                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
             ___________

             No. 07-1496
             ___________

United States of America,              *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
James Bradley Weems,                   *
                                       *
            Appellee.                  *
            ___________
                                           Appeals from the United States
             No. 07-1531                   District Court for the
             ___________                   Western District of Arkansas.

United States of America,              *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Christopher Mitchell,                  *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: January 15, 2008
                                Filed: February 28, 2008
                                 ___________
Before WOLLMAN and SMITH, Circuit Judges, and GRITZNER,1 District Judge.
                          ___________

WOLLMAN, Circuit Judge.

       James Weems and Christopher Mitchell were involved in a cross burning
incident and were subsequently convicted by a jury of conspiring to threaten and
intimidate an African-American man in the exercise of his housing rights because of
his race, in violation of 18 U.S.C. § 241. The government appeals, contending that
the district court erred in calculating the defendants’ offense levels by not applying
the three-level enhancement for hate crime motivation and by granting a two-level
reduction for the defendants’ roles in the offense. Because we conclude that the
district court did not correctly calculate the applicable guidelines range, we vacate the
sentences and remand the cases to the district court for resentencing.

      I. Background

       On August 5, 2005, Weems, Mitchell, Clint Wurtele, and others attended a
party at Christopher Baird’s home in Fouke, Arkansas. A discussion arose in which
Baird’s African-American neighbor was discussed in a racially derogatory way.
Before the evening was over, a wooden cross was constructed and set on fire outside
the neighbor’s home.

       On May 3, 2006, a federal grand jury indicted Weems, Mitchell, and Wurtele
on two counts. Count I charged the defendants with conspiring to injure, oppress,
threaten and intimidate an African-American man in the free exercise and enjoyment
of his housing rights because of his race. Count II charged the defendants with
burning a cross to willfully intimidate and interfere with an African-American man


      1
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa, sitting by designation.

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because of his race and color and because he was occupying a dwelling in Fouke,
Arkansas. The defendants pleaded not guilty. After the trial, the jury found Weems
and Mitchell guilty on Count I and acquitted them on Count II. The jury acquitted
Wurtele on both counts.

      Baird entered a guilty plea to one count of conspiracy to threaten and intimidate
an African-American man in the free exercise and enjoyment of his housing rights.
The applicable base offense level was 12. The district court applied the three-level
enhancement for hate crime motivation. The district court also granted a two-level
reduction for acceptance of responsibility, and a three-level reduction for substantial
cooperation. The final offense level was 10, and the corresponding guidelines range
was six to twelve months’ imprisonment. The district court sentenced Baird to six
months’ home detention, three years’ probation, a $2,000 fine, and a $100 special
assessment.

       When sentencing Weems and Mitchell, the district court declined to apply the
three-level enhancement for hate crime motivation. The district court granted the
defendants’ request for a two-level reduction for being minor participants in the
conspiracy, resulting in an offense level of 10. The district court sentenced both
defendants to one month of imprisonment, five months’ home detention, two years’
supervised release, a $2,000 fine, and a $100 special assessment.

       II. Hate Crime Motivation

       When imposing a sentence, the district court must begin by correctly calculating
the applicable guidelines range. United States v. Foster, No. 07-1217, 2008 WL
248761, at *1 (8th Cir. Jan. 31, 2008) (quoting Gall v. United States, 128 S. Ct. 586,
596 (2007)). Under the guidelines, the defendant’s offense level must be increased
by three levels “[i]f the finder of fact at trial . . . determines beyond a reasonable doubt
that the defendant intentionally selected any victim or any property as the object of the

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offense of conviction because of the actual or perceived race, color, religion, national
origin, ethnicity, gender, disability, or sexual orientation of any person . . . .” United
States Sentencing Guidelines (U.S.S.G.) § 3A1.1(a). We review the district court’s
application of the sentencing guidelines de novo and its factual findings for clear error.
Foster, 2008 WL 248761, at *1.

       Because the jury found beyond a reasonable doubt that Weems and Mitchell
selected the victim because of his race, the district court should have applied the three-
level enhancement when calculating the correct guidelines range. See United States
v. Pospisil, 186 F.3d 1023, 1031 (8th Cir. 1999) (the jury’s finding provided sufficient
basis to impose enhancement). Applying the hate crime motivation enhancement for
a violation of 18 U.S.C. § 241 is not duplicative because the race of the victim is not
an element of § 241, and it is not incorporated in the applicable base offense level.
See U.S.S.G. § 2H1.1(a); United States v. McDermott, 29 F.3d 404, 411 (8th Cir.
1994). Moreover, the district court applied the hate crime motivation enhancement
to Baird, who pleaded guilty to violating § 241. Thus, the district court erred by not
applying the enhancement when it calculated the applicable guidelines ranges for
Weems and Mitchell.

        A nonharmless error in the calculation of the applicable guidelines range
requires a reviewing court to vacate the sentence and remand the case for
resentencing. See United States v. Icaza, 492 F.3d 967, 970 (8th Cir. 2007). In this
case, the district court’s error was not harmless. The guidelines range that results after
applying the three-level enhancement is higher than the guidelines range used by the
district court. See United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005)
(noting that an error in calculating the applicable guidelines range would be harmless
if the sentence imposed by the district court fell within both the correct and incorrect
guidelines ranges). Additionally, the district court noted at sentencing that it intended
to sentence the defendants within the applicable guidelines range because it did not
see any reason to grant downward departures. Tr. 600-03.

