Ninth Circuit Blog

1. US v. Rodriguez, No. 21-50108 (8-17-22)(M. Smith w/Bade; concurrence by VanDyke). The 9^th remands for resentencing. In sentencing for importation, the court erred in denying a minor role adjustment by misapplying the factors set out in 3B1.2(b). In denying the adjustment, the court failed to recognize the comparison is with an average participant in a particular conspiracy or enterprise; failed to consider a recruiter’s culpability in luring the defendant; failed to consider the degree of involvement in the factors; and failed to consider the totality of circumstances. The court tended to have a stark choice about applicability. Upon resentencing, as to certain factors, the 9^th instructs the court to focus on the scope of defendant’s knowledge of the entire criminal enterprise (which was limited); the fact he was paid a discrete amount rather than a percentage; and the receiving of instructions does not mean one plans or organizations conduct.

Concurring, VanDyke agrees with the remand. He writes to stress a court can consider evidence beyond the five factors listed in 3B1.2(b). He also states that running large quantities of drugs across the border can indicate a knowledge of participants involved.

This is a good case for use of “minor role” and the factored approach.

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/17/21-50108.pdf

2. US v. Carter, No. 19-10411(8-17-22)(Bea w/Murguia & Berzon). This is a First Step Act issue about what changes and facts can be considered in using discretion to reduce a sentence in resentencing. The 9^th states that Concepcion v US, 142 S. Ct 2389 (2022) allows (1) district courts to examine intervening changes in the law or fact in exercising discretion in reducing a sentence; (2) the court must consider nonfrivolous arguments in exercising discretion, and so changes of fact can be considered; and (3) the court must explain its reasoning. The 9^th holds Concepcion abrogates 9^th precedent in US v. Kelly, 962 F. 3d 470 (9^th Cir. 2020). Kelly limited the First Step Act to sections 2 and 3 of the Fair Sentencing Act and the changes there. Concepcion expands the scope.