by Douglas Ankney

The United States Court of Appeals for the First Circuit vacated Dionel Guía-Sendeme’s sentence and remanded for resentencing, holding that the U.S. District Court for the District of Puerto Rico erred in its mitigating role analysis under U.S. Sentencing Guidelines § 3B1.2 by limiting the universe of participants to only the two crew members aboard the vessel – rather than all identifiable participants in the drug shipment, including the recruiter, loaders, and those monitoring for law enforcement – and by using the § 3B1.2 factors to establish guilt rather than to assess Guía’s relative culpability.

Background

In July 2021, a recruiter in the Dominican Republic offered Guía $10,000 to move gasoline tanks onto a boat used for smuggling. Believing the boat would be used to smuggle undocumented individuals, Guía accepted. He was introduced to Abel, one of two people designated to operate the vessel. Guía and Abel then attended a larger meeting with as many as a dozen people. Guía contends it was at this meeting that he realized the venture involved drug smuggling.

The following day, Guía and Abel arrived late at the predetermined meeting place. Several people were already present, and the gasoline tanks had already been loaded onto the vessel. Because the individual originally assigned to crew the vessel with Abel did not arrive, Guía agreed to accompany Abel to a nearby location. Before leaving shore, Guía watched Abel receive a GPS device, a compass, two phone numbers, and a handgun. Someone then taught Guía how to operate the GPS device. They were also informed that a second vessel would monitor for law enforcement.

Once on the water, the second vessel transferred an initial load of drugs to their boat. They then navigated to a separate location along the shore, where several individuals loaded more drugs onto the vessel. At this location, the originally designated crew member again failed to appear. Guía was offered an additional $10,000 to accompany Abel to Puerto Rico, and he agreed. Upon arriving at the designated drop-off location, law enforcement converged. Officers seized 135 kilograms of cocaine. Guía was apprehended, but Abel evaded capture.

In August 2022, Guía pleaded guilty without a plea agreement to four counts related to conspiracy to import, importation of, conspiracy to possess with intent to distribute, and possession with intent to distribute five or more kilograms of cocaine. The U.S. Probation Office prepared a presentence report concluding that Guía did not warrant a mitigating role adjustment under § 3B1.2 but did merit a firearm enhancement under § 2D1.1(b)(1) because he admitted seeing Abel possess a firearm before leaving shore.

At Guía’s January 2023 sentencing, he objected to the presentence report’s recommendations. The District Court adopted those recommendations, found a total offense level of 31 and criminal history category of I, resulting in an advisory Guidelines range of 108 to 135 months. The court granted a downward variance and imposed a 72-month sentence, stating that this “is a sentence that I would have given in this case regardless of the objections, even if you had prevailed in the objections.” Guía timely appealed.

Analysis

The Court vacated Guía’s sentence and remanded for resentencing, holding that the District Court erred in its mitigating role analysis under § 3B1.2 by limiting the universe of participants to only the two crew members aboard the vessel – rather than all identifiable participants in the drug shipment, including the recruiter, loaders, and those monitoring for law enforcement – and by using the § 3B1.2 factors to establish guilt rather than to assess Guía’s relative culpability.

Mitigating Role
Adjustment Framework

The Court observed that before sentencing a defendant, a court must correctly calculate a Guidelines sentencing range. United States v. Millán-Isaac, 749 F.3d 57 (1st Cir. 2014). Correctly calculating that range begins with the crime’s base offense level and then adjusting that figure up or down “for any aggravating or mitigating factors” to yield the total offense level. United States v. Martínez-Benítez, 914 F.3d 1 (1st Cir. 2019). The total offense level, combined with the defendant’s criminal history category, determines the Guidelines sentencing range. Because a sentencing range can “substantially influence a particular defendant’s sentence,” United States v. Giggey, 551 F.3d 27 (1st Cir. 2008), a court’s determination whether to apply a mitigating role adjustment can have important implications for the sentence finally imposed.

Under § 3B1.2(a)-(b), District Courts are authorized to reduce a defendant’s offense level if that defendant was a minor or minimal participant in the relevant criminal activity. “A defendant may receive a four-point reduction if he is a minimal participant; a two-point reduction if he is a minor participant; and a three-point reduction if his culpability falls somewhere between minimal and minor.” United States v. Walker, 89 F.4th 173 (1st Cir. 2023). The defendant bears the burden of proving entitlement to a mitigating role adjustment by a preponderance of the evidence. United States v. Arias-Mercedes, 901 F.3d 1 (1st Cir. 2018); § 3B1.2.

The Court noted that to determine whether a defendant has met this burden, courts employ a four-part analysis.

First, the court must identify the universe of participants involved in the relevant criminal activity, “those involved in ‘[the] relevant conduct as a whole.’” Arias-Mercedes. A “participant” is someone “who is criminally responsible for the commission of the offense, but need not have been convicted.” Id. To be considered a participant, there must be sufficient evidence of the person’s existence and involvement in the crime.

Second, the sentencing court must order each participant along a continuum based on degree of culpability. “Those who are primarily responsible stand on one end,” while “the least culpable participants … stand at the opposite end.” Walker.

