## The HONORABLE MARK W. BENNETT, United States District Judge fo r

* 

## 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 State s v. * District Court for th e 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 o btain a reduction in sentence pursuant to U.S.S.G. § 3B1.2(b) for being a

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“minor participant”? The defendant here—who pleaded guilty to possessio n of marijua na with intent to distribute it after being caught with a tru ckload of the controlled substance—claims that his role as a “mule” was mino r compared to the other players in the marijuana distribution scheme

. Des pite the government’s agreement to a “minor participant” reduction in a ple a agreement, and the defendant’s uncontested evidence of his minor role offere d at sentencing, the sentencing judge concluded that the defendan t coul d not receive a “minor participant” reduction, because he was charge d with a sole participant offense rather than conspiracy to distribute th e marijuana. On appeal, we reverse and remand.

I. BACKGROUND It is u ndisputed that defendant-appellant Marc Snoddy was arreste d Feb ruary9, 1997, by a border patrol agent at a roving border patro l checkp oint in Falfurrias, Texas, when the border patrol agent discovere d th irty-sevenkilograms of marijuana built into the false front of the be d 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 sub stances 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 t o Rul e 20 of the Federal Rules of Criminal Procedure, Snoddy agreed to plead gui ltyto the indictment and the case was transferred to the District o f Nebraska. As part of the plea agreement, the government agreed to recommend that Sno ddy 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. Th e presentence investigation report (PSR)

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

. Instea d, the PSR calculated Snoddy’s offense level as 18, based on th e
amo unt of marijuana found in his possession, and recommended only a threelev el reduction for acceptance of responsibility. The PSR stated that the probati onoffice was not aware of other participants in the offense wit h whichSnoddy was charged. Snoddy filed a formal objection to the failur e 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, Sn oddy 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 t o 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 , Neb raska, to drive a truckload of marijuana from McAllen, Texas, to Omaha. Snoddyagreed, and Snoddy and Enrique flew from Omaha to Houston, then o n to McAllen, where they checked into a hotel room. While Snoddy waited i n the room, Enrique made some te lephone calls, conducted in Spanish, and then left the room for fifteen or twenty minutes. When Enriqu e returned, he gave Snoddy a set of keys and pointed out a pick-up truck in the parking lot

. Enr ique 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 Enriqu e pur chased 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 o f events w as corroborated by testimony of an investigator for the federa l public defender’s office, which was proffered by Snoddy’s counsel an d received into evidence without objection at the sentencing hearing. At sentencing before the United States Distri ct Court for the District of

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Nebraska, the government stood by the plea agreement and did not dispute the evidence that Snoddy was just a “mule” in the distributio n scheme. Although the sentencing judge stated that he would have no difficulty recognizin g tha t Snoddy’s participation was minor had he been charged with conspiracy, the se ntencing judge nonetheless denied the request for a two-leve l reduction for minor participation. The court’s reasoning was as follows: [Snoddy ] can’t be a minor role [sic] in a n offense t hat charges him with possession with intent to distribute, but it doesn’t say he did it wit h any bodyelse, or in conjunction with anybody else , and I’m not quarreling or taking exception to th e 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 tak e the indictment as it reads, I can’t change th e in dictment, and I don’t think it’s appropriate t o rec ap the charges that are contained in th e indictment for purposes of sentencing. It’ s for that reason that I am going to den y your objection; not that I don’t bel ieve, if this had been char ged as a conspiracy to distribute less than fift ykilograms, I don’t think I would have a dif ficultyrecognizing that in that conspiracy hi s 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 bein g the sole perpetrator of the crime, that his role i s other than a sole perpetrator, and under Rule 20 h e has to admit to the crime charged or he has to g o back to Texas for disposition or trial. Transc ript of Sentencing Proceedings, pp. 29-30. The sentencing judg e the refore adopted the recommendations in the PSR and reduced Snoddy’s base offense level only by three levels for acceptance of resp onsibility. Snoddy was sentenced to 30 months of imprisonment, the bottom of the applicable 30 to 37-months guideline range,

