In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1560

United States of America,

Plaintiff-Appellee,

v.

Guadalupe Almanza,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 97 CR 50049--Philip G. Reinhard, Judge.


Argued April 25, 2000--Decided August 30, 2000



 Before Posner, Easterbrook, and Evans, Circuit Judges.

 Posner, Circuit Judge. The defendant was
convicted of conspiring with two other men to
possess cocaine with intent to distribute it, and
was sentenced to 78 months in prison. The only
issue that warrants discussion is whether the
judge should have given him a 4-level sentencing
discount for being a minimal participant, rather
than the 2-level discount for being a minor
participant that the judge did give him.

 Almanza’s coconspirators, the Santoyo brothers,
arranged to purchase six kilograms of cocaine
from a person who, to their misfortune, turned
out to be a government informant. They brought
Almanza with them, but in what capacity is
unclear, though there was sufficient evidence to
convict him of having joined the conspiracy. He
admitted knowing that the Santoyos were drug
dealers, he accompanied them to a storage locker
at which they picked up the money for the
purchase of the cocaine, and when the three of
them were arrested at the site of the transaction
he was carrying $5,000 in cash bundled together
in the same way as the $102,000 in cash found in
one of the two cars in which the three
conspirators had driven to the site, which was
the agreed purchase price of the cocaine.

 Section 3B1.2 of the federal sentencing
guidelines provides that if the defendant was a
"minimal participant" in the offense, his offense
level should be dropped 4 levels but if he was a
"minor participant" it should be dropped 2 levels
and "in cases falling between" 3 levels. The
guidelines define a minimal participant as one
who is "plainly among the least culpable of those
involved in the conduct of a group," and a minor
participant as one who is "less culpable than
most other participants." U.S.S.G. sec. 3B1.2,
Application Notes 1-2. These are not illuminating
definitions, and we must consider the purpose of
this discounting scheme. The purpose derives from
the extraordinary severity with which the law
regards participation in a conspiracy. Anyone who
agrees to join a criminal undertaking is a
conspirator, and he is liable for all the
criminal acts of the conspiracy that are
foreseeable to him, e.g., Pinkerton v. United
States, 328 U.S. 640, 646-47 (1946); United
States v. Hach, 162 F.3d 937, 951 (7th Cir.
1998), regardless of how large or small his own
role is. E.g., United States v. Hardin, 209 F.3d
652, 665 (7th Cir. 2000); United States v.
Goines, 988 F.2d 750, 759-60 (7th Cir. 1993);
United States v. Hendrick, 177 F.3d 547, 551 (6th
Cir. 1999). The result is that a minor
participant in a major conspiracy is potentially
subject to very severe punishment. One purpose of
the discounting scheme in section 2B1.2 of the
sentencing guidelines is to reduce the rigidity
of this punishment scheme by differentiating the
liability of the major and minor participants. If
the defendant is charged just with the
transaction in which he personally participated
and if--an essential qualification--the separate
transactions of his coconspirators are not
counted as his relevant conduct for sentencing
purposes, U.S.S.G. sec. 1B1.3 and Application
Note 2; United States v. Lampkins, 47 F.3d 175,
180-81 (7th Cir. 1995); United States v. Goines,
supra, 988 F.2d at 775; United States v.
Caballero, 936 F.2d 1292, 1299 (D.C. Cir. 1991),
then he is not subject to disproportionately
severe punishment and therefore, in this circuit
at least, is not entitled to any discount. E.g.,
United States v. Hamzat, No. 97-1987, 2000 WL
821740, at *2-3 (7th Cir. June 26, 2000); United
States v. Isienyi, 207 F.3d 390 (7th Cir. 2000);
United States v. Beltran, 109 F.3d 365, 370-71
(7th Cir. 1997). The other circuits that have
confronted this issue, with the exception only of
the Ninth, agree with this position. See, e.g.,
United States v. Roberts, No. 98-4091, 2000 WL
1042972 (6th Cir. July 28, 2000); United States
v. Rodriguez de Varon, 175 F.3d 930, 942-44 (11th
Cir. 1989) (en banc); United States v. James, 157
F.3d 1218 (10th Cir. 1998). The contrary Ninth
Circuit cases are United States v. Ruelas, 106
F.3d 1416, 1419 (9th Cir 1997), United States v.
Demers, 13 F.3d 1381 (9th Cir. 1994). Two other
cases that have language indicative of
disagreement with our position, United States v.
Isaza-Zapata, 148 F.3d 236, 241-42 (3rd Cir.
1998), and United States v. Snoddy, 139 F.3d
1224, 1231 (8th Cir. 1998), are distinguishable
because all they hold is that the fact that the
conduct of coconspirators was not included in the
charge against the defendant does not bar a
minor-participant discount, for the conduct might
still have been deemed relevant at his
sentencing.

 The simplest case for grasping the distinction
stated in the preceding paragraph is one in which
the defendant is charged with just the drug
transactions in which he participated and the
transactions of the other conspirators are not
included in his relevant conduct. But one can
imagine a case in which the issue was not other
transactions but instead the defendant’s conduct
in all the conspiracy’s transactions relative to
the conduct of the other conspirators. E.g.,
United States v. Rodriguez de Varon, supra, 175
F.3d at 945. He might have played only a small
role in the conspiracy, for example as a courier
or look out. That would be an independent basis
for a section 2B1.2 sentencing discount--though
only, to repeat, if either he was charged with
participating in the entire conspiracy or the
acts of the other conspirators were charged to
him for sentencing purposes as relevant conduct.
E.g., United States v. Isienyi, supra.

 The natural way for the Sentencing Commission to
have dealt with these possibilities would have
been to provide that the sentencing judge could
reduce a minor participant’s sentence by 2, 3, or
4 levels, depending on the defendant’s relative
culpability. That culpability is a function both
of the character of the defendant’s participation
and of the scope of the conspiracy. Holding the
scope constant, the less significant the
defendant’s participation, the more minor it is;
but holding his participation constant, the
broader the scope of the conspiracy, the more
minor his participation. The first point is
obvious, the second less so but equally
important. The "mule" who transports one kilogram
of cocaine is a more minor participant in a
conspiracy to distribute 1,000 kilograms of
cocaine than in a conspiracy to distribute 10
kilograms of cocaine, because the potential
punishment of a member of the first conspiracy is
so much greater, even though his conduct is
identical. We made the converse point in United
States v. Jackson, 207 F.3d 910, 1919-20 (7th
Cir. 2000), noting that in a very extensive
conspiracy, a participant whose role (in that
case, supervising a host of underlings in a drug
conspiracy that generated hundreds of millions of
dollars in revenues annually) in an ordinary
conspiracy would be major might, in relation to
the activities of other members of the
conspiracy, be minor.

 Instead of saying just that the judge can give
the minor participant a 2, 3, or 4 level discount
depending on how minor his participation was, the
guidelines direct the judge to decide whether his
participation was "minor," "minor/minimal," or
"minimal." But the words add nothing to the
numbers. They denote differences of degree rather
than of kind. It is clear enough where Almanza
falls: "minor" (2). He was a minor participant in
the three-man conspiracy, but because the
defendants were punished just for the single
(aborted) transaction, Almanza was not at risk of
being punished heavily because he was a tiny cog
in a huge wheel, the kind of risk that might
justify a 3- or 4-level discount. He corresponds
to the mule in the 10-kilogram conspiracy, not
the mule in the 1,000-kilogram conspiracy. Or so
at least the district judge could determine
without committing a clear error.

Affirmed.
