United States v. Arthur Anthony Garvey, 905 F.2d 1144 (8th Cir. 1990). · Go Syfert
United States v. Arthur Anthony Garvey, 905 F.2d 1144 (8th Cir. 1990). Cases Citing This Book View Copy Cite
37 citation events (1 in the last 25 years) across 4 distinct courts.
Strongest positive: United States v. Kellie Lovas (ca8, 2008-02-28)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Kellie Lovas
8th Cir. · 2008 · confidence medium
See U.S.S.G. § 3B1.2, comment. (n.4) (minimal participant is plainly among least culpable of those involved in conduct of group; defendant’s lack of knowledge or understanding of scope of enterprise and activities of others is indicative of role of minimal participant); United States v. Goodman, 509 F.3d 872, 876-77 (8th Cir.2007) (reversing minimal-role reduction when defendant, who admitted to participating in the conspiracy, presented no evidence that he lacked knowledge or understanding of scope of conspiracy and possessed materials required to manufacture methamphetamine); United State…
discussed Cited as authority (rule) United States v. Isabel Rodriguez De Varon (2×)
11th Cir. · 1999 · confidence medium
See, e.g., United States v. Carrazco, 91 F.3d 65, 67 (8th Cir.1996) (holding that when defendant is “apprehended in possession of a very substantial amount of drugs,” that is “a circumstance that tends to suggest that his participation in the criminal enterprise was itself very substantial”); United States v. Lui, 941 F.2d 844, 849 (9th Cir.1991) (“[W]e have recognized that possession of a substantial amount of narcotics is grounds for refusing to grant a sentence reduction.”); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam) (recognizing that district court…
discussed Cited as authority (rule) United States v. De Varon
11th Cir. · 1998 · confidence medium
See, e.g., United States v. Carrazco, 91 F.3d 65, 67 (8th Cir.1996) (holding that when defendant is "apprehended in possession of a very substantial amount of drugs," that is "a circumstance that tends to suggest that his participation in the criminal enterprise was itself very substantial"); United States v. Lui, 941 F.2d 844, 849 (9th Cir.1991) ("[W]e have recognized that possession of a substantial amount of narcotics is grounds for refusing to grant a sentence reduction."); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam) (recognizing that district court may refuse …
discussed Cited as authority (rule) United States v. De Varon
11th Cir. · 1998 · confidence medium
See, e.g., United States v. Carrazco, 91 F.3d 65, 67 (8th Cir. 1996) (holding that when defendant is “apprehended in possession of a very substantial amount of drugs,” that is “a circumstance that tends to suggest that his participation in the criminal enterprise was itself very substantial”); United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991) (“[W]e have recognized that possession of a substantial amount of narcotics is grounds for refusing to grant a sentence reduction.”); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam) (recognizing that district co…
discussed Cited as authority (rule) United States v. Michael Johnson
8th Cir. · 1997 · confidence medium
See U.S. Sentencing Guidelines Manual § 3B1.2 cmt. 2 (1995) (minimal-participant reduction is to be used “infrequently”); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam) (participant status turns on culpability not courier status; drug quantity is relevant factor in determining culpability).
discussed Cited as authority (rule) United States v. Michael Johnson
8th Cir. · 1997 · confidence medium
See U.S. Sentencing Guidelines Manual § 3B1.2 cmt. 2 (1995) (minimal-participant reduction is to be used "infrequently"); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam) (participant status turns on culpability not courier status; drug quantity is relevant factor in determining culpability). 3 Accordingly, we affirm. 1 The Honorable Carol E.
discussed Cited as authority (rule) United States v. David Michael Lang
8th Cir. · 1996 · confidence medium
See United States v. Abanatha, 999 F.2d 1246, 1250 (8th Cir. 1993) (sentencing court properly denied § 3B1.2(b) reduction where defendant was active participant in drug conspiracy), cert. denied, 114 S. Ct. 1549 (1994); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam) (district court can deny mitigating-role reduction based solely on presence of significant amount of drugs).
discussed Cited as authority (rule) United States v. Kenneth Michael Shaw, United States of America v. Jeffrey Lane Barnes, United States of America v. Tina Mariam Scott, United States of America v. Alphonso Ray Tucker, Also Known as Chopper, United States of America v. Robert Lee Slater, Jr., Also Known as Rob
8th Cir. · 1996 · confidence medium
