              United States Court Of Appeals
                            FOR THE EIGHTH CIRCUIT


                               _______________

                                No. 97-3366
                               _______________

United States of America,             *
                                      *
           Plaintiff-Appellee,        *
                                      *          Appeal from the United States
      v.                              *          District   Court    for   the
District
                                      *          of Nebraska
Marc A. Snoddy,                       *
                                      *
           Defendant-Appellant.       *

                                 ___________

                       Submitted:     March 11, 1998

                           Filed:    April 6, 1998
                                 ___________
                                                            *
Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT,         District Judge.
                               ___________

BENNETT, District Judge.
     When, if ever, can a criminal defendant who pleads guilty to a sole
participant offense obtain a reduction in sentence pursuant to U.S.S.G. §
3B1.2(b) for being a




     *
       The HONORABLE MARK W. BENNETT, United States District Judge for
the Northern District of Iowa, sitting by designation.
“minor participant”?    The defendant here—who pleaded guilty to possession
of   marijuana with intent to distribute it after being caught with a
truckload of the controlled substance—claims that his role as a “mule” was
minor compared to the other players in the marijuana distribution scheme.
Despite the government’s agreement to a “minor participant” reduction in a
plea agreement, and the defendant’s uncontested evidence of his minor role
offered at sentencing, the sentencing judge concluded that the defendant
could not receive a “minor participant” reduction, because he was charged
with a sole participant offense rather than conspiracy to distribute the
marijuana.
      On appeal, we reverse and remand.


                                I.   BACKGROUND
      It is undisputed that defendant-appellant Marc Snoddy was arrested
February 9, 1997, by a border patrol agent at a roving border patrol
checkpoint in Falfurrias, Texas, when the border patrol agent discovered
thirty-seven kilograms of marijuana built into the false front of the bed
of the pickup truck Snoddy was driving.    The marijuana was discovered after
the border patrol agent, suspicious of Snoddy’s behavior, brought over a
drug dog, which alerted to the presence of controlled substances in Snoddy’s
vehicle.    Snoddy was indicted in the Southern District of Texas on a charge
of possession of the marijuana with intent to distribute it.     Pursuant to
Rule 20 of the Federal Rules of Criminal Procedure, Snoddy agreed to plead
guilty to the indictment and the case was transferred to the District of
Nebraska.
      As part of the plea agreement, the government agreed to recommend that
Snoddy receive a two-level reduction in his base offense level pursuant to
U.S.S.G. § 3B1.2 for being a “minor” participant in the offense.         The
presentence investigation report (PSR)




                                       2
by the probation office, however, did not include this agreed reduction.
Instead, the PSR calculated Snoddy’s offense level as 18, based on the
amount of marijuana found in his possession, and recommended only a three-
level reduction for acceptance of responsibility.    The PSR stated that the
probation office was not aware of other participants in the offense with
which Snoddy was charged.    Snoddy filed a formal objection to the failure
to include in the PSR the agreed reduction for his minor participation and
the district judge set the matter down for hearing.
     At the hearing, Snoddy presented uncontested evidence that he was not
the only participant in a scheme to distribute marijuana and that his role
in the scheme consisted only of transporting the marijuana from Texas to
Nebraska.   Specifically, Snoddy presented evidence that he was recruited by
a co-worker Snoddy knew only as Enrique at his place of work in Omaha,
Nebraska, to drive a truckload of marijuana from McAllen, Texas, to Omaha.
Snoddy agreed, and Snoddy and Enrique flew from Omaha to Houston, then on
to McAllen, where they checked into a hotel room.     While Snoddy waited in
the room, Enrique made some telephone calls, conducted in Spanish, and then
left the room for fifteen or twenty minutes.   When Enrique returned, he gave
Snoddy a set of keys and pointed out a pick-up truck in the parking lot.
Enrique told Snoddy to leave McAllen at first light and to drive the truck
to Omaha.    Snoddy never learned the details of how or from whom Enrique
purchased the marijuana nor what Enrique intended to do with the marijuana
in Omaha.   As instructed, Snoddy left for Omaha the next morning, but he was
stopped and arrested in Falfurrias, Texas.      Much of Snoddy’s version of
events was corroborated by testimony of an investigator for the federal
public defender’s office, which was proffered by Snoddy’s counsel and
received into evidence without objection at the sentencing hearing.
     At sentencing before the United States District Court for the District
of




