United States v. Cantrell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-30562

v.  D.C. No.

NEWTON JAMES CANTRELL, SR., CR-03-00027-SEH

Defendant-Appellant.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-30563

v.  D.C. No.

ANGELA DANIEL WALKER, CR-03-00027-SEH

Defendant-Appellant.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-30565

v.  D.C. No.

JACK V. COVERSUP, CR-03-00027-SEH

Defendant-Appellant.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-30567

v.  D.C. No.

THERESA ANN WALKER, CR-03-00027-SEH

Defendant-Appellant.



675

676 UNITED STATES v. CANTRELL

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-30568

v.  D.C. No.

JEANINE LUCILLE RENZ, CR-03-00027-SEH

Defendant-Appellant.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 04-30026

v.  D.C. No.

JAMES DANIEL MURPHY, CR-03-00027-SEH

Defendant-Appellant.



UNITED STATES OF AMERICA,  No. 04-30028

Plaintiff-Appellee,

v.  D.C. No.

CR-03-00027-SEH

DONNA SHAWL CANTRELL,

OPINION

Defendant-Appellant.



Appeals from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

June 13, 2005—Seattle, Washington

Filed January 13, 2006

Before: Harry Pregerson, Susan P. Graber, and

Ronald M. Gould, Circuit Judges.

UNITED STATES v. CANTRELL 677

Opinion by Judge Gould

UNITED STATES v. CANTRELL 681

COUNSEL

Palmer A. Hoovestal, Helena, Montana, for defendant-

appellant Newton J. Cantrell.

Daniel P. Buckley, Bozeman, Montana, for defendant-

appellant Angela D. Walker.

Mark D. Meyer, Great Falls, Montana, for defendant-

appellant Theresa A. Walker.

J. Mayo Ashley, Helena, Montana, for defendant-appellant

Jack P. Coversup.

James B. Obie, Helena, Montana, for defendant-appellant Jea-

nine L. Renz.

Marcia K. Hurd, Assistant United States Attorney, Billings,

Montana, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

Newton Cantrell (“N. Cantrell”), Angela Walker (“A.

Walker”), Theresa Walker (“T. Walker”), Jack Coversup

(“Coversup”), and Jeanine Renz (“Renz”) challenge the sen-

tences they received as a result of their jury convictions for

conspiracy to distribute methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and 846, and other related charges. N.

Cantrell argues that his sentence is unconstitutional in light of

the Supreme Court’s decision in United States v. Booker, 125

S. Ct. 738 (2005), which rendered the federal Sentencing

Guidelines advisory. A. Walker, T. Walker, Coversup, and

Renz assert that the district court misapplied the Guidelines in

imposing their sentences. We have jurisdiction under 28

U.S.C. § 1291, and we affirm in part and remand in part.

682 UNITED STATES v. CANTRELL

I

In 1997, law enforcement officials from the Federal Bureau

of Investigation and local and tribal police departments

launched a five-year investigation of N. Cantrell, his wife,

Donna Cantrell (“D. Cantrell”), their daughters, T. Walker

and A. Walker, and various of their relatives and friends who

were believed to be involved in a conspiracy to distribute

methamphetamine and marijuana in and around the Fort Peck

Indian Reservation and northeastern Montana. N. Cantrell,

Coversup, T. Walker, Renz, Murphy, and A. Walker were

eventually arrested and indicted for narcotics and firearms

offenses, including a charge of “knowingly and unlawfully

conspir[ing] to distribute 500 grams or more of . . . metham-

phetamine . . . in violation of Title 21 U.S.C. § 841(a)(1), all

in violation of Title 21 U.S.C. § 846.” They pled not guilty

and proceeded to trial, where all the defendants, with the

exception of Coversup, were convicted by a jury on the

methamphetamine conspiracy charge. The jury acquitted

Coversup of the methamphetamine conspiracy charge, but

found him guilty of “possessi[on] with intent to distribute less

than 50 grams of methamphetamine.”

After trial the district court conducted sentencing proceed-

ings for each defendant.

The district court held an evidentiary hearing for N. Can-

trell and then attributed him with 15 kilograms or more of

methamphetamine for a base offense level of 38. The district

court also found that N. Cantrell was a leader in the drug con-

spiracy and applied a two-level enhancement under U.S.S.G.

§ 3B1.1(c). Based on this total offense level of 40, N. Cantrell

received 330 months of imprisonment for his drug offenses

and 60 months for his conviction on a firearm charge, for a

total sentence of 390 months, followed by 5 years of super-

vised release.

A. Walker objected to the Presentence Report (“PSR”) pre-

pared by the probation office, which attributed to her 350 to

UNITED STATES v. CANTRELL 683

500 grams of methamphetamine, and calculated her base

offense level as 30. A. Walker argued that the proper base

offense level was 24, based on a drug quantity of between 40

and 50 grams of methamphetamine and that she was entitled

to a § 3B1.2(b) two-level downward adjustment for her minor

role in the offense. The government in turn offered testimony

from Mario Morales (“Morales”) to establish that the drug

quantity attributable to A. Walker was at least 1.5 but less

than 5 kilograms and that the proper base offense level was

34.

Morales testified that from about 1998 to 2002, he had

acted as a drug trafficking middleman, selling narcotics on

behalf of some drug suppliers to the Cantrells. He reported

that the Cantrells had initially purchased a pound of metham-

phetamine and two pounds of marijuana every six weeks, but

that by 2002 they had increased the quantity and frequency of

their purchases to two pounds of methamphetamine and two

pounds of marijuana every two weeks. The Cantrells paid

Morales $500-$600 for his go-between services, and the sup-

pliers gave him narcotics for his personal use.

Morales testified that A. Walker accompanied D. Cantrell

on several occasions when D. Cantrell came to his residence

in Wapato, Washington, to pick up drugs. He also testified

that A. Walker was present when the purchase money was

exchanged.

