Despite the government’s agreement to a “minor participant” reduction in a

plea agreement, and the defendant’s uncontested evidence of his minor role

offered at sentencing, the sentencing judge concluded that the defendant

could not receive a “minor participant” reduction, because he was charged

with a sole participant offense rather than conspiracy to distribute the

marijuana.

On appeal, we reverse and remand.

I. BACKGROUND

It is undisputed that defendant-appellant Marc Snoddy was arrested

February 9, 1997, by a border patrol agent at a roving border patrol

checkpoint in Falfurrias, Texas, when the border patrol agent discovered

thirty-seven kilograms of marijuana built into the false front of the bed

of the pickup truck Snoddy was driving. The marijuana was discovered after

the border patrol agent, suspicious of Snoddy’s behavior, brought over a

drug dog, which alerted to the presence of controlled substances in Snoddy’s

vehicle. Snoddy was indicted in the Southern District of Texas on a charge

of possession of the marijuana with intent to distribute it. Pursuant to

Rule 20 of the Federal Rules of Criminal Procedure, Snoddy agreed to plead

guilty to the indictment and the case was transferred to the District of

Nebraska.

As part of the plea agreement, the government agreed to recommend that

Snoddy receive a two-level reduction in his base offense level pursuant to

U.S.S.G. § 3B1.2 for being a “minor” participant in the offense. The

presentence investigation report (PSR)
3

by the probation office, however, did not include this agreed reduction.

Instead, the PSR calculated Snoddy’s offense level as 18, based on the

amount of marijuana found in his possession, and recommended only a threelevel reduction for acceptance of responsibility. The PSR stated that the

probation office was not aware of other participants in the offense with

which Snoddy was charged. Snoddy filed a formal objection to the failure

to include in the PSR the agreed reduction for his minor participation and

the district judge set the matter down for hearing.

At the hearing, Snoddy presented uncontested evidence that he was not

the only participant in a scheme to distribute marijuana and that his role

in the scheme consisted only of transporting the marijuana from Texas to

Nebraska. Specifically, Snoddy presented evidence that he was recruited by

a co-worker Snoddy knew only as Enrique at his place of work in Omaha,

Nebraska, to drive a truckload of marijuana from McAllen, Texas, to Omaha.

Snoddy agreed, and Snoddy and Enrique flew from Omaha to Houston, then on

to McAllen, where they checked into a hotel room. While Snoddy waited in

the room, Enrique made some telephone calls, conducted in Spanish, and then

left the room for fifteen or twenty minutes. When Enrique returned, he gave

Snoddy a set of keys and pointed out a pick-up truck in the parking lot.

Enrique told Snoddy to leave McAllen at first light and to drive the truck

to Omaha. Snoddy never learned the details of how or from whom Enrique

purchased the marijuana nor what Enrique intended to do with the marijuana

in Omaha. As instructed, Snoddy left for Omaha the next morning, but he was

stopped and arrested in Falfurrias, Texas. Much of Snoddy’s version of

events was corroborated by testimony of an investigator for the federal

public defender’s office, which was proffered by Snoddy’s counsel and

received into evidence without objection at the sentencing hearing.

At sentencing before the United States District Court for the District

of
4

Nebraska, the government stood by the plea agreement and did not dispute the

evidence that Snoddy was just a “mule” in the distribution scheme. Although

the sentencing judge stated that he would have no difficulty recognizing

that Snoddy’s participation was minor had he been charged with conspiracy,

the sentencing judge nonetheless denied the request for a two-level

reduction for minor participation. The court’s reasoning was as follows:

[Snoddy] can’t be a minor role [sic] in an

offense that charges him with possession with intent

to distribute, but it doesn’t say he did it with

anybody else, or in conjunction with anybody else,

and I’m not quarreling or taking exception to the

fact that what you’re telling me is true, that’s the

way it occurred.

But when it comes up on a Rule 20 I have to take

the indictment as it reads, I can’t change the

indictment, and I don’t think it’s appropriate to

recap the charges that are contained in the

indictment for purposes of sentencing.

It’s for that reason that I am going to deny

your objection; not that I don’t believe, if this had

been charged as a conspiracy to distribute less than

fifty kilograms, I don’t think I would have a

difficulty recognizing that in that conspiracy his

role was a minor role.

