USA v. Calvin Ware, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10674
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN DWIGHT WARE, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:21-cr-00099-CLM-SGC-2
____________________
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2 Opinion of the Court 22-10674
Before WILSON, L UCK , and ANDERSON, Circuit Judges.
PER C URIAM :
Calvin Ware, Jr. pleaded guilty to conspiring to possess and
distribute a controlled substance. He argues that the district court
erred at sentencing by ruling that guideline section 3B1.2’s mitigat-
ing-role reduction didn’t apply. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Ware stipulated to the following facts in his plea agreement.
In September 2020, Russell Robinson drove to a Birmingham res-
taurant and Ware was his passenger. There the two men met a
person working as a confidential source for law enforcement. The
source had earlier offered to sell Robinson one kilogram of heroin
and some methamphetamine. Robinson had agreed to buy the
drugs, but he told the source that he was concerned about the her-
oin’s quality and would have someone “test it.”
At the restaurant, the confidential source asked Robinson to
confirm that he had money to pay for the drugs. Ware exited the
car, opened the trunk, and showed the source a backpack contain-
ing the money. The entire group then left the restaurant for a
nearby apartment complex. Robinson told the source to give some
heroin to Ware to test, and the source told the two men to wait
while he retrieved the heroin. While waiting, Ware retrieved the
backpack from the trunk. Agents then arrested both Ware and
Robinson.
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22-10674 Opinion of the Court 3
After law enforcement found two digital scales and 39.1
grams of heroin in a search of Robinson’s apartment, a grand jury
indicted Ware and Robinson for conspiring to possess and distrib-
ute one kilogram or more of heroin and fifty grams or more of
methamphetamine. Ware pleaded guilty to conspiring to possess
and distribute at least 100 grams of heroin, in violation of 21 U.S.C.
sections 841(a)(1) and 841(b)(1)(B). For sentencing purposes, Ware
stipulated that he was responsible for more than 700 grams of her-
oin but less than one kilogram.
The presentence investigation report calculated Ware’s base
offense level at 28, and then subtracted three levels for Ware’s ac-
ceptance of responsibility. This resulted in a total offense level of
25 and a guideline imprisonment range of seventy to eighty-seven
months. Ware objected to the total offense level. He argued that
it should have been adjusted to 21 because guideline section 3B1.2’s
mitigating-role reduction applied.
The district court overruled his objection, citing application
note 3(B) of that guideline. It found that Ware conspired to possess
and distribute at least one kilogram of heroin and was convicted
for an offense less serious than his actual conduct. The district
court explained that if Ware had been convicted for conspiring to
possess and distribute at least one kilogram of heroin, then he
would have faced a statutory minimum sentence of ten years. But
through his plea agreement, the district court explained, Ware
pleaded to a less serious offense with a mandatory minimum of
only five years.
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4 Opinion of the Court 22-10674
The district court then sentenced Ware to seventy months’
imprisonment, to be followed by four years of supervised release.
STANDARD OF REVIEW
“[A] district court’s determination of a defendant’s role in
the offense is a finding of fact” that we review for clear error.
United States v. Rodriguez de Varon, 175 F.3d 930, 937 (11th Cir. 1999)
(en banc). We will not disturb the district court’s factual findings
“unless we are left with a definite and firm conviction that a mis-
take has been committed.” United States v. Cruickshank, 837 F.3d
1182, 1192 (11th Cir. 2016) (quoting United States v. Ghertler, 605
F.3d 1256, 1267 (11th Cir. 2010)).
DISCUSSION
Guideline section 3B1.2 provides that a defendant’s offense
level should be decreased by four levels if he was a “minimal par-
ticipant” in the criminal activity, by two levels if he was a “minor
participant,” and by three levels if his involvement falls in between
“minimal” and “minor.” “[T]he proponent of the downward ad-
justment bears the burden at all times of establishing [his] role in
the offense by a preponderance of the evidence.” Rodriguez de Va-
ron, 175 F.3d at 934.
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22-10674 Opinion of the Court 5
Ware argues that the district court clearly erred by finding
that he was not a “minimal” or “minor” participant” in the heroin
conspiracy.1 We disagree.
We first address the district court’s application of note 3(B).
Note 3(B) provides that a mitigating-role reduction “ordinarily is
not warranted” when a defendant “receive[s] a lower offense level
by virtue of being convicted of an offense significantly less serious
than warranted by his actual criminal conduct.”
The district court found that Ware’s actual criminal conduct
was conspiring to possess and distribute at least one kilogram of
heroin. Ware contends that he did not actually intend to distribute
a kilogram or more because he planned to keep the tested heroin—
a portion of the confidential source’s kilogram—for his own “per-
sonal use.” But considering the facts that Ware stipulated to, the
district court found that Ware did not intend to keep any heroin
out of the one-kilogram batch for himself.
