                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1605
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Buffy Bush,                              *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: October 21, 2003

                                   Filed: December 22, 2003
                                    ___________

Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.
                             ___________

JOHN R. GIBSON, Circuit Judge.

       Buffy Bush appeals from the sentence of 188 months’ imprisonment the district
court imposed after Bush pleaded guilty to conspiracy to possess cocaine base with
intent to distribute it. The district court declined to adjust Bush’s offense level
downward to account for a mitigating role under U.S.S.G. § 3B1.2(b) (Nov. 2002).
Bush contends that it was clear error for the district court not to find that she played
a minor role in the offense and that the district court erroneously based its decision
not to give the adjustment on its view that the adjustment would result in too lenient
a sentence. We remand for resentencing.
        Bush was indicted for conspiracy to distribute and possess with intent to
distribute 50 grams or more of a substance containing cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1) (2000). She entered a plea agreement that
stated: “The parties hereby agree that you should be held responsible beyond a
reasonable doubt for more than 1.5 kilograms of a mixture or substance containing
. . . cocaine base and, therefore, pursuant to U.S.S.G. § 2D1.1, the defendant’s base
offense level is 38.” She also agreed that the presentence investigation report
prepared by the probation office could be used by the court in sentencing.

      The presentence report stated that Bush was responsible for 66 kilograms of
cocaine base, which resulted in a base offense level of 38. Based on a proffer by
Sherease Latin, the presentence report stated that Bush had

      actively assisted Will Curtis in his crack operation by either purchasing
      baking soda for him, allowing him the use of her home to cook crack, or
      both. Curtis paid her either with cash or crack each time. Sherease's
      testimony would show that Buffy is responsible for approximately 66
      kilos of crack cocaine (2 kilos per encounter, 2 encounters per month,
      for 29 months, plus 8 kilos).

      The presentence report recommended that Bush receive no downward
adjustment for mitigating role:

      She was described by the ATF agent as being a mid-level participant.
      According to ATF Agent Slosson, “She was right in the middle of it all
      and knew what was going on.” Agent Slosson states the defendant made
      several smaller sales of crack cocaine, usually in ounces, and/or at times
      gave crack cocaine to relatives who did favors for her. According to the
      proffer statement of a confidential informant, the related case defendants
      were allowed into the defendant’s home at least two times per month to
      cook crack cocaine. . . . She also purchased baking soda for them, an
      ingredient used in the cooking of crack cocaine.



                                         -2-
Accordingly, the presentence report recommended that Bush receive no adjustment
for mitigating role in the offense under U.S.S.G. § 3B1.2. The presentence report did
recommend that Bush receive a three-level downward adjustment for acceptance of
responsibility.

       At the sentencing hearing, Bush objected to the presentence report’s
recommendation that she receive no mitigating role adjustment. She also asked the
court to depart downward from her criminal history category of III. Bush did not
present any evidence on the mitigating role objection, but relied on argument of
counsel. Counsel argued that three other people, Elijah Harris, William Curtis, and
Howard Marion, who were involved in the conspiracy and prosecuted in separate
proceedings, were more culpable than Bush. Counsel argued that Curtis was the
leader and that Marion and Harris were “close to equal partners with Mr. Curtis,” but
that Bush only aided the conspiracy by letting the others use her home to cook the
crack and by purchasing baking soda for them.

       The district court granted the downward departure on criminal history, ruling
that Bush would be sentenced on the basis of criminal history category II. The court
stated that the role in the offense adjustment was a very close question.

             I’ve struggled a lot with your other objection on her role in this
      offense. That’s borderline, I think, at best.
             In any conspiracy, everybody’s role in the offense differs.
             Some are more involved than others and that doesn’t necessarily
      mean every time that a person is entitled to a downward adjustment
      simply because their role may not be as great as others and drawing
      these comparisons gets to be difficult ultimately.
             I think that her role in this offense certainly is far more than
      minimal.
             She certainly has been involved more in this offense than you
      would consider a person who has a minimal role.