But I don’t believe that I can find that where

he is charged in a one count indictment, with being

the sole perpetrator of the crime, that his role is

other than a sole perpetrator, and under Rule 20 he

has to admit to the crime charged or he has to go

back to Texas for disposition or trial.

Transcript of Sentencing Proceedings, pp. 29-30. The sentencing judge

therefore adopted the recommendations in the PSR and reduced Snoddy’s base

offense level only by three levels for acceptance of responsibility. Snoddy

was sentenced to 30 months of imprisonment, the bottom of the applicable 30

to 37-months guideline range,
5

followed by three years of supervised release. Snoddy asserts that his

guideline range with the further two-level reduction for minor participation

would have been 24 to 30 months.

On appeal, Snoddy contends that he is entitled to a two-level reduction

of his base offense for being only a “minor participant” pursuant to

U.S.S.G. § 3B1.2(b). He contends that neither the language of the

applicable guidelines nor any judicial decisions of this court prohibit him

from receiving such a reduction because he was charged with possession with

intent to distribute a controlled substance rather than conspiracy to

distribute it. Indeed, he asserts that this court has upheld such a

reduction for persons charged only with possession or distribution offenses

rather than conspiracy. Snoddy also argues that the sentencing judge

mistakenly equated his plea pursuant to Rule 20 with an agreement to accept

all adverse sentencing guidelines while abandoning all mitigating ones.

Snoddy prays for reversal of the district court’s sentence, upon de novo

review, and remand for resentencing under a “correct” interpretation of the

Sentencing Guidelines.

The government argues that the sentencing judge exercised his

discretion not to apply the downward adjustment pursuant to U.S.S.G.

§ 3B1.2, because Snoddy had not demonstrated that he indeed played only a

“minor role” in the offense with which he was charged. The government

contends that the threshold requirement for a “minor participant” reduction

was not satisfied, because inherent in such a reduction is a finding that

the defendant is less culpable than other participants. Thus, the

government contends that there was no “clear error” in the district judge’s

refusal to apply the reduction, because the government contends that the

district judge’s decision rested upon a factual determination that the

appellant had not been a minor participant, not on some incorrect legal

interpretation of the guidelines.
6

II. LEGAL ANALYSIS

A. Standard Of Review

It is well-established that this court reviews a district court’s

factual findings at sentencing for clear error. See, e.g., United States

v. Covington, 133 F.3d 639, 642 & 643-44 (8th Cir. 1998) (this court’s

review of factual determinations with respect to offenses in the criminal

history computation pursuant to U.S.S.G. § 4B1.1 “‘are subject to a “clearly

erroneous” standard of review,’” quoting United States v. Lowe, 930 F.2d

645, 646-47 (8th Cir. 1991), as are findings as to the identity of drugs

attributable to a defendant); United States v. Whatley, 133 F.3d 601, 606

(8th Cir. 1998) (this court reviews for clear error factual findings for

sentencing); United States v. Dierling, 131 F.3d 722, 736 (8th Cir. 1997)

(appellate review of sentencing findings is for clear error); United States

v. Wells, 127 F.3d 739, 744 (8th Cir. 1997) (when the challenge to a

guidelines sentence was by the government, this court reviewed the district

court’s findings of fact for clear error); United States v. Darden, 70 F.3d

1507, 1544 (8th Cir. 1995) (same), cert. denied, ___ U.S. ___, 116 S. Ct.

1449, and cert. denied, ___ U.S. ___, 116 S. Ct. 2567 (1996). This “clear

error” standard applies specifically to the district court’s denial on

factual grounds of a “minor participant” reduction pursuant to U.S.S.G. §

3B1.2. See United States v. Holloway, 128 F.3d 1254, 1258 (8th Cir. 1997);

United States v. Chatman, 119 F.3d 1335, 1341 (8th Cir. 1997) (noting that

the burden is on the defendant to demonstrate that he or she is entitled to

a “minor participant” reduction pursuant to U.S.S.G. § 3B1.2, and that “[a]

district court’s factual determination regarding the role played by a

defendant in a criminal activity is reviewed under the ‘clearly erroneous’

standard,” citing United States v. Fregoso, 60 F.3d 1314, 1329 (8th Cir.

