United States v. Flores-Alvarez

• Court: Court of Appeals for the First Circuit
• Decided: May 12, 2025
• Docket: 23-1163
• Status: Unpublished

Opinion

Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 23-1163

UNITED STATES,

Appellee,

v.

JORGE FLORES-ÁLVAREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

Gelpí, Thompson, and Aframe, Circuit Judges.

Héctor Sueiro-Álvarez, Research & Writing Specialist, with whom Rachel Brill, Federal Public Defender, District of Puerto Rico, Héctor L. Ramos-Vega, Interim Federal Public Defender, District of Puerto Rico, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

Ricardo A. Imbert-Fernández, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee. May 12, 2025 THOMPSON, Circuit Judge. A routine luggage inspection

at Luis Muñoz Marín International Airport, Puerto Rico unearthed

just over 8 kilograms of cocaine in a checked bag heading for

Philadelphia. The individual who toted the bag, Jorge

Flores-Álvarez ("Flores"), was interdicted by Homeland Security

Investigations Task Force Officers at the airport, arrested, and

later pleaded guilty to conspiring to possess with intent to

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846,

and possessing with intent to distribute cocaine in violation of

21 U.S.C. § 841(a)(1). During the sentencing process, Flores

sought and argued for a mitigating role adjustment under the United

States Sentencing Guidelines ("U.S.S.G." or "Sentencing

Guidelines"). The district court denied Flores's request and

imposed a sentence without it.1

Flores now challenges the procedural reasonableness of

the district court's sentencing determination -- namely, its

denial of a mitigating role adjustment, which Flores says

constituted a misinterpretation of the applicable law.2 For the

reasons we explain below, we agree with Flores. Writing primarily

1 Flores was sentenced to 57 months' imprisonment.

2Flores raises other arguments on appeal; however we address only what is necessary for our limited analysis today as the claims relate substantially to one another, and we do not express a view on any remaining appellate contentions.

- 3 - for the parties (who are familiar with the background facts,3

procedural history, and arguments presented), and applying a

multi-faceted abuse of discretion standard of review, see United

States v. Mendoza-Maisonet, 962 F.3d 1, 20 (1st Cir. 2020),4 we

vacate and remand for resentencing.

DISCUSSION

Before unpacking some of the alleged analytical missteps

Flores says the district court committed, we briefly survey

Flores's mitigating role argument and how the district court

approached its analysis. Flores -- a self-described one-time drug

courier with little knowledge of the drug-trafficking

scheme -- sought a role adjustment because, as he put it, his "part

in committing the offense . . . [made] him substantially less

culpable than the average participant in the criminal activity."

U.S.S.G. § 3B1.2 cmt. n.3(A); see also United States v. Walker, 89

F.4th 173, 185-86 (1st Cir. 2023) (citations omitted) (describing

the culpability standard for a mitigating role adjustment). On

3 Because Flores pleaded guilty, the handful of facts we provide along the way come from the plea agreement, the change-of-plea colloquy, the presentence investigation report, and the transcript of the disposition hearing. United States v. Lessard, 35 F.4th 37, 40 (1st Cir. 2022) (citation omitted).

4 Under this standard, we review the district court's interpretation and application of the Sentencing Guidelines de novo, its factfinding for clear error, and its exercise of judgment for abuse of discretion. United States v. Guía-Sendeme, 134 F.4th 611, 616 (1st Cir. 2025) (citing Mendoza-Maisonet, 962 F.3d at 20).

- 4 - this point, Flores urged the district court to identify all the

participants in the relevant criminal activity charged.

Specifically, he asked the court to consider any individual within

the universe of likely participants that took a step in furtherance

of this specific drug-trafficking conspiracy. Without a proper

tally of the participants (Flores said), the district court could

not properly compare Flores's culpability to that of the average

participant.

In ruling against Flores on his motion, the district

court examined U.S.S.G. § 3B1.2 and relied upon this circuit's

guiding precedent in United States v. Arias-Mercedes, 901 F.3d 1

(1st Cir. 2018). After quoting Arias-Mercedes (specifically a

passage tailoring the mitigating role analysis to a particular

drug shipment (which ensnared the defendant there), as opposed to

a "larger conspiracy" (hinted at in the procedural backdrop

there)), the district court, tracking the Arias-Mercedes analysis,

briefly homed in on Flores's admitted involvement in transporting

this particular drug shipment from Puerto Rico to Philadelphia,

and did so to the exclusion of other potential culprits who may

have been involved in a grander drug enterprise. To quote the

district court's chief determinant factor in denying Flores's

request, he "might not have planned the trip, but he exercised a

degree of discretion in accepting to participate in the attempted

transport of narcotics and in taking steps to accomplish it."

- 5 - I. The Universe of Participants

And here we are. Due to today's circumscribed review,

we direct the reader to Guía-Sendeme, 134 F.4th 611, for a

comprehensive elucidation of the relevant background law, and give

only a brief exposition to provide context for what informs our

decision.

The mitigating role provision of the Sentencing

Guidelines authorizes the district court to reduce a defendant's

offense level when the defendant is a minor or minimal participant

in the relevant criminal activity. See U.S.S.G. §§ 3B1.2(a) - (b).

These reductions can be "a four-point reduction if he is a minimal

participant; a two-point reduction if he is a minor participant;

and a three-point reduction if his culpability falls somewhere

between minimal and minor." Walker, 89 F.4th at 185 (citing

U.S.S.G. § 3B1.2). It is the defendant who "bears the burden of

proving, by a preponderance of the evidence, that he is entitled

to [a mitigating role adjustment]." Arias-Mercedes, 901 F.3d at

5 (quoting United States v. Pérez, 819 F.3d 541, 545 (1st Cir.