                                         -3-
             Is her role minor as with respect to the others? Well, she’s really
      facing a very substantial sentence.
             We start out with the basic guidelines, she’s facing a sentence of
      210 to 262 months, which is roughly very close to saying she’s facing
      a sentence of twenty years.
             And I look at the sentence that must be imposed considering her
      offense conduct in the matter, and what has driven it, of course, as much
      as anything, is the substantial amount of crack cocaine that is involved.
             And crack cocaine is a real scourge in our society today, but
      because the sentence is substantial I’m going to grant the defendant’s
      objection to failure to give her a minor role adjustment....
             I think that as I look at this offense, and as I look at the people
      that are involved in it, I see her role as first having the house and
      furnishing it, and doing some of the grocery shopping.
             Yes, she did some sales, and we have reference in the presentence
      investigation report about the sales she made.
             And we have the information in there that in exchange for her
      participation she received crack cocaine.

(Emphasis added). The court stated that it would sentence on the basis of criminal
history II and a base offense level of 38. With downward adjustments of three points
for acceptance of responsibility and two points for minor role, the court arrived at a
total offense level of 33, which converted to a sentencing range of 151 to 188 months.
At this point, defense counsel spoke up and informed the court that under the new
guidelines effective November 1, 2002 (three months before the hearing), for anyone
found to have a minor role in the offense, the base offense level was capped at 30.
See U.S.S.G. § 2D1.1(a)(3) (Nov. 2002).

      The court was evidently taken aback by the new information:

            It creates a dilemma for me, Ms. Shanahan, because one of the
      reasons frankly why I was considering your objection to her role in the
      offense was that the sentences were already so substantial without



                                         -4-
      having that in mind, and I was trying to, under those guidelines, bring
      that sentence down to what I thought was a more appropriate sentence.
              I just am not comfortable sentencing her on the basis starting with
      a base offense level 30 when I look at what her involvement in this
      crime is.
              I mean, I think I then end up with a sentence which I don’t think
      is appropriate under the guidelines.
              And so you see I’m sort of caught on the horns of a dilemma.
              If I grant your objection I’m reducing her sentence to a sentence
      which I believe is below the sentence which is appropriate for her
      involvement.
              If I don’t grant it, I’m going to be sentencing her in a range which
      I feel is too high for her involvement in it.

       Bush’s counsel argued that the mandatory minimum of ten years was “certainly
more than, I guess more than a punitive sentence when you again compare it with the
other individuals involved in this case.” The court took issue with that argument,
stating:

            See, that’s the difficulty, Ms. Shanahan. She was really part and
      parcel of this conspiracy.
            She is just not just sitting on the sidelines at all. She was really
      involved.
            She was involved in seeing that it was cooked, the powder was
      cooked up into crack cocaine.
            She may not have been a major role player in the distribution
      chain, if you will, but she certainly was more than, maybe even more,
      she was certainly more than a minimal player in any event, maybe even
      more than a minor player when it comes to the conversion of the powder
      cocaine to crack cocaine.

The court denied the minor role adjustment, which left Bush with a total offense level
of 35 (after the acceptance of responsibility adjustment) and a sentencing range of
188-235 months. The court imposed a sentence of 188 months.



                                          -5-
       The determination of whether the defendant played a minor role in the offense
is a question of fact, which we review for clear error. United States v. Camacho, 348
F.3d 696, 700 (8th Cir. 2003). The defendant carries the burden of proving he or she
is entitled to the adjustment. Id.

       Although Bush only raises one point on appeal, she actually makes two
arguments. First, she contends that the district court’s finding that she did not play
a minor role is clearly erroneous. Second, she contends that the district court erred
by basing the denial of the adjustment, in part, on its assessment that the sentence
resulting from the adjustment would be too lenient.