1995), and United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir. 1989)),

cert. denied, ___ U.S. ___, 118 S. Ct. 434 (1997); United States v. Van
Although factual determinations concerning a defendant’s role in an offense are 1

reviewed for clear error, the district court’s determination of whether to grant a twolevel reduction for “minor” participation or a four-level reduction for “minimal”

participation is reviewed for abuse of discretion. See United States v. McCarthy, 97

F.3d 1562, 1579 (8th Cir. 1996), cert. denied sub nom. Thompsen v. United States,

___ U.S. ___, 117 S. Ct. 1011, and cert. denied sub nom. Houston v. United States,

___ U.S. ___, 117 S. Ct. 1284 (1997).

7

Brocklin, 115 F.3d 587, 601 (8th Cir. 1997) (“We review the district court’s

determination of § 3B1.2 adjustments for clear error.”).1

However, it is just as well-established that review of a district

court’s interpretation and construction of the federal sentencing guidelines

is de novo. See, e.g., Wells, 127 F.3d at 744 (when this court reviewed the

government’s challenge to a sentence imposed under the guidelines, this

court stated that review of the district court’s application and

construction of the guidelines is de novo, but the court found that each of

the government’s challenges concerned a factual finding, so that each was

reviewed for clear error); United States v. Drapeau, 121 F.3d 344, 347 (8th

Cir. 1997) (“‘The district court’s interpretation of the sentencing

guidelines is a question of law subject to de novo review, while its factual

determinations are subject to review only for clear error,’” quoting United

States v. Larson, 110 F.3d 620, 627 (8th Cir. 1997)); United States v.

Dolan, 120 F.3d 856, 870 (8th Cir. 1997) (although factual determinations

for sentencing under the federal guidelines are reviewed under the clearly

erroneous standard, “[w]e review de novo the district court’s interpretation

of the Guidelines”); Van Brocklin, 115 F.3d at 600 (“We review the district

court’s interpretation of the Guidelines de novo, and the factual findings

supporting its conclusions for clear error.”); United States v. Jones, 87

F.3d 247, 248 (8th Cir.) (per curiam) (appellate review of the district

court’s construction and interpretation of
8

Chapter Four of the U.S. Sentencing Guidelines is de novo), cert. denied,

___ U.S. ___, 117 S. Ct. 374 (1996); Darden, 70 F.3d at 1544.

The government’s protestations notwithstanding, it is clear from the

portion of the sentencing transcript quoted above that the sentencing judge

did not deny Snoddy a “minor participant” reduction on any factual ground.

Transcript of Sentencing Proceedings, pp. 29-30. Indeed, the sentencing

judge made clear that he was “not quarreling or taking exception to the fact

that what you’re telling me [about Snoddy’s participation] is true,” and

that “if this had been charged as a conspiracy to distribute less than fifty

kilograms, I don’t think I would have a difficulty recognizing that in that

conspiracy his role was a minor role.” Id. The only grounds the sentencing

judge gave for his denial of Snoddy’s request for a “minor participant”

reduction were his legal conclusions, first, that such a reduction was not

available when Snoddy was charged with a sole participant offense, that is,

when the indictment “charge[d] him with possession with intent to

distribute, but it doesn’t say he did it with anybody else, or in

conjunction with anybody else,” and, second, that it was not “appropriate”

to depart from the indictment when the defendant comes before the court on

a Rule 20 plea. Id. These conclusions have to do with the construction and

interpretation of the guidelines, not with any factual determination

pursuant to guideline requirements. Because the denial of the reduction was

based on the sentencing judge’s interpretation of § 3B1.2, not any factual

determination, our review is de novo. See Wells, 127 F.3d at 744; Drapeau,

121 F.3d at 347; Dolan, 120 F.3d at 870; Larson, 110 F.3d at 627; Van

Brocklin, 115 F.3d at 600; Jones, 87 F.3d at 248.