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followed by three years of supervised release. Snoddy asserts that hi s guideline range with the further two-level reduction for minor participation would have been 24 to 30 months. Onappeal, Snoddy contends that he is entitled to a two-level reductio n of hi s base offense for being only a “minor participant” pursuant t o U.S. S.G. § 3B1.2(b). He contends that neither the language of th e applicable guidelines nor any judicial decisions of this court prohibit him from receiving such a reductio n because he was charged with possession with intent to distribute a controlled substance rather than conspiracy t o dis tribute it. Indeed, he asserts that this court has upheld such a reduction for persons charged only with possession or distribution offenses
ra ther than conspiracy. Snoddy also argues that the sentencing judg e mistakenly equated his plea pu rsuant to Rule 20 with an agreement to accept all ad verse sentencing guidelines while abandoning all mitigating ones

. Snoddy prays for reversal of the district court’s sentence, upon de nov o review, and remand for resente ncing under a “correct” interpretation of the Sentencing Guidelines. The go vernment argues that the sentencing judge exercised hi s discre tionnot 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 ro le” in the offense with which he was charged. The governmen t contends that the threshold re quirement for a “minor participant” reduction
was not satisfied, because inherent in such a reduction is a finding tha t the defendant is less culpable than other participants. Thus, th e government contends that there was no “clear error” in the district judge’s refusal to apply the reduction, because the government contends that th e distri ct judge’s decision rested upon a factual determination that th e appellant had not been a minor participant, not on some incorrect lega l interpretation of the guidelines.

### 6 II. LEGAL ANALYSIS A. Standard Of Review It is well-established that this court reviews a district court’ s fa ctual findings at sentencing for clear error. See, e.g., United State s
v. Coving ton , 133 F.3d 639, 642 & 643-44 (8th Cir. 1998) (this court’ s revi ewof factual determinations with respect to offenses in the crimina l history computation pursuant to U.S.S.G. § 4B1.1 “‘are su bject to a “clearly erroneous” standard of review,’” quoting United States v. Lowe , 930 F.2 d 645, 646-47 (8th Cir. 1991), as are findings as to the identity of drug s at tributable to a defendant); United States v. Whatley , 133 F.3d 601, 60 6 (8th Ci r. 1998) (this court reviews for clear error factual findings fo r
se ntencing); United States v. Dierling , 131 F.3d 722, 736 (8th Cir. 1997 ) (appellate review of sentencin g 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 c lear error); United States v. Darden , 70 F.3d 1507, 1544 (8th Cir. 1995) (same), cert. denied , ___ U.S. ___, 116 S. Ct

. 144 9, and cert. denied , ___ U.S. ___, 116 S. Ct. 2567 (1996). This “clear error” standard applies specifically to the district court’s denial o n fact ual 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); Uni ted 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” reductio n pursuant to U.S.S.G. § 3B1.2, and that “[a] distri ct court’s factual determination regarding the role played by a def endant in a criminal activity is reviewed under the ‘clearly erroneous’ standar d,” citing United States v. Fregoso , 60 F.3d 1314, 1329 (8th Cir

. 199 5), 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 

## reviewedfor clear error, the district court’s determination of whether to grant a twolevel reduction for “minor” participation or a four-level reduction for “minimal ” participationis reviewed for abuse of discretion. See United States v. McCarthy , 97 F.3d1562, 1 579 (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 t he district court’s determination of § 3B1.2 adjustments for clear error.”). 1 However, it is just as well-established that review of a distric t court’s interpretation and construction of the federal se ntencing guidelines is de novo

. See, e.g., Wells , 127 F.3d at 744 (when this court reviewed the govern ment’s challenge to a sentence imposed under the guidelines, thi s court stated that review of the district court’s application an d 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 wa s reviewed for clear error); Uni ted States v. Drapeau , 121 F.3d 344, 347 (8th Ci r. 1997) (“‘The district court’s interpretation of the sentencin g 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

. Dola n , 120 F.3d 856, 870 (8th Cir. 1997) (although factual determination s for sentencing under the federal guidelines are reviewed under the clearly erroneous standard, “[w]e review de novo the district cou rt’s interpretation of the Guidelines”); Van Brock lin , 115 F.3d at 600 (“We review the district
cou rt’s interpretation of the Guidelines de novo, and the factual findings supp orting its conclusions for clear error.”); United States v. Jones , 8 7 F.3d 247, 248 (8th Cir.) ( per curiam ) (appellate review of the distric t court’s construction and interpretation of