During his cross-examination of Morales, A. Walker’s

defense counsel questioned Morales about his substance

abuse, and how drugs might have affected his memory. Over

the government’s objection, A. Walker’s counsel was also

allowed to impeach Morales with allegedly inconsistent state-

ments Morales earlier had made to the police about the iden-

tity of individuals who had come to his house, and about

whether he had received money from the drug suppliers for

acting as the middleman between them and the Cantrells.

684 UNITED STATES v. CANTRELL

A. Walker’s counsel then pressed Morales to give him an

“accurate” answer as to the number of times A. Walker had

come on a drug pick-up, and Morales responded that she had

come five or six times, even while admitting that he might

have previously told law enforcement it was “four, five, or six

times.”1 The government eventually objected to the repetitive

questioning, and the district court sustained the objection,

stating that it would make a determination about the number

1

The following testimony was given:

Q: How many times did you meet Angie?

A: Probably about — I’m going to say — say, at the most six

times.

Q: Well, Mr. Morales, that’s — This is an important question.

I’m asking you not to guess or speculate.

A: Well, I’m going to say six times then.

Q: When you say, “I’m going to say six times,” it leaves me with

the impression that —

THE COURT: Wait a minute. Wait a minute, counsel. We don’t

need your comments on your view of the evidence. Just ask ques-

tions, please.

Q: When you were interviewed by [law enforcement] did you

also tell [them] six times?

A: I said five or six times, four, five, or six times. But I’m — It’s

— It’s — I’d say six times.

Q: If you told [law enforcement] something other than six times,

and that’s reflected in the report, would the report be inaccurate,

or would the report be accurate?

[objection by prosecution, question withdrawn by defense]

Q: If I represent to you that the report says five times, and you’re

now saying six times, can you be sure that either one is correct?

PROSECUTION: Your Honor, I’m going to object. We are

repeating this line of questioning over and over. The court can

look at his testimony and make a decision. He has said five to six

times.

THE COURT: Yes. I’ll make a determination about this.

UNITED STATES v. CANTRELL 685

of trips made by A. Walker based on the testimony already in

the record.

A. Walker’s counsel returned to his earlier line of question-

ing, asking Morales about specific details of the trips made by

A. Walker, such as the quantity of drugs purchased and

whether A. Walker had arranged any of the purchases. The

government objected on the ground that defense counsel was

eliciting testimony cumulative of testimony already in the

record, and the district court responded by telling defense

counsel:

[W]e do need to stick to the issues here. This court

is, I’m satisfied, able to make a determination about

the credibility of this witness. And the essential issue

before this court is the quantity of drugs to be attri-

buted to this defendant. And insofar as this witness’s

testimony is concerned, it appears to the court that

the essential issues are how many times did she

come there to get drugs and what was the quantity of

drugs obtained on each occasion. Beyond that, the

other matters that have been asked about go to credi-

bility, for all practical purposes.

When counsel protested that he needed to explore “[i]f

there is an occasion that [Morales] cannot recall . . . or if

there’s an occasion that is iffy in [Morales’s] mind,” the dis-

trict court asked Morales directly about the purpose of A.

Walker’s visits and the drug quantities obtained on the visits:

THE COURT: Well, let’s just ask the man: Did these

people ever come to your house, that is, Angela

Walker, did she ever come to your house on an occa-

sion when they did not pick up drugs?

A: No.

686 UNITED STATES v. CANTRELL

THE COURT: And how much was the least quantity

of methamphetamine picked up on any one of these

occasions that Angela Walker came to your house?

A: The least would be one pound.

THE COURT: All right. I think we have those two

matters established, counsel.

A. Walker’s counsel continued to protest that he “want[ed] to

make sure that [Morales] c[ould] recall every single time that

he’s saying — maybe five, maybe six, because it makes a dif-

ference. It’s 440 grams every time he says that.” The district

court agreed to allow counsel to inquire about the number of

visits with the caveat that counsel limit his inquiry to that

issue and not go “back into what is clear on this record.”

Despite the district court’s instruction, A. Walker’s counsel

questioned Morales about what had happened on each of A.

Walker’s visits to Morales’s house rather than the number of

visits A. Walker had made. The government objected, and the

district court again explained to A. Walker’s counsel that: (1)

it was satisfied that it could make a determination as to Mora-

les’s credibility “on the basis of the record that’s already been

presented to [the district] court today, plus four other times

that [Morales] ha[d] appeared before [the district] court under

oath”; and (2) “[t]he only remaining issue about which there

seems to be any dispute is whether she came on five occa-

sions or six occasions.”

Thereafter, A. Walker’s counsel assured the court that he

understood, but still did not alter his line of questioning. The

government lodged its fourth objection and the district court

told counsel that he would have to “move to another topic”

unless he kept his “questions within the scope of the matter

that the court ha[d] allowed [him] to address.” A. Walker’s

counsel argued once more that it was necessary for him to

establish whether each trip Morales had attested to had in fact

UNITED STATES v. CANTRELL 687

occurred because each trip meant another pound of metham-

phetamine would be attributed to his client. The district court

informed counsel that he had one last opportunity to ask a

direct question about the number of trips, and counsel asked

Morales if there was any possibility that A. Walker had made

less than five trips. When Morales said no, the district court

ended the cross-examination.

In resolving the factual dispute over the drug quantity

attributable to A. Walker, the district court stated that it had

“taken into account the trial record of this case over which [it

had] presided,” and “the testimony of Mr. Morales, who testi-

fied under oath” at A. Walker’s sentencing proceedings. The

district court explained that it had found the information given

by Morales to be reliable because there were no significant or

meaningful discrepancies between his testimony and testi-

mony provided by other witnesses at trial, and because Mora-

les’s testimony in other proceedings where he had testified

under oath before the district court had also been consistent

with the trial record in its essential components. The district

court further noted that the jury had found A. Walker guilty

of participation in the conspiracy and had attributed to her

personally a minimum of 500 grams of methamphetamine.

The district court found that at least 1.5 but less than 5 kilo-

grams of methamphetamine were attributable to A. Walker,

for a base offense level of 34. After denying A. Walker’s

request for a minor role adjustment under § 3B1.2(b), the dis-

trict court determined that the applicable Guidelines range

was 151-188 months, and sentenced A. Walker to 165 months

in prison, with five years of supervised release.