B. The “Minor Participant” Reduction

We thus embark on a de novo interpretation of U.S.S.G. § 3B1.2. That

guideline
This sentencing guideline is as follows: 2

§ 3B1.2 Mitigating Role

Based on the defendant’s role in the offense,

decrease the offense level as follows:

(a) If the defendant was a minimal

participant in any criminal activity,

decrease by 4 levels.

(b) If the defendant was a minor participant

in any criminal activity, decrease by 2

levels.

In cases falling between (a) and (b), decrease

by 3 levels.

U.S.S.G. § 3B1.2.

9

provides for a reduction in the defendant’s base offense level owing to his

or her “mitigating role” in terms of either “minimal” or “minor”

participation. U.S.S.G. § 3B1.2; United States v. Padilla-Pena, 129 F.3d 2

457, 471 (8th Cir. 1997), petition for cert. filed, (Feb. 3, 1998) (No. 97-

7772), and petition for cert. filed, (Feb. 3, 1998) (No. 97-7790). As this

court recently explained, a “minor participant” pursuant to U.S.S.G. § 3B1.2

is “any participant who is less culpable than most

other participants, but whose role could not be

described as minimal.” [U.S.S.G. § 3B1.2],

application note 3. The mere fact that a defendant

is less culpable than his codefendants does not

entitle defendant to “minor participant” status.

United States v. West, 942 F.2d 528, 531 (8th Cir.

1991). Whether a downward adjustment is warranted is

determined not only by comparing the acts of each

participant in relation to the relevant conduct for

which the participant is held accountable, but also

by measuring each participant’s individual acts and

relative culpability against the elements of the

offense. United States v. Goebel, 898 F.2d 675, 677

(8th Cir. 1990).
By way of comparison, this court explained “minimal participation” as follows: 3

A minimal participant must be “plainly among the least

culpable of those involved in the conduct of a group.”

U.S.S.G. § 3B1.2, application note 1. A “defendant’s lack

of knowledge or understanding of the scope and structure of

the enterprise and of the activities of others is indicative of

a role as minimal participant.” Id. The downward

adjustment for a minimal participant should be “used

infrequently” and is “appropriate, for example, for someone

who played no other role in a very large drug smuggling

operation than to offload part of a single marihuana

shipment, or in a case where an individual was recruited as

a courier for a single smuggling transaction involving a small

amount of drugs.” Id., application note 2.

Padilla-Pena, 129 F.3d at 471.

10

Padilla-Pena, 129 F.3d at 471; Holloway, 128 F.3d at 1258; Chatman, 119

3

F.3d at 1341. 

1. Drug couriers and “minor” participation

As the government asserts, this court has recognized that a defendant’s

role as just a “mule” in a drug distribution scheme does not necessarily

entitle the defendant to a “minor participant” reduction. See, e.g.,

Chatman, 119 F.3d at 1341 (although the defendant contended that he was

merely a “mule” in a drug distribution scheme, this court held that a “minor

participant” reduction was not required just because other parties supplied

the drugs and the defendant merely transported them); United States v.

McGrady, 97 F.3d 1042, 1043 (8th Cir. 1996) (although the defendant

contended that he was merely a courier who played a small role in the drug

deals, the court upheld denial of a “minor participant” reduction, because

the defendant’s role was “significant” in carrying out the drug

transactions); United States v. Carrazco, 91 F.3d 65, 67 (8th Cir. 1996)

(where the defendant argued that he was entitled to a § 3B1.2
11

reduction because he was just a “mule,” this court upheld denial of the

reduction, because he was not just a “mule,” and even if he was, “a downward

adjustment would not necessarily have been warranted: ‘A defendant’s status

as courier does not necessarily mean he is less culpable than other

participants in a drug operation,’” quoting United States v. Williams, 890

F.2d 102, 104 (8th Cir. 1989), and the record was to the contrary in that

case).

