Sunday, March 11, 2018

Case o' The Week: Mistakes Were Made - Minor Role Adjustments and Amendment 794

  Errors not cool, for cocaine mule.
United States v. Aguilar Diaz, 2018 WL 1220508 (9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by Judge Christen, joined by Judges Graber and Murguia. Welcome win for AFD Samuel Eilers, Federal Defenders of San Diego, Inc.  

Facts: Aguilar Diaz pleaded guilty to importing kilos of cocaine and heroin from Mexico. Id. at *1.
 At sentencing, the defense explained that he had only been involved in two prior crossings: trial runs for this offense. Id. He was only going to get paid a grand for his role as a courier. Id. at *2.
  Aguilar Diaz sought § 3B1.2(b) minor role adjustment articulating the five factors in the Commission’s clarifying Amendment 794. Id. The district court adopted the government’s argument “with little elaboration and denied the minor-role adjustment.” Id.

Issue(s): “[Aguilar Diaz] appeals the . . . denial of a minor role adjustment for his sentence pursuant to . . . § 3B1.2(b).” Id. at *1.

Held: “[W]e vacate and remand for resentencing.” Id. “Although the district court has considerable latitude in ruling on minor-role adjustments . . . on this record we must remand for re-sentencing because the decision to deny the adjustment rested on incorrect interpretations of the § 3B1.2 Guideline and Amendment 794. The difficulty is that the district court adopted the government’s argument with little elaboration, and the government’s argument included an incorrect interpretation of § 3B1.2 and Amendment 794. 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. 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 participants in the smuggling] as the comparison group, it did not account for Aguilar Diaz’s limited understanding of the overall ‘scope and structure of the criminal operation.’” Id. at *6.  

Of Note: The old minor role adjustment guideline had created a circuit split. Id. at *3. Amendment 794, effective November 1, 2015, resolved that split by specifying the pool of folks to whom the defendant is to be compared: other participants in the same criminal scheme, not hypothetical typical offenders. Id. In a careful analysis, Judge Christen clearly lays out the history of the guideline and Amendment, and discusses the (non-exhaustive) list of five factors a district court is to consider when deciding whether to grant a minor-role adjustment. Id.
  Aguilar Diaz is worth a close read when arguing for minor role – particularly the Ninth’s favorable recitation of the Commission’s lament that “minor role adjustments had been applied inconsistently and more sparingly than the Commission intended.” Id. at *4 (quoting USSG § 3B1.2 cmt. n.3(C)) (emphasis added).

How to Use: Wait - how did this reversal happen, when it is black letter law that a district court doesn’t have to “tick off the factors on the record to show that it considered them?” Id. at *4. The defense got a significant assist from the AUSA in this appellate win. At sentencing, the government incorrectly characterized the guideline and amendment’s application. The sparse sentencing transcript didn’t make clear that the District Court understood those errors and rejected them. Id. at *6.
  This holding isn’t exactly a new rule, but it is welcome precedent that highlights a path to appellate victory. When the government bumbles the guidelines and the district court doesn’t expressly reject the mistake, use Aguilar Diaz as your hook for reversible appellate error.
For Further Reading: President Trump has nominated four Sentencing Commissioners. Like prisoners in a chain gang, the fates of these candidates are linked -- we are told that the full slate for this bipartisan commission will rise or fall together in their Senate confirmations.

  Judge “Hang ‘em High” Hudson and Adjunct Professor William Otis are two Commission candidates that have elicited strong views. The pair “could make it harder for the full slate of four to win swift U.S. Senate confirmation.” See article here
  Recall that it takes four Commissioners to dance the Guideline tango: we’re currently one Commissioner shy. See USSG Web Page here
  With a kipped quorum, and controversial candidates complicating confirmations, the Commission’s main work may be earnest studies and frequent Tweets, for awhile. See USSG Twitter page, available here 

Image of mule from, By w:User:Dario u / User:Dario urruty (Own work (w:User:Dario u / User:Dario urruty)) [Public domain], via Wikimedia Commons

Image from “O’ Brother Where Art Thou” from

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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