                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                AUG 27 1999
                                THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                       Clerk



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                    No. 98-3355

 v.                                                   (D.C. CIV-98-40045-O1-SAC)
                                                      (District of Kansas)
 MARK B. WHITE,

               Defendant-Appellant.




                              ORDER AND JUDGMENT*



Before SEYMOUR, Chief Judge, BALDOCK ,and HENRY, Circuit Judges.



       The defendant Mark B. White appeals the district court’s denial of his request for a

two-level reduction in his offense level pursuant to § 3B1.2(b) of the United States

Sentencing Guidelines. He argues that he was a minor participant in the offenses of



       *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
which he was convicted. We conclude that the district court properly denied his request

and affirm his sentence.1



                                   I. BACKGROUND

       The government charged Mr. White with various drug offenses. In August 1998,

he pleaded guilty to one count of distributing cocaine base on February 23, 1998 and one

count of distributing cocaine base on February 25, 1998, both in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C.§ 2.

       The presentence report describes the facts underlying these offenses. On February

23, 1998, Mr. White came to the residence of a confidential informant. There, Mr. White

met a special agent of the Kansas Bureau of Investigation, who was working undercover.

Mr. White and the special agent agreed that the agent would purchase $300 of cocaine

base. At Mr. White’s direction, the group proceeded to another residence, where they met

the codefendant Christopher Bell. En route, Mr. White was given $300 to buy cocaine

base. They then traveled to Mr. White’s residence. While the special agent waited

outside, Mr. White and Mr. Bell entered the residence. Shortly thereafter, Mr. White left

his residence and gave the special agent a package containing 2.23 grams of cocaine base.


       1
             After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.


                                            2
The special agent paid Mr. White $20 for completing the transaction.

       The confidential informant then arranged another purchase of cocaine base with

Mr. White, this time for $200. Pursuant to that arrangement, the confidential informant

and the special agent came to Mr. White’s residence on February 25, 1998. Mr. White’s

son Marcus White answered the door and let them in. Although the informant and the

agent observed Mr. White in the residence, they began negotiating the transaction with his

son. Mr. White’s son displayed a handful of small chunks of cocaine base (later

determined to weigh 3.57 grams), and the agent agreed that he would pay $400 for this

amount. After the agent asked about obtaining a container for the packages, Mr. White

found a plastic bag, assisted the agent in transferring the cocaine base to the bag, and tied

the bag for the agent.

       The confidential informant then told the special agent that an agreement had been

reached for Mr. White to receive another $20 for setting up the transaction. The agent

left Mr. White’s residence to get the $20. When he returned, he gave the money to Mr.

White’s son, and then left again.

       After Mr. White pleaded guilty to the two cocaine distribution counts (charging

violations of 21 U.S.C. § 841(a)(1) and the aiding and abetting statute, 18 U.S.C. § 2) the

presentence report arrived at a base offense level of twenty-six. Mr. White objected to

the probation officer’s failure to reduce the offense level pursuant to USSG § 3B1.2. He

argued that his involvement in the February 25, 1998 transaction “was minimal at best,”


                                              3
Rec. vol. III, at 29, ¶ 97 (Presentence Investigation Report). As to the February 23, 1998

transaction, Mr. White maintained that he was “simply asked to put the undercover agent

in touch with where the agent would be able to purchase the cocaine. It was never Mark

White’s cocaine to sell.” Id.

       The district court overruled Mr. White’s objection to the presentence report,

concluding that he was not entitled to an offense level reduction for two reasons. First,

the court said, under USSG § 3B1.2, “‘when the relevant conduct of the larger conspiracy

is not taken into account in establishing a defendant’s base offense level, a reduction . . .

is not warranted.’” See Aplt’s Br., Ex.. C. at 3 (district court’s sentencing memorandum)

(quoting United States v. James, 157 F.3d 1218, 1220 (10th Cir. 1998)). Applying James,

the court reasoned that because Mr. White “is only held accountable for the amounts he

participated in distributing -not the relevant conduct attributable to the conspiracy,” a

reduction based on Mr. White’s reduced role in the offense was not warranted. Id. at 3-4.

Second, the court said, even if a § 3B1.2 reduction were authorized under James, the facts

of this case did not warrant one:

              Even if this precedent [James] did not foreclose the
              adjustment sought by [Mr.] White, he would not be entitled to
              a reduction for [a lesser role under USSG § 3B1.2] as his
              purported role as “middleman” does not automatically entitle
              him to a reduction . . . .

Id. at 4 (citations omitted).




                                              4
       The court sentenced Mr. White to concurrent terms of imprisonment of seventy

months.



                                     II. DISCUSSION

       On appeal, Mr. White argues that the district court misread our decision in James.

According to Mr. White, because no evidence was presented that he was involved in a

larger conspiracy and because there is no indication that the district court already reduced

his role in the offense by disregarding his relevant conduct in the larger conspiracy, James

does not foreclose a reduction in his offense level under USSG § 3B1.2. Mr. White also

challenges the district court’s evaluation of the evidence regarding his involvement in the

offenses. According to Mr. White, he was merely a middleman in the first transaction

and had little or no involvement in the second transaction. He insists that this slight

involvement warrants a § 3B1.2 reduction.

       We need not decide whether our decision in James forecloses a reduction in Mr.

White’s offense level under U.S.S.G. § 3B1.2 because the record supports the district

court’s alternative factual finding--that, even in the absence of James, Mr. White was not

entitled to the two-level reduction as a minor participant. The determination of whether a

defendant was a minor participant must be made on a case-by-case basis, and no one

factor is dispositive. See United States v. Calderon-Porras, 911 F.2d 421, 423 (10th Cir.

1990). Accordingly, we have rejected arguments that defendants who function as


                                              5
couriers or middlemen are necessarily entitled to § 3B1.2 reductions. See id.; see also

United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999); (“[A] defendant is not

necessarily entitled to a sentence reduction under § 3B1.2 solely because he can show that

he was a middleman); United States v. Garcia, 987 F.2d 1459, 1461 (10th Cir. 1993)

(affirming district court finding that the defendant was “simply in the middle with a lot of

other people and he deserve[d] neither an increase or a decrease based on his role in the

offense.”). Here, Mr. White was involved in two separate drug transactions, and, as the

presentence report notes, “participated in the distribution [of cocaine base] either by

brokering the transaction or assisting the agent in packaging the cocaine base.” Rec. vol.

III, at 30, ¶ 100. In light of this involvement, the district court’s denial of the two-level

reduction under § 3B1.2 is not clearly erroneous. See United States v. Santistevan, 39

F.3d 250, 254 (10th Cir. 1994) (concluding that the fact that the defendant was involved

in multiple drug transactions was a factor weighing against offense level reduction under

§ 3B1.2).

                                    III. CONCLUSION

       We therefore affirm Mr. White’s sentence.

                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge



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