T. Walker objected at her sentencing hearing to her PSR,

which found her responsible for 907.2 grams of methamphet-

amine, for a base offense level of 32. T. Walker argued that

she should be held responsible for less than 50 grams of

methamphetamine, and that the district court should use a

base offense level of 24 in selecting her sentence. She also

688 UNITED STATES v. CANTRELL

argued that she was entitled to a § 3B1.2 minimal or minor

role adjustment.

The government presented testimony from Morales to sup-

port the drug quantity and base offense level recommended in

T. Walker’s PSR. Morales testified that T. Walker had come

to his house with her mother and sisters for drug pick-ups on

three to four occasions, and that each pick-up involved “[a]t

least one pound or two pounds of meth and two pounds of

marijuana.” He also testified that T. Walker was present when

the purchase money was exchanged.

The district court found T. Walker responsible for 500

grams or more of methamphetamine, resulting in a base

offense level of 32. The district court denied the requested

§ 3B1.2 downward adjustment, and sentenced T. Walker to

130 months in prison and 5 years of supervised release.

Coversup’s PSR stated that he was not entitled to a

§ 3E1.1(a) downward adjustment for acceptance of responsi-

bility, and recommended a base offense level of 24, with a

two-point enhancement because Coversup possessed a

weapon in the commission of his offenses, for a total offense

level of 26. During his sentencing proceedings, Coversup

objected to the statement in the PSR that he was ineligible for

the acceptance of responsibility adjustment, and argued that

he was also entitled to a four-level downward adjustment

under § 3B1.2(a) for his minimal participation in the conspir-

acy. The district court rejected his contentions, and, using the

recommended offense level of 26 and the resulting 63- to 78-

month Guidelines range, gave Coversup a sentence of 71

months in prison with three years of supervised release.

Renz’s PSR attributed between 50 and 200 grams of

methamphetamine to Renz, but the district court found her

responsible for 500 grams or more of the drug. Setting the

base offense level at 32, the district court applied a two-level

§ 3B1.2(b) minor role in the offense reduction and a two-level

UNITED STATES v. CANTRELL 689

“safety valve” reduction pursuant to § 5C1.2 and 18 U.S.C.

§ 3553(f), for a total offense level of 28. Renz ultimately

received a sentence of 92 months in prison and 5 years of

supervised release.

The defendants timely appealed their convictions and sen-

tences. We affirmed their convictions in a previously filed

memorandum disposition, and address only their sentencing

issues in this published opinion.

II

[1] We begin by outlining the contours of the applicable

sentencing regime in the aftermath of the Supreme Court’s

decision in United States v. Booker, 125 S. Ct. 738 (2005),

which was decided while this consolidated case was pending

on direct review. In Booker, the Supreme Court held that the

use of extra-verdict factual findings to impose a sentence

under the mandatory Guidelines violates the Sixth Amend-

ment. Id. at 756. The Court remedied this constitutional viola-

tion by making the Guidelines advisory; the Court excised the

provisions of the Sentencing Reform Act requiring sentencing

courts to sentence within the applicable Guidelines range sub-

ject only to limited “departure” authority, 18 U.S.C.

§ 3553(b)(1), and appellate courts to review de novo the exer-

cise of this departure power, id. § 3742(e). See Booker, 125

S. Ct. at 764-65 (“With these two sections [that make the

Guidelines mandatory] excised . . . , the remainder of the Act

satisfies the Court’s constitutional requirements.”); United

States v. Ameline, 409 F.3d 1073, 1074, 1077-78 (9th Cir.

2005) (en banc). In place of de novo review, the Court

instructed appellate courts to review sentences for “unreason-

ableness” in light of the sentencing factors in 18 U.S.C.

§ 3553(a). See Booker, 125 S. Ct. at 765-67.

Our court has since issued several opinions implementing

the Supreme Court’s mandates in Booker. First, in Ameline,

we held

690 UNITED STATES v. CANTRELL

that when we are faced with an unpreserved Booker

error that may have affected a defendant’s substan-

tial rights, and the record is insufficiently clear to

conduct a complete plain error analysis, a limited

remand to the district court is appropriate for the

purpose of ascertaining whether the sentence

imposed would have been materially different had

the district court known that the sentencing guide-

lines were advisory.

409 F.3d at 1074.

Subsequently, in United States v. Kimbrew, we said that we

would continue to address challenges to a district court’s

interpretation and application of the Guidelines, notwithstand-

ing that the Guidelines are now effectively advisory, because

the district courts, while not bound to apply the Guidelines,

“should still consult them for advice as to the appropriate sen-

tence.” 406 F.3d 1149, 1152 (9th Cir. 2005) (citing Booker,

125 S. Ct. at 767). We also clarified in United States v.

Moreno-Hernandez that the limited remands provided for in

Ameline are available to defendants “in all pending direct

criminal appeals involving unpreserved Booker error, whether

[they implicate the Sixth Amendment or just the nonconstitu-

tional error that the sentence was imposed under guidelines

believed to be mandatory].” 419 F.3d 906, 916 (9th Cir.), cert.

denied, 126 S. Ct. 636 (2005). With these principles in mind,

we turn to the Guidelines-related issues arising from this con-

solidated appeal.

A

Although the defendants did not raise the issue of Booker

error in the district court or on appeal, we ordered the parties

to file supplemental briefs pursuant to Ameline, 409 F.3d at

1084 (“When faced with an unpreserved Booker/Fanfan error,

the reviewing panel must first determine if an eligible party

wants to pursue the subject.”). With the exception of N. Can-

UNITED STATES v. CANTRELL 691

trell, all the defendants responded in the negative.2 Thus, we

review only N. Cantrell’s case for plain Booker error. Because

we conclude that “it is not possible to reliably determine from

the record whether the sentence imposed [on N. Cantrell]

would have been materially different had the district court

known that the Guidelines were advisory, we will remand to

the sentencing court.” Id. Accordingly the district court will

have the opportunity to decide in the first instance if it would

have sentenced otherwise under a discretionary sentencing

regime.