                                      3
Nebraska, the government stood by the plea agreement and did not dispute the
evidence that Snoddy was just a “mule” in the distribution scheme.           Although
the sentencing judge stated that he would have no difficulty recognizing
that Snoddy’s participation was minor had he been charged with conspiracy,
the   sentencing   judge   nonetheless   denied   the   request   for   a   two-level
reduction for minor participation.       The court’s reasoning was as follows:
                  [Snoddy] can’t be a minor role [sic] in an
            offense that charges him with possession with intent
            to distribute, but it doesn’t say he did it with
            anybody else, or in conjunction with anybody else,
            and I’m not quarreling or taking exception to the
            fact that what you’re telling me is true, that’s the
            way it occurred.
                  But when it comes up on a Rule 20 I have to take
            the indictment as it reads, I can’t change the
            indictment, and I don’t think it’s appropriate to
            recap the charges that are contained in the
            indictment for purposes of sentencing.
                  It’s for that reason that I am going to deny
            your objection; not that I don’t believe, if this had
            been charged as a conspiracy to distribute less than
            fifty kilograms, I don’t think I would have a
            difficulty recognizing that in that conspiracy his
            role was a minor role.
                  But I don’t believe that I can find that where
            he is charged in a one count indictment, with being
            the sole perpetrator of the crime, that his role is
            other than a sole perpetrator, and under Rule 20 he
            has to admit to the crime charged or he has to go
            back to Texas for disposition or trial.
Transcript of Sentencing Proceedings, pp. 29-30.            The sentencing judge
therefore adopted the recommendations in the PSR and reduced Snoddy’s base
offense level only by three levels for acceptance of responsibility.           Snoddy
was sentenced to 30 months of imprisonment, the bottom of the applicable 30
to 37-months guideline range,




                                         4
followed by three years of supervised release.                  Snoddy asserts that his
guideline range with the further two-level reduction for minor participation
would have been 24 to 30 months.
      On appeal, Snoddy contends that he is entitled to a two-level reduction
of his base offense for being only a “minor participant” pursuant to
U.S.S.G.    §   3B1.2(b).      He    contends      that   neither   the   language   of   the
applicable guidelines nor any judicial decisions of this court prohibit him
from receiving such a reduction because he was charged with possession with
intent to distribute a controlled substance rather than conspiracy to
distribute it.       Indeed, he asserts that this court has upheld such a
reduction for persons charged only with possession or distribution offenses
rather than conspiracy.             Snoddy also argues that the sentencing judge
mistakenly equated his plea pursuant to Rule 20 with an agreement to accept
all adverse sentencing guidelines while abandoning all mitigating ones.
Snoddy prays for reversal of the district court’s sentence, upon de novo
review, and remand for resentencing under a “correct” interpretation of the
Sentencing Guidelines.
      The   government      argues     that    the   sentencing     judge   exercised     his
discretion not to apply the downward adjustment pursuant to U.S.S.G.
§ 3B1.2, because Snoddy had not demonstrated that he indeed played only a
“minor role” in the offense with which he was charged.                      The government
contends that the threshold requirement for a “minor participant” reduction
was not satisfied, because inherent in such a reduction is a finding that
the   defendant    is   less   culpable       than   other   participants.      Thus,     the
government contends that there was no “clear error” in the district judge’s
refusal to apply the reduction, because the government contends that the
district judge’s decision rested upon a factual determination that the
appellant had not been a minor participant, not on some incorrect legal
interpretation of the guidelines.




