                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 15-3440
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                OMAR CALIPH AQUIL,

                                                   Appellant

         Appeal from the District Court for the Middle District of Pennsylvania
                                 (No. 12-cr-00006-21)
                       District Judge: Honorable Yvette Kane

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 6, 2016

            Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges.

                                  (Filed: July 19, 2016)
                                      ____________

                                        OPINION
                                      ____________

CHAGARES, Circuit Judge.

       Omar Caliph Aquil appeals his sentence following his plea of guilty to a charge of

conspiracy to distribute and possess with intent to distribute crack cocaine. For the

following reasons, we will affirm the District Court’s judgment of sentence.



 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             I.

       We write solely for the parties and therefore recite only the facts necessary to our

disposition. This matter involves a drug trafficking conspiracy. Members of the

organization obtained cocaine from Colombian suppliers in Aruba, transporting it to

Puerto Rico and then to the East Coast of the United States. The conspiracy was headed

by Oscar Sanchez, Estevan Hernandez Claudio, and Raul Vargas. Court-authorized

wiretaps in the fall of 2011 revealed that Aquil was a Harrisburg-based dealer who

purchased cocaine from Vargas. In October 2012, Aquil was arrested, waived his rights

under Miranda v. Arizona, 384 U.S. 436 (1966), and spoke with investigators. Aquil told

investigators that he had been obtaining cocaine from Vargas beginning in 2007, and that

he had acquired amounts of between one and four ounces at a time. Aquil explained that

after Vargas’ arrest in 2012, he could not find quality cocaine for a good price and

therefore did not have a source of supply.

       On February 10, 2015, Aquil pled guilty to a Superseding Felony Information

charging him with conspiracy to distribute and possess with intent to distribute crack

cocaine pursuant to 21 U.S.C. § 846. As part of the plea agreement, it was stipulated that

Aquil was responsible for between 196 grams and 280 grams of crack cocaine.

According to the Government and the Presentence Report, this amount of cocaine is a

“conservative” figure. P.S.R. ¶ 12; Gov’t Br. 7 n.1.

       The revised Presentence Report calculated a Base Offense Level of 28, and

applied a 3 level reduction for acceptance of responsibility, yielding a Total Offense



                                             2
Level of 25. His Criminal History Category was IV. This resulted in an advisory

Sentencing Guidelines range of 84 months to 105 months.

       At Aquil’s sentencing hearing, the Court agreed with his objection to the

calculation of his criminal history points, reducing it by 2 points. The Court denied

Aquil’s objection that his Offense Level should be reduced 2 points because he was a

minor participant. The resulting modification yielded a Total Offense Level of 25 and a

Criminal History Category of III, for a Guidelines range of 70 months to 87 months.

Aquil was sentenced to 70 months imprisonment and 3 years of supervised release. He

filed a timely appeal.

                                            II.1

       “We exercise plenary review where the district court’s denial of a downward

adjustment is based primarily on a legal interpretation of the Sentencing Guidelines.

However, where the district court’s decision rests on factual determinations, we review

for clear error.” United States v. Isaza-Zapata, 148 F.3d 236, 237 (3d Cir. 1998)

(citations omitted).

                                            III.

       Section 3B1.2(b) of the Sentencing Guidelines provides that if a criminal

defendant is a “minor participant” in any criminal activity, the defendant’s offense level

should be reduced by 2 levels. U.S.S.G. § 3B1.2(b). Aquil argues that it was error for




1
 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291.
                                             3
the District Court to deny his request that his offense level be reduced 2 points because he

fits the definition of a minor participant.

                                              A.

       The Government first argues that the “minor participant” reduction is not even

applicable to Aquil, pointing to commentary to U.S.S.G. § 3B1.2. Application Note 3(B)

to U.S.S.G. § 3B1.2 provides:

       If 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.

U.S.S.G. § 3B1.2, Application Note 3(B); see also United States v. Olibrices, 979 F.2d

1557, 1561 (D.C. Cir. 1992) (“[A] defendant is not entitled to have her sentence reduced

for a minimal role in relevant conduct that had no part in the calculation of the base

level.”).

