UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                      No. 99-4842

JAMES EARL WHITNEY, JR.,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-99-63)

Argued: May 1, 2000

Decided: June 5, 2000

Before WILKINSON, Chief Judge, and WILKINS
and LUTTIG, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Alessandra DeBlasio, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Robert Charles Neeley, Jr., ROB-
INSON & ANDERSON, Norfolk, Virginia, for Appellee. ON
BRIEF: Helen F. Fahey, United States Attorney, Alexandria, Vir-
ginia; Laura P. Tayman, Assistant United States Attorney, Norfolk,
Virginia, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Government appeals James Earl Whitney, Jr.'s sentence for
possession with the intent to distribute 50 grams or more of cocaine
base, see 21 U.S.C.A. § 841(a)(1) (West 1999), arguing that the dis-
trict court erred in reducing Whitney's offense level four levels for
being a minimal participant, see U.S. Sentencing Guidelines Manual
§ 3B1.2(a) (1998), and in departing downward six levels for aberrant
behavior. We vacate Whitney's sentence and remand for resentenc-
ing.

I.

Whitney was stopped in Capeville, Virginia by a Virginia State
trooper for several traffic violations. With Whitney were two passen-
gers, one of whom owned the automobile Whitney was driving. All
three men consented to a search of the vehicle. The resulting search
produced two plastic bags containing a total of 113.1 grams of
cocaine base, 184 plastic bags containing a total of 22.6 grams of
cocaine base, and one plastic bag containing 60.5 grams of cocaine.
Whitney admitted ownership of the drugs and was arrested. Whitney
informed Virginia troopers that he was transporting the drugs--which
had a street value of $23,000--to North Carolina for an unidentified
associate for $600.

Whitney pled guilty to possessing with the intent to distribute 50
or more grams of cocaine base. Based on the amount of drugs found
in the search, the presentence report (PSR) set Whitney's base offense
level at 32. See id. § 2D1.1(c)(4). The PSR recommended a three-
level reduction for acceptance of responsibility, see id. § 3E1.1, and
a two-level reduction pursuant to the "safety valve" provision of the
sentencing guidelines, see id. § 2D1.1(b)(6), bringing the adjusted
offense level to 27. The PSR recommended no enhancement or reduc-

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tion of Whitney's offense level based on his role in the offense. Whit-
ney's Criminal History Category of I, combined with the
recommended offense level of 27, produced a guideline range of 70
to 87 months incarceration.

Whitney requested a downward departure at the sentencing hearing
on the basis that his criminal conduct constituted aberrant behavior.
In support of his request, Whitney offered testimony concerning his
good character. Over the Government's objection, the district court
stated that it was granting a downward departure based on aberrant
behavior. Inexplicably, Whitney was sentenced to a split sentence of
35 months imprisonment and 35 months home confinement. The
Government subsequently moved for correction of sentence, see Fed.
R. Crim. P. 35(c), asserting that the guidelines do not permit a 70-
month sentence of imprisonment to be satisfied in part by a term of
home detention, see U.S.S.G. § 5C1.1(f). The district court subse-
quently vacated the sentence.

At resentencing, the court sua sponte granted Whitney a four-level
reduction for being a minimal participant in the criminal activity, see
id. § 3B1.2(a), thereby adjusting Whitney's offense level from 27 to
23. The court also departed downward six levels, finding that Whit-
ney's crime constituted a single act of aberrant behavior. Determining
that the guideline range was 24-30 months imprisonment for offense
level 17 with a Criminal History Category of I, the district court sen-
tenced Whitney to 26 months imprisonment. The Government
objected to both the offense level reduction and the downward depar-
ture.

II.

The Government first argues that the district court erred in granting
Whitney a four-level reduction for being a minimal participant. We
agree.

A defendant who was only a minimal participant in his criminal
activity is entitled to a four-level reduction. See id. However, a defen-
dant's status as a drug courier does not in itself entitle the defendant
to a minimal participant reduction. See United States v. White, 875
F.2d 427, 434 (4th Cir. 1989). Rather, whether a drug courier is enti-

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tled to the reduction depends upon the extent of his involvement in
the drug activity, i.e., the degree of his culpability. See id. In deter-
mining whether a defendant is entitled to a minimal participant reduc-
tion, a court must consider the defendant's conduct relative to the
conduct of others involved in the same criminal activity as well as his
conduct relative to the elements of conviction. See United States v.
Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). In considering the
defendant's conduct relative to the elements of conviction, a court
must decide "whether the defendant's conduct is material or essential
to committing the offense." Id. (internal quotation marks omitted).

The defendant bears the burden of demonstrating by a preponder-
ance of the evidence his entitlement to an offense level reduction. See
United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990). We
review a determination by a district court of the defendant's role in
an offense for clear error. See United States v. Love, 134 F.3d 595,
606 (4th Cir. 1998).

Here, the evidence in the record does not support a reasonable
inference that Whitney was only a minimal participant in the criminal
activity. Although the evidence demonstrates that Whitney was trans-
porting drugs, Whitney produced no further evidence concerning the
extent of his involvement in the criminal activity or the extent of the
other unidentified participants involved with him. Accordingly, the
district court clearly erred in finding that Whitney was a minimal par-
ticipant.

III.

The Government next contends that the district court erred in grant-
ing Whitney a downward departure for aberrant behavior. We agree.

We discussed the circumstances that justify a downward departure
for aberrant behavior in United States v. Glick , 946 F.2d 335 (4th Cir.
1991):

           Following congressional direction, the Sentencing Com-
          mission designed the guidelines to produce an appropriate
          sentence for a first offender. Aberrant behavior, therefore,

                     4
          means something more than merely a first offense. A single
          act of aberrant behavior suggests a spontaneous and seem-
          ingly thoughtless act rather than one which was the result of
          substantial planning because an act which occurs suddenly
          and is not the result of a continued reflective process is one
          for which the defendant may be arguably less accountable.

Glick, 946 F.2d at 338 (citation & internal quotation marks omitted).
A defendant seeking a downward departure bears the burden of estab-
lishing the mitigating factor by a preponderance of the evidence. See
United States v. Sheffer, 896 F.2d 842, 846 (4th Cir. 1990). In review-
ing a decision by the district court to depart, this court applies a "uni-
tary abuse-of-discretion standard." Koon v. United States, 518 U.S.
81, 100 (1996) (internal quotation marks omitted). Legal errors and
clearly erroneous factual findings constitute abuses of discretion. See
United States v. DeBeir, 186 F.3d 561, 566-67 (4th Cir. 1999).

Here, no evidence in the record gives rise to a reasonable inference
that Whitney's decision to commit the crime of which he was con-
victed was spontaneous or rash rather than the result of a continued
reflective process. Whitney's status as a first-time drug offender does
not bear on the questions of how much thought went into his decision
to commit the crime and how much planning by Whitney was
involved. Accordingly, the district court abused its discretion in deter-
mining that Whitney met his burden of establishing that his criminal
behavior was aberrant so as to justify the downward departure.

IV.

In sum, the district court erred in granting Whitney a four-level
reduction for minimal participation and in departing downward six
levels on the basis that Whitney's criminal conduct constituted aber-
rant behavior. We therefore vacate Whitney's sentence and remand
for resentencing consistent with this opinion.

VACATED AND REMANDED

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