Specifically, they argue the court erred by denying their requests for minor-role reductions under section 3B1.2 of the sentencing guidelines. 6 Because a participant's status involves a factual determination, not a legal conclusion, United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990), we must accept the district court's factual findings regarding the appellants' role in the offenses unless they are clearly erroneous.
discussed Cited as authority (rule) United States v. Kenneth Shaw
8th Cir. · 1996 · confidence medium
Specifically, they argue the court erred by denying their requests for minor-role reductions under section 3B1.2 of the sentencing guidelines. 6 Because a participant’s status involves a factual determination, not a legal conclusion, United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990), we must accept the district court’s factual findings regarding the appellants’ role in the offenses unless they are clearly erroneous.
cited Cited as authority (rule) United States v. Aaron John Moog
8th Cir. · 1996 · confidence medium
United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam).
cited Cited as authority (rule) United States v. Aaron John Moog, United States of America v. Duane Dorvan Gilleshammer, United States of America v. James Dillon Smith
8th Cir. · 1996 · confidence medium
United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam).
discussed Cited as authority (rule) United States v. Enrique Manjarrez-Padilla, Also Known as Paco, Also Known as Francisco Mendoza, United States of America v. Ramon Godoy Galindo
8th Cir. · 1996 · confidence medium
See United States v. Abanatha, 999 F.2d 1246, 1250 (8th Cir.1993) (sentencing court properly denied § 3B1.2(b) reduction where defendant was active participant in drug conspiracy), cert denied, 114 S.Ct. 1549 (1994); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam) (district court can deny mitigating-role reduction based solely on presence of significant amount of drugs). 11 Thus, we affirm Galindo's sentence.
discussed Cited as authority (rule) United States v. E. Manjarrez-Padilla
8th Cir. · 1996 · confidence medium
See United States v. Abanatha, 999 F.2d 1246, 1250 (8th Cir. 1993) (sentencing court properly denied § 3B1.2(b) reduction where defendant was active participant in drug conspiracy), cert denied, 114 S. Ct. 1549 (1994); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam) (district court can deny mitigating-role reduction based solely on presence of significant amount of drugs).
discussed Cited as authority (rule) United States v. Rosalind Artison-Koenning
8th Cir. · 1996 · confidence medium
See id. at 255-56 ; United States v. Thompson, 60 F.3d 514, 517 (8th Cir.1995) (discussing burden); United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam) (district court can deny minimal-participant reduction based solely on presence of significant amount of drugs); see also United States v. Logan, 49 F.3d 352, 360-61 (8th Cir.1995) (defendant not entitled to minor-participant--much less minimal-participant--reduction simply because he was less culpable than co-defendant). 4 Finally, counsel suggests the District Court erred in not granting Artison-Koenning a three-level, ra…
discussed Cited as authority (rule) United States v. Scott A. Schneider
8th Cir. · 1993 · confidence medium
See United States v. Regan, 940 F.2d 1134, 1136 (8th Cir. 1991) (affirming denial of minor-participant reduction where defendant was deeply involved in transportation and handling of large quantity of drugs and cash, and received economic benefit from his involvement in conspiracy); United States v. Phillippi, 911 F.2d 149, 152 (8th Cir. 1990) (affirming denial of minor-participant reduction where defendant delivered large quantity of cocaine on her own and was personally acquainted with leader of organization), cert. denied, 111 S. Ct. 702 (1991); United States v. Garvey, 905 F.2d 1144, 1146 …
discussed Cited as authority (rule) United States v. Walter Johnson, A/K/A Walter O'Neal (2×)
8th Cir. · 1992 · confidence medium
Though this circuit has affirmed the denial of such reductions when it has found that the defendant was "more than a mere courier," United States v. Regan, 940 F.2d 1134, 1136 (8th Cir.1991), or when a significant amount of drugs is involved, see United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990), it has always noted that it is simply reviewing a factual determination made by the district court.
discussed Cited as authority (rule) United States v. Timothy Scott Westerman (2×)
8th Cir. · 1992 · confidence medium