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Ch apter 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 th e portion of the sentencing tran script quoted above that the sentencing judge didnot deny Snoddy a “minor participant” reduction on any factual ground. Transc ript of Sentencing Proceedings, pp. 29-30. Indeed, the sentencin g judge made clear that he was “not quarreling or taking ex ception to the fact that what you’re telling me [about Snoddy’s participation] is true,” an d that “if this had been charged as a conspiracy to distrib ute less than fifty kilograms, I don’t think I wou ld have a difficulty recognizing that in that conspiracy his role was a minor role.” Id. The only gro unds the sentencing judge gave for his denial of Snoddy’s request for a “minor participant ” red uction were his legal conclusions, first, that such a reduction was not available when Snoddy was char ged with a sole participant offense, that is, when t he indictment “charge[d] him with possession with intent t o distribute, but it doesn’t say he did it with anybody else, or i n
con junction 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 t he construction and interpr etationof the guidelines, not with any factual determinatio n pursuant to guideline requirements. Because the denial o f the reduction was bas ed on the sentencing judge’s interpretation of § 3B1.2, not any factual determination, our review is d e 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; Va n 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 pa rticipant

in any criminal activity , decrease by 4levels. (b) If the defendant wa s a minor participant inany criminal activity, decrease by 2 levels. Incases falling between (a) and (b), decrease by 3 levels. U.S.S.G. § 3B1.2.
9 provides for a reduction in th e 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), peti tion 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 “a ny participant who is less culpable than mos t other participants, but whose role could not b e described as minimal.” [U.S.S.G. § 3B1.2] , applicationnote 3. The mere fact that a defendan t is less culpable than his codefendants does no t enti tle defendant to “minor participant” status

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

. 1991). Whether a downward adjustmen t is warranted is determined not only by comparing the acts of eac h part icipant in relation to the relevant conduct fo r whic hthe participant is held accountable, but als o bymeasuring each participant’s individual acts an d rel ative culpability against the elements of th e 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 leas t culp ableof 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 aro le as minimal participant.” Id. The downward adjust ment

for a minimal participant should be “use d infrequently” and is “appropriate, for example, for someone whoplayed no other role in a very large drug smugglin g operation than to offload part of a single marihuan a 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-Pe na , 129 F.3d at 471; Holloway , 128 F.3d at 1258; Chatman , 11 9 3 F.3d at 1341. 1. Drug couriers and “minor” participation As the government asserts, this court has recognized that a defendant’ s rol e as just a “mule” in a drug distribution scheme does not necessaril y
en title the defendant to a “minor participant” reduction. See, e.g. , Chatman , 119 F.3d at 1341 (although the defendant contended that he wa s 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 d rugs and the defendant merely transported them); United States v

. McGrady , 97 F.3d 1042, 1043 (8th Cir. 1996) (although the defendan t
con tended that he was merely a courier who played a small role in the drug dea ls, the court upheld denial of a “minor participant” reduction, because the de fendant’s role was “significant” in carrying out the dru g transac tions); United States v. Carrazco , 91 F.3d 65, 67 (8th Cir. 1996 ) (where the defendant argued that he was entitled to a § 3B1.2

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reduct ionbecause he was just a “mule,” this court upheld denial of th e 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 othe r par ticipants 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 tha t case). However, this court has also, upon occasion, allowed a downwar d adjustment for minor participa tion to a person charged with distribution of

a contro lled substance rather than conspiracy, as Snoddy contends. Se e UnitedStates v. Garvey , 905 F.2d 1144, 1145 (8th Cir. 1990) (where a defendant who pleaded guilty to distributing hashish oil asserted he wa s merely a courier with no owner ship interest in the hashish oil found in his po ssession, and therefore he should receive a “minimal” participan t reductio n, or 3-level “in between” reduction, pursuant to § 3B1.2, thi s court held that participant status is a factual determination based upo n culpab ility, not courier status, and upheld only the “minor participant ” reduction rather than a more g enerous reduction). Another circuit court of app eals has also upheld granting a defendant who pleaded guilty to charges of possession of a controlled substance with intent to distribute it a t least a partial “minor partici pant” 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 ful l levels, pursuant to § 3B1.2 for a defendant who pl eaded guilty to possession with intent to distribute heroin)

