United States of America, Plaintiff-appellee, v. Charles Robert Wharton, Defendant-appellant, 951 F.2d 365 (9th Cir. 1991)

MEMORANDUM^** 

Charles Robert Wharton appeals his sentence under the United States Sentencing Guidelines following his guilty plea to aiding and abetting an unarmed bank robbery in violation of 18 U.S.C. §§ 2(a) and 2113(a). Wharton contends that the district court erred by not granting a downward adjustment of his offense level due to his minor or minimal role in the offense, pursuant to U.S.S.G. § 3B1.2. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

A district court's finding that a defendant does not qualify for minor or minimal participant status is "heavily dependent upon the facts of the particular case," U.S.S.G. § 3B1.2, comment. (background), and should be upheld unless clearly erroneous.¹ United States v. Andrus, 925 F.2d 335, 337 (9th Cir.), cert. denied, 112 S. Ct. 249 (1991); United States v. Sanchez, 908 F.2d 1443, 1449 (9th Cir. 1990).

The downward adjustment for a minor or minimal role in the offense is to be applied to someone who is "substantially less culpable than the average participant" in the crime, and should be used only infrequently. U.S.S.G. § 3B1.2, comment. (background); Andrus, 925 F.2d at 337; Sanchez, 908 F.2d at 1449.²  Merely being less culpable than one's co-participants does not automatically result in minor or minimal status. Andrus, 925 F.2d at 338; United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir. 1990). The defendant has the burden of proving his minor or minimal status by a preponderance of the evidence. Sanchez, 908 F.2d at 1449; United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). In resolving a factual dispute important to the determination of a sentence, the district court may consider any reliable information, whether or not admissible at trial, including the defendant's presentence report in cases where the defendant is on notice of its use and has the opportunity to object and to present evidence on his own behalf at the sentencing hearing. United States v. Notrangelo, 909 F.2d 363, 364-65 (9th Cir. 1990).

Wharton contends that he should have been accorded minor or minimal participant status because he mistakenly believed that his codefendant, Kenneth Crader, was shoplifting at a sporting goods store rather than robbing a bank and because Crader commandeered the car and led police officers on a high speed chase after Wharton had pulled over to surrender. Nonetheless, Wharton admitted driving the getaway car even after he realized Crader had robbed the bank. Further, the district court specifically adopted Wharton's presentence report which recounted evidence, supplied by Wharton's attorney, that Wharton had bent up the rear license plate in preparation for the crime and had previously discussed committing a bank robbery with Crader.³  On these facts, the district court found that Wharton was less responsible than Crader and noted that Crader had received an appropriately harsher sentence. It then concluded that, although minor status was a "close call" in light of Andrus, Wharton was neither a minimal nor a minor participant. There was no clear error in this refusal to grant Wharton a downward adjustment for a mitigating role in the crime, even if Wharton was less culpable than Crader. See Andrus, 925 F.2d at 337-38; Rexford, 903 F.2d at 1282.

AFFIRMED.