                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1316




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"USA v. Vaden" (2004). 2004 Decisions. Paper 38.
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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 04-1316
                                      __________

                           UNITED STATES OF AMERICA

                                           v.

                                  MICHAEL VADEN,
                                                Appellant.
                                     __________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (Crim. No. 03-CR-00055-2)
                      District Judge: Honorable Sylvia H. Rambo

                                      __________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                December 16, 2004
                                   ___________

    Before: NYGAARD and GARTH, Circuit Judges, and POLLAK, District Judge*

                          (Opinion Filed: December 23, 2004)
                                     __________

                                       OPINION
                                      __________




      *
          The Honorable Louis H. Pollak, United States District Court for the Eastern
District of Pennsylvania sitting by designation.
Garth, Circuit Judge:

       Michael Vaden pleaded guilty to one count of conspiracy to distribute five grams

or more of crack cocaine in violation of 21 U.S.C. § 846. In determining Vaden’s

sentence, the District Court denied his request for a “minor participant” downward

adjustment under U.S.S.G. § 3B1.2(b). On appeal, Vaden argues that the District Court

erred in determining his sentence because he was less culpable than his co-defendant.

Because we find no clear error, we will affirm.

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. W e employ a

mixed standard of review when considering whether a defendant is entitled to a minor

role adjustment. See United States v. Isaza-Zapata, 148 F.3d 236, 237 (3d Cir. 1998).

When the District Court's denial was based primarily on legal interpretation of the

Sentencing Guidelines, this Court's review is plenary. See id. If the District Court's

denial was based on factual determinations, this Court reviews only for clear error. See

id.

       Because we write primarily for the parties, we will only briefly set forth the facts

relevant to the issue in this case. From July 2002 through February 2003, Marc Corbin,

Vaden’s co-conspirator, received approximately 4.5 ounces of crack cocaine and one

ounce of powder cocaine twice a week from a supplier. Corbin used middle men,

including Vaden, to distribute crack cocaine to his customers. According to Vaden, he

received no money, but rather was compensated with drugs for his part in the



                                              2
transactions.

       The conspiracy to which Vaden pled guilty ran from October 22, 2002 through

January 22, 2003 – a subset of the larger drug conspiracy with which Corbin was charged.

On each of those two dates, a confidential informant, working with the Drug Enforcement

Administration, engaged in a controlled buy from Corbin through Vaden. On October 22,

2002, the confidential informant purchased 13.3 grams of crack cocaine. On January 22,

2003, the confidential informant purchased one ounce of crack cocaine.

                                            I.

       According to the Pre-Sentence Report, Vaden’s base offense level was fixed at 34

based upon a determination that he was responsible for between 150 and 500 grams of

crack cocaine. That calculation did not take into account the more than six kilograms of

crack cocaine that Corbin, Vaden’s co-conspirator, admitted that he distributed from July

2002 through February 2003.

       Vaden objected to the Pre-Sentence Report’s failure to grant him a “minor role”

adjustment. In response, an addendum to the Pre-Sentence Report stated as follows:

       While Mr. Vaden was involved in a conspiracy, he is being held
       accountable only for the amounts of drugs he distributed in association with
       Marc Corbin . . . . According to the informant, the defendant brokered the
       distribution of ten ounces (about 283 grams) of the drug to him. The
       conspiracy involved three individuals, Marc Corbin, the defendant and the
       informant, and required the participation of each for the transactions to
       occur. Within the context of the offense conduct for which defendant is
       being held accountable, he would not appear to have a mitigating role.

       On January 27, 2004, the District Court held a sentencing hearing at which Vaden

                                            3
renewed his objection to the Pre-Sentence Report. Vaden testified that he had introduced

the informant, a girlfriend of one of Vaden’s friends, to Corbin. Because Corbin did not

want to deal “hand to hand” with the informant, Corbin enlisted Vaden to act as the

middle man for the transaction, receiving the money from the informant and delivering

the drugs from Corbin to the informant.