We cannot say that finding was clearly erroneous. Ware
stipulated that Robinson and the confidential source discussed the
sale of one kilogram, that he joined Robinson at the sale to test the
entire batch’s quality, and that he showed the source that the two
men had enough money to purchase the kilogram. Cf. United States
1
Ware’s plea agreement waived his right to appeal his sentence absent certain
exceptions. Because the government did not argue that we should dismiss the
appeal or affirm his sentence on that basis, we treat that issue as abandoned.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
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6 Opinion of the Court 22-10674
v. Matthews, 3 F.4th 1286, 1289 (11th Cir. 2021) (“The sentencing
court’s factual findings may be based upon facts admitted by the
defendant’s guilty plea . . . .” (citation omitted)). So even if Ware’s
view of the evidence was permissible, so too was the district court’s
finding that Ware conspired to distribute a kilogram. And its
choice between two permissible views of the evidence “cannot be
clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564,
574 (1985) (citation omitted); see also Rodriguez de Varon, 175 F.3d at
945.
Because the district court adopted a permissible view of the
evidence—that Ware’s actual conduct was conspiring to possess
and distribute at least one kilogram of heroin—it correctly ex-
plained that Ware received a lower offense level by being convicted
of an offense “significantly less serious” than warranted by his ac-
tual conduct. U.S.S.G. § 3B1.2 cmt. n.3(B). Ware’s actual conduct
would have warranted a ten-year minimum sentence but for his
pleading to a lesser-included offense that required only a five-year
minimum. 21 U.S.C. § 841(b)(1)(A)(i); id. § 841(b)(1)(B)(i).2 Ware
maintains that he was not convicted of a significantly less serious
offense than the one Robinson was convicted of. But the relevant
offense under note 3(B) is not his codefendant’s offense. Instead, it
is the offense that Ware’s actual conduct would have supported.
See U.S.S.G. § 3B1.2 cmt. n.3(B) (“For example, if a defendant
2
The district court only cited the mandatory-minimum disparity, but we also
recognize that Ware’s plea deal afforded him a double benefit: it decreased
his base offense level from 30 to 28. See U.S.S.G. § 2D1.1(c)(5).
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22-10674 Opinion of the Court 7
whose actual conduct involved a minimal role in the distribution
of 25 grams of cocaine . . . is convicted of simple possession of co-
caine . . . , no reduction . . . is warranted . . . .”).
Thus Ware’s case is one in which section 3B1.2 “ordinarily”
does not apply. Id. That his plea deal already afforded him a lower
offense level despite his more serious conduct means he “is not sub-
stantially less culpable than a defendant whose only conduct in-
volved the less serious offense.” Id. We have no “definite and firm
conviction” that Ware satisfied his burden of proving to the district
court that this is an extraordinary case. Cruickshank, 837 F.3d at
1192 (citation omitted); see also Rodriguez de Varon, 175 F.3d at 934.
Even if we agreed with Ware that note 3(B) does not apply
here, we would still affirm his sentence. See United States v. Chit-
wood, 676 F.3d 971, 975 (11th Cir. 2012) (“[W]e may affirm for any
reason supported by the record, even if not relied upon by the dis-
trict court.” (cleaned up)). The district court relied exclusively on
note 3(B) in overruling Ware’s objection, but Ware also argued to
the district court (and to this court) that the totality of circum-
stances justified a reduction under section 3B1.2. He cited the com-
mentary’s five factors relevant to analyzing a defendant’s role:
(1) how much he “understood the scope and structure of the crim-
inal activity,” (2) how much he “participated in planning or organ-
izing” it, (3) how much he “exercised decision-making authority,”
(4) the “nature and extent” of his participation, “including the acts
[he] performed” and the discretion he had to do so, and (5) how
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8 Opinion of the Court 22-10674
much he “stood to benefit” from the activity. U.S.S.G. § 3B1.2
cmt. n.3(C).
Although Ware argues that his role was limited to only test-
ing the heroin’s quality and that he did not help plan the sale, the
undisputed facts show he was not just the tester. Ware also rode
to the restaurant and apartment complex in the same vehicle, knew
about the backpack of money, showed the money to the confiden-
tial source to confirm that Ware and Robinson could pay for the
heroin, and grabbed the money after the source told the other two
men he would return to them with the heroin. Thus, even if
Ware’s role was less significant than Robinson’s role, it was not un-
important enough to make him a minimal or minor participant.
Ware understood the scope and structure of the activity (buying
heroin that he would test for Robinson). He exercised at least some
decision-making authority (by assuming responsibility of the pur-
chase money). And the nature and extent of his participation were
significant (accompanying Robinson to both the restaurant and
apartment, confirming they had the purchase money, grabbing the
purchase money after the confidential source left to retrieve the
heroin, and being present to test the heroin’s quality).
Because the district court did not clearly err by overruling
Ware’s objection to his offense level, we affirm.
AFFIRMED.
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