                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2011
                        ___________________________

                             United States of America,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

                             Bart Kevin Waddell, Jr.,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                             Submitted: April 14, 2016
                               Filed: August 2, 2016
                                  ____________

Before COLLOTON and SHEPHERD, Circuit Judges, and MOODY,1 District Judge.
                          ____________

COLLOTON, Circuit Judge.

      Bart Waddell pleaded guilty to one count of robbery and aiding and abetting
robbery and one count of conspiracy to commit robbery, in violation of the Hobbs



      1
       The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas, sitting by designation.
Act. See 18 U.S.C. § 1951. The district court2 sentenced Waddell to 57 months’
imprisonment. Waddell appeals and argues that the district court committed
procedural error when determining his sentence. We affirm.

       Waddell’s conviction arose from a robbery that occurred in June 2014. Two
of Waddell’s associates, Leonard Landt and Snofawn Torres-Webber, hatched a plan
to rob a man in Cedar Rapids, Iowa. Landt and Torres-Webber knew that the intended
victim was a drug dealer, and they told him about a prospective buyer of
methamphetamine. The victim, unaware that he was the mark, drove Landt and
Torres-Webber to Waddell’s apartment, expecting to meet the buyer.

       When the group arrived at Waddell’s apartment, Landt and Torres-Webber
entered the apartment and informed Waddell of their intentions. At some point, the
trio began to record their conversations on a cellular telephone. In a matter of
minutes, they agreed on a course of action. They discussed how much force to use
during the robbery and decided to use physical force but no weapons. Landt referred
to Waddell as a “sergeant at arms” and spoke of Waddell’s ability to intimidate and
harm others.

      The three robbers then proceeded to the victim’s car. They entered the vehicle,
with Torres-Webber sitting in the front passenger seat, Landt sitting behind the victim,
and Waddell sitting beside Landt and behind Torres-Webber. As the camera
continued to record, Landt placed the victim in a chokehold and threatened to harm
him. Torres-Webber and Waddell looked for drugs and money and asked the victim
where to find those items. After they located the victim’s backpack, Waddell took it
back to the apartment. Landt and Torres-Webber followed shortly thereafter. Landt




      2
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

                                          -2-
and Torres-Webber kept the drugs and money that the group seized from the victim;
Waddell did not share in the proceeds.

       Waddell complains that the district court, in calculating a sentencing range
under the advisory guidelines, should have adjusted his offense level downward based
on a mitigating role in the offense. A downward adjustment applies where a
defendant is a minor participant, a minimal participant, or something in between.
USSG § 3B1.2 & comment. (nn.4-5) (2014). Under the guideline in effect at the time
of sentencing, see USSG § 1B1.11(a), the sentencing court was directed to make a
downward adjustment if the defendant played “a part in committing the offense that
makes him substantially less culpable than the average participant.” USSG § 3B1.2,
comment. (n.3). We review the district court’s ruling for clear error. United States
v. Bradley, 643 F.3d 1121, 1128 (8th Cir. 2011).

       The district court rejected Waddell’s bid for a mitigating role adjustment. The
court described the video of the robbery as “chilling” and “very alarming.” The court
found that “Waddell was a participant in the planning, where there was a discussion
of use of guns, use of a knife, or whether just fists would be used or physical force.”
Waddell, the court observed, “was referred to as the enforcer and clearly knew what
was going to happen.” The court found that Waddell was “very much a participant
in creating intimidation to facilitate the robbery,” noting that he is around six feet tall
and 230 pounds, and that he was “there to provide the physical intimidation to search
the person of [the victim] for drugs and money that they intended to steal.” For these
reasons, the court found that Waddell did not meet his burden to show that he was
substantially less culpable than either Landt or Torres-Webber, and that a mitigating
role adjustment was not appropriate.