       According to the Government, Aquil stipulated to responsibility for 196 to 280

grams of crack cocaine, but that amount did not account for the “enormous amounts” of

cocaine involved in the conspiracy generally, for which Aquil may “potentially” be

responsible. Gov’t Br. 20. Therefore, according to the Government, Aquil pled guilty to

an offense “significantly less serious” than what was warranted by his “actual criminal

conduct,” precluding application of the “minor participant” reduction under Application

Note 3(B).

       This argument does not seem so clear cut because it is not established what

offense was “warranted” by Aquil’s “actual criminal conduct.” The Government

                                              4
repeatedly states that the stipulated amount of cocaine is “conservative,” but it has not

shown that his actual conduct warrants a greater offense. See Isaza-Zapata, 148 F.3d at

241 (“[The defendant] was sentenced on the basis only of the amount of drugs which he

carried, but there is no indication that he was convicted of an offense less serious than

warranted by his actual conduct, and [the relevant Application Note] should not preclude

a minor role adjustment.”). Even though the Government represents, for example, that

Aquil routinely dealt in 1 to 4 ounces (28.349 grams to 113.396 grams) per transaction

over the course of at least five years, it has not told us how often those transactions

occurred. The Presentence Report only states these transactions occurred on “numerous”

occasions. A “conservative” estimate of the drugs Aquil handled does not mean his

actual conduct warranted a greater offense. Therefore, as a threshold matter, Aquil is not

precluded from claiming the minor participant reduction.

                                              B.

       Even though Application Note 3(B) does not preclude the minor participant

adjustment, Aquil is still not entitled to it. Under our case law, we look to certain factors

to determine whether a defendant is entitled to a reduction for a minor role under §

3B1.2. These factors are “(1) the defendant’s awareness of the nature and scope of the

criminal enterprise; (2) the nature of the defendant’s relationship to the other participants;

and (3) the importance of the defendant’s actions to the success of the venture. The

District Court should consider each of these factors in relation to the other participants in

the conspiracy.” United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001) (citations and

quotation marks omitted); see also Isaza-Zapata, 148 F.3d at 238 (“The district courts are

                                              5
allowed broad discretion in applying this section, and their rulings are left largely

undisturbed by the courts of appeal.”). It is the defendant who “bears the burden of

demonstrating that other participants were involved and that, under the standards set forth

above and the facts of his particular case, the minor role adjustment should apply.” Id. at

240.

       The parties disagree about whether Aquil is a minor participant. Aquil argues that

he was merely a street-level dealer, unaware of the details of the international smuggling

ring. Aquil says that he purchased drugs from his childhood friend Vargas and was not

important to the larger criminal enterprises’ success. Aquil stresses that he never left

Pennsylvania.

       Our factors set forth in Brown cut against Aquil. Considering the first factor, the

record suggests Aquil was aware of the nature and scope of the drug conspiracy. He

purchased drugs from Vargas, a senior member in the conspiracy, on numerous occasions

since 2007. While Aquil’s attorney stated at the sentencing hearing that Aquil was not

aware that the drugs were coming from Aruba and Puerto Rico, the attorney did state that

“I assume he had to have some imagination, realized that the cocaine started somewhere,

probably not in the United States.” Appendix (“App.”) A26. Even if Aquil did not know

precisely where the drugs were coming from, he surely knew they came from outside the

United States and that Aquil was operating with others. Considering the second factor,

Aquil regularly made contact with Vargas on a number of occasions over a number of

years. This was systematic and continuous contact with a key figure of the conspiracy,

not simply contact only once or twice, but on multiple occasions since 2007, as the

                                              6
Government correctly points out. In contrast with another co-defendant who received the

minor role reduction because she was a drug courier on a single occasion, the District

Court found that Aquil’s conduct was an “extended and lengthy involvement over the

course of years.” App. A27-29.

       Most importantly, under the third factor, Aquil’s actions played a significant role

to the success of the venture. Aquil regularly purchased drugs from Vargas over many

years, and he was a drug dealer in the Harrisburg area. Notably, Aquil purchased powder

and converted it into crack cocaine. As the Government argues, the distribution and

refining of the cocaine was vital to the success of the enterprise. The refinement of the

drugs was crucial as it likely expanded the reach of drug consumers.

       After considering these factors, we agree with the Government that Aquil has

failed to meet his burden that he is entitled to the minor participant reduction. See Isaza-

Zapata, 148 F.3d at 240.

                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.




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