Friday, May 20, 2016

United States v. Quintero-Leyva, No. 14-50509 (5-17-16)(Nelson with Callahan and N. Smith).
The 9th holds that Guidelines amendment 794 (minor role) applies retroactively in direct appeals.

Amendment 794 concerned minor role adjustments.  The amendment resolved a circuit split and clarified application by broadening applicability.  In amending minor role as it pertained to drug couriers ("mules"), the Sentencing Commission sided with the 9th and 7th in considering the actual participants involved, and not, as in the 1st, to hypothetical average participants.  The amendment also used a totality of circumstances approach, stating that a courier could get the adjustment even if deemed essential to the trafficking.  The court needed to consider factors such as a propriety stake, degree of planning, compensation, nature and extent of involvement and so forth.  Given the resolution of the split, and clarification, the amendment must be retroactive to appeals.

In the case here, a year before the amendment, the defendant was trying to smuggle over 13 kg of meth and over $260,000 hidden in a car.  The defendant confessed he had been approached a few days before to smuggle drugs over the border, but he thought it was marijuana. Heels provided the car; he did not own it nor did he register it.  He was told that he would be contacted afterwards and paid $100,000. The defendant was young (18), with no prior record or arrests. The prosecutor did not recommend minor role; the PSR did not give it.  At sentencing, the court varied down to 72 months but did not adjust for minor role, stating that the defendant had re-initiated contact with the supplier after first being approached and the defendant's monetary incentive.

The 9th, after finding the amendment retroactive to direct appeals, reversed the sentence and remanded.  The 9th instructed the court to take into account all the factors.  The factors had to be weighed together, and the presence or absence of one did not bar or foreclose the adjustment.

The decision is here:


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