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Ninth Circuit Clarifies Framework for Applying Minor-Role Adjustment in U.S. Sentencing Guideline § 3B1.2(b)

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit clarified the framework for application of the minor-role adjustment of U.S. Sentencing Guideline (“U.S.S.G.”) § 3B1.2(b).

A man identified as “Gordo” overheard Jesus Ezequiel Rodriguez complaining that employment was hard to find during the COVID-19 pandemic. Gordo offered Rodriguez $1,500 to smuggle drugs into the U.S. from Mexico. Rodriguez accepted. Gordo told Rodriguez to meet him at a hotel in Tijuana, Mexico. The following day, Rodriguez met Gordo, who had a vehicle with drugs already loaded into it. Gordo instructed Rodriguez to cross the border and wait for a call as to where to deliver the vehicle. As Rodriguez attempted to cross the border, an inspection by law enforcement found 83 packages of methamphetamine weighing 40.84 kilograms.

Rodriguez was charged with, and pleaded guilty to, importing methamphetamine in violation of 21 U.S.C. §§ 952 and 960. At sentencing, Rodriguez urged the U.S. District Court for the Southern District of California to reduce his offense level pursuant to § 3B1.2(b) because his role in the crime was relatively minor. The court denied his request and sentenced Rodriguez to seven-and-a-half years in prison. Rodriguez appealed.

The Ninth Circuit observed “[t]he Sentencing Guidelines provide district courts with tools for distinguishing among individuals who commit the same crime but have different levels of relative culpability. Leaders of a criminal offense may have their offense levels increased by up to four levels, and individuals who had relatively minor roles may have their offense levels reduced by up to four levels.” U.S.S.G. § § 3B1.1, 3B1.2.

To assist district courts with even-handed application of § 3B1.2(b)’s minor-role adjustment, the U.S. Sentencing Commission added five factors to be considered when determining eligibility: (1) the degree to which the defendant understood the scope and structure of the criminal activity; (2) the degree to which the defendant participated in planning or organizing the criminal activity; (3) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (4) 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 (5) the degree to which the defendant stood to benefit from the criminal activity. § 3B1.2(b) cmt. 3(C). The Ninth Circuit requires district courts to consider all of the factors. See United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016).

In the instant case, the Court first corrected the district court’s erroneous understanding of the Sentencing Commission’s use of the term “average participant” with respect to the minor-participant adjustment. The district court determined that even though Rodriguez’s role was less culpable than that of Gordo’s, it was irrelevant because Gordo was “an organizer” and not an “average participant.” However, the Court explained that “average participant” refers to “the mathematical average,” and in order to calculate that average, “all likely participants in the criminal scheme must be included.” United States v. Dominguez-Caicedo, 40 F.4th 938 (9th Cir. 2022). “This means that even ‘those that the district court believe[s] were leaders or organizers or who were otherwise highly culpable’ must be included in the calculation.” Id. Thus, Gordo must be included in the “average participant” analysis, the Court ruled.

Second, the district court seemed to treat each factor as presenting a binary choice: either it was satisfied or it wasn’t. But that’s incorrect, the Court stated. The commentary instructs courts “to analyze the degree to which each factor applie[d] to the defendant. The question is not whether the defendant ‘understood the scope and structure,’ ‘participated in planning or organizing,’ or ‘stood to benefit’ from the crime.” But the purpose of the factors is to determine the defendant’s role relative to other participants in the crime. United States v. Demers, 13 F.3d 1381 (9th Cir. 1994).

Regarding factor (1), the district court determined it weighed against Rodriguez because Rodriguez understood and was aware of his own criminal activity. But the Court explained that in United States v. Diaz, 884 F.3d 911 (9th Cir. 2018), it held that “the first factor requires district courts to assess the defendant’s knowledge and structure of the ‘criminal enterprise,’ not just his knowledge of his own conduct that led to his conviction.” The district court concluded that a large-scale drug trafficking organization was involved in Rodriguez’s offense, and on remand, the district court must examine the scope and degree of Rodriguez’s knowledge of that organization’s structure.

Regarding factor (2), the district court determined Rodriguez “participated in planning or organizing the criminal activity” because, in the judge’s view, if “a plan is hatched by somebody, [and] agreed to by other people who play their assigned role[s] … [t]hey’re part of the planning.” But the Court observed that “the plain language of this factor indicates that the district court must assess the degree to which the defendant participated in devising the plan. The use of the words ‘planning or organizing,’ as verbs, indicates that the defendant must take an active role in developing the plan, the Court stated. The Court added that one who simply receives instructions and follows them does not ‘plan’ or ‘organize’ the crime.”

Finally, the district court concluded that factor (5) weighed against Rodriguez because $1,500 was not an insubstantial amount of money. But the Court explained in Diaz that “[t]o properly apply this factor … the district court must consider whether the defendant has a ‘proprietary interest in the criminal activity,’ such as ‘an ownership interest or other stake in the outcome of the drug trafficking operation.”

Accordingly, the Court vacated Rodriguez’s sentence and remanded for resentencing. See: United States v. Rodriguez, 44 F.4th 1229 (9th Cir. 2022). 

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