United States of America, Plaintiff-appellee, v. Howard Gibson, Aka Kenneth Dean Robinson, Defendant-appellant, 134 F.3d 380 (9th Cir. 1998)Annotate this Case
Jan. 15, 1998. **
Before BROWNING, KLEINFELD and THOMAS, Circuit Judges.
LYNCH, District Judge.
Howard Gibson appeals his 15-month sentence imposed following a jury conviction of four counts of bank fraud, in violation of 18 U.S.C. § 1344. Gibson contends that the district court erred by refusing to award him a two-level reduction for being a minor participant under U.S.S.G. § 3B1.2(b). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
A defendant has the burden of proving his minor status in the criminal activity by a preponderance of the evidence. See United States v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994). A minor role adjustment is warranted only where the defendant plays a role in the offense which makes him "substantially less culpable than the average participant." See United States v. Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); U.S.S.G. § 3B1.2, comment. (1995). A defendant is not entitled automatically to the reduction simply because he was less culpable than his co-defendants. See Benitez, 34 F.3d at 1498.
Here, Gibson received stolen checks, recruited accomplices, deposited one of the checks under an assumed name, directed two of his accomplices concerning the withdrawal of funds and received and divided a substantial portion of the proceeds. Gibson also received a substantial payment for his participation in the offense. In light of the facts, the district court's refusal to apply a two-level downward adjustment for minor participant status was not clearly erroneous. See id.