     Case: 09-51035 Document: 00511281999 Page: 1 Date Filed: 11/02/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                                                  FILED
                                                             November 2, 2010
                                No. 09-51035
                                                                 Lyle W. Cayce
                                                                      Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee
v.

JONATHAN EDWIN CASHAW,

                                          Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:
      Defendant - Appellant, Jonathan Edwin Cashaw, pleaded guilty to a drug
charge and was sentenced to 290 months’ imprisonment. Cashaw challenges his
sentence, arguing that his career offender status under the United States
Sentencing Guidelines should not have prevented him from receiving a minor
role adjustment to his offense level under the career offender provision. We
affirm.
                 I. Factual and Procedural Background
      On April 24, 2009, police executed a search warrant on a home from which
they suspected Cashaw and an associate were selling drugs.             During the
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                                       No. 09-51035

execution of the warrant, police arrested both Cashaw and his associate after
finding, among other things, 106.15 grams of crack cocaine, stacks of currency,
drug scales, and drug packaging materials in the home. The home was located
within 1,000 feet of a middle school.
       On May 12, 2009, Cashaw was charged with one count of aiding and
abetting the possession with intent to distribute at least fifty grams of crack
cocaine within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(iii), 860(a), and 18 U.S.C. § 2. Cashaw pleaded guilty to the charge.
       Cashaw’s pre-sentence investigation report (“PSR”) recommended a base
offense level of 30. The PSR then recommended that Cashaw receive career
offender status under United States Sentencing Guidelines (“Guidelines”)
§ 4B1.1 because he had prior felony convictions for aggravated sexual assault
and possession of cocaine with intent to deliver. Using the alternate offense
level from the career offender provision, the PSR recommended an offense level
of 34. This reflected his career offender offense level of 37, minus three levels for
acceptance of responsibility under Guidelines §§ 3.E1.1 and 4B1.1(b). Under
§ 4B1.1(b), Cashaw’s criminal history category was VI. Consequently, the PSR
recommended a sentencing range of 262 to 327 months’ imprisonment. See U.S.
S ENTENCING G UIDELINES M ANUAL (U.S.S.G.), ch. 5, pt. A, sentencing table
(2009).1
       At his sentencing on November 12, 2009, Cashaw objected to the PSR’s
recommended sentencing range and requested a two-level reduction to his
offense level because he was a minor participant in the offense pursuant to
Guidelines § 3B1.2.2        The district court agreed that Cashaw was a minor


       1
       We cite to the 2009 Guidelines because they were the version in effect on the date of
Cashaw’s sentencing. See U.S.S.G. § 1B1.11(a).
       2
        A minor participant is a defendant who is “less culpable than most other participants,
but whose role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5.

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                                       No. 09-51035

participant, but it overruled Cashaw’s objection, reasoning that the career
offender provision precluded any downward adjustment for a minor participant.
The district court adopted the PSR’s recommendations and sentenced Cashaw
to 290 months’ imprisonment. Cashaw appeals his sentence.
                                       II. Analysis
A. Standard of Review
       We review a sentence imposed under the Guidelines for “reasonableness,”
meaning we will reverse only if the district court abused its discretion. United
States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citing Gall v.
United States, 552 U.S. 38, 46 (2007)).            But we review the district court’s
interpretation and application of the Guidelines de novo. Id.
B. Sentence
       Cashaw argues the district court committed reversible error when it
concluded the Guidelines do not permit a minor participant adjustment for
career offenders.      He does not challenge his sentence on any other basis.
Cashaw bases his argument on the fact that the career offender provision does
not expressly preclude a downward adjustment for a minor participant and the
fact that this court has never ruled to the contrary. This interpretation is not
only inconsistent with the sequence of the Guidelines’ instructions, but also
contrary to basic principles of statutory interpretation.3
       The district court determines a defendants’ sentence under the Guidelines
by following, step-by-step, the sequence laid out in the “Application


