Minor role: a barrier removed

The mitigating role adjustments under U.S.S.G. § 3B1.2 provide an important form of mitigation under the advisory guidelines, especially where the offense level is also reduced in drug cases under U.S.S.G. § 2D1.1(a)(3). Unfortunately, the Ninth Circuit in an early case misread the Commentary to discourage mitigating role adjustments, which infected a dozen published opinions. The Ninth Circuit recently amended an opinion by interlineating the incorrect precedent, which has also been superseded by intervening case law and guideline amendments. We need to change the culture on mitigating role to ensure that downward adjustments are viewed as an encouraged ground for imposing a reduced sentence.

Sometimes legal archaeology turns up the point where bad law began and, from there, infected a wide range of precedent. In 1989, in the Gillock case, the Ninth Circuit conflated a Commentary statement that applied to the four-level reduction for minimal role and applied it to minor role. The Commentary stated that minimal role was "to be used infrequently"; no such limitation was included in the Commentary on minor role. Nonetheless, from Gillock, the minimal role statement morphed into a rule that mitigating role adjustments -- minor and minimal -- were "to be used infrequently and only in exceptional circumstances."

The Ninth Circuit applied this error in over 70 published and unpublished cases. In 1999, the Ninth Circuit Federal Public and Community Defenders filed an amicus brief in a case that adopted the erroneous language, requesting that the problem be corrected (available here). In response, the court deleted the reference to the bad standard without comment (here).

In the intervening years, the Gillock virus appeared to be suppressed. In the Rojas-Millan case, the Ninth Circuit expounded at length on the mitigating role adjustment and, in a footnote, clearly cabined the limiting commentary to minimal role. Amendments to the mitigating role guideline also placed minor and minimal role in separate notes, with the limitation applying only to minimal role.

Then came footnote 1 in Wilson, with the same old language limiting mitigating role. On the petition for rehearing by CJA panel attorney Jane Ellis, the court amended the opinion last week in an interesting way: the court set out the incorrect language then literally crossed it out. The amended opinion can now be used to counter any effort to revive the Gillock virus.

And while we’re on the subject, isn’t the "to be used infrequently" language on minimal role unlawful? Frequency depends on how often minimal participants are prosecuted, which is an Executive, not Judicial, function. The Commentary seems to violate separation of powers by skewing sentencing based on a hypothetical quota. It also creates an area of unwarranted disparity if defendants who qualify for the role reduction are denied because a judge is worried about the frequency with which the reduction is granted rather than the objective facts in the individual case. And doesn’t the "infrequently" language conflict with the rule of parsimony that the court should impose the least time necessary to accomplish the goals of sentencing? Application Note 4 looks ripe for a challenge that layers constitutional arguments and Stinson-based claims that the "infrequently" Commentary is inconsistent with governing statutory and guideline provisions.