Third, the sentencing court must identify the average participant across all likely participants in the criminal scheme. The court need not “identify a single ‘average participant’” nor “engage in a precise, numerical calculation.” United States v. Chichande, 113 F.4th 913 (9th Cir. 2024). Rather, the court should identify a “ballpark average” among those involved in the relevant conduct.

Fourth, the sentencing court must compare the defendant’s role to the average participant’s role. This is a two-part inquiry. The defendant must first demonstrate he is “substantially less culpable than the average participant in the criminal activity.” Walker. Then, depending on whether the defendant seeks minor or minimal participant status, he must demonstrate either that he is “less culpable than most other participants” or “plainly among the least culpable of those involved.” Id.

The Court stated that in measuring a defendant’s culpability against that of the average participant, the sentencing court must consider five non-exhaustive factors set forth in § 3B1.2 comment note 3(C):

The degree to which the defendant understood the scope and structure of the criminal activity;

The degree to which the defendant participated in planning or organizing the criminal activity;

The degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;

The nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts performed and the responsibility and discretion the defendant had;

The degree to which the defendant stood to benefit from the criminal activity.

Additionally, the sentencing court must consider “the totality of the circumstances and … the facts of the particular case.” Id. Whether a defendant played “an essential or indispensable role in the criminal activity is not determinative” of eligibility. Walker.

The Guidelines instruct that a defendant’s role is to be determined based on all conduct within the scope of § 1B1.3 (Relevant Conduct) “and not solely on the basis of elements and acts cited in the count of conviction.” For jointly undertaken criminal activity, relevant conduct includes acts “within the scope of the jointly undertaken criminal activity,” “in furtherance of that criminal activity,” and “reasonably foreseeable in connection with that criminal activity.” § 1B1.3(a)(1)(B). This includes activities undertaken “in preparation for that offense, or in the course of attempting to avoid detection.” Id.

However, “the scope of the ‘jointly undertaken criminal activity’ is not necessarily the same as the scope of the entire conspiracy.” § 1B1.3, cmt. n.3(B). Applied to drug shipments, the Guidelines require a sentencing court to limit the scope of inquiry to the drug shipments for which the defendant is accountable, then compare the defendant against all likely participants involved with that shipment, including those involved with the shipment’s preparation and efforts to avoid detection.

The Court emphasized that Arias-Mercedes does not require courts to limit the universe of participants to only those aboard a vessel. Rather, Arias-Mercedes upheld the District Court’s narrow focus as “a fact-specific determination based on the absence of record evidence showing other identifiable participants.” The Court cautioned that “to infer from that determination a broad rule that the universe of participants always consists of only those on the boat – even when there are other discernable participants involved in the criminal activity – is to mistake the factual outcome of Arias-Mercedes for the legal principles underlying it.”

The Court also noted that the Guidelines were amended because courts applied § 3B1.2 “more sparingly than the Commission intended.” United States v. Sarmiento-Palacios, 885 F.3d 1 (1st Cir. 2018). Comparing a defendant only to those aboard a vessel, despite evidence of other participants, “works to limit the availability of the adjustment by guaranteeing that the defendant often will be compared against a smaller, less representative pool of participants,” according to the Court.

The District Court’s Errors

The Court concluded that the District Court erred in two respects. First, the District Court limited the universe of participants to only Guía and Abel based on their presence aboard the boat, failing to consider the recruiter, those who loaded and unloaded drugs, and those who monitored for law enforcement.

Second, the Court determined that the District Court misapplied the § 3B1.2 factors. Instead of using those factors to assess Guía’s culpability relative to other participants, the court used them as a checklist to explain why Guía was guilty. For example, when addressing the first factor (knowledge of the criminal activity’s scope), the court noted only that Guía “did not back out of the venture.” When addressing the fourth factor (nature and extent of participation), the court observed that Guía “aid[ed] and abett[ed] [the] [m]aritime transport of narcotics.” The Court explained that these are facts establishing guilt; they “do not illuminate his relative culpability.”

The Court rejected the Government’s argument that any error was harmless. “A district court’s error in calculating the guideline range requires resentencing where it ‘affects or arguably affects the sentence imposed.’” United States v. Lacouture, 835 F.3d 187 (1st Cir. 2016). While a sentencing court’s clear statement that it would impose the same sentence regardless of the Guidelines can render an error harmless, “a district court’s mere statement that it would impose the same … sentence no matter what the correct calculation cannot, without more, insulate the sentence from remand.” United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011).

In the present case, had the District Court granted a mitigating role adjustment, the advisory Guidelines range may have dropped below the 72-month sentence imposed, the Court reasoned. The District Court identified no aggravating factors and focused solely on mitigating considerations. Thus, the Court could not conclude there was no possibility of a more lenient sentence on remand.

Conclusion

Accordingly, the Court vacated Guía’s sentence and remanded for resentencing consistent with its opinion. See: United States v. Guía-Sendeme, 134 F.4th 611 (1st Cir. 2025).

Editor’s note: Anyone with an interest in the mitigating role adjustment under Guidelines § 3B1.2 is encouraged to read the Court’s full opinion.  

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