B

A. Walker, T. Walker, Coversup, and Renz do not argue

that their sentences, imposed under a mandatory Guidelines

system, violate Booker. Instead, they challenge only the dis-

trict court’s application of the Guidelines to their individual

cases. Although these defendants do not assert Booker error,

Booker’s remedial holdings apply to all cases pending on

direct review. See Booker, 125 S. Ct. at 769. We therefore

evaluate A. Walker, T. Walker, Coversup and Renz’s timely

challenges to the district court’s application of the Guidelines

in light of the new review procedures prescribed by Booker.

Booker’s mandate that appellate courts should review sen-

tences for “reasonableness,” 125 S. Ct. 765-67, applies only

to our review of the ultimate sentence; after Booker we con-

tinue to review “the district court’s interpretation of the Sen-

tencing Guidelines de novo, the district court’s application of

the Sentencing Guidelines to the facts of [a] case for abuse of

discretion, and the district court’s factual findings for clear

error.” Kimbrew, 406 F.3d at 1151.

2

D. Cantrell and James Murphy are co-defendants in this consolidated

appeal, but we have no reason to review their sentences in this opinion

because they responded that they did not want a remand under Ameline,

and raised no other sentencing errors.

The government also responded that it would not seek an Ameline

remand.

692 UNITED STATES v. CANTRELL

[2] If we determine that the sentence resulted from an

incorrect application of the Sentencing Guidelines, and further

that the error in application was not harmless, we will remand

to the district court for further sentencing proceedings just as

we would have under the pre-Booker sentencing regime. See

18 U.S.C. § 3742(f)(1); Williams v. United States, 503 U.S.

193, 202-03 (1992) (explaining that 18 U.S.C. § 3742(f)(1)

requires remand if sentencing court misapplied Guidelines

and error affected sentence imposed). We do not suggest that

district courts are bound to sentence within the applicable

Guidelines ranges when sentencing, because the Guidelines

are now advisory. Booker, 125 S. Ct. at 764. Rather, we are

stressing that district courts still “must consult [the] Guide-

lines and take them into account when sentencing,” even

though they now have the discretion to impose non-

Guidelines sentences. Id. at 767 (citing 18 U.S.C.

§ 3553(a)(4), (5)).

[3] This continuing duty of district courts to consult the

Guidelines is statutory. Although the Court in Booker excised

the mandatory aspects of the Guidelines in 18 U.S.C.

§§ 3553(b)(1) and 3742(e), it left the remainder of the Sen-

tencing Reform Act intact to “function[ ] independently.” Id.

at 764. This means that 18 U.S.C. § 3553(a) is still operative,

and requires district courts to take the applicable Guidelines

range into consideration when sentencing, along with other

sentencing factors enumerated by Congress.3 See Booker, 125

3

We do not here decide whether the district court must calculate the

applicable Guidelines range in every situation. See United States v.

Crosby, 397 F.3d 103, 112 (2d Cir. 2005) (describing circumstances in

which the “precise calculation of the applicable Guidelines range may not

be necessary”) abrogated on other grounds by United States v. Lake, 419

F.3d 111, 113 (2d Cir. 2005). Rather, “to comply with Booker’s mandate

that district courts ‘take [the Guidelines] into account when sentencing,’

courts normally must determine and consider the correct Guidelines

range.” United States v. Menyweather, No. 03-50496, 2005 WL 3440800,

slip op. at 16488 (9th Cir. Dec. 16, 2005) (alteration in original) (quoting

Booker, 125 S. Ct. at 767). We leave open the question whether, and under

what circumstances, district courts may find it unnecessary to calculate the

applicable Guidelines range.

UNITED STATES v. CANTRELL 693

S. Ct. at 764-65 (“Without the ‘mandatory’ provision, the Act

nonetheless requires judges to take account of the Guidelines

together with other sentencing goals.” (citing § 3553(a)));

Ameline, 409 F.3d at 1085-86 (addressing district court’s pro-

cedural error in calculating defendant’s base offense level

because “the base offense level . . . remains the starting point

for determining the applicable guideline range for an offense”

even in the discretionary Guidelines system); see also United

States v. Mashek, 406 F.3d 1012, 1016 n.4 (8th Cir. 2005)

(“The appropriate guidelines range, though now calculated

under an advisory system, remains the critical starting point

for the imposition of a sentence under § 3553(a).”); United

States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005)

(“This consultation requirement [in § 3553(a) that survives

Booker], at a minimum, obliges the district court to calculate

correctly the sentencing range prescribed by the Guidelines.

. . . In other words, as was the case before Booker, the district

court must calculate the Guidelines range accurately. A misin-

terpretation of the Guidelines by a district court ‘effectively

means that [the district court] has not properly consulted the

Guidelines.’ ” (quoting United States v. Hazelwood, 398 F.3d

792, 801 (6th Cir. 2005)) (alteration in original); Hazelwood,

398 F.3d at 801 (“[R]egardless of whether the Guidelines are

mandatory or merely advisory, district courts are required by

statute to consult them . . . .” (citing 18 U.S.C. § 3553(a)).

[4] Title 18 U.S.C. § 3742(a) and (f) have also survived

Booker. Section 3742(a) provides for appeals by defendants

and by the government “if the sentence . . . was imposed as

a result of an incorrect application of the sentencing guide-

lines.” Section 3742(f) requires a remand to the district court

in the event the court of appeals determines that such misap-

plication error occurred. See Mashek, 406 F.3d at 1015

(“[Section] 3742(f) does not provide for a reviewing court to

affirm a sentence based on its overall reasonableness when it

was imposed as a result of an incorrect application of the

guidelines. Instead, § 3742(f)(1) commands the reviewing

court to remand a case where the district court incorrectly

694 UNITED STATES v. CANTRELL

applied the guidelines.”); United States v. Villegas, 404 F.3d

355, 362 (5th Cir. 2005) (per curiam) (“The survival of

[§ 3742(a) and (f)] counsels that we maintain our review of

the district court’s interpretation and application of the Guide-

lines when it has imposed a sentence under the Guidelines.”).

