                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3490




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 06-3490


                            UNITED STATES OF AMERICA

                                             v.

                                   DAVID BRENNER,

                                                  Appellant




                      Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                         (D.C. Criminal Action No. 04-cr-00303)
                     District Judge: Honorable Christopher C. Conner


                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 12, 2007

              Before: RENDELL, AMBRO and NYGAARD, Circuit Judges

                               (Opinion filed: July 16, 2007)




                                        OPINION


AMBRO, Circuit Judge

       David Brenner appeals his 21-month sentence for bank fraud on the ground that

the District Court improperly refused to reduce his total offense level by two levels for
playing a “minor role” in a bank fraud conspiracy.1 We see no error in the District

Court’s judgment and therefore affirm.

       Because we write only for the parties, we relate only the facts necessary for our

disposition. Brenner pled guilty to one count of conspiracy to commit theft of United

States mail and bank fraud under 18 U.S.C. § 371. According to uncontested portions of

the Presentence Report, the conspirators stole credit cards from the mail, used those cards

to make cash withdrawals from banks, and delivered the money to others. In order to

make a withdrawal, someone had to go into the bank with the card and a fake ID. We

know of three members of the conspiracy: (1) the ringleader, who went by the name of

Charles, (2) Brenner, and (3) an unnamed female co-conspirator. Numerous details are

unclear, including whether there were members higher up than Charles and to whom the

conspirators delivered the money. Brenner admits to performing the following tasks: (1)

driving Charles and the other co-conspirator to the banks and to drop-off locations, (2)

aiding the production of fake IDs, and (3) using fake IDs to go into various bank branches

and make withdrawals. Charles stole the credit cards from the mail, and the other co-

conspirator, like Brenner, made withdrawals from banks. Over the course of the

conspiracy, Brenner made ten withdrawals and attempted one other (during which he was




   1
    We have jurisdiction to review a judgment of sentence under 18 U.S.C. § 3742(a)(1).
We review the facts underlying the District Court’s decision not to apply a minimal or
minor-role reduction for clear error and its legal conclusions de novo. United States v.
Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990).

                                             2
arrested) for a total loss amount of $48,900. He did not share in the proceeds; rather, he

was paid fees for his assistance.

       At sentencing, Brenner argued that the District Court should find that he played

either a minimal or minor role in the conspiracy under U.S.S.G. § 3B1.2. This section

provides that a district court should decrease a defendant’s total offense level by four

levels if the defendant was a minimal participant in the criminal activity, two if a minor

participant, and three if in between. Id. “This section 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.” Id. at Application Note 3(A). The minimal-

participant reduction

       is intended to cover defendants who are plainly among the least culpable of
       those involved in the conduct of a group. Under this provision, the
       defendant’s lack of knowledge or understanding of the scope and structure
       of the enterprise and of the activities of others is indicative of a role as
       minimal participant. It is intended that the downward adjustment for a
       minimal participant will be used infrequently.

Id. at Application Note 4. The minor-participant reduction “applies to a defendant . . .

who is less culpable than most other participants, but whose role could not be described

as minimal.” Id. at Application Note 5. The defendant bears the burden of proving the

facts necessary to apply any of these reductions. United States v. Isaza-Zapata, 148 F.3d

236, 240 (3d Cir. 1998) (citations omitted).

       Brenner argued that he should receive a reduction because he (1) performed only

menial tasks, like driving the conspirators; (2) did not know the full scope of the

                                               3
conspiracy; (3) did not share in any of the proceeds, and (4) did not know that he was

doing anything wrong because Charles assured him that everything they did was legal.

The District Court rejected all four arguments. It found that Brenner’s work was integral

to the conspiracy, as he acquired fake IDs and made eleven fraudulent withdrawals. The

Court could not determine how much Brenner knew about the conspiracy because it

refused to credit his testimony on that issue. Essentially, Brenner testified that he was

unwittingly lured into participating in a criminal enterprise of which he knew nothing.

Charles, he said, told him that they were legally distributing money for a record label, and

he believed it. As the Court noted, however, this story is patently incredible, as anyone of

reasonable intelligence would know that using fake IDs and credit cards not registered to

him to make withdrawals from banks, and then dropping off the money at various places,

is not common practice in any legitimate industry. Thus, the Court could not credit his

testimony that he knew nothing of the overall enterprise. Moreover, Brenner was only

charged with the 11 withdrawals he actually made, so his participation in the conspiracy

charged (irrespective of whether some larger conspiracy existed) was significant.

       We see no error in the District Court’s reasoning. To qualify for a reduction,

Brenner must have proved that his participation was “substantially less culpable than the

average participant.” U.S.S.G. § 3B1.2 Application Note 3(A). Moreover, whether this

description applies is largely a question of fact. Id. Application Note 3(C). To repeat, the

Court was aware of three participants: Charles, Brenner, and the female co-conspirator



                                              4
whose job was much the same was Brenner’s (making withdrawals using fake IDs).

While Brenner was less culpable than Charles, he was at least as culpable as the other co-

conspirator. The mere fact that a participant is not a ringleader does not qualify him for a

minor-role reduction. United States v. Walker, 1 F.3d 423, 428 (6th Cir. 1993). Rather,

the reduction is reserved for participants less culpable than the typical conspirator. Rank-

and-file conspirators receive neither a minor-role reduction nor an aggravating-role

enhancement. See U.S.S.G. § 3B1.2 Application Note 3(A); see also U.S.S.G. § 3B1.1

(providing enhancements for organizers, leaders, and managers of conspiracies). Here,

the District Court found that Brenner failed to prove that his role was any less than rank-

and-file, and we see no error in that finding, particularly as the only relevant

evidence—Brenner’s testimony—could not be credited.

       Because the District Court properly refused to apply a minimal or minor-role

reduction in its calculation of Brenner’s total offense level, we affirm the judgment of

sentence.




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