                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-12-2002

USA v. Grier
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1669




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                                                                       NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                           No. 01-1669


                                UNITED STATES OF AMERICA

                                                 v.

                                      MICHAEL L. GRIER,
                                     a/k/a EDWARD GRIER,
                                         a/k/a UNIVERSE

                                          Michael Grier,
                                                           Appellant


                         On Appeal from the United States District Court
                                  for the District of New Jersey
                                     (D.C. No. 00-cr-00416)
                            District Judge: Hon. Mary Little Cooper


                           Submitted Under Third Circuit LAR 34.1(a)
                                      October 31, 2002

                         Before: SLOVITER, FUENTES, Circuit Judges
                                 and FULLAM,* District Judge

                                   (Filed: November 12, 2002 )


                                  OPINION OF THE COURT
___________________

*     Hon. John P. Fullam, Senior Judge of the United States District Court for the
      Eastern District of Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.

       Appellant Michael Grier pled guilty to distribution and possession with intent to

distribute more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a). His

appeal is limited to the sentence imposed on him by the District Court. He argues the

District Court erred in denying his request for a downward adjustment for a minor role in

the offense and erred in denying his request for a downward departure for a number of

reasons.

        Because this decision is of interest only to the parties, who are familiar with the

facts, we set them forth only briefly.

                                                       I.

     On June 20, 2000, a confidential informant (“CI”) working for the Drug Enforcement

Agency (DEA) asked Grier for 60 grams of crack cocaine, Grier agreed, and they arranged

to meet to complete the sale a short time later. Grier arrived at the predetermined location,

entered the CI’s vehicle, and handed the CI approximately 58.6 grams of crack cocaine,

receiving in exchange $2,000 from the CI. Grier was then arrested by DEA agents who

witnessed the transaction.

        Grier was indicted shortly thereafter. He entered into a plea agreement with the

government that provided, inter alia, that the base offense level was 32, and that Grier was

entitled to downward adjustments for acceptance of responsibility and timely notification

of intent to plea, reducing his total offense level to 29.

        Prior to sentencing, Grier moved for a 2-level downward adjustment pursuant to

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U.S.S.G. § 3B1.2(b) based on his alleged minor role in the crime. He also moved for a

downward departure on various grounds, inter alia, (1) his criminal history calculation was

overstated pursuant to U.S.S.G. § 4A1.3; (2) drug dependence; (3) post-offense

rehabilitation; (4) lack of guidance as a youth; (5) family ties and responsibilities; and (6)

totality of the circumstances.

        At the sentencing hearing, the District Court acknowledged its authority to depart,

rejected Grier’s motions, and sentenced Grier to 127 months of imprisonment which was

within the Guideline range of 121 to 151 months for a total offense level of 29 and a

criminal history category of IV.

        Grier argues that he was entitled to a 2-level downward adjustment due to his minor

role in the offense. U.S.S.G. § 3B1.2(b) provides that “[i]f the defendant was a minor

participant in any criminal activity, decrease [the offense level] by 2 levels.” Application

Note 5 states that a minor participant means any participant “who is less culpable than most

other participants, but whose role could not be described as minimal.” According to the

Application Notes to this provision, its application is heavily dependent on the facts of a

particular case, and “provides a range of adjustments for a defendant who plays a part in

committing the offense that makes him substantially less culpable than the average

participant.” U.S.S.G. § 3B1.2, Application Note 3. We have stated that “[t]he district

courts are allowed broad discretion in applying this section, and their rulings are left

largely undisturbed by the courts of appeal.” United States v. Isaza-Zapata, 148 F.3d 236,

238 (3d Cir. 1998).

                                                      3
        The following factors are relevant in determining whether a defendant is a minor

participant:

                 the nature of the defendant’s relationship to the other
                 participants, the importance of the defendant’s actions
                 to the success of the venture, and the defendant’s
                 awareness of the nature and scope of the criminal
                 enterprise.

Id. at 239 (quoting United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991) (citation

omitted)). Essentially, “these considerations are directed generally towards a defendant’s

involvement, knowledge, and culpability, and should provide guidance in any case.” Id.

Significantly, “[t]he defendant bears the burden of demonstrating that other participants

were involved and that, under the standards set forth above and the facts of his particular

case, the minor role adjustment should apply.” Id. at 240.

        Grier argues that he was a minor participant because he was not the only individual

sought by law enforcement agents and because he was not the only individual who

participated in the offense. He notes that the CI originally sought to purchase drugs from a

street dealer who did not appear, and only then did the CI seek to buy the drugs from Grier.

This did not establish that there were other individuals involved in the crime but at most that

there were multiple dealers in that area.

        As the District Court stated at Grier’s sentencing hearing, “[Grier] negotiated and

carried out the entire transaction.” App. at 58a-59a. Thus, Grier was the central, if not the

principal, participant in the crime, and as such, his role was far more extensive than a minor

participant. It follows that the District Court did not err in ruling Grier had failed to meet

                                                      4
his burden of showing that he was a minor participant.

        Grier also argues that the District Court erred in failing to grant a downward

departure based on the alleged over-representation of his criminal history, his post-offense

rehabilitation, drug dependence, lack of guidance as a youth, and family ties and

responsibilities.

        We lack jurisdiction to review the District Court’s refusal to downward depart. As

long as the District Court was “aware of its authority to depart from the Guidelines, and

chose not to, we are without power to inquire further into the merits of its refusal to grant

[a downward departure].” United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991)

(citing United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989)). As we have stated, “we

have jurisdiction to decide whether a sentencing court erred legally when not making a

requested discretionary downward departure, but we cannot hear a challenge to the merits

of a sentencing court’s discretionary decision not to depart downward from the

Guidelines.” Georgiadis, 933 F.2d at 1222 (citation omitted).

        It is evident from the record that the District Court was well aware of its authority to

depart downward and chose not to, often for reasons it articulated on the record. We

therefore cannot inquire further into the refusal to grant a downward departure. We will

affirm the judgment of conviction and sentence.

____________________


TO THE CLERK:



                                                     5
Please file the foregoing opinion


/s/Dolores K. Sloviter
 Circuit Judge




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