                                               5
                            II.   LEGAL ANALYSIS
                           A.   Standard Of Review
     It is well-established that this court reviews a district court’s
factual findings at sentencing for clear error.      See, e.g., United States
v. Covington, 133 F.3d 639, 642 & 643-44 (8th Cir. 1998) (this court’s
review of factual determinations with respect to offenses in the criminal
history computation pursuant to U.S.S.G. § 4B1.1 “‘are subject to a “clearly
erroneous” standard of review,’” quoting United States v. Lowe, 930 F.2d
645, 646-47 (8th Cir. 1991), as are findings as to the identity of drugs
attributable to a defendant); United States v. Whatley, 133 F.3d 601, 606
(8th Cir. 1998) (this court reviews for clear error factual findings for
sentencing); United States v. Dierling, 131 F.3d 722, 736 (8th Cir. 1997)
(appellate review of sentencing findings is for clear error); United States
v. Wells, 127 F.3d 739, 744 (8th Cir. 1997) (when the challenge to a
guidelines sentence was by the government, this court reviewed the district
court’s findings of fact for clear error); United States v. Darden, 70 F.3d
1507, 1544 (8th Cir. 1995) (same), cert. denied, ___ U.S. ___, 116 S. Ct.
1449, and cert. denied, ___ U.S. ___, 116 S. Ct. 2567 (1996).     This “clear
error” standard applies specifically to the district court’s denial on
factual grounds of a “minor participant” reduction pursuant to U.S.S.G. §
3B1.2.   See United States v. Holloway, 128 F.3d 1254, 1258 (8th Cir. 1997);
United States v. Chatman, 119 F.3d 1335, 1341 (8th Cir. 1997) (noting that
the burden is on the defendant to demonstrate that he or she is entitled to
a “minor participant” reduction pursuant to U.S.S.G. § 3B1.2, and that “[a]
district court’s factual determination regarding the role played by a
defendant in a criminal activity is reviewed under the ‘clearly erroneous’
standard,” citing United States v. Fregoso, 60 F.3d 1314, 1329 (8th Cir.
1995), and United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir. 1989)),
cert. denied, ___ U.S. ___, 118    S. Ct. 434 (1997); United States v. Van




                                      6
Brocklin, 115 F.3d 587, 601 (8th Cir. 1997) (“We review the district court’s
                                                                       1
determination of § 3B1.2 adjustments for clear error.”).
        However, it is just as well-established that review of a district
court’s interpretation and construction of the federal sentencing guidelines
is de novo.      See, e.g., Wells, 127 F.3d at 744 (when this court reviewed the
government’s challenge to a sentence imposed under the guidelines, this
court       stated   that   review     of   the   district   court’s       application   and
construction of the guidelines is de novo, but the court found that each of
the government’s challenges concerned a factual finding, so that each was
reviewed for clear error); United States v. Drapeau, 121 F.3d 344, 347 (8th
Cir.    1997)    (“‘The     district   court’s    interpretation   of       the   sentencing
guidelines is a question of law subject to de novo review, while its factual
determinations are subject to review only for clear error,’” quoting United
States v. Larson, 110 F.3d 620, 627 (8th Cir. 1997)); United States v.
Dolan, 120 F.3d 856, 870 (8th Cir. 1997) (although factual determinations
for sentencing under the federal guidelines are reviewed under the clearly
erroneous standard, “[w]e review de novo the district court’s interpretation
of the Guidelines”); Van Brocklin, 115 F.3d at 600 (“We review the district
court’s interpretation of the Guidelines de novo, and the factual findings
supporting its conclusions for clear error.”); United States v. Jones, 87
F.3d 247, 248 (8th Cir.) (per curiam) (appellate review of the district
court’s construction and interpretation of




        1
        Although factual determinations concerning a defendant’s role in an offense are
reviewed for clear error, the district court’s determination of whether to grant a two-
level reduction for “minor” participation or a four-level reduction for “minimal”
participation is reviewed for abuse of discretion. See United States v. McCarthy, 97
F.3d 1562, 1579 (8th Cir. 1996), cert. denied sub nom. Thompsen v. United States,
___ U.S. ___, 117 S. Ct. 1011, and cert. denied sub nom. Houston v. United States,
___ U.S. ___, 117 S. Ct. 1284 (1997).
                                              7
Chapter Four of the U.S. Sentencing Guidelines is de novo), cert. denied,
___ U.S. ___, 117 S. Ct. 374 (1996); Darden, 70 F.3d at 1544.
       The government’s protestations notwithstanding, it is clear from the
portion of the sentencing transcript quoted above that the sentencing judge
did not deny Snoddy a “minor participant” reduction on any factual ground.
Transcript of Sentencing Proceedings, pp. 29-30.                         Indeed, the sentencing
judge made clear that he was “not quarreling or taking exception to the fact
that what you’re telling me [about Snoddy’s participation] is true,” and
that “if this had been charged as a conspiracy to distribute less than fifty
kilograms, I don’t think I would have a difficulty recognizing that in that
conspiracy his role was a minor role.”               Id.    The only grounds the sentencing
judge gave for his denial of Snoddy’s request for a “minor participant”
reduction were his legal conclusions, first, that such a reduction was not
available when Snoddy was charged with a sole participant offense, that is,
when   the    indictment         “charge[d]    him    with        possession   with    intent    to
distribute,    but    it       doesn’t   say   he    did    it    with    anybody   else,   or   in
conjunction with anybody else,” and, second, that it was not “appropriate”
to depart from the indictment when the defendant comes before the court on
a Rule 20 plea.      Id.       These conclusions have to do with the construction and
interpretation       of    the    guidelines,       not    with    any   factual    determination
pursuant to guideline requirements.             Because the denial of the reduction was
based on the sentencing judge’s interpretation of § 3B1.2, not any factual
determination, our review is de novo.               See Wells, 127 F.3d at 744; Drapeau,
121 F.3d at 347; Dolan, 120 F.3d at 870; Larson, 110 F.3d at 627; Van
Brocklin, 115 F.3d at 600; Jones, 87 F.3d at 248.


