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Ninth Circuit Remands Drug Case for Reconsideration of Sentencing Guidelines’ Minor-Role Adjustment

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit vacated a drug defendant’s sentence because the district court may have misinterpreted United States Sentencing Guideline (“USSG”) § 3B1.2 and Amendment 794, which allow a court to make a Guidelines adjustment when a defendant played a minor role in the operation. Due to the possibility that the district court misapplied factors related to the minor-role determination, the Court remanded the case for resentencing.

Alejandro Aguilar Diaz, a 28-year-old resident of Tijuana, Mexico, was arrested at the border on August 27, 2015, when officials discovered 10.68 kilograms of cocaine and 3.6 kilograms of heroin in his vehicle. He agreed to plead guilty to two counts of drug importation in exchange for leniency. He told the Government that he had crossed the border three times as part of a drug smuggling operation. The first two times he did not actually transport any drugs. The third time he did, and was arrested.

At sentencing, Aguilar Diaz requested a downward departure because he played only a minor role in the operation. He cited USSG § 3B1.2 and Amendment 794 in support of his argument. In his memorandum to the court, he argued that (1) the $1,000 he was to receive was very little compared to the value of the drugs ($270,000), (2) this was his first attempt to actually smuggle drugs, (3) he had little knowledge of other participants, and (4) he thought he was smuggling marijuana, which demonstrated how little he knew about what was really going on in the apparent criminal enterprise.

The Government disagreed, arguing that Aguilar Diaz was “not substantially less culpable than the average participant.” In support of this argument, the Government pointed out that Aguilar Diaz owned the car he used, trafficked a valuable quantity of drugs, and was to be paid for his efforts. The district court adopted the Government’s position, denied the minor-role adjustment, and sentenced Aguilar Diaz to 46 months.

On appeal, Aguilar Diaz made two arguments. First, he said the district court failed to consider or mention the Amendment 794 factors it should have when ruling on his motion for a minor-role adjustment. These factors are: “(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.”

The Court rejected Aguilar Diaz’s argument that the district court failed to consider the factors, noting that “the district court was not obligated to tick off the factors on the record to show that it considered them.” Moreover, the Court had no trouble determining that the lower court did consider the factors.

However, the district court did not properly apply the factors to the facts of the case, as Aguilar Diaz asserted in his second argument. Aguilar Diaz was unable to specifically identify other participants, which should have weighed in his favor. He did not know who they were because he was a minor participant. Moreover, the district court’s agreement with the Government’s argument that a courier role is necessary to a smuggling operation so it can’t be characterized as a minor role constituted error, the Court ruled. Amendment 794 clarified this issue—performance of an essential role is not dispositive to the minor-role adjustment inquiry.

Ultimately, the district court’s misapplication of the factors to Aguilar Diaz resulted from incorrect interpretations of USSG § 3B1.2 and Amendment 794, helpfully supplied by the government.

“First, the government relied on the fact that Aguilar Diaz agreed to accept money in exchange for transporting drugs, but ignored that his compensation was relatively modest and fixed,” wrote the Court. “There was no evidence that Aguilar Diaz had a proprietary interest in the outcome of the operation or otherwise stood to benefit more than minimally. Second, though the government correctly identified [two other members of the operation] as the comparison group, it did not account for Aguilar Diaz’s limited understanding of the overall ‘scope and structure of the criminal operation.’”

Because the Court could not determine whether the lower court would have granted the minor-role adjustment had it properly applied the Amendment 794 factors, the sentence was vacated and the case remanded for resentencing.

See: United States v. Aguilar Diaz, 884 F.3d 911 (9th Cir. 2018). 

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