Accordingly, we hold that a material error4 by the district

court in calculating the applicable Guidelines range is grounds

for resentencing, just as it was before Booker.

[5] If, on the other hand, our review leads us to conclude

that the district court committed no error in applying the

Guidelines, we will next consider challenges to the reason-

ableness of the overall sentence in light of all the 18 U.S.C.

§ 3553(a) factors, including the applicable Guidelines range.

Stated another way, the new reasonableness standard of

review established in Booker comes into play only if there

was no material error in the district court’s calculation of the

appropriate Guidelines range. See Kimbrew, 406 F.3d at 1154

(vacating and remanding for resentencing based on Guide-

lines application error, without considering reasonableness of

sentence).

In sum, our review of the district court’s application of the

Guidelines is the same as it was under the pre-Booker sen-

tencing regime. If there was material error in the Guidelines

calculation that serves as the starting point for the district

court’s sentencing decision, we will remand for resentencing

pursuant to 18 U.S.C. § 3742(f), without reaching the ques-

tion of whether the sentence as a whole is reasonable in light

of § 3553(a). See Kimbrew, 406 F.3d at 1154. In the absence

of Guidelines application error, however, we will then pro-

4

As noted above, such application errors are still subject to harmless and

plain error review. See Booker, 125 S. Ct. at 769; Williams, 503 U.S. at

202-03; Menyweather, slip op. at 16495 (recognizing that “any error

would be harmless to the government in this case” because “the district

court could—and would—impose the same sentence again under the now-

advisory Guidelines regime”); Mashek, 406 F.3d at 1017; Hazelwood, 398

F.3d at 801.

UNITED STATES v. CANTRELL 695

ceed to address challenges to the reasonableness of the sen-

tence.5 See generally Menyweather, slip op. at 16488-89.

5

The law in the circuits that have thus far addressed this issue is some-

what in disarray. The two-part review procedure we outline here, requiring

our consideration of alleged Guidelines misapplication errors before we

consider the reasonableness of the sentence in light of § 3553(a), is consis-

tent with the procedures used by the Fifth, Sixth, Eighth and Eleventh Cir-

cuits. See United States v. Gibson, 409 F.3d 325, 338-39 (6th Cir. 2005)

(“Once we conclude that the district court has properly consulted the Sen-

tencing Guidelines, we review the sentence for reasonableness.”); Mashek,

406 F.3d at 1016-17 (explaining that appellate court will only review sen-

tence for reasonableness after determining that there was no error in dis-

trict court’s application of Guidelines); Crawford, 407 F.3d at 1179

(“[T]he district court must calculate the Guidelines range accurately. . . .

After it has made this calculation, the district court may impose a more

severe or more lenient sentence as long as the sentence is reasonable

. . . .”); Villegas, 404 F.3d at 361-62 & n.7 (explaining that procedure used

for reviewing sentences after Booker will be similar to two-step procedure

used before Booker for reviewing Guidelines departures; reviewing court

will inquire whether the Guidelines range was properly calculated before

assessing whether the overall sentence was reasonable).

The Second and D.C. Circuits, however, review claims of error in the

district court’s application of the Guidelines as one factor in the course of

reviewing the reasonableness of a sentence as a whole. See United States

v. Price, 409 F.3d 436, 442-43 (D.C. Cir. 2005) (stating that review is for

reasonableness and that “[i]n deciding whether a sentence is reasonable,

we must also consider whether the District Court committed legal error.

. . . A failure to follow the strictures of the Sentencing Guidelines is

among the errors that might cause a sentence to be overturned on appeal”);

United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (stating that

review is for reasonableness and that “[a]n error in determining the appli-

cable Guideline range or the availability of departure authority would be

the type of procedural error that could render a sentence unreasonable

under Booker”). Finally, the Tenth Circuit has held that the reasonableness

standard of review applies only to sentences imposed after Booker, under

the newly discretionary sentencing scheme. See United States v. Souser,

405 F.3d 1162, 1165 (10th Cir. 2005) (“[R]eviewing [a sentence imposed

before Booker] for reasonableness — a standard of review compatible

only with the review of a discretionary decision below — is inappropri-

ate.”).

696 UNITED STATES v. CANTRELL

We now apply this two-step review procedure in addressing

individual claims of Guidelines application error asserted by

A. Walker, T. Walker, Coversup and Renz. Because the

defendants have alleged only that the district court improperly

applied the Guidelines, and did not raise any general reason-

ableness challenges after Booker, we do not reach the second

step of the analysis, which would otherwise require a determi-

nation of whether the defendants’ sentences are reasonable in

light of § 3553(a). See United States v. Mathijssen, 406 F.3d

496, 498 (8th Cir. 2005).

1

A. Walker contends that the procedure employed by the

district court in determining the quantity of methamphetamine

attributable to her for the purpose of calculating her base

offense level was erroneous and violated her due process

rights. She also contends that the district court erred in refus-

ing to grant her a minor participant downward adjustment

under § 3B1.2(b) of the Guidelines. We reject both conten-

tions.

[6] A. Walker argues that the district court violated her due

process rights by precluding her from conducting “meaningful

questioning” into the reliability of Mario Morales’s testimony

during her sentencing hearing. This assertion is unsupported

by the record, which shows that A. Walker was permitted to

make an extensive attack on Morales’s reliability by inquiring

about his drug use and about allegedly inconsistent statements

he previously made to law enforcement. The district court

only interjected to curtail cross-examination when it became

apparent that A. Walker’s repetitive questions were not

adding anything to the existing record. See United States v.