       At the hearing, Vaden argued that he was entitled to a minor role adjustment

because although he admittedly made the connection between Corbin and the informant

and brokered the transactions between them, Corbin used Vaden “strictly as a

middleman.” In denying Vaden’s request, the District Court noted:

              This defendant was only charged with two transactions out of this
       whole conspiracy, with two. He has been charged in accordance with those
       two transactions in which he had direct involvement, and nothing more.
              A couldn’t reach C without going through B in these transactions. . .
       .
              And he was an integral part of affecting those transactions. . . . [i]t
       couldn’t have happened without him.

Appendix at 52.

       The District Court sentenced Vaden to a term of 121 months imprisonment, four

years supervised release, a $1,000 fine and a special assessment of $100. This timely

appeal followed.

                                             II.

       Section 3B1.2 of the Sentencing Guidelines provides for a two-level reduction in

offense level if the defendant was a “minor participant” in the criminal activity. See



                                             4
U.S.S.G. § 3B1.2. The guideline application notes state that “a minor participant means

any participant who is less culpable than most other participants but whose role could not

be described as minimal.” U.S.S.G. § 3B1.2, Application Note 3.

       A minor role adjustment is only available to a defendant involved in concerted

criminal activity with other participants, whose role is minor in comparison to those other

participants. See Isaza-Zapata, 148 F.3d at 238. In assessing eligibility for a minor role

adjustment, this Court has recommended that the district court use the following three

factors to determine the defendant's relative culpability:

       1) the nature of the defendant's relationship to the other participants;
       2) the importance of the defendant's actions to the success of the venture;
       and
       3) the defendant's awareness of the nature and scope of the criminal
       enterprise.

United States v. Headley, 923 F.2d 1079 (3d Cir.1991). It is the defendant's burden to

prove that he is entitled to the adjustment. See Isaza-Zapata, 148 F.3d at 240.

       In addition, this Court has noted that:

       the mere fact that a defendant was less culpable than his co-defendants does
       not entitle the defendant to "minor participation" status as a matter of law ...
       If this were the case, then the least culpable member of any conspiracy
       would be a minor participant, regardless of the extent of that member's
       participation. We reject this approach because there are varying degrees of
       culpability present in virtually every criminal conspiracy.

United States v. Brown, 250 F.3d 811, 819 (3d Cir.2001) (internal citations omitted).

       Here, despite Vaden’s contention to the contrary, the District Court's determination

that he did not play a minor role was primarily factual in nature. Therefore, we must

                                                 5
review it for clear error. A District Court does not commit clear error by failing to

explicitly address the factors laid out in Headley. See United States v. Carr, 25 F.3d

1194, 1208 (3d Cir.1994).

       On appeal, Vaden argues that although he may have been necessary to the

transaction in that, as a middle man, the transaction could not have taken place without

him, he was nonetheless less culpable than Corbin who both supplied the drugs and

received the monetary profits. Vaden significantly underemphasizes his role in the drug

conspiracy.

       Vaden was not merely a necessary link in the physical completion of the drug

transaction. Vaden admitted that he was the party responsible for bringing Corbin and the

informant together. He had met Corbin because Corbin used an apartment next door to

Vaden’s home. In addition, Vaden had met the confidential informant several years

before then at a halfway house. Thus, unlike a drug courier, who may not even know the

various members of the larger drug conspiracy, Vaden was the only participant who had a

personal relationship with his co-conspirators.

       Furthermore, as the District Court found, Vaden was integral to the success of the

venture. Vaden testified that on the occasion of each controlled buy, the confidential

informant asked Vaden to procure cocaine, the confidential informant then arrived at

Vaden’s home and gave him money, at which point Vaden would call Corbin who would

arrive at Vaden’s home with the cocaine. Thus, Vaden did not merely act as the point of



                                             6
exchange for the drugs and money. Rather, he was instrumental in effecting the drug

conspiracy.

       Accordingly, because the District Court's denial of a minor role reduction was not

clearly erroneous, we will affirm the judgment of the District Court.




                                             7