        We must reject Bush's first argument. She contends that she was less culpable
than William Curtis, Elijah Harris, and Howard Marion, and the government concedes
as much. Relative culpability of the various conspirators is indubitably relevant.
U.S.S.G. § 3B1.2 Application Note 3(A) states: "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." However, our cases
make it clear that merely showing the defendant was less culpable than other
participants is not enough to entitle the defendant to the adjustment if the defendant
was "deeply involved" in the offense. See United States v. West, 942 F.2d 528, 531
(8th Cir. 1991); United States v. Thompson, 60 F.3d 514, 517 (8th Cir. 1995) (“Taken
to its logical conclusion, Thompson’s position would mean that every participant in
every drug distribution scheme would be presumably entitled to a minor participant
reduction so long as he or she were able to prove the existence of an upstream drug
supplier. We reject this logic . . . .”). To prove entitlement to the adjustment, the
defendant must prove he or she is minor participant by comparison with other
participants and by comparison with the offense for which he or she was held
accountable. Ponce v. United States, 311 F.3d 911, 913 (8th Cir. 2002); United States
v. McCarthy, 97 F.3d 1562, 1574 (8th Cir. 1996) (issue is whether defendant had



                                         -6-
minor role in relevant conduct for which defendant was held accountable at
sentencing).

       It was not clear error for the district court to find that Bush did not play a minor
role. The court found she was "really involved," based on subsidiary findings that she
allowed her house to be used for the cooking, she bought baking soda to be used in
the cooking process, she sold small amounts of crack, and she was paid in crack for
her assistance. The presentence report also stated that Bush used crack to pay
relatives for services. Further, as Bush concedes in her brief, "It is true, as the PSR
notes, that Ms. Bush was aware of what was going on with Curtis and his associates."
These facts are sufficient to show that the district court's finding of no minor role was
not clear error. See United States v. McGrady, 97 F.3d 1042, 1043 (8th Cir. 1996)
(not clear error to find that drug courier was not entitled to adjustment); United States
v. Carrazco, 91 F.3d 65, 67 (8th Cir. 1996) (same); United States v. Wilson, 102 F.3d
968, 973 (8th Cir. 1996) (bodyguard and driver). The district court arguably
undermined its findings somewhat when it stated that Bush was "maybe even more
than a minor player," but this ambiguous statement is not enough to undo the effect
of other findings sufficient to support the denial of the adjustment.

      The more substantial question is whether the court erred in basing its decision
about the adjustment in part on the length of sentence the adjustment would compel.
The district court candidly acknowledged, both in its initial decision to grant the
adjustment1 and in its later, final decision to deny it,2 that a factor in the decision was


      1
          The court asked itself:

      Is her role minor as with respect to the others? Well, she’s really facing
      a very substantial sentence.
             We start out with the basic guidelines, she’s facing a sentence of
      210 to 262 months, which is roughly very close to saying she’s facing
      a sentence of twenty years.

                                           -7-
the court's assessment of whether the sentence that would result was too long or too
short to fit Bush's crime. We hasten to observe that, although Bush now objects to
the court taking the length of sentence into account, Bush's counsel herself made the
same kind of argument to the court, saying, for instance, "I don't understand how the
government cannot think that ten years is enough time for someone that had her
involvement in this case and that's what I ask the court to consider as well."

       The question of what factors the court can take into account in deciding
whether to grant an adjustment requires an understanding of the role adjustments
play in the overall guidelines scheme. The guidelines contemplate that the district
judge will, at certain junctures in the sentencing process, assess the defendant and the
crime before him and determine what length of sentence is appropriate. Specifically,
the guidelines calculation renders a sentencing range, not a sentence certain, and the
district court is allowed to select the appropriate sentence within the range. See
U.S.S.G. § 5G1.1(c).

      On the other hand, much of the rest of the guidelines sentencing process
requires the court to find facts for which the guidelines themselves determine the
proper consequences:

      . . . . And crack cocaine is a real scourge in our society today, but
      because the sentence is substantial I’m going to grant the defendant’s
      objection to failure to give her a minor role adjustment.
      2
          The court said:

      If I grant your objection I’m reducing her sentence to a sentence which
      I believe is below the sentence which is appropriate for her involvement.
              If I don’t grant it, I’m going to be sentencing her in a range which
      I feel is too high for her involvement in it.
              So, the only compromise I can offer is to sentence her on the basis
      of an offense level of 33 and a criminal history category two.


