                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 06-3920
                                ________________

United States of America,               *
                                        *
            Appellant,                  *
                                        *      Appeal from the United States
      v.                                *      District Court for the
                                        *      District of Nebraska.
Scott E. Goodman,                       *
                                        *
            Appellee.                   *

                                ________________

                         Submitted: September 25, 2007
                             Filed: December 7, 2007
                                ________________

Before COLLOTON, BEAM and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Scott Goodman pled guilty to conspiracy to manufacture methamphetamine
and possession of pseudoephedrine with intent to manufacture methamphetamine.
The district court granted Goodman a four-level reduction for being a minimal
participant under United States Sentencing Guidelines § 3B1.2(a) and a downward
departure under § 5K2.0 (or alternatively a downward variance under 18 U.S.C. §
3553(a)) and sentenced him to 12 months and one day of imprisonment and three
years of supervised release. The Government appeals this sentence. For the reasons
below, we vacate the sentence and remand to the district court for resentencing.
I.    BACKGROUND

        On November 12, 2003, Omaha police received a disturbance and shoplifting
call to a grocery store. Officers encountered Goodman, whose then-girlfriend, Leslie
Fisher, had been detained for shoplifting cold medicine containing pseudoephedrine,
a key ingredient necessary to manufacture methamphetamine. Goodman confirmed
Fisher’s story that she was being paid $100 to obtain cold medicine containing
pseudoephedrine, although he refused to identify the individual paying her, and
admitted to the police that this was the second time he had either purchased or
shoplifted pseudoephedrine products. Goodman consented to a search of his truck,
located outside of the grocery store. Within the truck, police found a gun and
approximately two grams of methamphetamine, as well as glassware, several plastic
containers, approximately 650 pseudoephedrine pills, aluminum foil, 500 coffee
filters, and 22 lithium batteries, all of which are used in the manufacture of
methamphetamine. Police also discovered 2.4 grams of methamphetamine divided
into three baggies, aluminum foil and a scale on Goodman’s person. The police
arrested Goodman and Fisher.

       On December 18, 2003, an indictment was filed charging Goodman and Fisher
with conspiring to manufacture methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and 846 and possessing a listed chemical, pseudoephedrine, with intent to
manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2). Goodman and
Fisher pled guilty to the charges in the indictment. On September 23, 2004, the
district court sentenced Goodman to 12 months and one day of imprisonment and
three years of supervised release. The Government appealed the sentence, which was
imposed after Blakely v. Washington, 542 U.S. 296 (2004), and before United States
v. Booker, 543 U.S. 220 (2005). This court remanded the case for resentencing so the
district court could impose a sentence after properly determining the applicable
advisory guidelines range. United States v. Goodman, 170 Fed. Appx. 1002 (8th Cir.

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2006) (per curiam). While the first appeal was pending, Goodman completed his term
of imprisonment.

       At Goodman’s resentencing, the parties agreed to a base offense level of 26 and
a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b).
Over the Government’s objection, the district court granted Goodman a four-level
mitigating role reduction as a minimal participant under U.S.S.G. § 3B1.2(a).
Goodman thus had a total offense level of 19 with a criminal history category of I,
resulting in an advisory sentencing guidelines range of 30 to 37 months’
imprisonment. Noting Goodman’s post-sentencing rehabilitation, including his
negative drug tests, his continuous employment, his marriage to Fisher and support
of her drug rehabilitation, and his payment of child support, the district court granted
Goodman a downward departure for extraordinary rehabilitation under U.S.S.G. §
5K2.0. The district court then sentenced Goodman to time served under the initial
sentence, stating that had it not granted a downward departure under U.S.S.G. §
5K2.0, it would have imposed the same sentence by granting a downward variance
under 18 U.S.C. § 3553(a) for the same reasons.

       The Government appeals the district court’s sentence, claiming the district court
erred in finding that Goodman qualified as a minimal participant under § 3B1.2(a) and
in granting the downward departure or the alternative downward variance based on
Goodman’s extraordinary post-sentencing rehabilitation.