Weiner, 578 F.2d 757, 766 (9th Cir. 1978) (per curiam) (hold-

ing that a district court “in its discretion may limit cross-

examination in order to preclude repetitive questioning, upon

determining that a particular subject has been exhausted,”

even during the trial phase when defendants actually have a

UNITED STATES v. CANTRELL 697

constitutional right to confront witnesses and more extensive

due process rights than they have at sentencing); see also

United States v. Adams, 694 F.2d 200, 202-03 (9th Cir. 1982)

(holding that sentencing court did not violate defendants’ due

process rights when it reasonably refused to recall a witness

for cross-examination). Defense counsel kept inquiring about

the same details of A. Walker’s visits to Morales’s home, and

Morales’s responses were always the same; Morales consis-

tently stated that A. Walker had visited his house with D.

Cantrell on five to six occasions, and that D. Cantrell would

purchase a minimum of one pound of methamphetamine on

each visit. Because the district court did not unreasonably

restrict A. Walker’s ability to test Morales’s reliability

through cross-examination, the question is whether the district

court abused its discretion in determining that Morales’s testi-

mony was sufficiently reliable to satisfy the due process con-

cern that a defendant not “be sentenced on the basis of

materially incorrect information.” See United States v. Petty,

982 F.2d 1365, 1369-70 (9th Cir. 1993), amended by 992 F.2d

1015 (9th Cir. 1993).

[7] Notwithstanding the evidence of Morales’s substance

abuse and the alleged discrepancies between his testimony at

the sentencing proceedings and earlier statements he made to

the police, the district court had an adequate basis for con-

cluding that Morales’s statements were sufficiently reliable.

Morales’s statements were given under oath, and much of his

testimony relating to the details of the drug pick-ups made by

A. Walker was corroborated by trial testimony from A. Walk-

er’s sister, Carmen Cantrell. Also, the district court pointed to

the fact that Morales had testified reliably on previous occa-

sions before the court. Given these facts, we hold that the dis-

trict court did not abuse its discretion by relying on Morales’s

testimony. See United States v. Johansson, 249 F.3d 848, 857

(9th Cir. 2001) (holding that defendant’s due process interests

at sentencing were protected where district court allowed par-

ties an opportunity to develop evidence and submit memo-

randa, and held an evidentiary hearing where both sides had

698 UNITED STATES v. CANTRELL

the opportunity to present witnesses and argue); United States

v. Chee, 110 F.3d 1489, 1492-93 (9th Cir. 1997) (holding that

evidence was sufficiently reliable because there was corrobo-

ration); Petty, 982 F.2d at 1369 (same).

A. Walker’s second argument also fails because she has not

met her burden of proving her entitlement to a § 3B1.2(b)

minor participant adjustment. “Whether a defendant is a

‘minor’ or ‘minimal’ participant in the criminal activity is a

factual determination subject to the clearly erroneous stan-

dard.” United States v. Sanchez, 908 F.2d 1443, 1448-49 (9th

Cir. 1990) (internal quotation marks omitted). “The defendant

bears the burden of proving that he [or she] is entitled to a

downward adjustment based on his [or her] role in the

offense.” United States v. Awad, 371 F.3d 583, 591 (9th Cir.

2004).

Section 3B1.2 instructs the district court as follows:

Based on the defendant’s role in the offense,

decrease the offense level as follows:

(a) If the defendant was a minimal participant in

any criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any

criminal activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3

levels.

U.S.S.G. § 3B1.2.

[8] While a comparison to the conduct of a hypothetical

average participant may be appropriate in determining

whether a downward adjustment is warranted at all, the rele-

vant comparison in determining which of the § 3B1.2 adjust-

ments to grant a given defendant “is to the conduct of co-

UNITED STATES v. CANTRELL 699

participants in the case at hand.” United States v. Petti, 973

F.2d 1441, 1447 (9th Cir. 1992); see also United States v.

Johnson, 297 F.3d 845, 874 (9th Cir. 2002) (“[A] defendant’s

culpability is to be measured against his co-participants, not

a hypothetical ‘average participant.’ ”). It is not enough that

a defendant was less culpable than his or her co-participants,

or even that he or she was among the least culpable of the

group, because a minimal or minor participant adjustment

under § 3B1.2 is available only if the defendant was “substan-

tially” less culpable than his or her co-participants. Id. at 874

& n.37; United States v. Benitez, 34 F.3d 1489, 1497-98 (9th

Cir. 1994).

A “minor participant” within the meaning of § 3B1.2(b) is

a defendant “who is less culpable than most other participants,

but whose role could not be described as minimal.” U.S.S.G.

§ 3B1.2, cmt. n.5. The determination whether to apply this

adjustment “is heavily dependent upon the facts of the partic-

ular case.” Id. cmt. n.3(C).

[9] A. Walker claims that the district court erred in denying

her the minor participant adjustment based on testimony that

she had gone on several drug pick-ups despite its acknowl-

edgment that she was not the principal person making these

trips and the fact that she was in possession of lesser quanti-

ties of drugs and money at the time of arrest than her co-

defendants. However, as we have already explained, “merely

being less culpable than one’s co-participants does not auto-

matically result in minor [participant] status.” United States v.

Andrus, 925 F.2d 335, 338 (9th Cir. 1991). In denying A.

Walker’s request for a minor participant adjustment, the dis-

trict court considered A. Walker’s role in the conspiracy and

found that:

[T]he record as a whole . . . . clearly establishe[d]

that [A. Walker] went to [pick up drugs] on several

occasions, whether [she was] the principal person

going or not is not the test. It is clear that [she was]

700 UNITED STATES v. CANTRELL

making these trips voluntarily and that [she was] on

those trips facilitating the return of very large quanti-

ties of methamphetamine to our state for distribution

on one of our reservations or perhaps on more than

one of our reservations.

[A. Walker’s] acting as a drug courier and a

facilitator of this extensive operation, cannot, in the

view of this court, be said to be either minor or mini-

mal. [She is], in the view of this court, and [was] a

significant participant in this ongoing illegal activity.

The district court also determined that A. Walker was respon-

sible for between 1.5 and 5 kilograms of methamphetamine.

