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United States v. Danos, 95-30418 (1995)

Court: Court of Appeals for the Fifth Circuit Number: 95-30418 Visitors: 5
Filed: Dec. 08, 1995
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 95-30418 (Summary Calendar) _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GEORGE J. DANOS, Defendant-Appellant. _ Appeal from the United States District Court For the Eastern District of Louisiana (94-CR-248-A) _ December 21, 1995 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Defendant George J. Danos appeals the application of the Sentencing Guidelines to his conviction for conspiracy to distribute cocain
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                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT

                               _______________

                                   No. 95-30418

                              (Summary Calendar)
                                _______________


                    UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                    versus

                    GEORGE J. DANOS,

                                           Defendant-Appellant.


              _______________________________________________

                Appeal from the United States District Court
                    For the Eastern District of Louisiana
                                (94-CR-248-A)
              _______________________________________________

                        December 21, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

       Defendant George J. Danos appeals the application of the

Sentencing       Guidelines   to    his   conviction   for    conspiracy     to

distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

846.       Finding no reversible error, we affirm.

       On two separate occasions, Danos met with undercover federal

agents who sought to negotiate the purchase of crack cocaine.                In

each instance, Danos phoned a cocaine distributor, and then led the


       *
            Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
agents to a location where a dealer sold the agents approximately

one ounce of crack cocaine for $1000.              After each purchase, the

undercover agents paid Danos $150 for setting up the transaction.

      Danos was charged in a three-count indictment with conspiracy

to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)

and 846, and distribution of cocaine base, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2.          Pursuant to a written plea

agreement, Danos pleaded guilty to count one of the indictment,

conspiracy to distribute cocaine base.             The district court found

Danos to have been a "minor participant" under § 3B1.2(b) of the

Sentencing Guidelines, and gave Danos a two-level reduction in his

offense level.       The district court then sentenced Danos to 57

months imprisonment, five years supervised release, a $5000 fine,

and a $50 special assessment.        Danos appeals his sentence, arguing

that the district court erred in giving him a two-level reduction

in his offense level as a "minor participant," under § 3B1.2(b) of

the   Sentencing    Guidelines,    instead    of    a   three   or   four-level

reduction as a "minimal participant" under § 3B1.2(a).1

      We will not disturb a defendant's sentence on appeal unless

the district court incorrectly applied the Sentencing Guidelines,


    1
            Section 3B1.2 of the Guidelines provides for the following reductions
in offense level:

      (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.

                                     -2-
or the sentence falls outside the allowed Guidelines range and is

unreasonable.     United States v. Brown, 
54 F.3d 234
, 240 (5th Cir.

1995).   Whether a reduction is warranted under § 3B1.2 of the

Sentencing Guidelines is a factual determination which we review

under the clearly erroneous standard. United States v. Tremelling,

43 F.3d 148
, 152 (5th Cir.), cert. denied, ___ U.S. ___, 
115 S. Ct. 1990
, 
131 L. Ed. 2d 876
(1995).     The district court's finding will

stand as long as it "is plausible in light of the record as a

whole." United States v. Edwards, 
65 F.3d 430
, 432 (5th Cir. 1995)

(internal quotation marks omitted).

     Danos argues that he deserved a three or four-level reduction

in his offense level because he was "plainly among the least

culpable of those involved in the conduct of a group."           U.S.S.G.

§3B1.2, comment. (n.1).    However, we have previously held that the

mere "fact that some participants may be more culpable . . . does

not entitle" a defendant to a reduction under § 3B1.2.               Molano-

Garza v. U.S. Parole Comm'n, 
965 F.2d 20
, 24 (5th Cir. 1992), cert.

denied, ___ U.S. ___, 
113 S. Ct. 1009
, 
122 L. Ed. 2d 158
(1993).

Reductions under 3B1.2(a) are intended to be given infrequently.

U.S.S.G. §3B1.2, comment. (n.2).           Under this provision, "the

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."           U.S.S.G. §3B1.2,

comment. (n.1).

     Reviewed   as   a   whole,   the    record   indicates   that    Danos'

participation rose above the "minimal" level described in 3B1.2(a).


                                   -3-
Without    Danos,   the      drug     transaction      could    not    have       taken

place))Danos contacted the supplier, brought the parties together,

and profited from the transaction.             Further, Danos engaged in this

activity at least twice.            See U.S.S.G. § 3B1.2, comment. (n.2)

(putting    emphasis      on    a     defendant's       one-time      or   "single"

participation in an offense in determining whether a defendant was

a "minimal participant").           We have previously held that it is not

clearly    erroneous    to     deny    a    defendant     who   brokers       a    drug

transaction    a    §     3B1.2(b)         two-level    reduction      for        minor

participation.      See 
Tremelling, 43 F.3d at 152
("A role as a go-

between does not warrant a finding of minor participation.").                        In

light of our holding in Tremelling, we cannot see how Danos

participation in this case entitles him to a greater reduction in

offense level (three or four-levels) under § 3B1.2.                   Accordingly,

we hold that the district court's refusal to afford Danos a three

or four-level reduction in offense level as a "minimal participant"

was not clearly erroneous.

     For the forgoing reasons, we AFFIRM.




                                        -4-

Source:  CourtListener

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