Tenth Circuit Vacates Sentence Based on Minor Role: Delgado-Lopez
Delgado-Lopez's case is important because it deals with statements and reasoning regarding the "Minor Role" Reduction that the court made at sentencing that were improper and unfounded.
Lopez's Offense Conduct and Procedural History
Delgado-Lopez’s (referred to as Lopez in this blog) car was searched and 13.6 kilograms of a mixture containing meth was found. He pled guilty “to possession with intent to distribute methamphetamine or a mixture containing methamphetamine.”
During sentencing and the PSR, it was determined that Lopez would rent a car in California and leave it on the side of the road. The other members of the drug trafficking organization would place the drugs in his car. He would then drive to his destination where other members would unload it and give him $1000 in cash. He would pay for his own expenses.
Lopez Asks for the Minor Role Reduction
Lopez asked for a “minor role reduction” under USSG 3B1.2. This would have caused him to receive an additional four-level reduction. At sentencing, the judge determined that Lopez should not receive a minor role reduction.
“Based in part on information not in the record about gas prices and mileage, it conducted a back-of-the-envelope calculation and estimated Delgado-Lopez’s expenses per trip to be $730 and his net profit to be $270. After learning that Delgado-Lopez earned fourteen dollars per hour at his full-time job, the court speculated that he could have worked two eight-hour days and earned $224 had he not acted as a drug courier. It also speculated that Delgado-Lopez could have worked “a day job” and earned $160. The court questioned why anyone would act as a drug courier for fifty to one hundred dollars and said this made Delgado-Lopez’s testimony about being just a courier not entirely credible” The court also stated that defendants who want to obtain these sorts of adjustments” sometimes “take the risk of assisting with controlled deliveries or providing other information.”
The court denied his request for a minor role reduction and the court found his guideline range to be 135-168 months imprisonment. The court varied downward to a sentence of 120 months. Lopez appealed.
What is the Minor Role Reduction?
United States Sentencing Guideline 3B1.2 deals with minor and minimal role:
Based on the defendant’s role in the offense, decrease the offense level as follows:
(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.USSG 3B1.2
This is colloquially referred to as the minor role reduction. The court noted that “Section 3B1.2 directs courts to decrease an offense level because of a defendant’s role in the offense. These “mitigating role” adjustments are “for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant in the criminal activity.”… “A defendant who is accountable … only for the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline.” § 3B1.2 cmt. n.3(A).
An example is provided of a drug-trafficking defendant “whose participation in that offense was limited to transporting or storing drugs”; such a defendant “may receive an adjustment under this guideline.”
The only evidence that Lopez was just a courier was his own testimony. There was no corroborating evidence. The court’s prior caselaw said that this was not enough. But the Tenth Circuit noted that the district court’s “factual finding may be based upon an incorrect legal standard, we must remand for reconsideration in light of the correct legal standard.”
The Court's "Back of the Envelope" reasoning was inappropriate
The Tenth Circuit noted that “There was no evidentiary hearing in this case. Rather, the judge examined Delgado-Lopez at the sentencing hearing, asking about his job, his hourly wage, the cost of gas for the trips, the cost of renting a hotel room, and the cost of a flight back to California. Based on this information, the judge did a quick calculation to estimate that a drug run would only make Delgado-Lopez about fifty to one hundred dollars more than he would have made if he had remained in California to work.”
Wile the District court is not required to explain its credibility determinations and such credibility determinations are extremely deferential, when the court’s colloquy exposes legal errors in the district court’s determination, an appellate court should not be blind to it. Here, the court made their decision based on speculation about the economics of the drug trafficking scheme without evidence. “The court erred by relying on its own speculation in finding that Delgado-Lopez was not credible.” This warranted reversal.
The court's consideration that Lopez should have cooperated for the reduction was inappropriate.
The Tenth Circuit also considered whether it was appropriate for the District Court to deny a guideline reduction because Lopez did not cooperate. Going back to 3b1.2, the “commentary, which includes a detailed explanation of what factors a court may and must consider, does not mention cooperation.” While there are places where a person can receive a reduction in their guidelines for cooperating, like 5K1.1, there is no such consideration under 3B1.2. The Tenth Circuit indicated that the district court committed error.
The Tenth Circuit remanded the case back to the District of Kansas for resentencing.