       We discern no clear error in these findings. Waddell was the purported “buyer”
of methamphetamine who completed the ruse that was employed to lure the victim
into a false sense of security. His presence as an enforcer served to intimidate the

                                           -3-
victim, and he personally seized the proceeds of the robbery and carried them to his
apartment. Although Waddell did not concoct the criminal scheme, there was
evidence that he understood the scope and structure of the criminal activity,
participated in planning the criminal activity, and committed acts that were important
to the robbery. Waddell points out that he did not exercise decision-making authority,
share in the robbery’s proceeds, or join Landt in physically assaulting the victim in the
car. But whether to apply the mitigating role adjustment is “heavily dependent upon
the facts of the particular case,” USSG § 3B1.2, comment. (n.3(C)), and the evidence
here does not compel the conclusion that Waddell was “substantially less culpable”
than the average participant. Several relevant factors supported the district court’s
conclusion, and the decision to deny the downward adjustment was not clearly
erroneous.3

       Waddell’s second argument is that the district court impermissibly relied on
facts in the presentence report to which he lodged an objection. When a defendant
objects to facts in a presentence report, a district court may not rely on those facts to
sentence the defendant unless the government first proves the facts by a
preponderance of the evidence. United States v. Bowers, 743 F.3d 1182, 1184 (8th
Cir. 2014). To register a proper objection, however, the defendant must make a clear
and specific objection. United States v. Davis, 583 F.3d 1081, 1095 (8th Cir. 2009).
When there is no proper objection, a district court may accept facts in the report as
true and rely on them at sentencing. Id.




      3
        The commentary to USSG § 3B1.2 was amended on November 1, 2015, after
Waddell was sentenced, but new provisions that are contrary to circuit precedent are
not applicable here. See United States v. Walker, 818 F.3d 416, 424 (8th Cir. 2016);
United States v. Renfrew, 957 F.2d 525, 527 n.3 (8th Cir. 1992). In any event, the
district court relied on several factors enumerated in amended application note 3(C)
to § 3B1.2. Insofar as the amended commentary is merely clarifying, it does not
establish a clear error.

                                          -4-
      In his sentencing memorandum, Waddell addressed two statements in the
presentence report regarding his prior criminal convictions as follows:

      In regards to paragraph 29, the presentence report states that the
      defendant allegedly displayed a steak knife in a threatening manner to a
      prior girlfriend. The defendant disputes this statement.

      In regards to paragraph 31, the presentence report states that the
      defendant held a large kitchen knife to the neck of his father during an
      argument. The defendant disputes this statement.

       At sentencing, the district court observed that Waddell’s criminal history
involved assaultive behavior. As to paragraph 29, the court recounted that Waddell
grabbed the arm of his pregnant girlfriend and displayed a steak knife. Referring to
Waddell’s objection, the court stated that “[h]e claims he did not display the knife in
a threatening manner, but apparently does not dispute that there was a knife.” S. Tr.
30. As to paragraph 31, the court noted that Waddell assaulted his father with a
kitchen knife, but did not rely in its findings on the fact that Waddell held the knife
to his father’s neck. Id.

       Waddell complains that his written objections denied any use of a knife during
the prior assaults, so the district court should not have relied on those facts. The
district court, however, thought Waddell’s objections did not deny that he used a
knife, but disputed only how he used the knife. Waddell did not object at the hearing
to the district court’s interpretation, so we review only for plain error. Id.

       The district court did not plainly err by concluding that there was no clear and
specific objection to the report’s information that Waddell used a knife in the two
assaults. Although Waddell “disputed” certain statements in the presentence report,
he did not clarify how the statements were in dispute. The district court interpreted the
objections more narrowly than Waddell desired, but the interpretation was not


                                          -5-
obviously wrong in light of the vague objections. Waddell then failed to clarify his
objections at the hearing. Because the court reasonably concluded that Waddell did
not clearly and specifically object to the statements in the report that he used a knife
in prior assaults, the court did not plainly err by relying on those facts when
determining Waddell’s sentence.

      The judgment of the district court is affirmed.
                     ______________________________




                                          -6-
