Monday, September 05, 2022

1. US v. Rodriguez, No. 21-50108 (8-17-22)(M. Smith w/Bade; concurrence by VanDyke). The 9th 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 9th 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.


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 9th 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 9th holds Concepcion abrogates 9th precedent in US v. Kelly, 962 F. 3d 470 (9th 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.

Congrats to David Porter, AFPD, Cal E (Sacramento).



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