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United States v. Allen

September 21, 2006

UNITED STATES OF AMERICA,
v.
GREGORY ALLEN, DEFENDANT



The opinion of the court was delivered by: John E. Jones III United States District Judge

Judge Jones

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is Defendant Gregory Allen's ("Defendant" or "Allen") two remaining objections to the presentence report ("PSR"). (Rec. Doc. 15).

PROCEDURAL HISTORY

On April 3, 2006, the Defendant pled guilty to an Information charging him with a violation of 18 U.S.C. § 4, misprison of a felony. Following the entry of the Defendant's plea, a PSR was prepared by the United States Probation Office. On August 23, 2006, a presentence conference was held before this Court with counsel for the Defendant and for the Government present. The Defendant requested and was granted the opportunity to brief his remaining objections to the PSR, both of which relate to the Probation Officer's calculation of the Defendant's total offense level. By Order dated August 23, 2006, sentencing in this matter was scheduled for Monday, September 25, 2006.

On September 6, 2006, the Defendant filed a brief in support of his objections. (Rec. Doc. 15). The Government did not, nor was it required to, respond to the Defendant's submission. Accordingly, the Defendant's remaining objections to the PSR are ripe for our review and we shall analyze each in turn. FACTUAL BACKGROUND/OFFENSE CONDUCT:

On June 22, 2005, the Defendant traveled with William Kirby ("Kirby") from Philadelphia to Winfield, Pennsylvania. Although the Defendant agreed to drive Kirby to Winfield from Philadelphia in Kirby's car, Kirby did not inform the Defendant that the purpose of the trip was to engage in a drug transaction. Kirby told Allen that the purpose of the trip was to pick up household items. (PSR, ¶ 5).

Kirby and Allen reached the informant's residence at approximately 6 a.m., whereupon the informant paid Kirby $165.00 for a quantity of crack cocaine. Kirby asked Allen to retrieve a black plastic clothing bag from within the door panel of the vehicle using a screw driver, a request to which Allen obliged. Kirby broke off a piece of crack for the informant, who then left Kirby and Allen at the residence, telling them she was leaving to obtain $1,100.00 to pay Kirby for the drugs. (PSR, ¶6). While waiting for the informant to return, Allen learned that the primary purpose of the trip was in fact to deliver crack cocaine. Upon the informant's return to the residence, she gave the money to Kirby. Kirby asked Allen to pass the bag to the informant, and Allen passed the bag to Kirby. Kirby and Allen left the area, and were arrested shortly thereafter by investigators. (PSR, ¶ 7).

DISCUSSION

The United States Sentencing Guidelines ("U.S.S.G.") sets forth the appropriate offense level calculation for a violation of 18 U.S.C. § 4 at §2X4.1(a). §2X4.1(a) provides that the base offense level for misprison of a felony is nine levels lower than the offense level for the underlying offense. The underlying offense in this case is a violation of 21 U.S.C. § 846, conspiracy to distribute 8.5 grams of cocaine base. (Rec. Doc. 1). The base offense level for the underlying offense is 26 pursuant to U.S.S.G. §2D1.1(c)(7). Accordingly, the United States Probation Officer calculated the Defendant's total offense level to be 14.*fn1

A. Mitigating Role Adjustment

Notwithstanding the nine-level reduction received by him pursuant to §2X4.1(a), the Defendant argues that an additional reduction in offense level is warranted pursuant to U.S.S.G. §3B1.2. §3B1.2(a) provides for a four-level decrease in offense level if the defendant was a "minimal participant" in any criminal activity and §3B1.2(b) provides for a two-level decrease is offense level if the defendant was a "minor participant" in any criminal activity. The section further provides that "in cases falling between (a) and (b), decrease by 3 levels."

"Minimal participant" is defined by Application Note 4 as a defendant "who [is] plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant." Application Note 4 further states that "[i]t is intended that the downward adjustment for a minimal participant will be used infrequently." "Minor participant" is defined by Application Note 5 as a defendant "who is less culpable than most other participants, but whose role could not be described as minimal." It is important to note that Application Note 2 accompanying ยง2X4.1(a) provides that ...


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