                          B.    The “Minor Participant” Reduction
       We thus embark on a de novo interpretation of U.S.S.G. § 3B1.2.                       That
guideline




                                                8
provides for a reduction in the defendant’s base offense level owing to his
or   her   “mitigating   role”   in   terms    of   either   “minimal”    or   “minor”
                                      2
participation.    U.S.S.G. § 3B1.2;       United States v. Padilla-Pena, 129 F.3d
457, 471 (8th Cir. 1997), petition for cert. filed, (Feb. 3, 1998) (No. 97-
7772), and petition for cert. filed, (Feb. 3, 1998) (No. 97-7790).             As this
court recently explained, a “minor participant” pursuant to U.S.S.G. § 3B1.2
            is “any participant who is less culpable than most
            other participants, but whose role could not be
            described as minimal.”        [U.S.S.G. § 3B1.2],
            application note 3. The mere fact that a defendant
            is less culpable than his codefendants does not
            entitle defendant to “minor participant” status.
            United States v. West, 942 F.2d 528, 531 (8th Cir.
            1991). Whether a downward adjustment is warranted is
            determined not only by comparing the acts of each
            participant in relation to the relevant conduct for
            which the participant is held accountable, but also
            by measuring each participant’s individual acts and
            relative culpability against the elements of the
            offense. United States v. Goebel, 898 F.2d 675, 677
            (8th Cir. 1990).




      2
       This sentencing guideline is as follows:
            § 3B1.2      Mitigating Role
                         Based on the defendant’s role in the offense,
                         decrease the offense level as follows:
                         (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.
                                           9
                                        3
Padilla-Pena, 129 F.3d at 471;              Holloway, 128 F.3d at 1258; Chatman, 119
F.3d at 1341.
      1.     Drug couriers and “minor” participation
      As the government asserts, this court has recognized that a defendant’s
role as just a “mule” in a drug distribution scheme does not necessarily
entitle the defendant to a “minor participant” reduction.                        See, e.g.,
Chatman, 119 F.3d at 1341 (although the defendant contended that he was
merely a “mule” in a drug distribution scheme, this court held that a “minor
participant” reduction was not required just because other parties supplied
the drugs and the defendant merely transported them); United States v.
McGrady,   97   F.3d   1042,    1043    (8th    Cir.   1996)   (although   the    defendant
contended that he was merely a courier who played a small role in the drug
deals, the court upheld denial of a “minor participant” reduction, because
the   defendant’s      role    was     “significant”     in    carrying    out    the   drug
transactions); United States v. Carrazco, 91 F.3d 65, 67 (8th Cir. 1996)
(where the defendant argued that he was entitled to a § 3B1.2