2016)). To determine whether a defendant has met this burden, we

have explained that the district court must engage in a four-part

analysis. See Guía-Sendeme, 134 F.4th at 617 (explaining in detail

that a sentencing court must: (1) identify the universe of

participants involved in the relevant criminal activity; (2) order

each participant along a continuum of culpability; (3) identify

- 6 - the average participant across all likely participants; and (4)

compare the defendant's role in the criminal activity to the

average participant's role).

While a district court must walk through all four parts

of the requisite analysis, we cabin our decision within the first

step (identifying the universe of participants involved in the

relevant criminal activity) due to its relevance to Flores's appeal

and the intervening case law since his sentencing. For this first

step, we've offered guidance on ascertaining participants. The

sentencing court must identify the "relevant conduct as a whole,"

a legal determination requiring a court to identify the "scope of

the conduct for which the defendant is being held accountable."

Guía-Sendeme, 134 F.4th at 622 (quoting Arias-Mercedes, 901 F.3d

at 6, 7). Next, the court conducts an "invariably fact-specific

inquiry" in order "to identify the universe of participants

involved in the particular conduct." Id. (citation and quotation

marks omitted). Although a "participant" is someone "who is

criminally responsible for the commission of the offense," she

"need not have been convicted." Arias-Mercedes, 901 F.3d at 6

(quoting U.S.S.G. § 3B1.1 cmt. n.1). Furthermore, a "participant"

and their involvement in the crime must be identifiable or

discernible from the record. See id. at 7 (quoting United States

v. Rodríguez De Varón, 175 F.3d 930, 944 (11th Cir. 1999)).

- 7 - Guía-Sendeme makes clear that district courts "must

compare the defendant against all likely participants involved"

with the particular shipment of drugs for which the defendant can

be held responsible, "including those involved with the shipment's

preparation and efforts to avoid detection." See 134 F.4th at 620

(citations omitted).5

Based on Guía-Sendeme and the Sentencing Guidelines, a

review of the record suggests the district court, when it undertook

its mitigating role analysis, focused too narrowly on the steps

Flores himself took in bringing this particular shipment of drugs

through the airport (i.e., the steps Flores took in furtherance of

the relevant criminal activity) without considering the broader

universe of reasonably discernible participants who "planned the

trip." For instance, the average participant calculus might

perhaps have included those who procured the narcotics in the

suitcase and the person in Philadelphia scheduled to receive the

shipment.6 To be clear, this is not to say the district court

5 Inthe context of Guía-Sendeme, this meant the district court there should not have based its average participant calculation merely on the individuals caught aboard a boat full of drugs. See 134 F.4th at 620. Rather, the court needed to consider "those who helped recruit other participants, loaded and unloaded the drugs on and off the vessel, and monitored for law enforcement" when making its mitigating role determination. Id.

6 The government's argument on appeal that "[t]here is no reason to think that the district court excluded those [additional participants]" from its analysis lacks support. At sentencing, the only reference to any other individuals involved in the

- 8 - should assess a mitigating role adjustment "based on suppositions

woven entirely out of gossamer strands of speculation and surmise."

Arias-Mercedes, 901 F.3d at 7 (citations omitted). Rather, on

remand, the district court must "consider[] the record evidence to

determine whether there were other discernable participants in the

drug shipment." Guía-Sendeme, 134 F.4th at 623; see also

Gastronomical Workers Union Loc. 610 v. Dorado Beach Hotel Corp.,

617 F.3d 54, 66 (1st Cir. 2010) (vacating and remanding when

intervening precedent clarified a mode of analysis, meaning the

district court, without the benefit of that new case, "did not

engage in the requisite analysis").

II. Final Thoughts

A final coda before signing off. Flores persuasively

argues on appeal that the district court, in determining whether

Flores was eligible for a mitigating role adjustment, faltered at

other steps of the requisite analysis -- like when it failed to

gauge the five culpability factors outlined in U.S.S.G. § 3B1.2

cmt. n.3(C). The purpose of these five factors is to ultimately

measure a defendant's culpability against that of the average

conspiracy is the court's remark that "Mr. Flores might not have planned the trip." Therefore, with no discussion undertaken as to these or any other participants in the requisite universe-of-participants calculus, the government's position on this does not alter our conclusion that "we do not have enough information about the district court's rationale for denying the reduction." Walker, 89 F.4th at 186.

- 9 - participant who took part in the criminal activity. See

Guía-Sendeme, 134 F.4th at 618; see also Walker, 89 F.4th at 187

("An evaluation of these factors does not require extensive

analysis but it does require both a judgment about the defendant's

own conduct and a comparison to the other participants."). Indeed,

says Flores, the district court here neglected to consider all

five culpability factors and compare his actions to the actions of

other participants.7

But because we've already identified an error that

warrants remand, we need not weigh in on this or any other

remaining aspect of the appellate asseverations before us today.

See generally Fawcett v. Citizens Bank, N.A., 919 F.3d 133, 140

(1st Cir. 2019) ("When 'it is not necessary to decide more, it is

necessary not to decide more.'" (quoting PDK Labs. Inc. v. U.S.

D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004))).

CONCLUSION

For the reasons explained above, the district court

erred as a matter of law when it assessed Flores's eligibility for

a mitigating role adjustment. Accordingly, we vacate the sentence

For example, U.S.S.G. § 3B1.2 cmt. n.3(C)(iii) asks a court 7

to consider "the degree to which the defendant exercised decision-making authority," and Flores argues the court never considered this aspect of the mitigating role analysis. Furthermore, Flores emphasizes he did not exercise even a "modicum" of decision-making authority, but rather he decided to participate in the conspiracy and merely followed the instructions of his co-conspirators from there.

- 10 - and remand to the district court for further proceedings consistent

with this opinion.

- 11 -