This case cites:
1993
1991

(Only cases currently available in AltLaw are listed.)

Before: ENGEL, MERRITT, and MOORE, Circuit Judges.

ORDER

1

Joel C. Ashby appeals a district court judgment of conviction and sentence. The parties have waived oral argument and this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

In 1996, Ashby pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and one count of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A). The district court sentenced Ashby to 60 months of imprisonment and three years of supervised release and imposed a $100.00 special assessment. Ashby has filed a timely appeal, in which he argues that the district court should have awarded him a downward adjustment in his Sentencing Guideline range for being a minor participant in the criminal offense.

3

Upon review, we conclude that the district court properly denied Ashby a downward adjustment because he was not a minor participant in the criminal scheme. If the court determines that a defendant was a minor participant in the criminal activity underlying his conviction, the court decreases the defendant's total offense level by two points. USSG § 3B1.2(b). A minor participant is any participant who is less culpable than most other participants, but whose role cannot be described as minimal. USSG § 3B1.2, comment. (n. 3). The defendant must prove, by a preponderance of the evidence, that mitigating factors exist which warrant the reduction for a minor role in the offense. United States v. Moss, 9 F.3d 543, 554 (6th Cir.1993). The district court's determination concerning a defendant's role in the offense constitutes a factual finding which is reviewed only for clear error. Id.

4

The district court did not commit clear error in denying Ashby's request for a reduced offense level under USSG § 3B1.2(b). Ashby admitted at his sentencing hearing that he recruited several individuals to act as couriers for the drug conspiracy. On at least one occasion, Ashby also acted as a courier when he transported a large quantity of cash to Charlotte, North Carolina. At the time of his arrest, Ashby was driving a co-conspirator to a hotel to obtain 20 kilograms of cocaine. Ashby's testimony at his sentencing hearing reflected a familiarity with the number of individuals involved in the conspiracy and the extent of the conspiracy. In light of these facts, Ashby was not a minor participant in the criminal activity.

5

Although Ashby now argues on appeal that he may alternatively be entitled to a four level reduction for being a minimal participant under USSG § 3B1.2(a), he did not raise this argument in the district court and, consequently, has waived consideration of the issue absent a finding of plain error. United States v. Nagl, 947 F.2d 211, 213 (6th Cir.1991), cert. denied, 504 U.S. 958 (1992). Since Ashby is not entitled to a reduction for being a minor participant, he clearly is not entitled to a minimal participant reduction under § 3B1.2(a).

6

Accordingly, this court affirms the district court's judgment.

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