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United States v. Hamm

United States District Court, E.D. Kentucky, Central Division, Lexington

October 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JENNIFER MACHELE HAMM, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         Defendant 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.

         I.

         In calculating the total offense level under the United States Sentencing Guideline applicable in this matter, [1] the 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.[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.

         As an 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).

         II.

         As 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 ...

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