                                          -8-
      [T]he federal trial judge in today's sentencing ritual has little or no
      opportunity to consider the overall culpability of the defendant before
      him. The Guidelines themselves determine not only which factors are
      relevant (and irrelevant) to criminal punishment, but also, in most
      circumstances, the precise quantitative relevance of each factor. . . .
      Each step of a sentence calculation under the Guidelines represents what
      mathematicians call a "minimal pair": The judge must decide whether
      a given factor deemed relevant by the Sentencing Commission is present
      or absent in the case at hand. Each decision step requires the judge to
      add or subtract points or "levels"–generally no more than two at a time–
      that will ultimately determine the sentence of the defendant.

Kate Stith & Jose A. Cabranes, Judging Under the Federal Sentencing Guidelines,
91 Nw. U. L. Rev. 1247, 1254-55 (1997).

       At the time of sentencing in this case, the guidelines commentary expressly
prohibited a court from departing on the ground of dissatisfaction with the guidelines
range. U.S.S.G. § 5K2.0, comment. (Nov. 2002) (superseded by Amendment of
October 27, 2003); United States v. Wong, 127 F.3d 725, 727 (8th Cir. 1997); United
States v. Cox, 921 F.2d 772, 774 (8th Cir. 1990). Bush contends that this rule also
governs adjustments. But adjustments and departures are "distinctly different
concepts under the Guidelines. Adjustments are changes to an offense level within
the Guidelines. Departures, on the other hand, are sentences imposed outside the
Guidelines." United States v. Joetzki, 952 F.2d 1090, 1097 (9th Cir. 1991) (citation
omitted). The rule against basing departures on dissatisfaction with the sentencing
range therefore does not address the adjustment decision.

      For guidance on how to apply adjustments, we look first to the adjustment
guidelines themselves. The language of U.S.S.G. § 3B1.2, which governs the
adjustment in this case, is imperative: "Based on the defendant's role in the offense,
decrease the offense level as follows. . . ." This language does not suggest that a


                                         -9-
court can consider any factors other than the defendant's role in the offense in
deciding whether or not to give the adjustment.

       U.S.S.G. § 1B1.3 (a) provides that adjustments shall be determined on the basis
of the following:

      (1)
             (A) all acts and omissions committed, aided, abetted,
             counseled, commanded, induced, procured, or willfully
             caused by the defendant; and

             (B) in the case of a jointly undertaken criminal activity (a
             criminal plan, scheme, endeavor, or enterprise undertaken
             by the defendant in concert with others, whether or not
             charged as a conspiracy), all reasonably foreseeable acts
             and omissions of others in furtherance of the jointly
             undertaken criminal activity,

      that occurred during the commission of the offense of conviction, in
      preparation for that offense, or in the course of attempting to avoid
      detection or responsibility for that offense;

      (2) solely with respect to offenses of a character for which § 3D1.2(d)
      would require grouping of multiple counts, all acts and omissions
      described in subdivisions (1)(A) and (1)(B) above that were part of the
      same course of conduct or common scheme or plan as the offense of
      conviction;

      (3) all harm that resulted from the acts and omissions specified in
      subsections (a)(1) and (a)(2) above, and all harm that was the object of
      such acts and omissions; and

      (4) any other information specified in the applicable guideline.




                                        -10-
Conspicuously absent from what appears to be an exhaustive list is any permission
to consider the length of sentence in deciding whether to make an adjustment.