However, this court has also, upon occasion, allowed a downward

adjustment for minor participation to a person charged with distribution of

a controlled substance rather than conspiracy, as Snoddy contends. See

United States v. Garvey, 905 F.2d 1144, 1145 (8th Cir. 1990) (where a

defendant who pleaded guilty to distributing hashish oil asserted he was

merely a courier with no ownership interest in the hashish oil found in his

possession, and therefore he should receive a “minimal” participant

reduction, or 3-level “in between” reduction, pursuant to § 3B1.2, this

court held that participant status is a factual determination based upon

culpability, not courier status, and upheld only the “minor participant”

reduction rather than a more generous reduction). Another circuit court of

appeals has also upheld granting a defendant who pleaded guilty to charges

of possession of a controlled substance with intent to distribute it at

least a partial “minor participant” reduction. See United States v. Fagge,

101 F.3d 232, 234-35 (2d Cir. 1996) (upholding the grant of only a one-level

reduction, rather than two full levels, pursuant to § 3B1.2 for a defendant

who pleaded guilty to possession with intent to distribute heroin).

Furthermore, when affirming the denial of a reduction for “minor”

participation to persons charged with possession with intent to distribute

a controlled substance, this court has never done so on the ground that the

reduction was unavailable as a matter of law to persons charged only with

“sole participant” offenses, but only on factual grounds based on the degree

of the
12

defendant’s participation or “culpability.” See, e.g., Chatman, 119 F.3d

at 1341 (a defendant who pleaded guilty to possession with intent to

distribute cocaine was properly denied a “minor participant” reduction,

based in part on the fact that the defendant was using his own vehicle to

transport the cocaine and on the amount of the cocaine found in the

vehicle); McGrady, 97 F.3d at 1043 (a defendant who pleaded guilty to

distributing crack cocaine was properly denied a “minor participant”

reduction, because the defendant’s conduct was essential to the commission

of the crimes and the crimes would not have occurred but for his

participation); Carrazco, 91 F.3d at 67 (a defendant who pleaded guilty to

possession with intent to distribute marijuana was properly denied a “minor

participant” reduction, because the evidence that he was just a “mule” was

unpersuasive and, even if he was just a “mule,” there was no evidence that

he was less culpable than others).

However, these fact-based holdings are not necessarily dispositive of

the legal question here, which is whether a defendant charged only with a

“sole participant” offense must be denied a downward adjustment for “minor

participation” as a matter of law. This specific question appears to be one

of first impression in this circuit.

2. The “minor participant” reduction for “sole participant” crimes

Other circuit courts of appeals, however, have visited the legal

question of whether a person convicted of or pleading guilty to a “sole

participant” offense can nonetheless receive a reduction pursuant to

U.S.S.G. § 3B1.2 for being only a “minor participant.” The District of

Columbia Circuit Court of Appeals considered precisely this question in 1991

in United States v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991), cert. denied,

502 U.S. 1061 (1992). In that case, the district court granted a two-level

“minor participant” reduction pursuant to U.S.S.G. § 3B1.2(b) to a defendant

convicted of possession of cocaine with intent to distribute it. Id. The

defendant appealed his
13

conviction on Fourth Amendment grounds and the government cross-appealed on

the ground that, because the defendant was convicted of a crime that did not

involve any other participant, the defendant could not have been a “minor”

participant in that crime as a matter of law. Id. at 1297. The District

of Columbia Circuit Court of Appeals noted that in a prior decision, it had

held that an increase in a defendant’s offense level pursuant to U.S.S.G.

§ 3B1.1 for an “aggravating role” in an offense could “‘only be considered

when the defendant has a role in the offense for which “relative

responsibility” can be allocated,’” and furthermore, that the court could

not look to “relevant conduct” as defined by section 1B1.3(a). Id.

(quoting United States v. Williams, 891 F.2d 921, 926 (D.C. Cir. 1989)).

However, in Caballero, the court noted that the Sentencing Commission

had since added a clarifying amendment, United States Sentencing Commission,

Guidelines Manual, Appendix C, part 345 (Amendment 345), which became

effective on November 1, 1990, that was counter to the holding in Williams.

Id. at 1298. That amendment explained that “[t]he determination of a

defendant’s role in the offense is to be made on the basis of all conduct

within the scope of section 1B1.3 (Relevant Conduct) . . . and not solely

on the basis of elements and acts cited in the count of the conviction.”

Amendment 345. In light of that clarification, the court reassessed

Williams in the context of a downward adjustment to reinterpret § 3B1 so

that the court’s construction of the guideline would comport with the

language of the amendment. Id.

