                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 28 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                    No. 02-6237
                                                    (D.C. No. 01-CR-175-L)
    WESLEY ALLEN DORROUGH, also                        (W.D. Oklahoma)
    known as Allen Dorrough,

                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, PORFILIO and BALDOCK, Circuit Judges.




         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(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      This case is the direct criminal appeal of defendant Wesley Allen

Dorrough’s conviction under the general conspiracy statute, 18 U.S.C. § 371, for

agreeing, between August 2000 and November 2000, to help smuggle heroin into

the Federal Correctional Institution, El Reno, Oklahoma (El Reno), where he was

an inmate. Defendant also appeals his related conviction of the attempted

possession of a sympathy card containing heroin which had been mailed to him

and intercepted by prison officials. On appeal, defendant argues that evidence of

his three prior positive drug tests while incarcerated at El Reno should not have

been admitted and that the district court erred in refusing to allow a two-to-four

point reduction in the guideline calculation to reflect his limited role in the

offense. After our review of the parties’ briefs, the record, and the relevant case

law, we affirm.

      As the parties are familiar with the facts of this case, we will refer to them

only as necessary to explain our decision. Suffice it to say that defendant agreed

with the two ringleaders of a heroin smuggling operation to allow his name to be

used as the addressee of greeting cards sent into El Reno and containing heroin.

In return for taking this risk, defendant was rewarded with a portion of the heroin

shipment. He argues that the district court erred in allowing evidence of his three

prior positive drug tests to be introduced at trial, contending that two of the tests

had occurred before the dates of the conspiracy.


                                          -2-
      The Federal Rules of Evidence prohibit the admission of evidence of “other

crimes, wrongs, or acts . . . to prove the character of a person in order to show

action in conformity therewith.” Fed. R. Evid. 404(b). Rule 404(b) provides,

however, that admission of such evidence for other purposes, such as “proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident” is acceptable. Id. We review the district court’s decision to

admit evidence of defendant’s prior drug use for abuse of discretion. See United

States v. Fitzherbert, 13 F.3d 340, 343 (10th Cir. 1993).

      The district court held a hearing to address the admissibility of the

drug-test evidence and concluded, after applying the factors set out in Fitzherbert,

that the evidence could be properly admitted. In Fitzherbert, this court set out the

following criteria for determining whether evidence of prior acts under

Rule 404(b) could be admitted:

      (1)    the evidence must be offered for a proper purpose;
      (2)    the evidence must be relevant;
      (3)    the trial court must make a rule 403 determination of
             whether the probative value of the similar acts is
             substantially outweighed by its potential for unfair
             prejudice; and
      (4)    pursuant to Fed. R. Evid. 105, the trial court shall, upon
             request, instruct the jury that the evidence of similar acts
             is to be considered only for the proper purpose for which
             it was admitted.

Id. (quotation omitted).



                                          -3-
      The district court found that the evidence was both relevant and offered for

a proper purpose because it would show defendant participated in the conspiracy

in exchange for drugs. In determining that the probative value of the evidence

was not outweighed by its potential for unfair prejudice, the court noted that the

jury would already know defendant was an inmate in a federal prison and would

learn from defendant’s admissible confession of his drug use. The court agreed to

give a limiting instruction if so requested by defendant. Because the district court

properly applied the Fitzherbert factors in determining the admissibility of the

drug-test evidence, the eventual inclusion of that evidence at trial was not an

abuse of discretion.

      As his second issue on appeal, defendant contends that the district court

erred in refusing to allow a two-to-four point reduction in the guideline

calculation for his role in the offense as a minimal, minor, or between minimal

and minor participant pursuant to USSG § 3B1.2. “A trial court’s determination

as to whether a defendant was a minimal or minor participant is a factual finding

that we review only for clear error.” United States v. Lockhart, 37 F.3d 1451,

1455 (10th Cir. 1994). Defendant must prove by a preponderance of the evidence

that he was a minimal or minor participant in the offense and thus eligible for a

§ 3B1.2 reduction. Id. “[A] defendant is not entitled to a reduction under 3B1.2




                                         -4-
simply because he is the least culpable among several participants in a jointly

undertaken criminal enterprise.” Id.

      In denying the minimal role adjustment, the district judge noted his

familiarity with the case and with defendant’s particular role, having already

sentenced the other conspirators. R. Vol. VI at 462. While acknowledging that

defendant was not a leader of the organization, the court concluded that defendant

“was more than a minimal participant in . . . the use of his name. . . . [H]is role

in the conspiracy was more than simply a minimal player who did not understand

the scope and structure of the enterprise.” Id. at 462-63. In response to defense

counsel’s allusion to the other two levels of role adjustment anticipated by

§ 3B1.2–that of minor participant and that of a participant somewhere between

minimal and minor–the district court responded:

             The Court is aware of the statute. . . . I feel that
      Mr. Dorrough’s role is one which he is above the minimal participant
      and at the level where he would not get any credit for his role.

            The Court feels his role was such that was important to the
      conspiracy, that he had an understanding of what the conspiracy and
      purposes were and the ramifications of it.

             He was not a leader and does not get additional points upward
      for being a leader of the conspiracy, but his role was such that the
      Court feels that he should not be given any adjustment as a leader or
      as a minimal participant. His role was vital and key to the overall
      end result of the conspiracy. And he had knowledge according to
      what the Court understands from the testimony of what the purpose
      and the full ramifications of the conspiracy were.


                                          -5-
Id. at 463-64.

      We have reviewed the record in this case and find that the district court

properly considered all levels of adjustment under § 3B1.2. The court’s

conclusion that defendant was not a minimal or minor participant was not clearly

erroneous.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Chief Judge




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