In United States v. Aguilar Diaz, --- F.3d ---, No. 16-50102 (9th Cir. 2018), the Court vacated the defendant's sentence finding the district court erred in denying minor role.
This is a must read. It has lots of good language about how, post-Quintero-Leyva, the district court must examine the relevant participants. Especially helpful is that the district court cannot penalize the defendant for his or her lack of knowledge:
We conclude that Amendment 794 did not change the size of the appropriate comparison group—it remains impermissible to compare a defendant’s conduct to that of the hypothetical average participant—but Amendment 794 makes clear that when a defendant knows little about the scope and structure of the criminal enterprise in which he was involved, that fact weighs in favor of granting a minor-role adjustment.
"Although the district court has considerable latitude in ruling on minor-role adjustments, see id., 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 Peter and Rodriguez as the comparison group, it did not account for Aguilar Diaz’s limited understanding of the overall “scope and structure of the criminal operation.”
Congrats to Sam Eilers from FDSDI.
Moving on.
In United States v. Verduzco-Rangel, --- F.3d ---, No. 15-50559 (9th Cir. 2017), the Court affirmed the defendant's illegal reentry conviction.
It held that the defendant's prior removal was valid because the predicate conviction was an aggravated felony: "a conviction under section 11378 is an aggravated felony for purposes of § 1227(a)(2)(A)(iii) where, as here, the record of conviction establishes that the substance involved was federally controlled, and affirm Verduzco’s conviction."
The Court began with the familiar -- that 11378 is not a categorical match for the drug trafficking aggravated felony: "California’s statute is not a perfect categorical match . . . because, although California’s list of controlled substances is nearly identical to those contained in the federal statutes and schedules that the INA references, California law also criminalizes trafficking in a few obscure substances that federal law does not, such as chorionic gonadotropin (a performance enhancing drug also banned in many sports)."
The Court then applied the modified approach to find the substance was methamphetamine.
More interesting, the Court rejected the defendant's argument that "California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking. Under federal law, a person actually selling cocaine who thought he was selling baking soda does not possess the required mens rea to be guilty of drug trafficking. Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law. This means that a person who believed she was trafficking in chorionic gonadotropin but was in fact trafficking in methamphetamine would violate California law but not federal law."
The Court, however, found that it "need not consider whether a state drug crime would also be punishable under federal law. Rather, it is sufficient that the state statute contains an 'illicit trafficking' element, which section 11378 clearly does."
Thus, the Court held: "Because section 11378 has a trafficking element and requires a sufficiently culpable state of mind, section 11378 is a drug trafficking aggravated felony under § 1101(a)(43)(B) where the record of conviction establishes that the substance involved is federally controlled. Thus, removal under § 1227(a)(2)(A)(iii) based on such a conviction under section 11378 is not fundamentally unfair."
