Mitigating Role Analysis Under USSG 3B1.2 Leads to Reversal

USA v. Joseph J. Hill.  07-2714. 

Joseph J. Hill and Larry E. Lumsden both pleaded guilty to a charge that they had unlawfully possessed firearms as convicted felons, in violation of 18 U.S.C. § 922(g)(1). Hill con-tends that the district court improperly denied him an offense-level reduction based on his mitigating role in the offense, see U.S.S.G. § 3B1.2.

Because the district court appears to have erroneously believed Hill was ineligible for a mitigating-role reduction due to the fact that he was held accountable only for his own criminal conduct, we vacate his sentence and remand for re-sentencing.

Hill maintains that he was entitled to a reduction in his offense level for the weapons offense based on his minimal or minor role in that offense. Hill's position is that when one looks to the broader conduct of which his possession of the weapons was a part-namely, the theft and subsequent sale of the guns to the CI-his involvement was indeed minor if not minimal: he did not participate in the burglary in which the guns were taken, he did not arrange the sale of the guns to the CI, nor did he profit from the sale. His involvement was limited to wrapping the guns in the blanket (on September 7) and helping to carry them from Lumsden's home to the CI's vehicle outside (on September 11).

Section 3B1.2 provides for "a range of [offense-level] 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, cmt. (n.3(A)). As logic would suggest, the guideline only applies when there was more than one criminally culpable participant in the offense. Id., cmt. (n.2).

The determination whether to grant the defendant credit for his lesser role in the offense requires the court to "weigh[ ] the totality of the circumstances" and is "heavily dependent on the facts of the particular case." Id., cmt. (n.3(C)).

We review the district court's construction of a guideline and its methodology in applying the guide-line de novo, as these present legal questions. See United States v. Wasz, 450 F.3d 720, 726 (7th Cir. 2006). We review the court's factual findings for clear error. United States v. Veazey, 491 F.3d 700, 706 (7th Cir. 2007). And to the extent a particular guideline enhancement or reduction (properly construed and applied) rests on the court's factual assessment, we review the decision to impose or deny the enhancement or reduction for clear error. United States v. Wagner, 467 F.3d 1085, 1089 (7th Cir. 2006).

The commentary to the mitigating role guideline was amended in 2001 in a respect that has particular importance in this case. Prior to the amendment, we were of the view that if a defendant, notwithstanding his participation in concerted criminal activity, was sentenced solely for his own criminal conduct and not the conduct of the other participants in the concerted activity, then he was ineligible for a mitigating role reduction. See, e.g., United States v. Hamzat, 217 F.3d 494, 497 (7th Cir. 2000).

To resolve a division among the circuits on this issue, the Sentencing Commission in 2001 added the following statement to the commentary:  A defendant who is accountable under 1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose role in the offense was limited to transporting or storing drugs and who is accountable under 1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.

We have recognized that the amended commentary effectively overruled our prior cases on this subject. United States v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir. 2004). 

In view of the amended commentary, the district court committed legal error in deeming Hill ineligible for a mitigating role reduction pursuant to section 3B1.2.

Although the district court was aware of the 2001 amendment, it believed there was "no basis" for a reduction given that Hill had pleaded guilty simply to a "narrowly tailored" felon-in-possession charge rather than a broader charge such as the distribution of firearms as to which he played a lesser role than his co-defendant. Sent Tr. 12-13. This reasoning fails to appreciate the change wrought by the amended commentary and largely repeats the very rationale that the Sentencing Commission rejected.

"The 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 elements and acts cited in the count of conviction." U.S.S.G. Chapter Three, Part B, intro. cmt.; see United States v. Anderson, 259 F.3d 853, 864 n.9 (7th Cir. 2001) (citing United States v. Ramsey, 237 F.3d 853, 861-62 (7th Cir. 2001)).

In short, Hill's offense of conviction should not be treated as an isolated act in which only he was involved, but rather one step in a broader criminal scheme that involved multiple participants. Hill is eligible for a section 3B1.2 reduction.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

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