      3
       By way of comparison, this court explained “minimal participation” as follows:
            A minimal participant must be “plainly among the least
            culpable of those involved in the conduct of a group.”
            U.S.S.G. § 3B1.2, application note 1. A “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.” Id. The downward
            adjustment for a minimal participant should be “used
            infrequently” and is “appropriate, for example, for someone
            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.” Id., application note 2.
Padilla-Pena, 129 F.3d at 471.
                                               10
reduction because he was just a “mule,” this court upheld denial of the
reduction, because he was not just a “mule,” and even if he was, “a downward
adjustment would not necessarily have been warranted:                      ‘A defendant’s status
as    courier does not necessarily mean he is less culpable than other
participants in a drug operation,’” quoting United States v. Williams, 890
F.2d 102, 104 (8th Cir. 1989), and the record was to the contrary in that
case).
       However, this court has also, upon occasion, allowed a downward
adjustment for minor participation to a person charged with distribution of
a controlled substance rather than conspiracy, as Snoddy contends.                           See
United States v. Garvey, 905 F.2d 1144, 1145 (8th Cir. 1990) (where a
defendant who pleaded guilty to distributing hashish oil asserted he was
merely a courier with no ownership interest in the hashish oil found in his
possession,      and   therefore   he    should    receive        a    “minimal”    participant
reduction, or 3-level “in between” reduction, pursuant to § 3B1.2, this
court held that participant status is a factual determination based upon
culpability, not courier status, and upheld only the “minor participant”
reduction rather than a more generous reduction).                 Another circuit court of
appeals has also upheld granting a defendant who pleaded guilty to charges
of possession of a controlled substance with intent to distribute it at
least a partial “minor participant” reduction.               See United States v. Fagge,
101 F.3d 232, 234-35 (2d Cir. 1996) (upholding the grant of only a one-level
reduction, rather than two full levels, pursuant to § 3B1.2 for a defendant
who    pleaded   guilty    to   possession    with     intent         to    distribute   heroin).
Furthermore,      when    affirming     the   denial    of    a       reduction    for    “minor”
participation to persons charged with possession with intent to distribute
a controlled substance, this court has never done so on the ground that the
reduction was unavailable as a matter of law to persons charged only with
“sole participant” offenses, but only on factual grounds based on the degree
of the




                                              11
defendant’s participation or “culpability.”              See, e.g., Chatman, 119 F.3d
at 1341 (a defendant who pleaded guilty to possession with intent to
distribute cocaine was properly denied a “minor participant” reduction,
based in part on the fact that the defendant was using his own vehicle to
transport the cocaine and on the amount of the cocaine found in the
vehicle); McGrady, 97 F.3d at 1043 (a defendant who pleaded guilty to
distributing    crack     cocaine    was   properly   denied     a   “minor   participant”
reduction, because the defendant’s conduct was essential to the commission
of   the   crimes   and   the     crimes   would   not   have    occurred     but   for   his
participation); Carrazco, 91 F.3d at 67 (a defendant who pleaded guilty to
possession with intent to distribute marijuana was properly denied a “minor
participant” reduction, because the evidence that he was just a “mule” was
unpersuasive and, even if he was just a “mule,” there was no evidence that
he was less culpable than others).
      However, these fact-based holdings are not necessarily dispositive of
the legal question here, which is whether a defendant charged only with a
“sole participant” offense must be denied a downward adjustment for “minor
participation” as a matter of law.         This specific question appears to be one
of first impression in this circuit.
      2.     The “minor participant” reduction for “sole participant” crimes
      Other circuit courts of appeals, however, have visited the legal
question of whether a person convicted of or pleading guilty to a “sole
participant”    offense     can    nonetheless     receive   a   reduction    pursuant     to
U.S.S.G. § 3B1.2 for being only a “minor participant.”                   The District of
Columbia Circuit Court of Appeals considered precisely this question in 1991
in United States v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991), cert. denied,
502 U.S. 1061 (1992).      In that case, the district court granted a two-level
“minor participant” reduction pursuant to U.S.S.G. § 3B1.2(b) to a defendant
convicted of possession of cocaine with intent to distribute it.                    Id.   The
defendant appealed his




                                             12
conviction on Fourth Amendment grounds and the government cross-appealed on
the ground that, because the defendant was convicted of a crime that did not
involve any other participant, the defendant could not have been a “minor”
participant in that crime as a matter of law.            Id. at 1297.    The District
of Columbia Circuit Court of Appeals noted that in a prior decision, it had
held that an increase in a defendant’s offense level pursuant to U.S.S.G.
§ 3B1.1 for an “aggravating role” in an offense could “‘only be considered
when   the   defendant   has   a    role   in   the   offense   for   which   “relative
responsibility” can be allocated,’” and furthermore, that the court could
not look to “relevant conduct” as defined by section 1B1.3(a).                     Id.
(quoting United States v. Williams, 891 F.2d 921, 926 (D.C. Cir. 1989)).
       However, in Caballero, the court noted that the Sentencing Commission
had since added a clarifying amendment, United States Sentencing Commission,
Guidelines Manual, Appendix C, part 345 (Amendment 345), which became
effective on November 1, 1990, that was counter to the holding in Williams.
Id. at 1298.     That amendment explained that “[t]he determination of a
defendant’s role in the offense is to be made on the basis of all conduct
within the scope of section 1B1.3 (Relevant Conduct) . . . and not solely
on the basis of elements and acts cited in the count of the conviction.”
Amendment 345.      In light of that clarification, the court reassessed
Williams in the context of a downward adjustment to reinterpret § 3B1 so
that the court’s construction of the guideline would comport with the
language of the amendment.         Id.
       The court’s reassessment was as follows:
             Like the several courts that have addressed this
             issue since the clarifying amendment, we conclude
             that section 3B1 allows the sentencing judge to look
             to “‘the contours of the underlying scheme itself’
             rather than the mere elements of




