In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1964

United States of America,

Plaintiff-Appellee,

v.

Amachi Isienyi,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 671--Ann Claire Williams, Judge.


Argued January 4, 2000--Decided March 20, 2000



      Before Flaum, Easterbrook, and Manion, Circuit Judges.

      Flaum, Circuit Judge. Amachi Isienyi pled guilty
to knowingly and intentionally importing 842
grams of mixtures containing heroin in violation
of 21 U.S.C. sec. 952(a). The United States
District Court for the Northern District of
Illinois sentenced him to 57 months in custody,
four years supervised release, and ordered him to
pay a $2,000 fine. For the reasons stated below,
we affirm the decision of the district court.

Background

      Two individuals in Nigeria recruited Isienyi to
smuggle drugs into the United States. These
individuals transported Isienyi from Nigeria to
Kenya, where Isienyi met another member of the
smuggling operation, who instructed Isienyi and
made arrangements for him to transport drugs from
Kenya to Chicago, Illinois.

      Isienyi followed the instructions and ingested
(or had implanted in his rectum) 72 pellet-like
objects containing a substance that he knew to be
some type of narcotic drug. On September 17,
1998, with the pellets still within his person,
Isienyi traveled by air from Kenya to Belgium,
and from there to O’Hare International Airport in
Chicago. Upon arriving at O’Hare airport,
Isienyi was detained and subsequently arrested by
United States Customs officials. After the
pellets were passed by Isienyi, they were tested
and found to contain 842 grams of 91 percent pure
heroin.

      On November 30, 1998, Isienyi pled guilty
pursuant to a negotiated plea agreement. The
probation officer calculated his offense level to
be 25, which included a two-level safety valve
reduction and a three-level adjustment for
acceptance of responsibility. Isienyi filed a
motion requesting that the sentencing court
reduce his adjusted base level, pursuant to sec.
3B1.2, because he was a minimal or minor
participant in the crime. The sentencing court
denied the request, and with an adjusted base
offense level of 25 and a criminal history
category I, Isienyi faced a sentence of 57 to 71
months. The court imposed a sentence of 57 months
incarceration, to be followed by a four-year term
of supervised release, and it ordered Isienyi to
pay a $2,000 fine.

      Isienyi now appeals this sentence in two
respects. First, Isienyi contends that the
sentencing court erred in denying his request for
a mitigating role adjustment pursuant to sec.
3B1.2. Second, he contends that the sentencing
court erred in ordering the $2,000 fine.

Discussion

A.

      Isienyi argues that he should have been awarded
a two- to four-level downward adjustment in his
offense level because his role in the offense was
minimal or at least minor. Section 3B1.2 of the
Sentencing Guidelines provides a range of
adjustments based on an individual’s mitigating
role in the offense. Subsection (a) instructs the
sentencing court to decrease an individual’s
offense level by four levels if the individual
"was a minimal participant" in the criminal
activity. U.S.S.G. sec. 3B1.2(a). The commentary
explains that subsection (a) applies to those
"who are plainly among the least culpable of
those involved in the conduct of a group."
U.S.S.G. sec. 3B1.2, cmt. n.1. Subsection (b)
instructs the sentencing court to decrease an
individual’s offense level by two levels if he
"was a minor participant" in the criminal
activity, and the commentary defines a minor
participant as one "who is less culpable than
most other participants." U.S.S.G. sec. 3B1.2,
cmt. n.3. Section 3B1.2 provides for an
intermediate adjustment of three levels for cases
falling between (a) and (b).

      Isienyi contends that the sentencing court erred
in denying him an adjustment pursuant to this
section of the Guidelines because he played only
a small role in the criminal activity that
resulted in his arrest. Isienyi was convicted of
importing a single load of heroin into the United
States, but his actions were minor relative to
the other participants in the international drug
smuggling scheme. The sentencing court refused to
consider Isienyi’s role in comparison to the
conduct of other participants in the drug
smuggling scheme because Isienyi was charged and
held accountable only for the drugs that he
personally transported into the United States.

      Isienyi concedes that the law of this Circuit
is firmly established against him. We recently
rejected an identical argument in United States
v. Griffin, 150 F.3d 778 (7th Cir. 1998), where
we reiterated that "[i]n determining the
applicability of sec. 3B1.2, ’the relevant
inquiry is whether the defendant was a minor
participant in the crime for which he was
convicted, not whether he was a minor participant
in some broader conspiracy that may have
surrounded it.’" Id. at 787 (quoting United
States v. Brown, 136 F.3d 1176, 1185-86 (7th Cir.
1998)). Thus, as we made clear in United States
v. Burnett, 66 F.3d 137 (7th Cir. 1995), "[w]hen
a courier is held accountable for only the
amounts he carries, he plays a significant rather
than a minor role in that offense," id. at 140,
and he is therefore not entitled to a mitigating
role reduction. See also United States v.
Cobblah, 118 F.3d 549, 552 (7th Cir. 1997)
(affirming the denial of a mitigating role
adjustment where the defendant was not held
"accountable for drug quantities beyond that
which he picked up on that single day"); United
States v. Uriostegui-Estrada, 86 F.3d 87, 90 (7th
Cir. 1996) (affirming the denial of a mitigating
role adjustment where the defendant was held
accountable only for the amount of drugs he
personally carried); United States v. Lampkins,
47 F.3d 175, 180-81 (7th Cir. 1995) (same). The
sentencing court was correct in placing Isienyi’s
case within this long line of precedent.

