United States of America, Plaintiff-appellee, v. Henry Fox Tindal, Jr., Defendant-appellant, 900 F.2d 257 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 900 F.2d 257 (4th Cir. 1990) Submitted: Nov. 20, 1989. Decided: March 30, 1990

Appeal from the United States District Court for the District of South Carolina, at Columbia. Charles E. Simons, Jr., Senior District Judge. (CR-88-399)

Jack B. Swerling, Paul L. Reeves, Swerling, Harpootlian & McCulloch, Columbia, S.C., for appellant.

Robert C. Jendron, Jr., Assistant United States Attorney, Columbia, S.C., for appellee.

D.S.C.

AFFIRMED.

Before DONALD RUSSELL, MURNAGHAN and PHILLIPS, Circuit Judges.

PER CURIAM:


On September 30, 1988, Henry Fox Tindal, Jr., pled guilty to conspiracy to possess with intent to distribute cocaine and possession, as a convicted felon, of two firearms. The district judge imposed a sentence within the applicable Sentencing Guidelines range, i.e., 93 months imprisonment.

Tindal took a relatively large sum of money a substantial distance to make contact with a supposed source, intending to pick up a quantity of cocaine and then return from whence he came. The person he met to accomplish his purchase turned out to be an undercover agent. Tindal asserts a right to a four-level reduction because his role was minimal. He alternatively suggested a two- or three-level reduction because of his minor role. Because one participant is less culpable than another does not mean that he is minor or minimal in his participation. The district judge had ample evidence for denying either such reduction. The fact finding was not clearly erroneous. That is true even though the judge, in reaching his decision, referred to a prior case where Tindal had been put on probation by the district judge. That prior behavior did not affect whether the role of the defendant was minimal or minor. Having reviewed the briefs and record, we are satisfied that we can dispense with oral argument.

Accordingly, the judgment is

AFFIRMED.