                                           13
‘the offense charged.’” United States v. Rodriguez, 925 F.2d 107, 111 (5th
Cir. 1991) (quoting United States v. Mir, 919 F.2d 940, 945 (5th Cir.
1990)). See United States v. Fells, 920 F.2d 1179, 1185 (4th Cir. 1990)
(“we reject the argument . . . that a court is bound by the narrow scope of
the offense for which the defendant was convicted”)[, cert. denied, 501 U.S.
1219 (1991)]; United States v. Bierley, 922 F.2d 1061, 1065 (3d Cir. 1990)
(“the fact that there is only one ‘defendant’ does not necessarily mean that
there was only one ‘participant’” for purposes of 3B1); see also United
States v. Gordon, 895 F.2d 932, 935 (4th Cir.) (Wilkins, J.) (pre-amendment
decision written by Sentencing Commission chairman, holding that mitigating
adjustment is appropriate if there has been group conduct, even if group did
not participate in specific crime of conviction), cert. denied, [498] U.S.
[846], 111 S. Ct. 131, 112 L. Ed. 2d 98 (1990). Of particular interest are
the Fifth Circuit decisions in Rodriguez and Mir. Before the amendment,
that circuit, following our Williams decision, held that section 3B1 does
not allow consideration of “relevant conduct” as defined by section 1B1.1.
See United States v. Barbontin, 907 F.2d 1494 (5th Cir. 1990); United States
v. Mourning, 914 F.2d 699 (5th Cir. 1990); United States v. Alfaro, 919 F.2d
962 (5th Cir. 1990).     In response to the amendment, however, the Fifth
Circuit reversed direction in Mir, 919 F.2d at 944-46, and then, in
Rodriguez,   925 F.2d at 110-11, explicitly rejected its earlier
interpretation. Because our reasoning in Williams—like that in the earlier
Fifth Circuit case—was nullified by the clarifying amendment, we too must
adjust our interpretation of section 3B1.
Caballero, 936 F.2d at 1298-99.     Upon reconsideration, the District of
Columbia Circuit Court of Appeals established a two-part test to determine
when a defendant convicted of a “sole participant” crime may nonetheless be
entitled to a “minor participant” reduction:




                                     14
                      Viewing section 3B1.2 anew, we see no barrier to
                a trial court’s conclusion that a defendant convicted
                of [possession with intent to distribute a controlled
                substance] can be a “minor” participant. Before it
                may find that a defendant was a minor participant in
                the offense, however, the evidence available to the
                court at sentencing must, at a minimum, show (i) that
                the “relevant conduct” for which the defendant would,
                within the meaning of section 1B1.3(a)(1), be
                otherwise   accountable   involved   more   than   one
                participant (as defined in section 3B1.1, comment.
                (n.1)) and (ii) that the defendant’s culpability for
                such conduct was relatively minor compared to that of
                the other participant(s). The application of section
                3B1.2 is inherently fact-bound and largely committed
                to the discretion of the trial judge.
Caballero, 936 F.2d at 1299.            The court rejected a finding of “minor”
participation solely on the basis of the defendant’s status as a “courier”
for the drug distribution scheme, however, concluding, as has this court,
that status as a courier, by itself, is not enough to support a finding that
the defendant is a “minor” participant, even though this is essentially the
example of a “minimal” participant given in application note 2 to § 3B1.2.
Id.    Therefore, the court remanded to the district court for application of
the proper legal standard.        Id.
       Since the decision of the District of Columbia Circuit Court of Appeals
in Caballero, the Ninth Circuit Court of Appeals has joined that court in
concluding that “minor participant” determinations pursuant to § 3B1.2 for
persons convicted of “sole participant” crimes—such as possession with
intent to distribute controlled substances— must be made on the basis of the
two-prong test established in Caballero, also reversing its own prior
precedent to reach that conclusion.                Compare United States v. Demers, 13
F.3d    1381,    1382   (9th   Cir.   1994)   (reiterating     the   two-prong   test   in
Caballero, citing Webster, infra); United States v. Webster, 996 F.2d 209
(9th Cir.




