                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 21 1998
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 98-2136
          v.                                         (D. New Mexico)
 PEGGYARNELL McNEIL,                             (D.C. No. 97-CR-587-BB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Peggyarnell McNeil pleaded guilty to one count of possession with intent to

distribute Phencyclidine (PCP) in violation of 21 U.S.C. § 841(a). She now

appeals the sentence imposed, contending that the district court erred by: (1)

refusing to adjust her offense level downward pursuant to United States

Sentencing Guidelines § 3B1.2(a), based on her minimal role; and (2) refusing to

depart downward pursuant to United States Sentencing Guidelines § 4A1.3, on the

basis that her criminal history category overrepresented the seriousness of her

past criminal conduct. We affirm.



                                 BACKGROUND

      On August 15, 1997, McNeil, who had never acted as a drug courier before,

agreed to transport nine kilograms of marijuana from California to New York by

train, for which she was to be paid between $2500 and $3000. However, the next

day, she was asked to transport PCP instead of marijuana. Unaware that PCP was

volatile and dangerous, and also unaware that, for purposes of imposing federal

drug penalties, one gram of the PCP mixture that she would be carrying was the

equivalent of one kilogram of marijuana, she agreed to the change.

      On August 18, 1997, shortly before she boarded the train, she was given a

hard-sided suitcase which contained three one-gallon Coleman fuel canisters with

PCP. However, she did not know exactly how much PCP she was transporting,


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nor where it came from. Furthermore, she knew nothing about the structure of the

organization that was manufacturing and distributing the drug, and she had no

description or name for the person who was to meet her in New York (whom she

would be able to identify only by his prearranged greeting.) The next day, on

August 19, 1997, while the train was stopped in Albuquerque, New Mexico, DEA

agents noticed a strong fabric softener smell coming from the suitcase. Pursuant

to a consensual search, the agents discovered the canisters of PCP.

      Upon her arrest, McNeil immediately admitted her role in the crime. She

was released on personal recognizance and placed under Pretrial Services

supervision. However, after her first four urine tests returned positive for

cocaine, she was placed in a halfway house. Since that time, she has participated

in intensive counseling, obtained employment, and remained drug-free.

      On November 13, 1997, McNeil entered into a plea agreement, which, inter

alia, stipulated a three-level downward adjustment for acceptance of

responsibility under U.S.S.G. § 3E1.1(a) and (b). The amended Presentence

Investigation Report (PSR) gave such an adjustment, and also provided for a two-

level reduction for playing only a minor role in the crime pursuant to U.S.S.G.

§ 3B1.2(b). The initial offense level was based upon a calculation which assumed

that each of the three gallon canisters was full, and which then converted the

liquid measurement into 11.355 kilograms of PCP, or the equivalent of 11,355


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kilograms of marijuana. Finally, the PSR calculated seven criminal history

points, all from minor theft convictions, with two additional points added

pursuant to U.S.S.G. § 4A1.1(d) (offense committed while defendant on

probation), resulting in a total of nine criminal history points and placing McNeil

in criminal history category IV.

      McNeil objected to the drug quantity calculation. Additionally, she argued

that she was entitled to a four-level reduction as a minimal participant, and also to

a downward departure because the criminal history category overrepresented the

seriousness of her previous criminal activity. At the hearing, the court was

persuaded by McNeil’s argument on quantity, and it found the amount of PCP

which she transported to be less than ten kilograms (or the equivalent of less than

10,000 kilograms of marijuana), which reduced the base offense level by two

points. However, the court overruled McNeil’s other objections, and it adopted

the remaining PSR recommendations. Finally, pursuant to a separate Government

motion, the court made a downward departure which resulted in a final base

offense level of 23, and a guideline range of 70 to 80 months. The court then

sentenced McNeil to 70 months’ imprisonment.

      In this appeal, McNeil reasserts the objections which the district court

rejected, contending that she should have received an adjustment for minimal




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role, and that she also should have received a downward departure because her

criminal history overrepresented the seriousness of her past criminal activity.




                                   DISCUSSION

      A defendant bears the burden of demonstrating entitlement to a downward

adjustment, United States v. Martinez, 983 F.2d 968, 977 (10th Cir. 1992), and a

district court’s determination regarding a defendant’s entitlement to an adjustment

is a question of fact which we review for clear error, see United States v. Gault,

141 F.3d 1399, 1404 (10th Cir.), cert. denied, 119 S. Ct. 253 (1998). We give due

deference to the district court’s application of the guidelines to the facts and to its

ability to judge the credibility of the witnesses upon whose testimony it relies.

United States v. Hankins, 127 F.3d 932, 934 (10th Cir. 1997). However, we

review de novo the district court’s legal interpretation of the sentencing

guidelines. United States v. Davis, 151 F.3d 1304, 1308 (10th Cir. 1998).