. Furthe rmore, when affirming the denial of a reduction for “minor ” par ticipation to persons charged with possession with intent to distribute a controlled substance, this c ourt has never done so on the ground that the reductionwas unavailable as a matter of law to persons charged only wit h “sole participant” offenses, but only on factual grounds based on the degree of the

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defend ant’s participation or “culpability.” See, e.g., Chatman , 119 F.3 d at 13 41 (a defendant who pleaded guilty to possession with intent t o distri bute cocaine was properly denied a “minor participant” reduction , based in p art on the fact that the defendant was using his own vehicle t o transp ort the cocaine and on the amount of the cocaine found in th e vehicle); McGrady , 97 F.3d at 1043 (a defendant who pleaded guilty t o distrib uting crack cocaine was properly denied a “minor participant ” red uction, because the defendant’s conduct was essential to the commission of the crimes and the crimes would not have occurred but for hi s par ticipation); Carrazco , 91 F.3d at 67 (a defendant who pleaded guilty to possession with intent to dist ribute marijuana was properly denied a “minor par ticipant” reduction, because the evidence that he was just a “mule” was unp ersuasive and, even if he was just a “mule,” there was no evidence that he was less culpable than others). However, these fac t-based holdings are not necessarily dispositive of the legal question here, which is whether a defendant charged only with a “so le participant” offense must be denied a downward adjustment for “minor participation” as a matter of law. This specific questio n 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 lega l questi onof whether a person convicted of or pleading guilty to a “sol e partici pant” offense can nonetheless receive a reduction pursuant t o U.S.S. G. § 3B1.2 for being only a “minor participant.” The District o f Columbia Circuit Court of Appeals considered precisely th is question in 1991 in United States v. Caballero , 936 F.2d 1292 (D.C. Cir. 1 991), 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

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conviction on Fourth Amendment grounds and the government cross-appealed on the ground that, because the defendant was convicted of acrime that did not inv olve any other participant, the defendant could not have been a “minor” participa nt in that crime as a matter of law. Id. at 1297. The Distric t of Columbia Circuit Court of A ppeals noted that in a prior decision, it had he ld that an increase in a defendant’s offense level pursuant to U.S.S.G

. § 3 B1.1 for an “aggravating role” in an offense could “‘only be considered whe nthe defendant has a role in the offense for which “relativ e respon sibility” can be allocated,’” and furthermore, that the court coul d 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 Caball ero , the court noted that the Sentencing Commission had since added a clarifying amendment, United States Sen tencing Commission, Guidel ines Manual, Appendix C, part 345 (Amendment 345), which becam e 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 conduc t within the scope of section 1B1.3 (Relevant Conduct) . . . and not solel y
on the basis of elements and acts cited in the count of the conviction. ” Amendment 345. In light of that clarification, the court reassesse d Wil liams in the context of a downward adjustment to reinterpret § 3B1 s o th at the court’s construction of the guideline would comport with th e language of the amendment. Id. The court’s reassessment was as follows: Like the several courts that have addressed thi s issue since the clarifying amendment, we conclud e that sect ion 3B1 allows the sentencing judge to look to “‘the contours of the underlying scheme itself ’ rather than the mere elements of