       Under 18 U.S.C. § 3742(e) (as amended 2003), with exceptions not applicable
here, a reviewing court “shall give due deference to the district court’s application of
the guidelines to the facts.” Therefore, the assessment of whether given facts should
result in an adjustment is entrusted to the district court’s discretion and should be
given deference. See United States v. Rodriguez, 342 F.3d 296, 297 (3d Cir. 2003)
("We acknowledge the considerable discretion afforded the District Court in making
the minor role determination, a decision to which we give deference."); United States
v. Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002) ("[T]he district court has
considerable discretion in making this fact-intensive determination . . . ."); United
States v. Salameh, 261 F.3d 271, 280 (2d Cir. 2001) ("With regard to the fact-
sensitive question of whether a defendant merits a mitigating role reduction, we
review for abuse of discretion the district court’s application of the Guidelines to the
circumstances of the particular case before it."), cert. denied, 536 U.S. 967 and 537
U.S. 847 (2002); United States v. Antonakeas, 255 F.3d 714, 727 (9th Cir. 2001)
(reviewing § 3B1.2 determination for abuse of discretion); United States v. Caballero,
936 F.2d 1292, 1299 (D. C. Cir. 1991) ("The application of section 3B1.2 is
inherently fact-bound and largely committed to the discretion of the trial judge."). In
United States v. McCarthy, 97 F.3d 1562, 1579 (8th Cir. 1996), we held that the
decision whether to give a two or four level decrease for mitigating role was reviewed
for abuse of discretion. We relied on Koon v. United States, 518 U.S. 81, 97 (1996),
which emphasized the district court’s retention of discretion in sentencing: "The
development of the guideline sentencing regime has not changed our view that,
except to the extent specifically directed by statute, it is not the role of an appellate
court to substitute its judgment for that of the sentencing court as to the
appropriateness of a particular sentence." (internal quotation marks omitted).




                                          -11-
       Discretion, however, does not include authority to consider and give weight to
factors that are not legally relevant to the decision at hand. United States v. McNeil,
90 F.3d 298, 300 (8th Cir. 1996). Thus, in the context of applying the adjustments
for acceptance of responsibility, U.S.S.G. § 3E1.1, and obstruction of justice,
U.S.S.G. § 3C1.1, we have held that once the district court has found the facts that
trigger application of the adjustment, the court must apply the adjustment. In Hall v.
United States, 46 F.3d 855 (8th Cir. 1995), the district court announced that it would
not apply the obstruction enhancement for threatening a witness because the court
recognized the threat was not unusual in the social context of reservation life. We
remanded, saying:

      Section 3C1.1 . . . neither limits the offense of obstruction of justice to
      any particular factual context, such as cases concerning organized crime,
      nor makes exceptions for social circumstances, such as the realities of
      reservation life.
             If Hall in fact threatened the witness, the Guidelines did not give
      the district court discretion to refuse to take the threat into account in
      sentencing. . . . If Hall threatened the witness, the district court had no
      choice but to impose the sentence enhancement that the Guidelines
      mandate.

Id. at 859. Similarly, in United States v. Rice, 184 F.3d 740, 742 (8th Cir. 1999), we
held:

      If the sentencing court finds that the defendant accepted responsibility
      for his or her offense and entered a timely guilty plea, then the defendant
      is automatically entitled to the full three-level reduction available under
      § 3E1.1. The language of § 3E1.1(b)(2) is mandatory; when all of its
      conditions are met, the court has no discretion to deny the extra one-
      level reduction.




                                         -12-
As the Second Circuit recently remarked, when a district court is considering an
adjustment, "General equitable principles do not apply." United States v. Savin, 349
F.3d 27, 37 n.9 (2d Cir. 2003).

       In United States v. Zaragoza, 123 F.3d 472 (7th Cir. 1997), the Seventh Circuit
held that it was error to fail to assess an enhancement where the government proved
obstruction of justice. The district court found the government had proved the facts
amounting to obstruction, but that the issue was close: "Do you want me to be honest
with you and tell you did the government make a case on obstruction? I think so.
Not significantly. 51/49? Maybe." Id. at 486. However, the district court declined
to impose the obstruction of justice enhancement because the court believed the
enhancement would result in an excessive sentence. The Seventh Circuit held, "The
clear mandate of the Guidelines precludes such an exercise of discretion," and
remanded for resentencing. Id. at 486-87.

        Zaragoza dealt with an issue nearly identical to the one raised in this case, and
its reasoning is consistent with our understanding of what the district court is
supposed to be doing when it considers adjustments. Although the conscientious and
able district judge in this case sought only to achieve justice, the guidelines require
that, in considering enhancements, the district court may exercise its discretion only
in finding whether the facts that trigger the enhancement exist and not in deciding
whether application of the enhancement will have a desirable effect on the defendant's
punishment. Because both the district court's initial decision to grant the adjustment
and its later decision to deny it were based in part on the effect of the adjustment on
the length of sentence, we must remand for resentencing.
                         ______________________________




                                          -13-
