United States v. Scippio, No. 07-0480-cr (2d Cir. Jan. 15, 2009)
Scippio argued on appeal that: (1) he was entitled to a minor role adjustment; and (2) the district court had failed to account for disparities between his sentence and those of his co-defendants.
As to the first issue, the Second Circuit noted that "it is not enough that a defendant played a lesser role than his co-conspirators; his conduct must have been minor when compared to the average participant in such a crime." Fair enough. But, as evidence of Scippio's role, the Second Circuit found that no minor role was played because of what he did (delivering drugs to many different drug dealers and collecting proceeds of sales) and what a cooperating witness said about him (calling him a "manager"). I can understand the first point, but the word that a cooperating witness attaches to someone's role seems a thin basis upon which to determine role. We'd need to be understand what the cooperating witness meant by "manager" before basing such a determination on his word selection.
As to the second issue, the Second Circuit disposed of it quickly, finding that the district court had, in fact, considered his co-defendants who had accepted responsibility for their offenses and had not threatened cooperating witnesses.