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‘the offense charged.’” Unite d 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”)[, cer t. denied , 501 U.S. 121 9 (1991)]; United States v. Bierley , 922 F.2d 1061, 1065 (3d Cir. 1990) (“the fact that there is only one ‘defendant’ does not ne cessarily mean that there was only one ‘participant’” for purposes of 3B1); see also Unite d States v. Gordon , 895 F.2d 932 , 935 (4th Cir.) (Wilkins, J.) (pre-amendment decision written by SentencingCommission 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 part icular interest are the Fif th Circuit decisions in Rodriguez and Mir . Before the amendment , that circuit, following our Williams decision, held that section 3B1 doe s not allow consideration of “relevant conduct” as defined by section 1B1.1. See United States v. Barbontin , 907 F.2d 1494 (5th Cir. 1 990); 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 Fift h Circuit re versed direction in Mir , 919 F.2d at 944-46, and then, i n Rodriguez , 925 F.2d at 110-11, explicitly rejected its earlie r interpretation. Because our r easoning in Williams —like that in the earlier Fift hCircuit case—was nullified by the clarifying amendment, we too mus t adjust our interpretation of section 3B1. Cabal lero , 936 F.2d at 1298-99. Upon reconsideration, the District o f Col umbia 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 Viewingsection 3B1.2 anew, we see no barrier t o a trial court’s conclusion that a de fendant convicted of [possession with intent to distri bute a controlled su bstance] can be a “minor” participant. Before i t may find that a defendant was a minor participant in the offense, however, the evidence available to th e court at sentencing must, at a minimum, show (i) that the “relevant conduct” for which the defendant would, withinthe meaning of section 1B1.3(a)(1), b e ot herwise accountable involved more than on e par ticipant (as defined in section 3B1.1, comment

. (n.1)) an d (ii) that the defendant’s culpability for such conduct was relatively minor co mpared to that of the other participant(s). The appli cation 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 ” par ticipation 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 sup port a finding that the defendant is a “minor” par ticipant, even though this is essentially the
example of a “minimal” participant given in application note 2 to § 3B1.2. Id. Therefore, the court rema nded to the district court for application of the proper legal standard. Id. Since the decision of the District of Columbia Circuit Court of Appeal s in Caballero , the Ninth Circuit Court of Appeals has joined that court i n
con cluding that “minor participant” determinations pursuant to § 3B1.2 for persons convicted of “sole participant” crimes—such as possession wit h intent to distribute controlled substances— must be made on the basis of the two-pr ong test established in Caballero , also reversing its own prio r precede nt to reach that conclusion. Compare United States v. Demers , 1 3 F.3 d 1381, 1382 (9th Cir. 1994) (reiterating the two-prong test i n Caba llero , citing Webster , infra ); United States v. Webster , 996 F.2d 20 9 (9th Cir.

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199 3) (statements in prior decisions that “downward adjustments may not be bas ed on relevant but uncharged conduct are no longer valid because of the subsequent adoption by the Sentencing Commission of amendment 345 to th e int roductory 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 dru g
cour iers where the defendants “were the sole participants in the offense s to which they pleaded guilty”); United States v. Zweber , 913 F.2d 705, 709 (9 thCir. 1990) (holding that § 3B1.2 “specifically requires the court t o adjust only for the defendant’s role in the conviction offense, not i n char ged or uncharged collateral conduct,” and “the role in the collatera l 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 App eals that defendants convicted of “sole participant” offenses ma y nonethel ess be entitled to a “minor participant” reduction are sound i n lig ht of the present language of the Sentencing Guidelines and application notes ther eto. First, § 3B1.2 states that the reduction is to be made o n th e basis of the defendant’s degree of participation “in any crimina l activi ty,” not merely in the offense of conviction. U.S.S.G. § 3B1.2

. Indeed, th is 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 i s bas ed on all relevant conduct, not solely on the act of conviction), cert. deni ed , 513 U.S. 949 (1994). Furthermore, the application notes instruc t that the degree of participation is to be measured in comparison to othe r par ticipants in “concerted” or “group” activity, not merely those involved in a charged “conspiracy.” U.S.S.G. § 3B1.2, applicationnote 1. Yet, most pe rsuasive of all, as the other appellate courts to consider the questio n 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 tha t “[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 note s to § 3B1. 1 explain that a “participant” “is a person who is criminall y responsible for the commission of the offense, but need not have bee n convicted.” U.S.S.G. § 3B1.1, application note 1. 4
We therefore adopt the two-prong test established in Caballero , an d hold t hat a defendant convicted of a “sole participant” offense ma y nonetheless be entitled to a r eduction in his or her base offense level for
a mitigating role pursuant to U.S.S.G. § 3B1.2 if the defendant shows th e fol lowing: (1) that the “relevant conduct,” within the meaning of section 1B1.3(a)(1), for which the defendant would otherwise be a ccountable involved more than one participant (as defined in section 3B1.1, a pplication note 1); and (2) that the defendant’s culpability for such conduct was relativel y minor compared to that of the other participant or participants. We not e further tha t a reduction in the offense level pursuant to § 3B1.2 may no t be appropriate, as the application notes provide, where “a defendant ha s received a lower offense level by virtue of being convicted of an offens e sig nificantly less serious than warranted by his actual criminal conduct,” becaus e “such a defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense.”