                                              15
1993) (statements in prior decisions that “downward adjustments may not be
based on relevant but uncharged conduct are no longer valid because of the
subsequent adoption by the Sentencing Commission of amendment 345 to the
introductory commentary to Chapter Three, Part B of the Guidelines”); with
United States v. Valdez-Gonzalez, 957 F.2d 643, 648 (9th Cir. 1992) (holding
that a downward adjustment pursuant to § 3B1.2 was not available for drug
couriers where the defendants “were the sole participants in the offenses
to which they pleaded guilty”); United States v. Zweber, 913 F.2d 705, 709
(9th Cir. 1990) (holding that § 3B1.2 “specifically requires the court to
adjust only for the defendant’s role in the conviction offense, not in
charged or uncharged collateral conduct,” and “the role in the collateral
conduct may not itself serve as the basis for a role adjustment”).
     3.    The test for this circuit
     The conclusions of the District of Columbia and Ninth Circuit Courts
of Appeals that defendants convicted of “sole participant” offenses may
nonetheless be entitled to a “minor participant” reduction are sound in
light of the present language of the Sentencing Guidelines and application
notes thereto.    First, § 3B1.2 states that the reduction is to be made on
the basis of the defendant’s degree of participation “in any criminal
activity,” not merely in the offense of conviction.        U.S.S.G. § 3B1.2.
Indeed, this court has so held.    See United States v. Lucht, 18 F.3d 541,
556 (8th Cir.) (the determination of a defendant’s role in an offense is
based on all relevant conduct, not solely on the act of conviction), cert.
denied, 513 U.S. 949 (1994).    Furthermore, the application notes instruct
that the degree of participation is to be measured in comparison to other
participants in “concerted” or “group” activity, not merely those involved
in a charged “conspiracy.”   U.S.S.G. § 3B1.2, application note 1.   Yet, most
persuasive of all, as the other appellate courts to consider the question
have concluded,




                                      16
is the specific instruction in the introductory commentary to Part B that
“[t]he 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 the elements and acts cited in the count of conviction.”                      U.S.S.G.
§ Ch. 3, Part B, introductory commentary.                Furthermore, application notes
to § 3B1.1 explain that a “participant” “is a person who is criminally
responsible for the commission of the offense, but need not have been
                                                                 4
convicted.”       U.S.S.G. § 3B1.1, application note 1.
       We therefore adopt the two-prong test established in Caballero, and
hold   that   a    defendant   convicted    of      a   “sole   participant”    offense    may
nonetheless be entitled to a reduction in his or her base offense level for
a mitigating role pursuant to U.S.S.G. § 3B1.2 if the defendant shows the
following:    (1) that the “relevant conduct,” within the meaning of section
1B1.3(a)(1), for which the defendant would otherwise be accountable involved
more than one participant (as defined in section 3B1.1, application note 1);
and (2) that the defendant’s culpability for such conduct was relatively
minor compared to that of the other participant or participants.                       We note
further that a reduction in the offense level pursuant to § 3B1.2 may not
be appropriate, as the application notes provide, where “a defendant has
received a lower offense level by virtue of being convicted of an offense
significantly less serious than warranted by his actual criminal conduct,”
because    “such    a   defendant   is   not    substantially        less   culpable    than a
defendant whose only conduct involved the less serious offense.”