Because I believe that both of the district court's factual findings should be affirmed, I concur in part and respectfully dissent in part. 35 "[P]articipant status depends on culpability, which is a 'determination requiring sensitivity to a variety of factors.' " United States v. Hall, 949 F.2d 247, 249 (8th Cir.1991) (quoting United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990)).
discussed Cited as authority (rule) United States v. Charles Zweber, United States of America v. Jerry Allen Hudson II
9th Cir. · 1990 · confidence medium
United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (court can consider prior conduct in determining role in offense); United States v. Gordon, 895 F.2d 932, 935 (4th Cir.1990) (willing to consider evidence of collateral conduct but none offered); Williams, 879 F.2d at 458 (“a sentencing court could appropriately consider conduct other than that which constitutes an element of the charged offense to determine the extent of the defendant’s role in the offense”).
discussed Cited "see" United States v. Marc A. Snoddy
8th Cir. · 1998 · signal: see · confidence high
See United States v. Garvey, 905 F.2d 1144, 1145 (8th Cir. 1990) (where a defendant who pleaded guilty to distributing hashish oil asserted he was merely a courier with no ownership interest in the hashish oil found in his possession, and therefore he should receive a “minimal” participant reduction, or 3-level “in between” reduction, pursuant to § 3B1.2, this court held that participant status is a factual determination based upon culpability, not courier status, and upheld only the “minor participant” reduction rather than a more generous reduction).
discussed Cited "see" United States v. Marc A. Snoddy
8th Cir. · 1998 · signal: see · confidence high
See United States v. Garvey, 905 F.2d 1144, 1145 (8th Cir.1990) (where a defendant who pleaded guilty to distributing hashish oil asserted he was merely a courier with no ownership interest in the hashish oil found in his possession, and therefore he should receive a “minimal” participant reduction, or 3-level “in between” reduction, pursuant to § SB 1.2, this court held that participant status is a factual determination based upon culpability, not courier status, and upheld only the “minor participant” reduction rather than a more generous reduction).
discussed Cited "see" Montanez-Anaya v. United States
1st Cir. · 1997 · signal: accord · confidence high
Accord United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990); United States v. Gallegos, 868 F.2d 711, 713 (5th Cir. 1989); United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir. 1989), cert. denied, 495 U.S. 923 (1990). 3Appellant's objections to the Magistrate Judge's report 3 indicate that he is not physically ill, but rather seeks to be released to avoid the hardships that may attend HIV sufferers in prison.
cited Cited "see" United States v. Maria D. Kilgore
8th Cir. · 1996 · signal: see · confidence high
See United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam).
cited Cited "see" United States v. Maria Delcarmen Kilgore
8th Cir. · 1996 · signal: see · confidence high
See United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam).
cited Cited "see" United States v. Edward L. Clark
8th Cir. · 1995 · signal: see · confidence high
See United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam) (refusing to grant courier minimal-participant reduction based on significant amount of drugs involved).
discussed Cited "see" United States v. Sergio Cendejas Martinez
8th Cir. · 1995 · signal: see · confidence high
See United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam) (participant status turns on culpability, not courier status; drug quantity is relevant factor in determining culpability).
discussed Cited "see" United States v. Rodney C. Barton
8th Cir. · 1993 · signal: see · confidence high
See United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam). 4 Finally, Barton contends the district court should have decreased his offense level by two for acceptance of responsibility.
cited Cited "see, e.g." United States v. William Rice, Also Known as Touche, United States of America v. Willie Chavez Blackstone, United States of America v. Terrell Washington
8th Cir. · 1995 · signal: see, e.g. · confidence medium
See, e.g., United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam).
cited Cited "see, e.g." United States v. Rice
8th Cir. · 1995 · signal: see, e.g. · confidence medium
See, e.g., United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.1990) (per curiam).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Arthur Anthony GARVEY, Defendant-Appellant
90-5005.
Court of Appeals for the Eighth Circuit.
Jun 11, 1990.
905 F.2d 1144
Michael O’Neal, Fargo, N.D., for defendant-appellant., Gary Annear, Fargo, N.D., for plaintiff-appellee.
Lay, Wollman, Stuart.
Cited by 32 opinions  |  Published
PER CURIAM.