[10] The district court’s findings are supported by the

jury’s verdict that A. Walker was responsible for a minimum

of 500 grams of methamphetamine, and testimony from the

trial and the sentencing hearing that A. Walker went on sev-

eral drug pick-ups, each of which involved a minimum of a

pound of methamphetamine. There was also testimony at trial

that A. Walker regularly helped to repackage and sell large

quantities of drugs. We hold that the district court’s decision

regarding A. Walker’s minor participant status was not clearly

erroneous. See SEC v. Rubera, 350 F.3d 1084, 1093-94 (9th

Cir. 2003) (“So long as the district court’s view of the evi-

dence is plausible in light of the record viewed in its entirety,

it cannot be clearly erroneous . . . .”).

2

T. Walker asserts that the district court erred in attributing

to her 500 grams or more of methamphetamine in computing

her base offense level, arguing that there was no evidence that

she was personally connected to or could reasonably have

foreseen that this amount was involved in the conspiracy. We

disagree.

UNITED STATES v. CANTRELL 701

[11] The crux of T. Walker’s argument is that the district

court should have disregarded the testimony Morales gave at

her sentencing regarding her participation in the drug pick-ups

because it was unreliable. See Petty, 982 F.2d at 1369. As

explained above in Part II.B.1, however, Morales’s testimony

was sufficiently reliable for due process purposes because

Morales had previously shown himself to be a credible wit-

ness. Additionally, even though there was no evidence

directly corroborating Morales’s testimony at sentencing

about T. Walker’s role in the drug pick-ups, there was other

evidence establishing that she was significantly involved in

the conspiracy: T. Walker was arrested with over forty-six

grams of methamphetamine hidden on her person in pre-

packaged amounts, and there was trial testimony that she had

obtained sizeable amounts of methamphetamine and mari-

juana from D. Cantrell on at least two other occasions.6 Based

on the record as a whole, we hold that the district court did

not clearly err in attributing T. Walker with 500 or more

grams of methamphetamine.

3

Coversup first asserts that the district court erred in refus-

ing to give him a reduction for his acceptance of responsibil-

ity. Section 3E1.1(a) of the Guidelines provides for a two-

level downward adjustment where “the defendant clearly

demonstrates acceptance of responsibility for his offense.”

While we review de novo the district court’s interpretation of

the Guidelines, Kimbrew, 406 F.3d at 1151, “[a] district

court’s decision about whether a defendant has accepted

responsibility is a factual determination reviewed for clear

error.” United States v. Velasco-Medina, 305 F.3d 839, 853

(9th Cir. 2002) (internal quotation marks omitted). “[T]he

determination of the sentencing judge is entitled to great def-

erence on review” because “[t]he sentencing judge is in a

6

Bernadine Bear testified that she saw T. Walker picking up a pound of

marijuana and an ounce of methamphetamine on two different occasions.

702 UNITED STATES v. CANTRELL

unique position to evaluate a defendant’s acceptance of

responsibility.” U.S.S.G. § 3E1.1, cmt. n.5.

The district court denied Coversup’s request for the accep-

tance of responsibility adjustment on the grounds that: (1)

Coversup had gone to trial, not just to preserve his constitu-

tional suppression claim, but also to deny factual guilt; and

(2) Coversup had not truthfully admitted the conduct compris-

ing the offense of conviction. We hold that the first ground

cited by the district court was erroneous, but affirm its denial

of the adjustment on the second ground.

[12] Although Coversup’s counsel acknowledged at the

sentencing hearing that the acceptance of responsibility

adjustment does not ordinarily apply to a defendant who

chooses to go to trial, he argued that Coversup was neverthe-

less entitled to the reduction under the exception to this gen-

eral rule, set forth in the second application note to § 3E1.1.

This note describes the circumstances under which a defen-

dant may be eligible for an acceptance of responsibility

adjustment even though he or she goes to trial, stating in rele-

vant part: “In rare situations a defendant may clearly demon-

strate an acceptance of responsibility for his criminal conduct

even though he exercises his constitutional right to a trial.

This may occur, for example, where a defendant goes to trial

to assert and preserve issues that do not relate to factual guilt

. . . .” U.S.S.G. § 3E1.1, cmt. n.2.

The district court disagreed with counsel that the exception

in the second application note applied, interpreting the excep-

tion to mean that the acceptance of responsibility adjustment

is only “available [to a defendant who chooses to go to trial]

in the rare case where the defendant has gone to trial to pre-

serve a constitutional issue solely, not denying factual guilt.”

We confronted this same issue in United States v. McKinney,

another case where “the district court appeared to assume, that

a defendant who goes to trial can only receive the reduction

if the trial is limited to issues unrelated to factual guilt.” 15

UNITED STATES v. CANTRELL 703

F.3d 849, 853 (9th Cir. 1994). There we explained that the

second application note “itself makes clear that the example

[of a defendant going to trial to assert issue unrelated to fac-

tual guilt] was not intended to be exhaustive,” and held that

“in appropriate circumstances the reduction is also available

in cases in which the defendant manifests genuine contrition

for his acts but nonetheless contests his factual guilt at trial.”

Id. This rule, we explained, would best serve the “primary

goal of the reduction [which] is to reward defendants who are

genuinely contrite.” Id. Here, as in McKinney, we conclude

that the district court misconstrued § 3E1.1 when it concluded

that the second application note exception did not apply

because Coversup raised nonconstitutional issues at trial.

[13] However, Coversup does not qualify for the adjust-

ment because he has not otherwise met his burden of showing

that he accepted responsibility for his crime. See United States

v. Nielsen, 371 F.3d 574, 582 (9th Cir. 2004). Under the third

application note for § 3E1.1, entry of a guilty plea prior to

trial, combined with truthful admission of the conduct com-

prising the offense of conviction and additional relevant con-

duct, constitutes “significant evidence” of contrition. U.S.S.G.

§ 3E1.1, cmt. n.3. “Thus, a defendant’s choice to go to trial

deprives the defendant of this ‘significant evidence.’ ” United

States v. Ochoa-Gaytan, 265 F.3d 837, 843 (9th Cir. 2001).

