United States v. Guadalupe Castro

843 F.3d 608, 2016 U.S. App. LEXIS 22050, 2016 WL 7209690
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 12, 2016
Docket15-11059
StatusPublished
Cited by112 cases

This text of 843 F.3d 608 (United States v. Guadalupe Castro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Guadalupe Castro, 843 F.3d 608, 2016 U.S. App. LEXIS 22050, 2016 WL 7209690 (5th Cir. 2016).

Opinions

E. GRADY JOLLY, Circuit Judge:

This appeal arises from a district court’s denial of a mitigating role adjustment under U.S. Sentencing Guideline § 3B1.2. Because- the court’s analysis was not clearly erroneous, we AFFIRM.

I.

On April 27, 2015, Guadalupe Castro and Cynthia Uribe were arrested for • transporting six bricks of heroin weighing 5,992 grams in their vehicle, which Castro was driving. In post-arrest interviews, Castro and Uribe admitted to transporting narcotics for a drug trafficking organization (“DTO”). They confessed that, on at least two prior occasions, they had transported heroin from El Paso to the Dallas/Fort Worth area, receiving $2,000 each per trip. They also admitted to transporting heroin at least once to Albuquerque, New Mexico, receiving $1,000 each for that trip.

On May 13, 2015, a federal grand jury charged Castro with one count of conspiracy to possess with intent to distribute a controlled substance. Castro pled guilty on June 26, 2015.

[610]*610During pre-sentencing, Probation did not recommend a mitigating role adjustment under § 3B1.2 in Castro’s Presen-tence Investigation Report (“PSR”). Despite Castro’s objection, in the PSR’s Addendum, Probation maintained that Castro was not entitled to a § 3B1.2 adjustment, stating that:

Using the current 2014 Sentencing Guidelines, [Castro] does not qualify for a mitigating role reduction based on her participation and involvement in the conspiracy. ... [T]he Fifth Circuit held that the defendant must be ‘peripheral to the advancement of criminal activity.’ As a courier who committed drug-trafficking crimes on more than one occasion, the defendant is not peripheral to the advancement of criminal activity. In fact, a courier plays an integral role in moving narcotics north from Mexico, further into the United States.

The district court reviewed, among other sentencing items, the PSR, Addendum, and the arguments on Castro’s objection that she was entitled to a mitigating role adjustment. And, in a pre-sentencing order, it tentatively concluded that Castro’s objection was without merit.

At sentencing on October 9, 2015, the district court again denied Castro’s objection, explaining that it was “not persuaded that the defendant ha[d] carried the defendant’s burden to prove the lower participant category.” The court then adopted the PSR’s and Addendum’s factual findings and conclusions as its own, as well as those expressed from the bench during the sentencing hearing. And the court sentenced Castro to sixty months of imprisonment, supervised release for two years, and a special assessment of $100.1

Castro has timely appealed. She asks this Court to vacate the district court’s judgment and remand for resentencing because: (1) the district court committed clear error by adopting Probation’s interpretation of § 3B1.2, which Amendment 794 clarifies is the wrong standard because it focuses on the integral nature of Castro’s role in the drug conspiracy; and (2) the court’s error was not harmless.

II.

The parties dispute whether Amendment 794 is retroactively applicable, which depends on whether the Amendment is substantive or clarifying. But we find it unnecessary to decide this question because we will treat the Amendment as if it were retroactively applicable, which will show that Castro does not benefit from the Amendment.2 Thus, the issue before us is whether the district court clearly erred by denying Castro a mitigating role adjust[611]*611ment under § 3BX.2 as modified by Amendment 794.

A..

It is necessary to describe § 3B1.2 and Amendment 794’s impact on it before considering whether the district court erred in its application of § 3B1.2. When Castro was sentenced, the 2014 Sentencing Guidelines were in effect. Section 3B1.2 provided:

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.

The 2014 commentary explained that the decision to apply an adjustment is “heavily dependent on the facts” and “based on the totality of the circumstances.” U.S. Sentencing Guidelines Manual § 3B1.2 cmt. n.3(C) (U.S. SENTENCING Comm’n 2014) [hereinafter 2014 Manual], But a “range of adjustments” is available for a defendant who “plays a part in committing the offense that makes him substantially less culpable than the average participant.” Id. at n.3(A) (emphasis added). A “minimal participant” is a defendant who is “plainly among the least culpable of those involved in the conduct of a group.” Id. at n.4. A “defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as a minimal participant.” Id. By contrast, a “minor participant” is a defendant “who is less, culpable than most other participants, but whose role could not be described as minimal;” Id. at n.5.

When Castro was sentenced, Amendment 794 was not yet effective. Sentencing Guidelines for United States Courts, 80 Fed. Reg. 25,782, 25,782 (May 5, 2015) (stating that Amendment 794 was effective on November 1, 2015). Prompted by a study that found that § 3B1.2 “is applied inconsistently and more sparingly than the Commission intended,” the Sentencing Commission passed Amendment 794 to resolve “a circuit conflict” and “provide[] additional guidance ... in’ determining whether a mitigating role adjustment applies.” U.S. SENTENCING GUIDELINES MANUAL: Supplement to Appendix C amend. 794, at 117 (U.S. Sentencing Comm’n 2015) [hereinafter 2016 Manual]. Amendment 794 “left the text of § 3B1.2 unchanged but made various revisions to the commentary.” United States v. Gomez-Valle, 828 F.3d 324, 328 (5th Cir. 2016).

Four revisions are important here. First, the Commission specified that the “average participant” inquiry requires courts to compare the defendant “with the other participants % the criminal activity.’ ” 2015 Manual, amend. 794, at 117. Second, the Commission explained that “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment ... if he or she is substantially less culpable than the average participant in the criminal activity.” Id. at 116 (emphasis added). Third, the Commission added a “non-exhaustivé list of factors for [courts] to consider in determining whether to apply a[n] ... adjustment and, if so, the amount of the adjustment.” Id. at 118.3 Finally, the Commission [612]*612stated that “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.” Id. at 116.

B.

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Bluebook (online)
843 F.3d 608, 2016 U.S. App. LEXIS 22050, 2016 WL 7209690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-guadalupe-castro-ca5-2016.