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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 guilt y in the District of Nebraska to an indictment from the Southern District of Texas pursuant to Rule 20 of t he Federal Rules of Criminal Procedure. Rule 20 provides that, after the defendant has stated a wish to plead guilty in
on e district after indictment in another, and after the United State s att orneys for both districts have agreed to the transfer, “the prosecution shall continue” in the transferee district. F ED . R. C RIM . P. 20. The rule does not, however, put any limitations upon the sentencing power of th e transf eree court. The “continuation” of the prosecution would naturall y in clude consideration of all relevant sentencing guidelines, bot h aggravating and mitigating, enhancing or reducing. Cf. United States v

. For d , 618 F.2d 530, 542 (7th Cir. 1980) (“The reported decisions hold o r recognize that where an indictment is transferred under Rule 20, th e tran sferor court loses jurisdiction and the transferee court acquire s exclus ive jurisdiction of the indictment proceeding. Examples are Warre n
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. Sup p. 680 (D. Nev. 1952).”). But see United States v. Khan , 822 F.2d 451, 455 (4th Cir. 1987) (“The unmistakable assumption underly ing Rule 20 is that
a tran sfer will occur only when a defendant first concedes crimina l culpability thereby waiving any trial on the charges. The transfer is then pure lyfor the purpose of imposing sentence. Subject matter jurisdictio n is, thereby, shifted from the charging district to the transferee district for the narrow purpose envisioned in the rule,” and the transferee cour t
er red by entering a judgment of acquittal, because a determination of th e
mer its 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 becaus e Snoddy was charged with possession with intent to distribute marijuana—a “sol e participant” offense—rather than a conspiracy offense.
19 delegated jurisdiction under Rule 20”). 5. Snoddy’s request for a “minor participant” reduction We fin d no legal impediment to application of a “minor participant ” reducti onto Snoddy’s base offense level under U.S.S.G. § 3B1.2, as tha t sentencing guideline is properly construed. It also appears to us that the 5 sentencing judge probably made the necessary factual find ings to satisfy the Caballero te st we have adopted today. Caballero , 936 F.2d at 1299. Fo r example, the sentencing judge was “not quarreling or taking exception” with Snoddy’s version of his participation in a multi-participant dru g distri butionscheme, and indeed, the sentencing judge professed himsel f willing t o grant Snoddy a minor role reduction, based on his degree o f partic ipationas compared to others, had Snoddy been charged wit h
co nspiracy. Transcript of Sentencing Proceedings, p. 29. However, in a n abundance of caution, we will remand to the district court for specifi c factua l determinations of Snoddy’s role in the offense and resentencin g under a c orrect construction of U.S.S.G. § 3B1.2, rather than simpl y reversing and imposing a different sentence. This course seems to us th e most p rudent, because, as both this court and the District of Columbi a Ci rcuit Court of Appeals have previously observed, determination o f participant status in an offen se is an intensely factual one. See PadillaPena , 129 F.3d at 471 (“Whether a downward adjustment is warranted i s de termined not only by comparing the acts of each participant in relatio n to the relevant conduct for which the participant is held accountable, but also by measuring each participant’s individual acts and relativ e culpability against the

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elem ents of the offense.”); Caballero , 936 F.2d at 1299 (“The applicatio n of se ction 3B1.2 is inherently fact-bound and largely committed to th e discre tionof the trial judge.”). Thus, it is more appropriate for th e 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 n ot permit a “minor participant” reduction to a defendant pleadin g 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 de termine 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 sectio n 3B1.1 , application note 1); and (2) that Snoddy’s culpability for suc h
co nduct was relatively minor compared to that of the other participant o r participants. Reversedand remanded for resentencing in accordance with this opinion

.
A true copy.

Attest:

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