     Case: 12-41133       Document: 00512423054         Page: 1     Date Filed: 10/29/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 29, 2013
                                     No. 12-41133
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee

v.

MIKE SCHARFF,

                                                  Defendant – Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CR-263-8


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Mike Scharff appeals the sentence imposed following his jury trial
conviction for conspiracy to possess with intent to distribute more than 50
kilograms but less than 100 kilograms of marijuana.                    The district court
sentenced Scharff to 70 months imprisonment and three years of superviswed
release. Scharff argues that the district court clearly erred by refusing to apply
a mitigating role reduction. He maintains that because of the transfer of his
case to a district court judge who did not preside over the trial, the district court

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 12-41133

did not know what testimony had been presented at trial. He asserts that the
district court would have applied a role reduction if it had the benefit of being
able to review the entire record. Scharff maintains that he was entitled to a
reduction for being a minor or minimal participant in the offense because he
made only $1,100 from the drug trafficking, because he only drove the scout
vehicle one or two times, because he never handled the marijuana or money, and
because he reported the organization to the FBI.
      United States Sentencing Guideline Section 3B1.2 “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.” § 3B1.2,
comment. (n.3(A)). The section calls for a two-level decrease “[i]f the defendant
was a minor participant in any criminal activity,” § 3B1.2(b), and a four-level
decrease “[i]f the defendant was a minimal participant in any criminal activity,”
§ 3B1.2(a). A minor participant is “less culpable than most other participants,
but [one] whose role could not be described as minimal.” § 3B1.2., comment.
(n.5). A “minimal participant” is one “who plays a minimal role in concerted
activity” and who is “plainly among the least culpable of those involved in the
conduct of a group.” § 3B1.2, comment. (n.4).
      The judge who sentenced Scharff was not the same judge who presided
over Scharff’s trial, and the record does not indicate that the trial transcripts
were prepared prior to sentencing. Nevertheless, some form of transcript had
been prepared prior to sentencing because the sentencing judge stated at
sentencing that he had “read the transcript of the testimony of Mr. Scharff from
the trial where he says that at least by Trip 3 one of the other individuals told
him there was an AK-47 in a bag.” The sentencing judge further stated that he
had reviewed the information about the offense conduct in the presentence
report (PSR). Additionally, the sentencing judge’s comments during sentencing
indicated that he was familiar with the facts of the case. Given the sentencing
judge’s familiarity with the facts of the case, the district court did not commit

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                                  No. 12-41133

reversible error by refusing to apply a mitigating role adjustment without
sufficiently examining the record. See United States v. Bourgeois, 950 F.2d 980,
987–88 (5th Cir. 1992); United States v. Makes Room, 49 F.3d 410, 415 (8th Cir.
1995).
      The evidence presented at trial, which was summarized in the PSR and
explicitly adopted by the district court at sentencing, showed that Scharff drove
the scout vehicle for the transportation of three or more loads of marijuana and
that those loads contained a total of approximately 1360.8 kilograms (3,000
pounds) of marijuana. While Scharff, relying on his own testimony at trial,
argues that he quit after learning that he was transporting marijuana, the
district court’s factual finding that Scharff knowingly participated in the
transportation of three loads of marijuana was not clearly erroneous. See United
States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
      Scharff was convicted only of participating in the trafficking of 50–100
kilograms of marijuana and sentenced on that basis when the evidence indicated
that he was involved in the trafficking of over 1,300 kilograms of marijuana.
Thus, Scharff received “a lower offense level by virtue of being convicted of an
offense significantly less serious than warranted by his actual criminal conduct,”
and thus “a reduction for a mitigating role under [§ 3B1.2] ordinarily is not
warranted.” § 3B1.2, comment. (n.3(B)). Furthermore, while the evidence
indicated that Scharff drove the scout vehicle for marijuana shipments, this role
did not entitle him to a mitigating role adjustment. See United States v. Rojas,
868 F.2d 1409, 1410 (5th Cir. 1989) (“a defendant may be a courier without being
either a minimal participant or a minor participant”); United States v. De Leon,
No. 92-8558, 1993 WL 241867, at *1 (5th Cir. 1993) (unpublished); see also 5TH
CIR. R. 47.5.3 (unpublished opinions prior to January 1, 1996, are precedential).
Accordingly, the district court did not clearly err by refusing to apply a
mitigating role adjustment.
      AFFIRMED.

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