                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                    PUBLISH
                                                                       OCT 2 1998
                  UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                            Clerk
                              TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                  No. 97-1249

 ELDON RAY JAMES,

             Defendant-Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
                        (D.C. No. 97-CR-26-N)


Submitted on the briefs:

Michael G. Katz, Federal Public Defender, James P. Moran, Assistant Federal
Public Defender, Denver, Colorado, for Defendant-Appellant.

Henry L. Solano, United States Attorney, John M. Hutchins, Assistant U.S.
Attorney, Daniel J. Cassidy, Assistant U.S. Attorney, Denver, Colorado,
for Plaintiff-Appellee.


Before BRORBY , McKAY , and BRISCOE , Circuit Judges.


BRISCOE , Circuit Judge.
      Defendant Eldon Ray James appeals the sentence he received following

a plea of guilty to the offense of engaging in the prohibited activities of a

Racketeer Influenced and Corrupt Organization (RICO), in violation of 18 U.S.C.

§§ 1962(c) and 1963. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), and affirm.   1



                                   BACKGROUND

      On March 28, 1997, James pled guilty to engaging in RICO activities in

connection with a drug trafficking enterprise. Pursuant to the terms of the plea

agreement, the government agreed to dismiss five additional counts filed in two

separate indictments, and to consider, based on the value of James’ assistance,

filing a motion for downward departure. In return, James agreed to cooperate

with the government.

      In the agreement, James acknowledged that the government’s evidence was

sufficient to establish his involvement in a drug trafficking enterprise that

transported cocaine from California to Colorado for distribution in numerous

counties there. James’ role in the conspiracy was to receive cocaine from a

codefendant and distribute it in at least two Colorado counties.



      1
              After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
is therefore ordered submitted without oral argument.

                                           -2-
       The presentence report prepared by the probation officer concluded the

enterprise trafficked at least 94 kilograms of cocaine, as well as additional

amounts of marijuana, hashish, and methamphetamine. The report calculated

James’ base offense level as 27. This figure included a two-level reduction based

on the quantity of drugs directly attributable to James himself (as opposed to the

amount of drugs attributable to the entire conspiracy), and a three-level reduction

for acceptance of responsibility.   See U.S.S.G. §§ 3E1.1 and 5C1.2. With a

criminal history category of I, James’ guideline range was 70 to 87 months.

       At sentencing, James moved for downward departure from the guideline

range, alleging (1) his participation was merely aberrant behavior, (2) he received

very little financial gain from the enterprise, (3) he was a minor participant in the

conspiracy, and (4) his health and age would put him at risk of abuse in prison.

The district court rejected James’ motion for reduction on all grounds and

sentenced him to seventy months’ imprisonment and three years’ supervised

release. On appeal, James challenges only the district court’s refusal to grant a

two-level reduction for his minor role in the conspiracy.

                                    JURISDICTION

       As a threshold matter, we address this court’s jurisdiction to entertain this

appeal. In James’ docketing statement, he framed his issue on appeal as

“[t]he Defendant should have been granted a downward departure.” Appellant’s


                                          -3-
Docketing Statement at 4. It is well-settled, however, that a defendant may not

appeal a sentencing court’s refusal to depart downward from a sentence within the

guideline range.   See United States v. Bromberg , 933 F.2d 895, 896 (10th Cir.

1991). Consequently, our jurisdiction is limited in these circumstances to

reviewing the sentencing court’s decision to ensure the sentence imposed is not

the result of an incorrect application of the guidelines or otherwise in violation of

the law. See id. at 897; 18 U.S.C. § 3742(a). Because supplemental briefing

makes plain that James does in fact assert the district court departed from the law

in sentencing him, we have jurisdiction to consider his appeal.

                                      DISCUSSION

       James contends the sentencing court erred by refusing him a two-level

downward adjustment under U.S.S.G. § 3B1.2(b) as a minor participant in the

criminal enterprise. We review the district court’s factual findings regarding a

defendant’s role in the offense for clear error and give due deference to the

court’s application of the sentencing guidelines to the facts.    See United States v.

Smith , 131 F.3d 1392, 1399 (10th Cir. 1997),      cert. denied , 118 S. Ct. 1109

(1998).