The court’s reassessment was as follows: 

Like the several courts that have addressed this

issue since the clarifying amendment, we conclude

that section 3B1 allows the sentencing judge to look

to “‘the contours of the underlying scheme itself’

rather than the mere elements of
14

‘the offense charged.’” United States v. Rodriguez, 925 F.2d 107, 111 (5th

Cir. 1991) (quoting United States v. Mir, 919 F.2d 940, 945 (5th Cir.

1990)). See United States v. Fells, 920 F.2d 1179, 1185 (4th Cir. 1990)

(“we reject the argument . . . that a court is bound by the narrow scope of

the offense for which the defendant was convicted”)[, cert. denied, 501 U.S.

1219 (1991)]; United States v. Bierley, 922 F.2d 1061, 1065 (3d Cir. 1990)

(“the fact that there is only one ‘defendant’ does not necessarily mean that

there was only one ‘participant’” for purposes of 3B1); see also United

States v. Gordon, 895 F.2d 932, 935 (4th Cir.) (Wilkins, J.) (pre-amendment

decision written by Sentencing Commission chairman, holding that mitigating

adjustment is appropriate if there has been group conduct, even if group did

not participate in specific crime of conviction), cert. denied, [498] U.S.

[846], 111 S. Ct. 131, 112 L. Ed. 2d 98 (1990). Of particular interest are

the Fifth Circuit decisions in Rodriguez and Mir. Before the amendment,

that circuit, following our Williams decision, held that section 3B1 does

not allow consideration of “relevant conduct” as defined by section 1B1.1.

See United States v. Barbontin, 907 F.2d 1494 (5th Cir. 1990); United States

v. Mourning, 914 F.2d 699 (5th Cir. 1990); United States v. Alfaro, 919 F.2d

962 (5th Cir. 1990). In response to the amendment, however, the Fifth

Circuit reversed direction in Mir, 919 F.2d at 944-46, and then, in

Rodriguez, 925 F.2d at 110-11, explicitly rejected its earlier

interpretation. Because our reasoning in Williams—like that in the earlier

Fifth Circuit case—was nullified by the clarifying amendment, we too must

adjust our interpretation of section 3B1.

Caballero, 936 F.2d at 1298-99. Upon reconsideration, the District of

Columbia Circuit Court of Appeals established a two-part test to determine

when a defendant convicted of a “sole participant” crime may nonetheless be

entitled to a “minor participant” reduction:
15

Viewing section 3B1.2 anew, we see no barrier to

a trial court’s conclusion that a defendant convicted

of [possession with intent to distribute a controlled

substance] can be a “minor” participant. Before it

may find that a defendant was a minor participant in

the offense, however, the evidence available to the

court at sentencing must, at a minimum, show (i) that

the “relevant conduct” for which the defendant would,

within the meaning of section 1B1.3(a)(1), be

otherwise accountable involved more than one

participant (as defined in section 3B1.1, comment.

(n.1)) and (ii) that the defendant’s culpability for

such conduct was relatively minor compared to that of

the other participant(s). The application of section

3B1.2 is inherently fact-bound and largely committed

to the discretion of the trial judge.

Caballero, 936 F.2d at 1299. The court rejected a finding of “minor”

participation solely on the basis of the defendant’s status as a “courier”

for the drug distribution scheme, however, concluding, as has this court,

that status as a courier, by itself, is not enough to support a finding that

the defendant is a “minor” participant, even though this is essentially the

example of a “minimal” participant given in application note 2 to § 3B1.2.

Id. Therefore, the court remanded to the district court for application of

the proper legal standard. Id.

