In United States v. Dominguez-Caicedo, --- F.4th ---, No. 19-50268 (9th Cir. 2022), the Court affirmed convictions for conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting; affirmed two of the defendants' sentences; and vacated the other defendant's sentence.
The case stems from the Coast Guard taking the defendants into custody near the Galapagos Islands and then eventually transporting them to California.
The opinion is lengthy, covering lots of issues, including Rule 5 violations and when dismissal can be an appropriate remedy, as well as when a court may dismiss a case based on outrageous government conduct. But for purposes of this summary, I'm going to focus on the minor role analysis. The Court goes in depth on the proper inquiry and discusses who can be considered a "likely" participant:
The relevant comparison is to the other participants in the defendant’s crime, not to typical defendants who commit similar crimes.Thus, in this case, the district court was required to compare the defendants to the other participants in their crimes, not to typical defendants occupying their roles, such as typical drug transporters. Further, when the mitigating role commentary instructs courts to compare the defendant’s culpability to that of “the average participant in the criminal activity,” it is not referring to the actual level of culpability of any single participant. It is instead referring to the mathematical average, i.e., a “single value that represents the midpoint of a broad sample of subjects.” Thus, “all likely participants in the criminal scheme” must be included in calculating the average.To determine whether a defendant is substantially less culpable than the average participant in the offense, a district court must proceed in three steps. First, the court must identify all of the individuals for whom there is “sufficient evidence of their existence and participation in the overall scheme.” Rojas-Millan, 234 F.3d at 474. Second, the court must calculate a rough average level of culpability for these individuals, taking into consideration the five factors in comment 3(C) to the Mitigating Role Guideline. See Diaz, 884 F.3d at 916. Third, the court must compare the defendant’s culpability to that average. If the defendant is substantially less culpable than that average and meets the other criteria, he should be granted a mitigating role adjustment. If the defendant is not substantially less culpable than that average, he is not eligible for the adjustment.The Government and some district courts appear to have interpreted United States v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014), overruled on other grounds by Gasca-Ruiz, 852 F.3d at 1174, to suggest that a court must first identify all participants in the crime and then disregard participants of above-average culpability (and, presumably, those of below-average culpability) and compare the defendant’s culpability only to the remaining individuals whom the district court deems to be of average culpability. A court following this approach compares the defendant’s culpability to only the median participants’ actual level of culpability instead of comparing the defendant’s culpability to the average level of culpability of all the participants in the offense.This understanding of Hurtado is incorrect. At the outset, we note that much of Hurtado has been overruled or abrogated. But to the extent anything remains of Hurtado, it simply stands for the proposition that comparing a defendant to only the most culpable subset of the participants in the offense does not demonstrate that the defendant is entitled to a minor role reduction. Instead, the district court must compare the defendant’s culpability with the average level of culpability of all of the participants in the crime. Hurtado did not set forth an entirely different method of performing the minor role analysis.***The fact that illicit drugs are often traceable to larger drug trafficking organizations does not mean that district courts must compare the conduct of each defendant convicted of a drug crime to that of every hypothetical member of a typical drug trafficking organization. We have repeatedly held that the relevant comparators are the actual participants in the defendant’s crime. By “actual participants,” we mean only participants for whom there is “sufficient evidence of their existence and participation.” Even if one can assume based on how drug trafficking organizations typically operate that it is likely that another unidentified person participated in the crime, the district court is not required to compare the defendant’s culpability with that of the unidentified person. Indeed, without evidence of the proposed comparator’s existence or participation the district court has nothing against which to compare the defendant’s conduct.We have referred to likely participants to make clear that the defendant does not necessarily need to know the participant’s name or see the participant for there to be sufficient evidence of that person’s participation in the offense. But we have never required a comparison to unknown persons one might assume participated but about whom there is no evidence of their actual participation.