Arthur Anthony Garvey appeals his sentence imposed by the district court [1] upon his guilty plea to distributing hashish oil. Garvey was sentenced to 54 months (4V2 years) imprisonment followed by 3 years supervised release, and a $50 special assessment. We affirm.

I. BACKGROUND

The Presentence Report (PSI) shows Garvey flew from Ft. Myers, Florida, to Fargo, North Dakota, with 8,130 grams (8.13 kilograms) of hashish oil which he exchanged with a Canadian citizen for $37,000 in Canadian currency. Garvey was arrested at the airport when he attempted to fly back to Florida. He told the arresting agents he was a resident of Jamaica and he was hired as a courier by John, a person he met in Jamaica. Garvey also acknowledged making one other trip to North Dakota for John.

The PSI calculated Garvey’s base level at 28. Guidelines § 2Dl.l(c)(8) (8-13.9 kilograms of hashish oil). Garvey received a 2-level reduction for acceptance of responsibility because he acknowledged his wrongdoing, appeared to be remorseful, and cooperated with authorities. Garvey also received a 2-level reduction for being a minor participant, Guidelines § 3B1.2(b), because he was merely a courier and had no ownership interest in the hashish oil. The PSI noted that Garvey was not entitled to a 4-level reduction as a minimal participant, § 3B1.2(a), because he acknowledged acting as a courier in one other transaction and the instant transaction involved a substantial amount of drugs. Garvey’s adjusted offense level of 24 and his criminal history category of I resulted in a range of 51-63 months.

At sentencing, Garvey argued he should have been given a 4-level reduction as a minimal participant or a 3-level reduction as falling between minimal and minor participation. He argued that the court could only consider his role in the instant offense. Garvey admitted making one other trip, but denied telling the agents that he made other such trips. The court adopted Garvey’s interpretation of the Guidelines that it could only look to his role in the present offense. Although the court did not feel Garvey was innocent of the prior conduct because of the fact he was entrust[*1146] ed this time with a large amount of drugs, the court struck the information regarding the prior occasion from the PSI. The court also accepted that Garvey was just a courier. Noting, however, commentary note 2 to § 3B1.2 which explains that the downward adjustment for a minimal participant would be used infrequently when for example an individual was a courier for “a single smuggling transaction involving a small amount of drugs,” the court considered the amount of hashish oil involved in the instant transaction large, and the 2-level reduction sufficient. Garvey attempted to persuade the court to adopt the lower end of the range because he was a minor participant. The court told Garvey it already considered his role by giving him the 2-lev-el reduction, and sentenced him to 54 months.

On appeal, Garvey argues the sentencing court erred by considering drug quantity as a factor in determining his role in the offense because it is already a factor in his base level; by relying on drug quantity in denying a 3- as well as 4-level reduction; and by, in effect, considering his prior conduct when it considered his role in the instant offense.

II. DISCUSSION

Participant status is a factual determination, not a legal conclusion, which turns upon culpability not courier status. Culpability is a determination requiring sensitivity to a variety of factors. United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989) (per curiam); United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989). But Garvey’s argument involves a legal question as to whether quantity can be considered in determining culpability. The commentary to § 3B1.2 demonstrates that drug quantity is a relevant factor in this determination. This circuit and at least one other have upheld a district court’s refusal to grant a minor and/or minimal participant reduction based solely on the significant amount of drugs involved. See United States v. Walker, 885 F.2d 1353, 1354 (8th Cir.1989) (per curiam) (150 pounds of marijuana); United States v. Gallegos, 868 F.2d 711, 713 (5th Cir.1989) (100 grams of heroin); United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir.1989) (497 grams of cocaine). Garvey’s argument that the court could not consider the quantity of drugs in also denying a 3-level reduction is equally without merit.

The record does not support Garvey’s argument that the district court improperly considered Garvey’s prior conduct in refusing to grant a more than 2-level reduction for his mitigating role in the offense. In any event, the commentary’s courier example noted above indicates prior conduct is another relevant factor. See United States v. McCrary, 887 F.2d 485, 488 (4th Cir.1989) (per curiam) (upheld refusal to grant reduction where defendant participated in prior deliveries and drug amount was substantial); United States v. White, 875 F.2d 427, 434 (4th Cir.1989) (upheld refusal to grant reduction where defendant participated in a prior drug transaction and was indispensable participant to charged transaction).

III. CONCLUSION

In conclusion, we hold that the quantity of drugs with which the defendant was involved may be considered by the court in determining his role in the offense. The district court’s finding that the defendant was a minor participant, rather than a minimal participant or in between was not clearly erroneous. The court did not err in refusing to grant a three or four offense level reduction under the guidelines.

Accordingly, the judgment is affirmed.

1

. The Honorable Rodney S. Webb, United States District Judge for the District of North Dakota.