                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3982
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska
Louis Monk, Jr.,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 7, 2002

                                   Filed: November 25, 2002
                                    ___________

Before McMILLIAN, LAY and RILEY, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.

       On appeal, Louis Monk, Jr., challenges his 46-month sentence imposed by the
district court1 following his plea of guilty to possession with the intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1). He argues that the district court
erred in refusing to grant his request for a role-in-the-offense reduction under
U.S.S.G. § 3B1.2. We affirm.



      1
        The Honorable Richard G. Kopf, Chief Judge, United States District Court
for the District of Nebraska.
BACKGROUND

       In February 1997, a Nebraska state patrol officer stopped Monk, who was
driving a BMW, for a traffic violation. In a subsequent search of the car, officers
discovered 44 packages containing about 175 pounds of marijuana. They later
discovered that the car had an altered vehicle identification number. While under
indictment in Nebraska for possession with the intent to distribute marijuana, Monk
was charged in one count of a nine-count indictment against fourteen defendants in
the Eastern District of Michigan for conspiracy to distribute controlled substances.
The indictment alleged that Monk's overt act was the possession and transportation
of the marijuana seized in Nebraska. In the interests of judicial economy, in August
1999, the Michigan district court dismissed the conspiracy charge against Monk. In
September 2001, Monk was convicted of bank fraud in the Eastern District of
Michigan. In November 2001, Monk pled guilty to the Nebraska indictment.2

      On appeal, Monk asserts that he was entitled to a role-in-the-offense reduction
under U.S.S.G. § 3B1.2 because he was a minimal participant in the Michigan drug
conspiracy.3

      At the sentencing hearing, Monk's counsel argued that a role-in-the-offense
reduction was warranted because Monk had been charged only in one count of the
Michigan indictment. The district court told counsel that Monk had the burden to
show that he was less culpable than his co-conspirators and "simply saying that he's

      2
       Monk conceded that the Michigan bank fraud conviction was related to his
drug conviction and on that basis the district court sentenced Monk to serve a 46-
month concurrent sentence for both the Nebraska drug conviction and the Michigan
bank fraud charge.
      3
      A minimal participant receives a four-level reduction in the offense level,
U.S.S.G. § 3B1.2(a), while a minor participant receives a two-level reduction, id.
§ 3B1.2(b).

                                         -2-
only involved in one overt act" was insufficient. The district court noted that the
evidence suggested that Monk was more than a courier in the Michigan drug
conspiracy and even if it only considered the Nebraska indictment, Monk had offered
no evidence to show that he was substantially less culpable than the average
participant.

DISCUSSION

         "[W]e review the district court's interpretation and construction of the
sentencing guidelines de novo." United States v. Alverez, 235 F.3d 1086, 1090 (8th
Cir. 2000), cert. denied, 532 U.S. 1031 (2001) (Alverez). However, "'[w]hether a
defendant qualifies for a [§ 3B1.2] reduction is a question of fact, the determination
of which we review for clear error.'" Id. (quoting United States v. Hale, 1 F.3d 691,
694 (8th Cir, 1993)). As to matters of law, Monk concedes that he had "[t]he burden
. . . to demonstrate that he is entitled to the [§ 3B1.2] reduction," id., but argues that
the district court erred in applying United States v. Snoddy, 139 F.3d 1224 (8th Cir.
1998) (Snoddy). In Snoddy, this court held 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 ." Id. at 1231. Such
a defendant must show "(1) that the 'relevant conduct' . . . for which the defendant
would otherwise be accountable involved more than one participant . . .; and (2) that
the defendant's culpability for such conduct was relatively minor compared to that of
the other participant or participants." Id. The district court did not misapply Snoddy.
To the contrary, the district court noted that even though Monk had pled guilty to a
sole participant offense he may be entitled to the reduction if he could meet both
requirements as set forth in Snoddy. The district court noted that Monk’s relevant
conduct included the Michigan conspiracy charge, and accordingly Monk met the
first requirement. In order to satisfy the second requirement, the district court asked
Monk to present evidence to show that he was less culpable than his co-conspirators.
Monk’s counsel offered no evidence. Monk’s assertion on appeal that it is “obvious”

                                           -3-
that his culpability was less than others in the conspiracy is not evidence thereof.
Appellant’s Br. at 9. Accordingly, Monk failed to meet the requirements of Snoddy.

       Nor, as Monk argues, did the district court place upon Monk a heavier burden
than the law requires. Monk concedes that "[a] role as a courier does not
automatically entitle the defendant to a downward adjustment." Alverez, 235 F.3d
at 1090. Although the district court mentioned there was no evidence that Monk was
"less culpable than other people globally who do this sort of behavior," the district
court did not require Monk to present evidence comparing his role to those of drug
couriers throughout the globe. Rather, the remark was made in context of the district
court's offering Monk's counsel yet another opportunity to present any evidence he
had in support of a role reduction. In response, counsel could offer no evidence,
telling the district court his argument concerning a failed attempt at a controlled
delivery was "the argument that I have."

      Because Monk did not satisfy his burden of showing that he was entitled to a
§ 3B1.2 role-in-the-offense reduction, the district court did not err in denying his
request for one. Accordingly, we affirm.

      A true copy.

            Attest:

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




                                        -4-