Since the decision of the District of Columbia Circuit Court of Appeals

in Caballero, the Ninth Circuit Court of Appeals has joined that court in

concluding that “minor participant” determinations pursuant to § 3B1.2 for

persons convicted of “sole participant” crimes—such as possession with

intent to distribute controlled substances— must be made on the basis of the

two-prong test established in Caballero, also reversing its own prior

precedent to reach that conclusion. Compare United States v. Demers, 13

F.3d 1381, 1382 (9th Cir. 1994) (reiterating the two-prong test in

Caballero, citing Webster, infra); United States v. Webster, 996 F.2d 209

(9th Cir.
16

1993) (statements in prior decisions that “downward adjustments may not be

based on relevant but uncharged conduct are no longer valid because of the

subsequent adoption by the Sentencing Commission of amendment 345 to the

introductory commentary to Chapter Three, Part B of the Guidelines”); with

United States v. Valdez-Gonzalez, 957 F.2d 643, 648 (9th Cir. 1992) (holding

that a downward adjustment pursuant to § 3B1.2 was not available for drug

couriers where the defendants “were the sole participants in the offenses

to which they pleaded guilty”); United States v. Zweber, 913 F.2d 705, 709

(9th Cir. 1990) (holding that § 3B1.2 “specifically requires the court to

adjust only for the defendant’s role in the conviction offense, not in

charged or uncharged collateral conduct,” and “the role in the collateral

conduct may not itself serve as the basis for a role adjustment”).

3. The test for this circuit

The conclusions of the District of Columbia and Ninth Circuit Courts

of Appeals that defendants convicted of “sole participant” offenses may

nonetheless be entitled to a “minor participant” reduction are sound in

light of the present language of the Sentencing Guidelines and application

notes thereto. First, § 3B1.2 states that the reduction is to be made on

the basis of the defendant’s degree of participation “in any criminal

activity,” not merely in the offense of conviction. U.S.S.G. § 3B1.2.

Indeed, this court has so held. See United States v. Lucht, 18 F.3d 541,

556 (8th Cir.) (the determination of a defendant’s role in an offense is

based on all relevant conduct, not solely on the act of conviction), cert.

denied, 513 U.S. 949 (1994). Furthermore, the application notes instruct

that the degree of participation is to be measured in comparison to other

participants in “concerted” or “group” activity, not merely those involved

in a charged “conspiracy.” U.S.S.G. § 3B1.2, application note 1. Yet, most

persuasive of all, as the other appellate courts to consider the question

have concluded,
It would be unreasonable to assume that “participant” meant one thing for the 4

“aggravating role” adjustment, and another thing for the “mitigating role” adjustment.

Thus, we do not hesitate to apply the definition of “participant” in the application notes

to § 3B1.1 to § 3B1.2.

17

is the specific instruction in the introductory commentary to Part B that

“[t]he determination of a defendant’s role in the offense is to be made on

the basis of all conduct within the scope of § 1B1.3 (Relevant Conduct),

i.e., all conduct included under § 1B1.3 (a)(1)-(4), and not solely on the

basis of the elements and acts cited in the count of conviction.” U.S.S.G.

§ Ch. 3, Part B, introductory commentary. Furthermore, application notes

to § 3B1.1 explain that a “participant” “is a person who is criminally

responsible for the commission of the offense, but need not have been

convicted.” U.S.S.G. § 3B1.1, application note 1.4

We therefore adopt the two-prong test established in Caballero, and

hold that a defendant convicted of a “sole participant” offense may

nonetheless be entitled to a reduction in his or her base offense level for

a mitigating role pursuant to U.S.S.G. § 3B1.2 if the defendant shows the

following: (1) that the “relevant conduct,” within the meaning of section

1B1.3(a)(1), for which the defendant would otherwise be accountable involved

more than one participant (as defined in section 3B1.1, application note 1);

and (2) that the defendant’s culpability for such conduct was relatively

minor compared to that of the other participant or participants. We note

further that a reduction in the offense level pursuant to § 3B1.2 may not

be appropriate, as the application notes provide, where “a defendant has

received a lower offense level by virtue of being convicted of an offense

significantly less serious than warranted by his actual criminal conduct,”

because “such a defendant is not substantially less culpable than a

defendant whose only conduct involved the less serious offense.”
18

U.S.S.G. § 3B1.2, application note 4; Lucht, 18 F.3d at 556.

4. The effect of a Rule 20 transfer

Nor can we find that it makes any difference to the applicability of

a downward adjustment pursuant to § 3B1.2 that Snoddy was pleading guilty

in the District of Nebraska to an indictment from the Southern District of

Texas pursuant to Rule 20 of the Federal Rules of Criminal Procedure. Rule

20 provides that, after the defendant has stated a wish to plead guilty in

one district after indictment in another, and after the United States

attorneys for both districts have agreed to the transfer, “the prosecution

shall continue” in the transferee district. FED. R. CRIM. P. 20. The rule

does not, however, put any limitations upon the sentencing power of the

transferee court. The “continuation” of the prosecution would naturally

include consideration of all relevant sentencing guidelines, both

aggravating and mitigating, enhancing or reducing. Cf. United States v.