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       Weems and Mitchell assert that it is unreasonable to increase their offense
levels for hate crime motivation because their coconspirator, Baird, was given a lesser
sentence than what they face, even though Baird was allegedly responsible for many
of the significant steps in building and burning the cross. This argument, however,
ignores the fact that coconspirators can receive different sentences if, inter alia, they
are eligible for offense level reductions for substantial assistance and acceptance of
responsibility. See United States v. Ball, 499 F.3d 890, 900 (8th Cir. 2007). Baird
entered a guilty plea and received reductions in his offense level for acceptance of
responsibility and cooperation with the government. Thus, the fact that the defendants
face higher guidelines ranges than the sentencing range Baird faced does not make
application of the enhancement for hate crime motivation unreasonable.

      III. Role in the Conspiracy

       The district court found that Weems and Mitchell were minor participants in the
conspiracy and applied a two-level reduction in their offense levels. The government
asserts that this finding was clearly erroneous because the defendants were deeply
involved in the conspiracy.

       A defendant who is found to be a minor participant in the criminal activity is
entitled to a two-level decrease in his offense level. U.S.S.G. § 3B1.2(b). Whether
a defendant was a minor participant is “determined by comparing the acts of each
participant in relation to the relevant conduct for which the participant is held
accountable and by measuring each participant’s individual acts and relative
culpability against the elements of the offense.” United States v. Ramos-Torres, 187
F.3d 909, 915 (8th Cir. 1999). The defendant has the burden of proving that a
reduction in offense level is warranted and, if the defendant was involved in a
conspiracy, the defendant must show “that his culpability was relatively minor
compared to that of the other participants and that he was not deeply involved in the
offense.” United States v. Lopez-Vargas, 457 F.3d 828, 831 (8th Cir. 2006). We

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review a district court’s finding that a defendant was a minor participant in the offense
for clear error, and we reverse if the decision “is not supported by substantial
evidence, it resulted from an erroneous conception of the applicable law, or we firmly
believe, after reviewing the record, that a mistake has been made.” United States v.
Bueno, 443 F.3d 1017, 1022 (8th Cir. 2006).

       Weems and Mitchell did not offer any evidence comparing their culpabilities
with that of the other participants in the conspiracy. See id. at 1022-23 (concluding
that the district court’s determination that defendant was a minimal participant was
erroneous because the defendant did not offer any evidence regarding the culpabilities
of each participant). Weems and Mitchell merely asserted that they were minor
participants and argued that because they were not convicted of the substantive charge
of cross burning they were minor participants with regard to the conspiracy. This
argument fails to meet their burden, however, because the relevant test is the
comparison of each coconspirator’s culpability and the measuring of each
participant’s actions against the elements of the offense. The test does not involve
comparing the acts of each participant with the elements of offenses for which the
participants were acquitted. Thus, the assertion that Weems and Mitchell were less
culpable than Baird with regard to the conspiracy is not supported by substantial
evidence.

       Additionally, the evidence presented at trial indicates that Weems and Mitchell
were deeply involved in the conspiracy. The district court noted that both Weems and
Mitchell joined the conspiracy to build a cross for purposes of driving the victim out
of the neighborhood and that, although Weems and Mitchell did not physically engage
in every step of the building and burning of the cross, they assisted Baird in the
activities that led to the construction and burning of the cross. Tr. 599-600 (discussing
the indictment). The trial testimony revealed that Weems and Mitchell admitted that
they overheard the racially derogatory comments made about Baird’s African-
American neighbor. Weems asked Baird if he had any wood and teased Baird when

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he returned with driftwood that was not suitable for building a cross. Mitchell gave
Weems his hammer, which Weems used to attach the boards in the shape of a cross.
Mitchell placed the cross in the back of his truck. Weems and Mitchell went to the
site where Baird set up the cross, and when the cross started to fall apart, Mitchell
used his screw gun to place at least one screw in the cross. At the time the cross was
set on fire, Weems and Mitchell were present at the burn site and were aware that
Baird’s African-American neighbor lived next to the site. In addition to these
undisputed facts, additional evidence presented at trial, shows that Weems and
Mitchell were intimately involved in the activities that culminated in the cross burning
and does not support the finding that they were minor participants in the offense.

       The district court’s conclusion that Weems and Mitchell “did not play as major
a role as did Baird,” Tr. 600, does not mean that Weems and Mitchell were less
culpable than Baird with regard to the conspiracy, and it does not negate the fact that,
when comparing their actions to the elements of the offense, it is clear that they were
deeply involved in the conspiracy. See Pospisil, 186 F.3d at 1032 (affirming the
district court’s determination that the defendant, who may have played a smaller role
in the cross burning than a coconspirator, was not a minor participant in the
conspiracy to violate § 241 in light of the fact that he incited the crowd before the
cross was burned and helped make the cross flammable); see also United States v.
Goodman, 509 F.3d 872, 876 (8th Cir. 2007) (concluding that the district court erred
in applying a minimal participant role reduction because the defendant was deeply
involved in the conspiracy to manufacture methamphetamine). In sum, our review of
the record leaves us with the firm belief that the district court erred when it found that
the defendants were minor participants in the conspiracy.

      The sentences are vacated, and the cases are remanded to the district court for
resentencing in accordance with the views expressed in this opinion.
                      ______________________________



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