United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
Jennifer Hamm has objected to the guideline calculations
contained in her Presentence Investigation Report
(“PSR”) based on the United States Probation
Officer's failure to include a two-level reduction to her
offense level based on her role in the offense. The United
States has responded, contending that any adjustment for a
mitigating role is not warranted because Hamm was at least an
average participant in the drug-distribution offense. Having
considered the testimony and other evidence presented at
trial, the Court agrees with the position taken by the
government with respect to this issue. As a result, the
defendant's objection will be overruled.
calculating the total offense level under the United States
Sentencing Guideline applicable in this matter,
Court may apply a four-level reduction to the offense level
if the defendant is determined to be a minimal participant in
the criminal activity in issue. Further, if the Court
determines that the defendant does not qualify as a minimal
participant, it may reduce the defendant's offense level
by two levels if the defendant is determined to be a minor
participant in the subject activity. See U.S.S.G.
(2017) § 3B1.2. This is a highly fact-intensive inquiry.
However, the Application Notes identify a number of
non-exclusive factors to consider in determining whether a
defendant is entitled to a role reduction and, if so, the
extent of the reduction.
initial matter, it is noteworthy that a defendant is not
entitled to a role reduction just because her role was less
significant in the overall criminal activity than other
participants in the crime. Instead, the defendant must be
“substantially less culpable than the average
participant in the criminal activity.” U.S.S.G. (2017),
§ 3B1.2, cmt. n. 3(A). Some of the factors to be
considered in making this fact-based determination include:
(i) the degree to which the defendant understood the scope
and structure of the criminal activity;
(ii) the degree to which the defendant participated in
planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the exercise of
decision making authority;
(iv) the nature and extent of the defendant's
participation in the commission of the criminal activity,
including the acts the defendant performed and the
responsibility and discretion the defendant had in performing
those acts; and
(v) the degree to which the defendant stood to benefit from
the criminal activity.
See U.S.S.G. § 3B1.2 cmt. n. 3(C).
defined in Application Note 5 to Section 3B1.2, a minor
participant is “less culpable than most other
participants in criminal activity, but whose role could not
be described as minimal.” Defendant Jennifer Hamm
argues that she is entitled to a two-level reduction as a
minor participant. She contends that “[a] complete
review of the record confirms that she satisfies each of the
five factors provided by the Sentencing Commission .
..” More specifically, Hamm contends that she:
was unaware of the full scope and structure of Mr. Hamm's
drug trafficking activities. While she rode with Mr. Hamm to
obtain narcotics on a few occasions, Mrs. Hamm did not know
that Mr. Hamm was obtaining quantities of drugs large enough
to permit widespread distribution in Montgomery County.
Instead, she believed that the purpose of the trips was to
obtain small quantities of narcotics for use by a small group
including herself, Mr. Hamm, and Ms. Myers. Likewise, Mrs.
Hamm played no part in planning or organizing the drug
trafficking in issue. Instead, Mr. Hamm made all decisions
regarding his actual distribution scheme with Ms. Myers and
Mr. Shields. In addition, Mrs. Hamm's actual
participation in the scheme was limited. Mrs. Hamm simply
rode with Mr. Hamm and sent text messages relating to drug
activity at Mr. Hamm's direction; she had no
responsibility or discretion in performing ...