      We recognize that circuits have taken differing
approaches in applying sec. 3B1.2 to these types
of cases. Compare, e.g., United States v.
Rodriguez De Varon, 175 F.3d 930, 942-44 (11th
Cir. 1999) (en banc) (agreeing with this Circuit
that, "in determining a defendant’s role in the
offense, a district court must measure the
defendant’s role against the relevant conduct
attributed to her in calculating her base offense
level."); United States v. James, 157 F.3d 1218,
1220 (10th Cir. 1998) (holding "that when the
relevant conduct of the larger conspiracy is not
taken into account in establishing a defendant’s
base offense level, a reduction pursuant to
U.S.S.G. sec. 3B1.2 is not warranted"); United
States v. Olibrices, 979 F.2d 1557, 1560 (D.C.
Cir. 1992) (holding that a reduction for minor
role in an offense cannot be awarded when the
larger offense was not taken into account in
setting the base level), with, United States v.
Isaza-Zapata, 148 F.3d 236, 240 (3d Cir. 1998)
(holding that even if a courier is charged with
importing only the quantity of drugs that he
actually carried, the sentencing court must
examine the relative conduct of other
participants in the scheme in assessing the
courier’s relative culpability); United States v.
Snoddy, 139 F.3d 1224, 1230-31 (8th Cir. 1998)
(holding that a defendant convicted of a sole-
participant offense may nonetheless be entitled
to a mitigating role adjustment); United States
v. Demers, 13 F.3d 1381, 1385-86 (9th Cir. 1994)
(holding that a courier convicted of possession
with intent to distribute may be entitled to a
mitigating role reduction even if his base
offense level did not account for the amount of
drugs involved in the larger trafficking scheme).

       We believe, nonetheless, that this Circuit’s
approach remains a sound one. It is consistent
with the Guidelines commentary, which explains
that "[i]f a defendant has received a lower
offense level by virtue of being convicted of an
offense significantly less serious than warranted
by his actual criminal conduct, a reduction for
a mitigating role under this section ordinarily
is not warranted because such defendant is not
substantially less culpable than a defendant
whose only conduct involved the less serious
offense."/1 U.S.S.G. sec. 3B1.2, cmt. n.4; see
also Lampkins, 47 F.3d at 181 n.3. The mitigating
role adjustment appears to contemplate a
defendant who, because of his role in a concerted
activity, is held accountable for the acts of
others; the purpose of the adjustment is
therefore not implicated when, as here, the
defendant is charged only with importing the
drugs that he actually carried. See Burnett, 66
F.3d at 141 ("[The] principal office [of sec.
3B1.2] is to give the district judge a means to
mitigate unduly harsh punishment that mechanical
application of the relevant-conduct rules might
yield."). We find no error in the sentencing
court’s denial of a reduction pursuant to sec.
3B1.2.

B.

      Isienyi also argues that the sentencing court
erred in finding that he should pay a $2,000
fine. This fine is to be paid from the Inmate
Financial Responsibility Program (IFRP), which
garnishes an inmate’s prison wages to satisfy his
financial obligations. Isienyi contends that the
pre-sentence report (PSR), the findings of which
the sentencing court adopted, found that he has
no present ability to pay a fine, and the facts
of his case show that any fine will result in
severe hardship. He further contends that the
sentencing court failed to consider the factors
relating to fines set forth in sec. 5E1.2./2 We
disagree.

      A sentencing court’s imposition of a fine is
subject to plain error analysis when no objection
to the fine was raised below. United States v.
Bauer, 129 F.3d 962, 964 (7th Cir. 1997). Isienyi
argues that the court’s adoption of the PSR
finding that Isienyi is not presently able to pay
a lump sum fine and is not able to pay "on an
installment basis at this time" is irreconcilable
with the sentencing court’s finding that a fine
was appropriate. But the sentencing court’s
adopting of the PSR finding that Isienyi is
unable to pay "on an installment basis at this
time" does not logically preclude a finding that,
although Isienyi might not be able to afford a
fine within the Guidelines range, he could afford
a substantially lower fine, especially one based
on future earnings over the course of his prison
term and, if necessary, during his period of
supervised release. We have previously upheld the
authority of sentencing courts to order that
imposed fines be satisfied by withdrawing money
from an inmate’s prison earnings. See United
States v. Sanchez-Estrada, 62 F.3d 981, 989 (7th
Cir. 1995); United States v. Young, 66 F.3d 830,
839 & n.7 (7th Cir. 1995); United States v.
Gomez, 24 F.3d 924, 926-27 (7th Cir. 1994). Based
on the PSR findings with regard to Isienyi’s
financial condition, the sentencing court
departed downward substantially from the
Guidelines range, ordered that Isienyi pay the
fine imposed through the IFRP, and waived
interest on the fine and the costs of
incarceration and supervision. We find no plain
error in the court’s decision.

Conclusion

      For the reasons stated, we AFFIRM the district
court’s rulings.


/1 The commentary note goes on to give the following
example: "[I]f a defendant whose actual conduct
involved a minimal role in the distribution of 25
grams of cocaine . . . is convicted of simple
possession of cocaine, no reduction for a
mitigating role is warranted because the
defendant is not substantially less culpable than
a defendant whose only conduct involved the
simple possession of cocaine."
/2 Guideline 5E1.2(a) states in pertinent part that
a district court "shall impose a fine in all
cases, except where the defendant establishes
that he is unable to pay and is not likely to
become able to pay any fine." See U.S.S.G. sec.
5E1.2(d)(1)-(8) (listing factors to be considered
by a sentencing court in assessing a fine,
including seriousness of the offense, the
defendant’s ability to pay, and other equitable
considerations).
