United States v. Edmond
Facts
The defendant pleaded guilty to conspiracy to distribute and possess with intent to distribute 400 grams or more of a mixture or substance containing fentanyl. At sentencing, the Probation Office applied a two-point enhancement under U.S.S.G. §3B1.4 based on a minor's involvement, reasoning that the enhancement could apply in a jointly undertaken criminal enterprise where use of a minor was reasonably foreseeable. The defendant and the minor were both passengers on a plane, and a bag checked in the minor's name was searched after arrival. According to the arrest report referenced by the court, the minor said the bag was his, that he packed it himself, and he consented to its search.
Issue
Whether the defendant was subject to a two-level enhancement under U.S.S.G. §3B1.4 for using or attempting to use a minor when the record did not show that the defendant took any affirmative step to involve the minor in the criminal activity.
Rule
A sentencing adjustment under U.S.S.G. §3B1.4 is warranted only where the defendant takes some affirmative act to involve the minor in the commission of the criminal activity. Mere participation in criminal activity with a minor, or the minor's presence or separate involvement, is not enough.
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Should the court apply the two-level enhancement for using or attempting to use a minor under §3B1.4 to Devin?