USA v. Antoine Owens
OPINION filed: AFFIRMED. Decision not for publication pursuant to local rule 206. R. Guy Cole , Jr., Circuit Judge, AUTHORING; John M. Rogers, Circuit Judge and Richard Allen Griffin, Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0650n.06
Sep 01, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
LEONARD GREEN, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
COLE, ROGERS, and GRIFFIN, Circuit Judges.
COLE, Circuit Judge. Defendant-Appellant Antoine Owens appeals his 63-month sentence
imposed by the district court following his guilty plea to one count of conspiracy to violate civil
rights under 18 U.S.C. § 241. On appeal, Owens contends that the district court’s determination that
Owens played more than a minor role in the offense was clearly erroneous and that the district court
erred by failing to make factual findings under Federal Rule of Criminal Procedure 32. Because the
district court did not err in either respect, we AFFIRM.
In October or November of 2004, Arthur Sease, a Memphis police officer, called and asked
Antoine Owens, a fellow officer, to stop a black truck containing drugs and money in a Walgreens
parking lot. Sease offered Owens money in exchange for the stop and Owens agreed. Once at the
Walgreens, Owens called Sease and asked him to meet him there. After Sease and a third officer,
USA v. Antoine Owens
Alexander Johnson, arrived, Owens pulled over the truck. Next, the officers removed three males
from the truck and searched them. Owens confiscated between $600 and $700 from one of the
individuals. Owens put the three men and the money in his squad car. After searching the truck,
Sease confiscated one half of a kilogram of cocaine he found in another vehicle in the parking lot.
Sease instructed Owens to take one of the men to a nearby car wash, where Sease was to meet
Owens and ask the man some questions. Afterwards, Owens, Sease, and Johnson met at a baseball
field where Sease paid Owens $500 for his assistance and Owens split the cash he had confiscated
between the three officers.
Owens pleaded guilty to one count of conspiracy to violate civil rights in violation of 18
U.S.C. § 241. The district court calculated Owens’s total adjusted offense level at 29 and found him
to be in criminal history category I, resulting in a United States Sentencing Guidelines (“U.S.S.G.”
or “guidelines”) range of 87 to 108 months. Owens moved for a two-level minor-participant
adjustment, which would have reduced his guidelines range to 70 to 87 months. The district court
denied Owens’s motion, stating that Owens was a “regular participant in this activity . . . not minimal
or minor.” (Sentencing Hr’g Tr., Dist. Ct. Docket No. 468, at 18.) However, the district court did
grant the government’s motion for a departure under § 5K1.1 for substantial assistance to authorities.
Departing 24 months below the bottom of the guidelines range, the district court sentenced Owens
to 63 months of imprisonment. Owens appealed.
Owens’s primary argument on appeal is that the district court errred in denying his motion
for a mitigating role adjustment. Section 3B1.2(b) of the guidelines directs courts to reduce a
USA v. Antoine Owens
defendant’s offense level by two levels if the defendant “was a minor participant in any criminal
activity.” We have explained that “[t]he ‘minor participant’ reduction is available only to a party
who is ‘less culpable than most other participants’ and ‘substantially less culpable than the average
participant.’” United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir. 1993) (quoting U.S.S.G § 3B1.2,
cmt. n.3). We review “‘a district court’s denial of a mitigating role adjustment to a defendant’s
offense level for clear error.’” United States v. Lanham, 617 F.3d 873, 888 (6th Cir. 2010) (quoting
United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001)).
Owens argues that “[n]othing in the record suggests that [he] was part of a long-term scheme
to violate civil rights . . . [and that] he had a relatively minor role to play in the over all [sic] offense
encompassed by the 50 count superseding indictment.” (Owens’s Br. 20.) In cases of conspiracy,
however, defendants are not entitled to a minor participant reduction simply because they were
“minor participants . . . in the conspiracy as a whole”; rather, the “salient issue is the role the
defendant played in . . . the activity for which the court held him or her accountable.” United States
v. Campbell, 279 F.3d 392, 396 (6th Cir. 2002) (internal citations and quotation marks omitted). In
this case, Owens may have been a minor participant in the larger conspiracy as a whole, but he did
not play a minor role in the robbery at the Walgreens parking lot for which the district court held him
Owens contends that his actions required no “special skills” and that he was an expendable
part of the operation. That the actions performed by Owens were not particularly difficult is
irrelevant. Owens stopped the black truck, searched the victims, confiscated hundreds of dollars in
cash from the victims, put the victims in his squad car, transported one of the them to a car wash,
USA v. Antoine Owens
and subsequently divided the money he seized with his co-conspirators. Although Sease may have
been able to recruit another person to perform these acts or to even perform them himself, it was
Owens who actually carried them out. Thus, it cannot be said that Owens was “less culpable” than
the other two officers. See Lloyd, 10 F.3d at 1220. Accordingly, the district court did not clearly err
in denying Owens’s motion for a minor role adjustment.
Next, Owens argues that Federal Rule of Criminal Procedure 32(i)(3) required the district
court to make factual findings in support of its denial of Owens’s § 3B1.2 motion, and that the
district court failed to do so. “We review the district court’s compliance with Federal Rule of
Criminal Procedure 32(i) de novo.” United States v. White, 492 F.3d 380, 414 (6th Cir. 2007). Rule
32 provides, in relevant part, that:
At sentencing, the court:
(A) may accept any undisputed portion of the presentence report as a finding
(B) must—for any disputed portion of the presentence report or other
controverted matter—rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because
the court will not consider the matter in sentencing; and
(C) must append a copy of the court’s determinations under this rule to any
copy of the presentence report made available to the Bureau of Prisons.
Fed. R. Crim. P. 32(i)(3). Owens claims that accepting the facts provided in the presentence report
is insufficient because the report only provided a conclusory statement regarding Owens’s role in
the offense. But this argument ignores the more detailed description of the Walgreens robbery
contained in the report. The district court read this portion of the report aloud at the sentencing
hearing and confirmed with both the government and defense counsel that this was the relevant
offense conduct. Furthermore, Owens agreed that the details contained in the report concerning his
USA v. Antoine Owens
actions during the Walgreens robbery were accurate. As we have previously explained, “[w]e can
find no reason to require a district court to make independent findings outside the PSR when the
facts are undisputed.” United States v. Treadway, 328 F.3d 878, 886 (6th Cir. 2003); see also United
States v. Freeman, 640 F.3d 180, 187-88 (6th Cir. 2011). Because there were no factual disputes
related to the adjustment for the district court to resolve, the district court was free to “accept [the]
undisputed portion of the presentence report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).
For the reasons stated above, we AFFIRM Owens’s sentence.
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