II.   DISCUSSION

       The Government first argues that the district court erred in granting Goodman
a four-level reduction for being a minimal participant under U.S.S.G. § 3B1.2(a). A
district court’s decision to grant a mitigating role reduction is a question of fact that
we review for clear error. United States v. Carasa-Vargas, 420 F.3d 733, 737 (8th
Cir. 2005). We find a district court’s decision to grant a role reduction to be clearly

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erroneous when we are “left with the definite and firm conviction that a mistake has
been committed.” United States v. Goebel, 898 F.2d 675, 678 (8th Cir. 1990) (internal
quotation omitted); see also United States v. Ramos-Torres, 187 F.3d 909, 915 (8th
Cir. 1999).

       The Sentencing Guidelines allow for a four-offense level minimal-participant
reduction for those “who are plainly among the least culpable of those involved in the
conduct of a group.” U.S.S.G. § 3B1.2, cmt. n.4. The Sentencing Commission noted
that the minimal participant reduction should be allowed “infrequently,” and only for
those who lack “knowledge or understanding of the scope and structure of the
enterprise and of the activities of others.” Id. Minimal participants are those with
“insignificant” involvement in the criminal activity. United States v. Boksan, 293
F.3d 1056, 1058 (8th Cir. 2002). The Sentencing Commission provided examples of
individuals who could qualify as minimal participants, such as those “who played no
other role in a very large drug smuggling operation than to offload part of a single
marihuana shipment, or in a case where an individual was recruited as a courier for
a single smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2
cmt. n.2 (2000) (omitted in subsequent editions); accord United States v. Yirkovsky,
338 F.3d 936, 941 (8th Cir. 2003). The burden of establishing minimal-participant
status rests with the criminal defendant. See United States v. Bueno, 443 F.3d 1017,
1022 (8th Cir. 2006). In determining whether a defendant qualifies as a minimal
participant, a court should look at the defendant’s relevant conduct. Carasa-Vargas,
420 F.3d at 737. A court must also compare the acts of the defendant to the acts of
the other participants and the acts of the defendant as they relate to the elements of the
offense. United States v. Stanley, 362 F.3d 509, 511 (8th Cir. 2004).

       In finding that Goodman qualified as a minimal participant, the district court
held that he was “plainly the least culpable of the three co-defendants” and that “his
involvement was only to assist Leslie Fisher in obtaining pseudoephedrine.” The
district court concluded that because Fisher received a two-level reduction as a minor

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participant and was more culpable than Goodman, Goodman should be entitled to a
four-level minimal-participant reduction. Had Goodman’s conduct been limited to
driving Fisher to the store so that she could obtain the pseudoephedrine, his conduct
might be comparable to that of a typical drug courier, with little knowledge or
understanding of the full scope and structure of the criminal enterprise—in this case,
essentially a conspiracy to manufacture methamphetamine. However, Goodman
presented no evidence suggesting that he lacked knowledge or understanding of the
scope of the conspiracy to manufacture methamphetamine. Moreover, the evidence
of Goodman’s relevant conduct shows that he was much more involved in the
conspiracy to manufacture methamphetamine than merely driving Fisher to the store
to obtain pseudoephedrine. Cf. United States v. Snoddy, 139 F.3d 1224, 1225 (8th Cir.
1998).

       As part of his guilty plea, Goodman admitted that he was obtaining
pseudoephedrine knowing that it would be used in the manufacture of
methamphetamine and that he was conspiring with others to manufacture
methamphetamine. At Goodman’s resentencing, the Government presented the
testimony of Officer Eric White, one of the arresting officers. Officer White testified
about the items seized from Goodman’s truck, the items seized from Goodman and
Goodman’s statements. Goodman told officers that he knew Fisher had been offered
$100 to obtain ten to fifteen boxes of pseudoephedrine products and that this was only
his second time purchasing or shoplifting pseudoephedrine products. However, the
evidence clearly shows that Goodman’s involvement in the methamphetamine
conspiracy extended far beyond simply assisting Fisher in obtaining pseudoephedrine
for some unidentified third party on one or two occasions.