       3
          We also note that every other circuit court of appeals to consider this issue has
rejected Cashaw’s interpretation of the career offender provision. See United States v.
Morales–Diaz, 925 F.2d 535, 540 (1st Cir. 1991); United States v. Perez, 328 F.3d 96, 97–98 (2d
Cir. 2003) (per curiam); United States v. Johnson, 155 F.3d 682, 684–85 (3d Cir. 1998); United
States v. Ward, 144 F.3d 1024, 1036 (7th Cir. 1998); United States v. Beltran, 122 F.3d 1156,
1160 (8th Cir. 1997); United States v. McCoy, 23 F.3d 216, 218 (9th Cir. 1994) (per curiam);
United States v. Jeppeson, 333 F.3d 1180, 1184 (10th Cir. 2003); United States v. Jeter, 329
F.3d 1229, 1230 (11th Cir. 2003) (per curiam).

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Instructions,” § 1B1.1. See United States v. Reyes, 881 F.2d 155, 156 (5th Cir.
1989) (“Section 1B1.1 maps out the manner in which a sentencing court should
apply the Guideline provisions.”).           This section governs application of the
Guidelines, “[e]xcept as specifically directed.” U.S.S.G. § 1B1.1.
       In the instant case, following the instructions in sequence demonstrates
that the minor participant adjustment cannot be applied to the career offender
provision. Under § 1B1.1, the district court first determines the applicable
Guideline section and base offense level. Id. § 1B1.1(a)–(b). Next, it applies any
appropriate upward or downward adjustments from Chapter Three of the
Guidelines. Id. § 1B1.1(c), (e). Both the minor participant and acceptance of
responsibility adjustments are found in Chapter Three. Id. §§ 3B1.2, 3E1.1.
After Chapter Three adjustments, the district court then determines criminal
history category and “other applicable adjustments” from Chapter Four. Id.
§ 1B1.1(f). The career offender provision is found in Chapter Four and provides
an alternate offense level if the defendant qualifies as a career offender and the
career offender offense level is greater than the “otherwise applicable” offense
level. Id. § 4B1.1(a)–(b). A defendant’s sentencing range is based on the final
offense level and criminal history category after these adjustments are applied
to the base level in sequence. Id. § 1B1.1(g).
       Applying the Chapter Three minor participant adjustment after the
Chapter Four career offender provision, as Cashaw urges, would disrupt the
sequence mandated by § 1B1.1. The only Chapter Three adjustment explicitly
permitted by Guidelines § 4B1.1(b), and thus authorized by the instructions, is
the acceptance of responsibility adjustment.4
       Nonetheless, Cashaw argues the career offender provision impliedly
authorizes a minor participant adjustment out of sequence because it is not

       4
         Guidelines § 4B1.1(b) instructs: “[i]f an adjustment [for acceptance of responsibility]
applies, decrease the offense level by the number of levels corresponding to the adjustment.”

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                                  No. 09-51035

explicitly prohibited. We disagree. The fact that the career offender provision
authorizes an adjustment for acceptance of responsibility, but no other
adjustments, demonstrates that the Sentencing Commission intended for no
other adjustment to apply. See United States v. Vickers, 891 F.2d 86, 88 (5th Cir.
1989) (noting that the enumeration of specific exceptions to a provision in the
Guidelines indicates the purposeful exclusion of any other exceptions to that
provision). As one of our sister circuits succinctly put it, “[h]ad the Sentencing
Commission intended for all Chapter Three adjustments to follow a career
offender adjustment, there would have been no need for the Commission to
expressly indicate the permissibility of a reduction [for acceptance of
responsibility].” Jeppeson, 333 F.3d at 1184. Furthermore, implying a minor
participant adjustment into the career offender provision would prevent
implementation of Congress’ directive that career offenders “receive a sentence
of imprisonment at or near the maximum term authorized.” U.S.S.G. § 4B1.1
cmt. background (internal citations and quotation marks omitted). We conclude
that the minor participant adjustment does not apply to the career offender
provision in Guidelines § 4B1.1, and the district court, therefore, correctly
interpreted that provision.
                               III. Conclusion
      For the foregoing reasons, we AFFIRM.




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