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 https://en.wikipedia.org/wiki/Mule#/media/File:Juancito.jpg, 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 http://deepintomovies.blogspot.com/2011/05/o-brother-where-art-thou-2000.html

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

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Case o' The Week: Novocaine OK, Cocaine Not So Much - Mancuso, Continuing Offenses, and Drug Distribution

“Mancuso was a dentist who distributed a lot more than free

toothbrushes to his friends and acquaintances in Billings, Montana.”

Great first line in a good new case on federal drug distribution. United States v. Mancuso, 2010 WL 1811276 (9th Cir. May 1, 2013), decision available here.

Players: Decision by Judge Bea, joined by Judge Clifton and DJ Mahan.

Facts: Mancuso was a dentist in Billings, Montana. Id. at *1. He was charged in one count (Count II) with distributing over 500 grams of cocaine, beginning in 2002 through 2009. Id. He was also charged with using his home and office as places maintained to distribute cocaine. Id. “Friends” and suppliers testified at trial about Mancuso buying and sharing cocaine over the seven years, in his home, office, and at bars and ski resorts Id. at *2. “I’ll buy and you fly,” was Mancuso’s motto: he would bankroll the cocaine and share it with those who purchased it for him. Id. at *2. Mancuso was convicted after trial, after having made an unsuccessful duplicity challenge to the distribution charges in Count II.

Issue(s): “Mancuso’s duplicity claim with respect to Count II, which charged him with a single continuing offense of distributing cocaine between . . .  2002 and . . .  2009 is much stronger. Unlike possession of controlled substances with intent to distribute, it is unclear whether actual distribution may be charged as a continuing offense. This circuit has never addressed directly whether distribution is a continuing offense, although other circuits have held that it is not.” Id. at *7.

Held: “We agree with the reasoning of the Second Circuit: separate acts of distribution of controlled substances are distinct offenses under 21 U.S.C. §b841(a), as opposed to a continuing crime, and must therefore be charged in separate counts. The government argues that charging all of the acts of distribution in a single count was permissible because these acts ‘could be characterized as part of a single continuing scheme.’ We disagree. Mancuso’s various acts of distribution to random friends and acquaintances, unassociated with each other in any venture or pursuit, over the course of several years and in various locations are not sufficiently related to justify charging him with one count alleging a continuing distribution offense, as opposed with distinct counts for each act of distribution. For these reasons, we vacate Mancuso’s conviction on Count II on the grounds that it was duplicitous.” Id. at *8.

Of Note: There’s a surprising number of issues in this sole-defendant case (and not all are as nicely resolved as this “continuing offense” claim). One good result is Judge Bea’s reversal for plain error when the jury wasn’t instructed that they must find a primary purpose of Mancuso’s residence and dentist office was to distribute drugs. Id. at *8-*9. It is an honest and robust reading of the requirements for a “maintaining a place to distribute cocaine” charge (21 U.S.C. § 856(a)(1)). Worth a close read in § 856(a) cases.  

How to Use: Judge Bea’s new rule is welcome. Most obviously, it prevents the government from insulating old distribution charges from a statute of limitation challenge by lumping the offenses together as a single-count “continuing offense.” In some cases, it may also permit the defense to “throw” a hopeless distribution count at trial, focus the fight on another distribution charge, hope for a compromise verdict, and try to get under a mandatory-minimum triggering amount. Of course, the new rule doesn’t apply to conspiracy charges, or RICO, or “possession with intent to distribute,” id. at *7, but any win in the drug context is a victory worth trumpeting.   

                                               

Steven Nolder, FPD SD Ohio

For Further Reading: Former SD Ohio Fed. Public Defender Steve Nolder recently fired himself to save staff from furloughs or lay-offs. Steve was recently featured on the Daily Show, as an example of the impact of sequestration. See video here.  Last week, another Federal Defender joined the ranks of the departed. Respected Missouri Defender Ray Conrad retired years early, to lessen the financial impact of sequestration on his staff. See article here. 

   Meanwhile, no federal prosecutor in the country will be furloughed. See article here. And Justice is spending $165 million to purchase a new federal prison (so more federal inmates can be incarcerated). Id. 

Image of cocaine toothache drops from http://www.npbdentist.com/blog/post/and-you-think-you-hate-going-to-the-dentist-now.html

Image of Steve Nolder from http://www.youtube.com/watch?v=dMQQgLtnWOQ

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org

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