      To the contrary, the evidence compels a finding that Goodman was deeply
involved in the manufacture, and perhaps even distribution, of methamphetamine.
Police officers seized 22 lithium batteries, 500 filters, aluminum foil, glass and plastic
containers, a scale, a gun and three separate baggies of methamphetamine from his

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truck and his person. No evidence has been presented to suggest those items belonged
to Fisher. The items seized from Goodman’s truck and from his person are all
associated with the manufacture or distribution of methamphetamine. See, e.g.,
United States v. Hall, 497 F.3d 846, 849 n.3 (8th Cir. 2007) (finding that, among other
items, glass and plastic containers, lithium batteries and coffee filters were associated
with the manufacture of methamphetamine); United States v. Rodriguez, 484 F.3d
1006, 1009 (8th Cir.), cert. denied, --- U.S. ---, 128 S. Ct. 316 (2007) (finding that,
among other items, a scale is an item “associated with distribution of controlled
substances”); United States v. Goff, 449 F.3d 884, 886 (8th Cir. 2006), cert. denied, ---
U.S. ---, 127 S. Ct. 2095 (2007) (stating that aluminum foil is a common element in
the manufacture of methamphetamine); United States v. Engler, 422 F.3d 692, 696
(8th Cir. 2005) (upholding a jury’s finding that small, individually-wrapped packages
of actual methamphetamine was intended for distribution); United States v. Caballero,
420 F.3d 819, 821 (8th Cir. 2005) (stating that “[t]he presence of firearms, generally
considered a tool of the trade for drug dealers, is also evidence of intent to
distribute”).

      The district court failed to account for all of the relevant conduct evidence when
it found that Goodman’s only involvement was to assist Fisher in obtaining
pseudoephedrine. The evidence shows that Goodman was not merely assisting Fisher
in obtaining pseudoephedrine but was also fully involved in the manufacture of
methamphetamine. Furthermore, in determining whether a defendant qualifies as a
minimal participant, a court may consider whether certain elements of the defendant’s
conduct “exceeded the minimum necessary to be found guilty of the offenses.”
Yirkovsky, 338 F.3d at 942. Here, the evidence shows that Goodman not only aided
Fisher in obtaining pseudoephedrine, he also possessed the materials required to
manufacture methamphetamine, possessed actual methamphetamine, and had items
typically associated with the distribution of methamphetamine, such as a scale, small,
individually wrapped baggies of actual methamphetamine and a gun. See, e.g.,
Rodriguez, 484 F.3d at 1009; Engler, 422 F.3d at 696; Caballero, 420 F.3d at 821.

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       After reviewing the record, we are left with the firm conviction that the district
court erred in finding that Goodman’s only involvement was to assist Fisher in
obtaining methamphetamine, and we hold that the district court committed clear error
in granting Goodman a four-level reduction based on his role as a minimal participant
under U.S.S.G. § 3B1.2(a). The evidence shows that Goodman’s conduct fully met
the elements of the offenses, that his relevant conduct even exceeded the elements of
the offenses, and that he was at least as culpable as Fisher. At a minimum, Goodman
clearly was not plainly the least culpable of the those involved in the offenses.

        The Government next argues that the district court erred in granting either a
downward departure or, alternatively, a downward variance from the calculated
advisory guidelines range of 30 to 37 months’ imprisonment to 12 months and one
day of imprisonment based on Goodman’s extraordinary post-sentencing
rehabilitation. In resentencing a defendant, the law of this circuit dictates that a
district court cannot consider post-sentencing rehabilitation either for a departure,
United States v. Jenners, 473 F.3d 894, 899 (8th Cir. 2007), or a downward variance,
United States v. Pepper, 486 F.3d 408, 413 (8th Cir. 2007). Thus, in resentencing
Goodman, the court could have validly considered any evidence it could have heard
at the original sentencing but should not have considered any evidence of Goodman’s
post-sentencing rehabilitation. See Jenners, 473 F.3d at 899.

III.   CONCLUSION

      Therefore, because the district court committed clear error in granting Goodman
a mitigating role reduction as a minimal participant and thus miscalculated the
advisory sentencing guidelines range, and because the district court improperly
considered Goodman’s post-sentencing rehabilitation in imposing its sentence, we
vacate the sentence and remand for resentencing.
                       ______________________________

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