Appeal from the United States District Court for the Western District of Wisconsin. No. 04 CR 92-John C. Shabaz, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
ARGUED SEPTEMBER 14, 2005
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
After defendant Jeffery Laufle pleaded guilty to a marijuana-trafficking conspiracy, the district court ordered him to serve a prison term of 76 months, a sentence within the range specified by the United States Sentencing Guidelines. Anticipating the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), the court indicated that it would impose the identical sentence if the Guidelines were treated as advisory, which in the wake of Booker they now are. Laufle appeals, contending that the district court, in calculating the Guidelines range, improperly denied him a favorable adjustment to his offense level for being a minor participant in the conspiracy and that the court also erred in denying the prosecutor's request for a downward departure for providing substantial assistance to the government. We see no error in the calculation of the Guidelines sentencing range, nor do we find the sentence imposed unreasonable. We therefore affirm Laufle's sentence.
Beginning in or around 1998, Ralph Villegas caused multi-kilogram quantities of marijuana to be shipped from Texas to co-conspirator Gale Kleman in the LaCrosse, Wisconsin area. Kleman distributed marijuana in the Minneapolis-St. Paul region, and Villegas had a connection in Texas who could obtain the marijuana for him. (Villegas actually had begun distributing marijuana to Kleman in 1995, but during the first few years of their business relationship, Kleman had taken possession of the marijuana in Texas.) Between 1998 and September 2003, when the conspiracy among Villegas, Kleman, and their associates was exposed, at least 1,433 kilograms of marijuana was dropped off in the LaCrosse area for forwarding to Kleman in Minneapolis.
Laufle owned an industrial coating and painting company that maintained its office and warehouse in Holmen, Wisconsin, near LaCrosse. After he began receiving marijuana in LaCrosse, Kleman recruited Laufle to permit the use of the warehouse as an occasional drop-off point for marijuana shipments. Laufle would later admit that he received and stored two to three shipments annually at the warehouse for a period of four or five years. Laufle arranged for an acquaintance, Steven Lee, to receive and help unload shipments at the warehouse when Laufle was not available to do so. Typically the marijuana was stored at Laufle's warehouse for only a short period of time before someone retrieved and transported it to its final destination in Minneapolis. Laufle indicated that he drove roughly half of these shipments to Minneapolis himself. Depending on the size of the shipment, Laufle was paid between $5,000 and $7,000 for receiving and storing the marijuana; and he was given another $1,000 for each load that he drove to Minnesota.
In June 2004, the government filed an information charging Laufle with conspiring to possess with the intent to distribute in excess of 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). Pursuant to a written plea agreement with the government, Laufle waived indictment and pleaded guilty to the charge. Also pursuant to the plea agreement, the government agreed to move for a downward departure for substantial assistance in the event Laufle cooperated to a sufficient extent.
Laufle appeared for sentencing on November 3, 2004. Employing the November 2003 version of the Guidelines, the probation officer proposed a total offense level of 27 that reflected a base offense level of 32 for a narcotics offense involving 1,000 to 3,000 kilograms of marijuana, see U.S.S.G. § 2D1.1(c)(4), a two-level reduction pursuant to the safety-value provisions of §§ 2D1.1(b)(6) and 5C1.2, and a three-level reduction for timely acceptance of responsibility, see § 3E1.1. Coupled with a criminal history category of I, the adjusted offense level called for a sentence in the range of 70 to 87 months. The district court adopted these calculations.
The court rejected Laufle's contention that he was entitled to an additional two-level reduction in the offense level for having been a minor participant in the conspiracy. See U.S.S.G. § 3B1.2(b). The court pointed out that Laufle had allowed marijuana to be stored in his warehouse, that he had helped unload the marijuana for storage, that he had transported some of the marijuana to Minnesota, and that he had recruited Lee to provide assistance in receiving the marijuana. R. 24 at 10. The court agreed with Laufle that his role in the offense "was certainly less than that of Kleman and Villegas[,] who appear to be regional middlemen with the large scale suppliers and the local dealers." Id. at 11. But the court disagreed with Laufle that his lesser role as compared to the two people who organized the conspiracy was insufficient to qualify him as a minor participant.
You don't look at the two key players and say, Oh, gee, he was less culpable than were the bosses and accordingly he is then a minor participant. It isn't the way it works. It looks to all of those who were involved in the offense . . . and [Laufle] was not substantially less culpable than the average participant.
Id. at 11-12. On comparing Laufle with the entire set of individuals identified as co-conspirators in this case, the court found that his involvement with the conspiracy was "certainly much more substantial" than the complicity of others and that Laufle "was not substantially less culpable than the average participant." Id. at 12.
The court also denied the government's section 5K1.1 motion for a downward departure based on the assistance Laufle had provided to the government. The government represented that Laufle's cooperation had made it less difficult to establish the full extent of the conspiracy, had corroborated the information provided by informants, and had helped tie together the government's case. However, the court was not persuaded that Laufle's assistance was so substantial as to warrant a downward departure. R. 24 at 12-13. The court subsequently added that although Laufle had been "cooperative" and "helpful," the convictions of neither Villegas nor Kleman (who were charged separately) could be attributed to Laufle's assistance. Id. at 14-15.
Faced with a Guidelines range of 70 to 87 months, the court elected to impose a sentence of 76 months. The court noted that Laufle's criminal conduct "wasn't a one-time deal. It wasn't aberrant. It wasn't anywhere close to that." R. 24 at 19. The court also pointed out that in contrast to many defendants, Laufle was not someone who had led a deprived life or who had lacked opportunities to succeed in legitimate ways, but rather had succumbed to greed when presented with a chance to make a substantial amount of money in ...