Ford, 618 F.2d 530, 542 (7th Cir. 1980) (“The reported decisions hold or

recognize that where an indictment is transferred under Rule 20, the

transferor court loses jurisdiction and the transferee court acquires

exclusive jurisdiction of the indictment proceeding. Examples are Warren

v. Richardson, 333 F.2d 781, 783 (9th Cir. 1964); Perry v. United States,

432 F. Supp. 645, 648-49 (M.D. Fla. 1977); United States v. Binion, 107 F.

Supp. 680 (D. Nev. 1952).”). But see United States v. Khan, 822 F.2d 451,

455 (4th Cir. 1987) (“The unmistakable assumption underlying Rule 20 is that

a transfer will occur only when a defendant first concedes criminal

culpability thereby waiving any trial on the charges. The transfer is then

purely for the purpose of imposing sentence. Subject matter jurisdiction

is, thereby, shifted from the charging district to the transferee district

for the narrow purpose envisioned in the rule,” and the transferee court

erred by entering a judgment of acquittal, because a determination of the

merits of the charges by the transferee court “clearly exceeded the limits

of the
Indeed, there would be no legal impediment to any “mitigating role” reduction, 5

whether “minimal,” “minor,” or “in between” pursuant to § 3B1.2, simply because

Snoddy was charged with possession with intent to distribute marijuana—a “sole

participant” offense—rather than a conspiracy offense.

19

delegated jurisdiction under Rule 20”).

5. Snoddy’s request for a “minor participant” reduction

We find no legal impediment to application of a “minor participant”

reduction to Snoddy’s base offense level under U.S.S.G. § 3B1.2, as that

sentencing guideline is properly construed. It also appears to us that the 5

sentencing judge probably made the necessary factual findings to satisfy the

Caballero test we have adopted today. Caballero, 936 F.2d at 1299. For

example, the sentencing judge was “not quarreling or taking exception” with

Snoddy’s version of his participation in a multi-participant drug

distribution scheme, and indeed, the sentencing judge professed himself

willing to grant Snoddy a minor role reduction, based on his degree of

participation as compared to others, had Snoddy been charged with

conspiracy. Transcript of Sentencing Proceedings, p. 29. However, in an

abundance of caution, we will remand to the district court for specific

factual determinations of Snoddy’s role in the offense and resentencing

under a correct construction of U.S.S.G. § 3B1.2, rather than simply

reversing and imposing a different sentence. This course seems to us the

most prudent, because, as both this court and the District of Columbia

Circuit Court of Appeals have previously observed, determination of

participant status in an offense is an intensely factual one. See PadillaPena, 129 F.3d at 471 (“Whether a downward adjustment is warranted is

determined not only by comparing the acts of each participant in relation

to the relevant conduct for which the participant is held accountable, but

also by measuring each participant’s individual acts and relative

culpability against the
20

elements of the offense.”); Caballero, 936 F.2d at 1299 (“The application

of section 3B1.2 is inherently fact-bound and largely committed to the

discretion of the trial judge.”). Thus, it is more appropriate for the

sentencing judge to reassess Snoddy’s participation upon a remand.

III. CONCLUSION

In this case, the sentencing judge’s conclusion that U.S.S.G. § 3B1.2

did not permit a “minor participant” reduction to a defendant pleading

guilty to a “sole participant” offense is inconsistent with current law and

must be reversed. Therefore, a remand is required for the sentencing judge

to determine whether Snoddy has shown (1) that the “relevant conduct,”

within the meaning of section 1B1.3(a)(1), for which Snoddy would otherwise

be accountable involved more than one participant (as defined in section

3B1.1, application note 1); and (2) that Snoddy’s culpability for such

conduct was relatively minor compared to that of the other participant or

participants.

Reversed and remanded for resentencing in accordance with this opinion.

A true copy.

Attest:

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