                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 08a0646n.06
                              Filed: October 22, 2008

                                            No. 07-5178

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                   )
                                                            )
       Plaintiff-Appellee,                                  )
                                                            )
v.                                                          )   ON APPEAL FROM THE UNITED
                                                            )   STATES DISTRICT COURT FOR
LONNIE SMITH,                                               )   THE WESTERN DISTRICT OF
                                                            )   TENNESSEE
       Defendant-Appellant.                                 )
                                                            )
                                                            )



       Before: CLAY and KETHLEDGE, Circuit Judges, and OLIVER, District Judge.*


       KETHLEDGE, Circuit Judge. Defendant Lonnie Smith appeals his sentence following his

guilty plea to federal drug and firearms charges. Smith asserts that the district court erred in denying

him an offense-level reduction, under U.S.S.G. § 3B1.2(b), for being a “minor participant” in the

underlying marijuana-trafficking scheme. We disagree, and affirm.

                                                   I.

       In November 2004, investigators with the Organized Crime Unit of the Memphis Police

Department received information from a reliable informant that marijuana was being stored and sold

at a residence there. The residence’s utility records were in Smith’s name.

        *
         The Honorable Solomon Oliver, Jr., United States District Court Judge for the Northern
District of Ohio, sitting by designation.
No. 07-5178
United States v. Lonnie Smith

       On November 18, 2004, investigators surveilled the residence and observed Smith loading

several boxes into an older-model Ford van. Smith then drove away in the van, and was pulled over

by uniformed officers for not wearing his seat belt. Smith exited the van and walked toward the

officers, dropping a marijuana cigarette. The officers asked Smith if he needed it back, and Smith

replied, “I ain’t worried about that. There’s plenty more of that in the van.”

       The officers approached the van and noticed a strong odor of marijuana. They requested a

K-9 unit, which arrived and alerted on the boxes in the van. Investigators found approximately 665

pounds of marijuana in thirteen boxes in the van, and a .38 caliber revolver under the driver’s seat.

The police then executed a search warrant on the residence, finding drug paraphernalia, scales,

plastic bags, and an additional nine pounds of marijuana.

       On June 14, 2005, a federal grand jury sitting in the Western District of Tennessee returned

a three-count indictment against Smith, charging him with being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g), and two counts of unlawful possession with intent to distribute

a controlled substance in violation of 21 U.S.C. § 841(a)(1). Smith pled guilty to the charges.

       The probation office prepared a presentence report, which recited the offense conduct

described above. The report calculated Smith’s offense level under the Sentencing Guidelines to be

25, with a criminal history category of VI, resulting in an advisory guideline range of 110 to 137

months’ incarceration.

       Smith objected to the presentence report’s description of the offense conduct. He asserted

the description was incomplete because it did not mention that he had told the officers at the scene



                                                 -2-
No. 07-5178
United States v. Lonnie Smith

that the drugs were not his and that a pit bulldog found in the van belonged to someone else. Smith

did not otherwise dispute the presentence report’s description of the offense conduct.

       Smith also objected to the presentence report’s calculation of his offense level. Smith argued

he was entitled to a two-level reduction for being a “minor participant” in the offense under U.S.S.G.

§ 3B1.2(b).

       At Smith’s sentencing hearing, the district court rejected Smith’s argument that he was a

minor participant in the offense. The court reasoned that the facts set forth in the presentence

report–including that Smith was seen loading boxes from the residence into the van, that Smith’s

name was on the utility records of the residence, and that there was a search warrant executed on the

residence which revealed drug paraphernalia, scales, bags, and an additional nine pounds of

marijuana–all indicated that Smith was “more than simply a conduit” and gave “some indication that

there may have been some selling going on.” Accordingly, the district court denied the requested

reduction, and sentenced Smith to 110 months’ incarceration followed by four years of supervised

release.

       Smith now appeals, challenging only the district court’s denial of his request for a two-level

reduction as a minor participant under U.S.S.G. § 3B1.2(b).

                                                 II.

       The Sentencing Guidelines provide for “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 cmt. n. 3(A). Section 3B1.2 provides:



                                                 -3-
No. 07-5178
United States v. Lonnie Smith

                Based on the defendant’s role in the offense, decrease the offense
                level as follows:

                        (a) If the defendant was a minimal participant in any criminal
                activity, decrease by 4 levels.

                        (b) If the defendant was a minor participant in any criminal
                activity, decrease by 2 levels.

                In cases falling between (a) and (b), decrease by 3 levels.

U.S.S.G. § 3B1.2.

        The reduction for a minimal participant “is intended to cover defendants who are plainly

among the least culpable of those involved in the conduct of a group.” Id. cmt. n. 4. A reduction

for a minor participant–which is the relevant definition here–“applies to a defendant . . . who is less

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

Id. cmt. n. 5. The “salient issue is the role the defendant played in relation to the activity for which

the court held him or her accountable.” United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001).

“A defendant whose role has ‘importance in the overall scheme’ for which he is being held

accountable is not a minor participant within the meaning of § 3B1.2.” United States v. Salas, 455

F.3d 637, 643 (6th Cir. 2006) (quoting Salgado, 250 F.3d at 458).

        We review a district court’s denial of an offense-level adjustment for clear error. Salgado,

250 F.3d at 458. Clear error leaves us “with the definite and firm conviction that a mistake has been

committed.” United States v. United States Gypsum Co., 333 U.S. 364 (1948). Under this standard,

we will not reverse the district court’s finding “simply because we would have decided the case

differently.” Easley v. Cromartie, 532 U.S. 234, 242 (2001). Thus, with respect to § 3B1.2,


                                                  -4-
No. 07-5178
United States v. Lonnie Smith

“[s]imply because the court could have applied a minor role adjustment . . . does not mean that the

district court was required to apply the adjustment.” Salas, 455 F.3d at 643.

       Moreover, the defendant bears the burden of proving by a preponderance of the evidence that

he was a minor participant in the offense. Id. The issue, therefore, is whether the district court

clearly erred in holding that Smith failed to prove by a preponderance of the evidence that he was

a minor participant in the offense.

       The district court made no such error. It was Smith’s burden to prove he was a minor

participant. He presented little or no evidence, other than his own testimony, to meet it. Smith

asserted he was “merely a person that was being used to move these drugs from one point to

another,” whose role “was much lesser than [the] person that these drugs belonged to.” He also

asserted that he did not own the marijuana, the residence in which it was stored, or the vehicle in

which he was stopped.

       But Smith does not dispute that, in November 2004, the Memphis Police received

information from a reliable informant that marijuana was being stored at and sold from a residence

in Memphis; that the utilities for the residence were in his name; that police observed him loading

boxes from the residence into the vehicle; that he knew the boxes contained marijuana; that he drove

away from the residence with 665 pounds of marijuana in the vehicle and a revolver under the

driver’s seat; or that police found drug paraphernalia, scales, plastic bags, and an additional nine

pounds of marijuana in the residence.

       The evidence, therefore, left the district court with ample basis to conclude that Smith’s “role

ha[d] ‘importance to the overall scheme’ for which he was held accountable[.]” Salas, 455 F.3d at

                                                 -5-
No. 07-5178
United States v. Lonnie Smith

643 (quoting Salgado, 250 F.3d at 458). And, more to the point, it left the court with ample basis

to find that Smith had not met his burden of proving the contrary. Consequently, the district court

did not clearly err in denying the requested reduction.

                                                III.

       For the foregoing reasons, we affirm Smith’s sentence.




                                                -6-