       4
       It would be unreasonable to assume that “participant” meant one thing for the
“aggravating role” adjustment, and another thing for the “mitigating role” adjustment.
Thus, we do not hesitate to apply the definition of “participant” in the application notes
to § 3B1.1 to § 3B1.2.
                                               17
U.S.S.G. § 3B1.2, application note 4; Lucht, 18 F.3d at 556.
      4.       The effect of a Rule 20 transfer
      Nor can we find that it makes any difference to the applicability of
a downward adjustment pursuant to § 3B1.2 that Snoddy was pleading guilty
in the District of Nebraska to an indictment from the Southern District of
Texas pursuant to Rule 20 of the Federal Rules of Criminal Procedure.                 Rule
20 provides that, after the defendant has stated a wish to plead guilty in
one district after indictment in another, and after the United States
attorneys for both districts have agreed to the transfer, “the prosecution
shall continue” in the transferee district.             FED. R. CRIM. P. 20.      The rule
does not, however, put any limitations upon the sentencing power of the
transferee court.       The “continuation” of the prosecution would naturally
include    consideration       of   all   relevant     sentencing      guidelines,    both
aggravating and mitigating, enhancing or reducing.               Cf. United States v.
Ford, 618 F.2d 530, 542 (7th Cir. 1980) (“The reported decisions hold or
recognize that where an indictment is transferred under Rule 20, the
transferor court loses jurisdiction and the transferee court acquires
exclusive jurisdiction of the indictment proceeding.                  Examples are Warren
v. Richardson, 333 F.2d 781, 783 (9th Cir. 1964); Perry v. United States,
432 F. Supp. 645, 648-49 (M.D. Fla. 1977); United States v. Binion, 107 F.
Supp. 680 (D. Nev. 1952).”).          But see United States v. Khan, 822 F.2d 451,
455 (4th Cir. 1987) (“The unmistakable assumption underlying Rule 20 is that
a   transfer    will   occur   only   when   a    defendant   first    concedes   criminal
culpability thereby waiving any trial on the charges.             The transfer is then
purely for the purpose of imposing sentence.             Subject matter jurisdiction
is, thereby, shifted from the charging district to the transferee district
for the narrow purpose envisioned in the rule,” and the transferee court
erred by entering a judgment of acquittal, because a determination of the
merits of the charges by the transferee court “clearly exceeded the limits
of the




                                             18
delegated jurisdiction under Rule 20”).
       5.     Snoddy’s request for a “minor participant” reduction
       We find no legal impediment to application of a “minor participant”
reduction to Snoddy’s base offense level under U.S.S.G. § 3B1.2, as that
                                                         5
sentencing guideline is properly construed.                   It also appears to us that the
sentencing judge probably made the necessary factual findings to satisfy the
Caballero test we have adopted today.                   Caballero, 936 F.2d at 1299.           For
example, the sentencing judge was “not quarreling or taking exception” with
Snoddy’s     version     of     his   participation           in    a   multi-participant     drug
distribution scheme, and indeed, the sentencing judge professed himself
willing to grant Snoddy a minor role reduction, based on his degree of
participation       as   compared      to     others,    had       Snoddy   been    charged   with
conspiracy.     Transcript of Sentencing Proceedings, p. 29.                       However, in an
abundance of caution, we will remand to the district court for specific
factual determinations of Snoddy’s role in the offense and resentencing
under a correct construction of U.S.S.G. § 3B1.2, rather than simply
reversing and imposing a different sentence.                       This course seems to us the
most prudent, because, as both this court and the District of Columbia
Circuit     Court   of   Appeals       have    previously          observed,   determination    of
participant status in an offense is an intensely factual one.                        See Padilla-
Pena, 129 F.3d at 471 (“Whether a downward adjustment is warranted is
determined not only by comparing the acts of each participant in relation
to the relevant conduct for which the participant is held accountable, but
also   by    measuring        each    participant’s          individual     acts    and   relative
culpability against the




       5
        Indeed, there would be no legal impediment to any “mitigating role” reduction,
whether “minimal,” “minor,” or “in between” pursuant to § 3B1.2, simply because
Snoddy was charged with possession with intent to distribute marijuana—a “sole
participant” offense—rather than a conspiracy offense.
                                                19
elements of the offense.”); Caballero, 936 F.2d at 1299 (“The application
of section 3B1.2 is inherently fact-bound and largely committed to the
discretion of the trial judge.”).       Thus, it is more appropriate for the
sentencing judge to reassess Snoddy’s participation upon a remand.


                                III.   CONCLUSION
     In this case, the sentencing judge’s conclusion that U.S.S.G. § 3B1.2
did not permit a “minor participant” reduction to a defendant pleading
guilty to a “sole participant” offense is inconsistent with current law and
must be reversed.    Therefore, a remand is required for the sentencing judge
to determine whether Snoddy has shown (1) that the “relevant conduct,”
within the meaning of section 1B1.3(a)(1), for which Snoddy would otherwise
be accountable involved more than one participant (as defined in section
3B1.1, application note 1); and (2) that Snoddy’s culpability for such
conduct was relatively minor compared to that of the other participant or
participants.
     Reversed and remanded for resentencing in accordance with this opinion.


     A true copy.


           Attest:


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




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