However, in Ochoa-Gaytan, we held that “[e]ven without the

‘significant evidence’ of a guilty plea, a defendant who

chooses to go to trial may still exhibit sufficient contrition to

merit an adjustment under § 3E1.1.” Id. We added that “[i]n

this regard, it is important to note that the first application

note to § 3E1.1 provides a non-exhaustive list of criteria —

other than a guilty plea — which a sentencing court should

consider in determining whether a defendant has manifested

acceptance of responsibility.” Id.

[14] Subsection (a) of the first application note for § 3E1.1

provides that it is “appropriate” for the district court to con-

sider whether the defendant has “truthfully admitt[ed] the

704 UNITED STATES v. CANTRELL

conduct comprising the offense(s) of conviction, and truth-

fully admitt[ed] or not falsely den[ied] any additional relevant

conduct for which the defendant is accountable under § 1B1.3

(Relevant Conduct).” U.S.S.G. § 3E1.1, cmt. n.1(a). The dis-

trict court in this case found that Coversup had not met this

criteria, and Coversup did not object to that finding or argue

that there were other relevant factors weighing in favor of

acceptance of responsibility either before the district court or

in his briefing on appeal. Under these circumstances, the dis-

trict court did not clearly err in concluding that Coversup had

not accepted responsibility for his offenses, and its denial of

the downward adjustment was proper.

Coversup’s second assertion on appeal is that the district

court erred in denying him a downward adjustment for his

minimal participation in the conspiracy. A defendant is a

“minimal participant” within the meaning of § 3B1.2(a) when

he or she is “plainly among the least culpable of those

involved in the conduct of a group.” § 3B1.2, cmt. n.4. Cover-

sup argues that the district court should have found that he

was a minimal participant in the conspiracy because the jury

convicted him only of possession with intent to distribute,

while acquitting him of the conspiracy charge. This argument

is unpersuasive.

In United States v. Webster, we held that a defendant seek-

ing a § 3B1.2 downward adjustment where he or she was the

sole participant in the offense of conviction must show that:

(i) the defendant, although not charged or convicted, would

otherwise be accountable for criminal conduct involving more

than one participant; and (ii) the defendant’s culpability for

such conduct was relatively minor compared to that of the

other participants. 996 F.2d 209, 212 (9th Cir. 1993) (per

curiam); see also United States v. Demers, 13 F.3d 1381,

1385-86 (9th Cir. 1994) (“[B]y mandating a fact-based

inquiry into the relative seriousness of the defendant’s offense

of conviction compared to his [or her] actual criminal con-

duct, the [Guidelines] commentary expressly allows for a

UNITED STATES v. CANTRELL 705

downward adjustment for a courier convicted of possession

with intent to distribute, provided his [or her] role and culpa-

bility in the trafficking scheme are sufficiently minor com-

pared to that of the other participants.”).

[15] Coversup is ineligible for a minimal participant adjust-

ment because he cannot satisfy the first prong of the Webster

test. Although we have held that a defendant who is the “sole

participant” in the offense of his or her conviction is not

excluded from receiving a downward adjustment under

§ 3B1.2, such a defendant must produce evidence of his or her

participation in a larger conspiracy to qualify for the reduc-

tion. See Webster, 996 F.2d at 212 (explaining that defendant

“must, at a minimum” show that the relevant conduct for

which he or she would “be otherwise accountable involved

more than one participant”); United States v. Walker, 993

F.2d 196, 200 (9th Cir. 1993) (affirming denial of adjustment

where defendant was “the only defendant involved in both

counts of conviction” and “no evidence of a larger conspiracy

was offered at trial or at sentencing”). Coversup repeatedly

disclaimed any involvement in the conspiracy in his argu-

ments to the district court and on appeal. During his sentenc-

ing proceedings, Coversup objected to the PSR’s description

of his offense because it included references to the conspir-

acy, and he urged the district court not to consider any evi-

dence of the conspiracy in making its sentencing decisions.

Additionally, in his briefing to this court, Coversup argued

that he “clearly was not a participant in the overall, long

standing [sic] conspiracy” but “was instead merely ‘in the

wrong place at the wrong time.’ ” Coversup cannot avail him-

self of a downward adjustment for minimal participation in

the larger methamphetamine conspiracy involving his co-

defendants while asserting at the same time that he never par-

ticipated in said conspiracy. The district court did not clearly

err in declining to grant Coversup a § 3B1.2(a) minimal par-

ticipant adjustment.7

7

Because Coversup did not present sufficient evidence linking himself

to the larger conspiracy, it was unnecessary for the district court to reach

706 UNITED STATES v. CANTRELL

4

Like T. Walker, Renz contends that the district court

clearly erred in calculating her base offense level using a drug

quantity of 500 or more grams of methamphetamine. We

reject this contention because the district court’s finding that

Renz could be held responsible for the multiple pounds of

methamphetamine attributable to the conspiracy as a whole is

plausible in light of the evidence in the record.

[16] Witnesses at trial attested to having seen Renz weigh-

ing and repackaging methamphetamine at D. Cantrell’s resi-

dence on different occasions. The trial testimony and

undisputed statements in the PSR also indicate that Renz dis-

tributed methamphetamine for D. Cantrell. This evidence of

Renz’s direct involvement in the packaging and distribution

activities of the conspiracy leads us to the conclusion that the

district court’s finding that Renz was responsible for 500 or

more grams of methamphetamine was not clearly erroneous.

III

[17] Because we cannot determine from our review of the

record whether N. Cantrell was prejudiced by the asserted

Booker error, we remand his case with instructions that the

district court follow the procedures outlined in Ameline, 409

F.3d at 1084-85. As for T. Walker, A. Walker, Coversup, and

Renz, we reject their claims of Guidelines application error

for the reasons stated above, and affirm their sentences.

AFFIRMED in part, REMANDED in part.

the question of his relative culpability, and we will affirm its decision on

the ground stated above. See United States v. Cortez-Arias, 403 F.3d 1111,

1114 n.7 (9th Cir.) amended by 425 F.3d 547 (9th Cir. 2005) (“Under our

circuit’s law we may . . . affirm on any ground supported by the record

even if it differs from the rationale of the district court.”) (internal quota-

tion marks omitted).