First, in United States v. Rodriguez, --- F4th ---, No. 21-50108 (9th Cir. 2022), the Court vacated Rodriguez's sentence, concluding the district court erred in denying minor role.
"We have [] held that district courts must consider all of these factors when determining whether to grant a mitigating-role adjustment. See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). Thus, gone are the days when district courts had virtually unlimited discretion to simply deem a defendant to be of above average, average, or below average culpability. Now, “the assessment of a defendant’s eligibility for a minor-role adjustment must include consideration of the factors identified by the Amendment, not merely the benchmarks established by our case law that pre-dates Amendment 794’s effective date.”
"We recently clarified that the mitigating-role commentary’s reference to the “average participant” refers to “the mathematical average,” and that to calculate that average “‘all likely participants in the criminal scheme’ must be included.” This means that even “those that the district court believe[s] were leaders or organizers or who were otherwise highly culpable” must be included in the calculation. Therefore, each co-participant’s culpability affects the minor role analysis, and the district court erred by holding that Gordo’s culpability was not relevant.
In addition, "the district court appeared to treat each factor as presenting a binary choice: either it was satisfied, and it weighed against a minor role reduction, or it was not, and it weighed in favor of the reduction. But the commentary instructs courts to analyze the degree to which each factor applies to the defendant. The question is not simply whether the defendant “understood the scope and structure,” “participated in planning or organizing,” or “stood to benefit” from the crime. This is because the purpose of these factors is to determine the defendant’s role relative to other participants in the crime. And even a defendant who knows some of the scope and structure of the organization, participates in some of the planning, and receives a large payment for his participation could still play a relatively minor role compared to his co participants if they know more about the scope and structure of the organization, are more heavily involved of the planning, and receive a larger share of the proceeds. The key question is how the defendant compares with the other participants in the offense."
As to the first factor, "when applying the first factor, a district court must examine the defendant’s knowledge of the scope and structure of the broader group of people involved in the offense."
"This approach is also more consistent with the purpose of the factors, which is to help the district court assess the defendant’s role relative to other participants in the offense. High-level or more-involved participants are likely to know more about the scope and structure of a criminal organization than are minor participants who may be junior members of the organization or who, like Rodriguez, appear to be akin to independent contractors carrying out one-off tasks. The district court’s approach, by contrast, would render this factor essentially useless for ascertaining the defendant’s relative role because every defendant who is convicted of a crime is aware of his own conduct in committing the offense. If a defendant’s knowledge of his own conduct were sufficient to weigh this factor against a defendant, it would never weigh in the defendant’s favor, and thus would never help clarify the defendant’s relative role."
"In this case, the district court appeared to conclude that a larger drug trafficking organization was involved in the offense. On remand, then, the district court should examine the degree to which Rodriguez knew of the scope and structure of that organization."
The district court's "interpretation of the second factor is also erroneous. First, the plain language of this factor indicates that the district court must assess the degree to which the defendant participated in devising the plan. The use of the words “planning or organizing,” as verbs, indicates that the defendant must take an active role in developing the plan. One who simply receives instructions and follows them does not “plan” or “organize” the crime."
"Second, the district court’s interpretation is inconsistent with how we analyzed this factor in Diaz. There, we held that the fact that Diaz “did not know the type or quantity of the drugs hidden in his vehicle[] suggest[ed] he did not play a significant role in planning or organizing.” This was the case even though he had crossed the border twice—once as a practice run and once to support his friend—before crossing the border on the day he was arrested. See id. at 913. If simply being told the plan and following it were sufficient to weigh this factor against the defendant, we could not have held that this factor weighed in Diaz’s favor because he, like Rodriguez, was aware of the plan before committing the offense."
"Third, for the reasons stated above, the district court’s interpretation—that following instructions is “planning or organizing”—would render this factor useless for determining the defendant’s relative role since virtually every defendant who participates in a multi-defendant crime has either devised the plan or followed it. Our interpretation in Diaz, on the other hand, is consistent with the purpose of this factor: one who devises a plan and organizes others is likely to play a more significant role, while one who simply follows instructions is likely to play a less significant role."
"The fifth factor is “the degree to which the defendant stood to benefit from the criminal activity.” The district court held that this factor weighed against Rodriguez because $1,500 “is not an insubstantial amount of money.”4 This, too, is inconsistent with Diaz."
"In Diaz, the defendant was “to receive a set fee of $1,000” for driving drugs across the border. 884 F.3d at 917. We held that the district court erred by weighing this factor against Diaz because the district court “ignored that [the defendant’s] compensation was relatively modest and fixed.” Id. at 918. To properly apply this factor, we explained, the district court must consider whether the defendant has a “proprietary interest in the criminal activity,” such as “an ownership interest or other stake in the outcome of the trafficking operation.” Id. at 917–18; see also U.S.S.G. § 3B1.2, cmt. 3(C) (“[A] defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.”).
"Because Diaz did not have a proprietary interest in the drugs and because the amount he would be paid “was relatively modest and fixed” this factor weighed “in favor of granting the adjustment.” Id. at 918. Here, the district court did not consider that Rodriguez was to be paid a fixed amount to perform a discrete task, that he did not have a proprietary interest in the drugs, and that the amount he was to be paid was relatively modest compared to the value of the drugs. Like all of the other factors, the purpose of this factor is to aid in determining the defendant’s relative role, not just to determine whether the defendant received what the district court considers to be a lot of money in an absolute sense."
Congrats to John Lanahan on a great win!
"Because the district court decided Carter’s motion without demonstrating that it considered his nonfrivolous arguments, we vacate and remand."
"While this case was pending, the Supreme Court decided Concepcion v. United States, 142 S. Ct. 2389 (2022). Concepcion has three holdings relevant here. First, Concepion held that “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence.” Id. at 2404. Second, Concepcion held that because district courts must “consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them.” Id. at 2396. And third, Concepcion held that district courts ruling on First Step Act motions bear the “standard obligation to explain their decisions,” and accordingly must give a “brief statement of reasons” to “demonstrate that they considered the parties’ arguments”—including arguments pertaining to intervening changes in law or fact. Id. at 2404.
"Concepcion’s first holding conflicts with our decision in United States v. Kelley, 962 F.3d 470 (9th Cir. 2020). Kelley held that “the First Step Act . . . does not authorize the district court to consider other legal changes,” outside of Sections 2 and 3 of the Fair Sentencing Act, “that may have occurred after the defendant committed the offense.” Id. at 475. Concepcion held otherwise, instructing that “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act.” On this issue, Concepcion abrogates Kelley and we apply Concepcion, not Kelley."
"Applying Concepcion’s principles here, the district court erred . . . . the district court granted in part and denied in part Carter’s resentencing motion with no explanation whatsoever. We thus vacate the resentencing order below and remand."
