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United States v. Robert J. Smith Jr., 95-2910 (1996)

Court: Court of Appeals for the Eighth Circuit Number: 95-2910 Visitors: 5
Filed: Apr. 08, 1996
Latest Update: Mar. 02, 2020
Summary: _ No. 95-2910 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Robert J. Smith, Jr., * * [UNPUBLISHED] Appellant. * _ Submitted: April 4, 1996 Filed: April 8, 1996 _ Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. _ PER CURIAM. Robert Smith pleaded guilty to conspiring to distribute and possess with intent to distribute at least 50 grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841
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                                    ___________

                                    No. 95-2910
                                    ___________

United States of America,                *
                                         *
              Appellee,                  *
                                         * Appeal from the United States
     v.                                  * District Court for the
                                         * Western District of Missouri.
Robert J. Smith, Jr.,                    *
                                         *       [UNPUBLISHED]
              Appellant.                 *
                                    ___________

                     Submitted:     April 4, 1996

                           Filed:   April 8, 1996
                                    ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________


PER CURIAM.


     Robert Smith pleaded guilty to conspiring to distribute and possess
with intent to distribute at least 50 grams of cocaine base, in violation
of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A).         The district court1
sentenced him to 151 months imprisonment and three years supervised
release.   Smith appeals, and we affirm.


     On appeal, Smith argues the district court erred in denying him a
minor-participant role reduction under U.S.S.G. § 3B1.2.       Section 3B1.2
provides "a range of adjustments for a defendant who plays a part in
committing the offense that makes him substantially less culpable than the
average participant."      U.S.S.G. § 3B1.2, comment. (backg'd.).   A "minor
participant" is one "who is less




      1
      The HONORABLE ELMO B. HUNTER, United States District Judge
for the Western District of Missouri.
culpable than most other participants."           U.S.S.G. § 3B1.2, comment. (n.3).
The district court's denial of a minor-participant reduction will not be
reversed unless it is clearly erroneous.            See United States v. Rayner, 
2 F.3d 286
, 288 (8th Cir. 1993).


     After carefully reviewing the record, we conclude the district court
did not clearly err by denying Smith the role reduction.             Smith arranged
a large-scale crack transaction, made the necessary telephone calls,
accompanied the source to the transaction, and received compensation.              The
fact that he did not supply the crack himself does not mean that his role
was only minor.      See United States v. Harris, 
974 F.2d 84
, 86 (8th Cir.
1992).


     Smith    also     argues    that   a    criminal    history   category   of    IV
over-represented the seriousness of his past criminal conduct, and that the
district court therefore erred in refusing to depart downward at sentencing
under U.S.S.G. § 4A1.3.         Because the record shows the district court was
aware of its authority to depart from the Guidelines range of 151-188
months, its discretionary decision not to do so is unreviewable.                   See
United States v. Hall, 
7 F.3d 1394
, 1396 (8th Cir. 1993).


     Accordingly, we affirm.


     A true copy.


             Attest:


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




                                            -2-

Source:  CourtListener

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