      Guideline § 3B1.2 permits the district court to decrease the base offense

level if the defendant’s role in the offense makes her “substantially less culpable

than the average participant.” U.S. Sentencing Guidelines Manual § 3B1.2,

comment. (backg’d) (1997). According to the guidelines, the four-level decrease

for minimal participation under § 3B1.2(a) “will be used infrequently” and should


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be reserved for “defendants who are plainly among the least culpable of those

involved in the conduct of a group.” Id., comment. (nn.1-2). Relevant factors

include the defendant’s “lack of knowledge or understanding of the scope and

structure of the enterprise and of the activities of others.” Id., comment. (n.1).

Examples include individuals recruited as couriers for a single transaction

involving a small quantity of drugs. Id., comment. (n.2). By contrast, the

two-level decrease for minor participation applies to individuals who are “less

culpable than most other participants, but whose role could not be described as

minimal.” Id. comment. (n. 3).

      On appeal McNeil contends that the court’s refusal to find that she was a

minimal participant was based on its erroneous understanding of the guidelines,

and she argues that the court failed to give sufficient weight to her lack of

knowledge both as to the organization and to the nature and amount of the drug

she was carrying.

      While McNeil correctly notes the commentary’s suggestion that some

couriers may be classified as minimal participants, that classification, which is to

be used “infrequently,” is clearly fact-specific. Id., comment. (nn.1-2); see

United States v. Caruth, 930 F.2d 811, 814-15 (10th Cir. 1991). Moreover, an

adjustment is not mandated merely because there were multiple participants.

Caruth, 930 F.2d at 815. Unlike the example in the commentary, in this case,


                                         -6-
McNeil was transporting a substantial quantity of PCP, and she knew the specific

drug involved. 1 Under the circumstances, and under our deferential standard of

review, we conclude that the district court did not err in finding that McNeil was

not entitled to further adjustment as a minimal participant.

      As her second claim of error, McNeil contends that the court erred when it

refused to depart downward under U.S.S.G. § 4A1.3 based on the over-

representation of the seriousness of her criminal history. She further argues that

the court’s refusal was based upon a legal error or misapplication of the

guidelines, i.e., the failure to maintain the distinction between offense level

adjustments and criminal history departures.

      It is well settled that we lack jurisdiction to review a district court’s refusal

to depart from the sentencing guidelines, unless the court “erroneously interpreted

the Guidelines as depriving it of the power to depart based on the proffered

circumstances.” United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998)

(quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993)). As

we explained in Castillo, we apply a bright-line rule to determine whether

appellate jurisdiction exists. That is, we have no jurisdiction, unless the district


      1
        McNeil repeatedly complains that she believed that she was carrying only
the equivalent of nine kilograms of marijuana. In fact, under the court’s quantity
ruling, McNeil was held responsible for carrying just under 10 kilograms of PCP.
The fact that she was unaware of the equivalency ratios is irrelevant to her role in
the offense of possession with intent to distribute less than 10 kilograms of PCP.

                                         -7-
court states that it has no authority to depart for the entire class of circumstances

proffered by the defendant. Id.

      Although McNeil attempts to cast the district court’s decision as a legal

error or misapplication, 2 the record reveals that the court carefully considered her

motion and circumstances, and concluded simply that the circumstances did not

warrant departure:

      I have considered the three grounds for downward departure raised
      by the defendant. While I do think this particular agreement to carry
      PCP may have been aberrant, I don’t think it’s totally out of line with
      other activities of a criminal nature that defendant has been involved
      with, nor with her long-term drug use. . . . At several levels, . . . I
      think that many of her prior crimes are less than serious. However, I
      am troubled by her failure to appear, and, frankly, dirty urine test
      since she was arrested. So I don’t think the criminal category of four
      is an overrepresentation . . . .

R. Vol. III, at 64-65.

      In this case, the record clearly indicates that the court’s consideration and

resulting refusal to depart downward was based upon the proper exercise of its



      2
        McNeil complains that the court committed reviewable legal error based
on its statement that “I don’t think, given the fact that we applied the Rule of
Lenity to the prior calculation of the amount of PCP[, that it] would be
appropriate to consider this as an overrepresentation of top of that. That would
be a misapplication of the spirit of the guidelines.” R. Vol. III, at 65.
Essentially, McNeil contends that such a statement indicates that the district court
improperly interchanged factors relevant to offense level with those related to
criminal history. However, in context, the complained-of statement was largely
parenthetical, and came only after the court had analyzed and rejected McNeil’s
proffered circumstances.

                                          -8-
discretionary power as set out in Castillo. Castillo, 140 F.3d at 888 (noting that

we have power to review only “[w]here, because of a purely legal conclusion, a

district court refuses even to consider whether a defendant’s circumstances may

support departure”). Therefore, we lack jurisdiction to review the court’s refusal

to depart.

      AFFIRMED.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




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