       Section 3B1.2 vests the district court with discretion to grant a base offense

level reduction if it finds a defendant played a mitigating role in the criminal

offense. Section 3B1.2 authorizes a four-level reduction if the defendant was a


                                             -4-
“minimal” participant in the criminal activity, a two-level reduction if the

defendant was a “minor” participant in the criminal activity, and a three-level

reduction if the defendant’s participation was more than minimal but less than

minor. A defendant’s role is minor if his role in the enterprise made him

substantially less culpable than the average participant.      See id. , comments 3 and

4. James argues that, compared to the involvement and conduct of his

codefendants, his role in the criminal enterprise was minor, warranting

a two-level reduction in his base offense level.

       James is not entitled to the reduction he seeks. Section 3B1.2, Application

Note 4 states:

       If a defendant has received a lower offense level by virtue of being
       convicted of an offense significantly less serious than warranted by
       his actual criminal conduct, a reduction for a mitigating role under
       this section ordinarily is not warranted because such defendant is
       not substantially less culpable than a defendant whose only conduct
       involved the less serious offense.

We think the reasoning of Note 4 is applicable here. Although James was not

convicted of a less serious offense, he received a less onerous sentence because of

his minor role in the enterprise. That is, James’ sentence was based not on the

collective amount of drugs distributed by all members of the conspiracy, but only

on the amount of drugs distributed by James himself. Any further reduction

would cede James an undeserved windfall.           See United States v. Lampkins , 47

F.3d 175, 181 n.3 (7th Cir. 1995).

                                             -5-
       Although this court has not yet spoken on the issue, a number of circuits

have held in similar circumstances that a defendant is not entitled to a mitigating

role adjustment where the relevant conduct of the conspiracy was not considered

in calculating the base offense level.   See United States v. Holley , 82 F.3d 1010,

1011-12 (11th Cir. 1996);    United States v. Atanda , 60 F.3d 196, 199 (5th Cir.

1995); Lampkins , 47 F.3d at 180-81; United States v. Gomez , 31 F.3d 28, 31

(2d Cir. 1994); United States v. Lucht , 18 F.3d 541, 555-56 (8th Cir. 1994);

United States v. Olibrices , 979 F.2d 1557, 1561 (D.C. Cir. 1992). James urges us

to reject the conclusions of these circuits in favor of the Ninth Circuit’s holding

in United States v. Ruelas   that “[t]he defendant’s role in relevant conduct may

provide a basis for an adjustment even if that conduct is not used to calculate the

defendant’s base offense level.”     106 F.3d 1416, 1419 (9th Cir.),   cert. denied , 117

S. Ct. 2470 (1997). This we decline to do.

       Here, James’ base offense level was predicated only on the amount of drugs

he personally handled. Thus, the district court necessarily took into account

James’ minor role in the drug trafficking enterprise. To provide a further

reduction for his role in the enterprise would amount to finding James “a minor

participant in [his] own conduct,” a finding that would “make[] no sense.”

Lampkins , 47 F.3d at 181 (footnote omitted);     see also Olibrices , 979 F.2d at 1560

(where larger conspiracy was not taken into account to set the base offense level,


                                            -6-
allowing it to be taken into account for purposes of a reduction for the mitigating

role of the defendant would produce an “absurd result”). As the sentencing court

stated, “I don’t think [James] can be said to have a minor or minimal role in

distributing the drugs that he himself distributed. Had he been charged and had

attributed to him the amount of drugs distributed in the overall conspiracy, the

argument might be different.”   2
                                    R. Vol. 4 at 10 .

      Therefore, we join the majority of circuits that have addressed this issue

and hold that when the relevant conduct of the larger conspiracy is not taken into

account in establishing a defendant’s base offense level, a reduction pursuant to

U.S.S.G. § 3B1.2 is not warranted.

      AFFIRMED.




      2
              We note that, if the district court had calculated James’ base offense
level based on the amount of drugs charged to the conspiracy as a whole -
ninety-four kilograms - his sentencing range, even with a downward departure for
a minor role, would have been significantly higher.     See, e.g. , Olibrices , 979 F.2d
at 1561.

                                             -7-
