United States Court of Appeals For the First Circuit
No. 23-1162
UNITED STATES,
Appellee,
v.
DIONEL GUÍA-SENDEME,
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.
Joanna E. LeRoy, with whom Rachel Brill, Federal Public Defender, District of Puerto Rico, Héctor L. Ramos-Vega, Interim Federal Public Defender, District of Puerto Rico, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Kevin E. Lerman, Assistant Federal Public Defender, were on brief, for Appellant. W. Connor Winn, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and David C. Bornstein, Assistant United States Attorney, were on brief, for Appellee.
April 4, 2025 AFRAME, Circuit Judge. Dionel Guía-Sendeme ("Guía")
appeals from a 72-month sentence imposed for his participation in
a venture to smuggle 135 kilograms of cocaine from the Dominican
Republic to Puerto Rico. For his role in operating a small vessel
to transport the narcotics, Guía pleaded guilty to, inter alia,
importing and possessing with intent to distribute five kilograms
or more of cocaine.
In determining Guía's sentence, the district court
calculated an advisory guideline sentencing range of 108 to 135
months. Guía challenges that calculation. He contends that the
court misapplied the United States Sentencing Guidelines
("U.S.S.G." or "the Guidelines") by: (1) refusing to apply a
mitigating role adjustment under U.S.S.G. § 3B1.2 and (2)
assigning a firearm enhancement under U.S.S.G. § 2D1.1(b)(1). We
conclude that the district court properly assessed the firearm
enhancement but must reconsider Guía's eligibility for a
mitigating role adjustment. We therefore remand for resentencing.
I.
We draw the facts from undisputed portions of the final
presentence report, the sentencing hearing, and the sentencing
record. See United States v. Coplin-Benjamin, 79 F.4th 36, 38-39
(1st Cir. 2023); United States v. Melendez-Hiraldo, 82 F.4th 48,
51 n.1 (1st Cir. 2023).
- 3 - On July 10, 2021, a recruiter approached Guía in the
Dominican Republic and offered to pay him to move gasoline tanks
onto a boat that would be used for smuggling. Guía assumed the
boat would be smuggling undocumented individuals. He agreed to
the job and was introduced to Abel, one of two people who would be
operating the vessel. During the meeting, Abel or the recruiter
informed Guía that he would be paid $10,000.
Following the introduction, Guía and Abel attended a
larger meeting that included as many as a dozen people. Guía
contends that it was during this second meeting that he realized
the venture involved smuggling drugs, not undocumented
individuals. The meeting participants were briefed on the
operation and were told to meet early the next morning at a set
location.
The following day, Guía and Abel arrived late to the
designated meeting place. There were several individuals present
and the gasoline tanks had already been loaded onto the vessel.
The individual assigned to crew the vessel with Abel did not arrive
and as a result, Guía was asked to accompany Abel in the boat to
a nearby location. Guía agreed.
Before leaving shore, Guía watched Abel receive a GPS
device, a compass, two phone numbers, and a handgun; someone
thereafter taught Guía how to operate the GPS device. The two
- 4 - were also informed that there would be a second vessel monitoring
for law enforcement.
Once on the water, the second vessel met up with Abel
and Guía's vessel and transferred an initial freight of drugs.
Abel and Guía then navigated to a separate location along the shore
where several other individuals emerged from bushes to load more
drugs onto their vessel.
At the second location, the individual originally
designated to crew the vessel with Abel again failed to show. Guía
was then offered an extra $10,000 to accompany Abel to Puerto Rico.
He agreed. They set off the next day for a designated location in
Puerto Rico where they would unload the drugs. Upon arriving at
the drop off location, law enforcement converged. Officers seized
135 kilograms of cocaine. Guía was caught while Abel evaded
apprehension.
Guía was indicted on four counts: (1) conspiring to
import five kilograms or more of cocaine into the United States,
21 U.S.C. §§ 952(a), 960(a), (b)(l)(B), and 963; (2) importing
five kilograms or more of cocaine into the United States, 21 U.S.C.
§§ 952(a), 960(a), (b)(l)(B), and 18 U.S.C. § 2; (3) conspiring to
possess with intent to distribute five kilograms or more of
cocaine, 21 U.S.C. §§ 84l(a)(l), (b)(l)(A)(ii), and 846; and (4)
possessing with intent to distribute five kilograms or more
cocaine, 21 U.S.C. §§ 841(a)(l), (b)(l)(A)(ii), and 18 U.S.C. § 2.
- 5 - In August 2022, Guía pleaded guilty to all counts without
a plea agreement. Prior to the sentencing hearing, the U.S.
Probation Office ("Probation") filed a second addendum to the
presentence report.1 Relying principally on an interview with Guía
that was memorialized in an October 2022 Report of Investigation,
Probation concluded that Guía did not warrant a mitigating role
adjustment under U.S.S.G. § 3B1.2 but did merit a firearm
enhancement under U.S.S.G. § 2D1.1(b)(1) because he admitted that
he saw his coconspirator Abel possess a firearm prior to leaving
shore.
On January 18, 2023, the district court imposed
sentence. At several points during the sentencing hearing, Guía
objected to the presentence report's recommendation that the court
deny him a mitigating role adjustment and apply a firearm
enhancement. Following the parties' arguments, the court adopted
the presentence report recommendations. The court found a total
offense level of 31 and a criminal history category of I, which
yielded an advisory guideline sentencing range of 108 to 135
months.2 The court then granted a downward variance, settling on
a seventy-two-month sentence.
1 Probation filed a final presentence report on January 20, 2023, following the sentencing hearing. 2 The district court's calculation began with a base offense level of 34. The court then applied a two-level firearm enhancement, U.S.S.G. § 2Dl.l(b)(l); a two-level safety valve
- 6 - At the end of the hearing, Guía's counsel objected to
the sentence. The court denied the objections and added
seventy-two months "is a sentence that I would have given in this
case regardless of the objections, even if you had prevailed in
the objections."
This appeal followed.
II.
Before this Court, Guía claims two procedural sentencing
errors. First, he contends that the district court incorrectly
denied him a mitigating role reduction under U.S.S.G. § 3B1.2.
Specifically, he argues that the district court failed to properly
perform the mitigating role analysis required by the Guidelines.
Second, he contends that the court erroneously imposed a firearm
enhancement under U.S.S.G. § 2D1.1(b)(1) by not specifically
finding that his coconspirator's firearm possession was reasonably
foreseeable to him.3
reduction, U.S.S.G. § 5Cl.2(a); and a three-level reduction for accepting responsibility, U.S.S.G. § 3El.1; resulting in a total offense level of 31. 3 Unrelated to any sentencing error, Guía requests a remand for plenary resentencing pursuant to Amendment 821, Part B -- a revision to the Sentencing Guidelines that was promulgated after his sentence and, if applicable, could reduce his advisory guideline range. See U.S.S.G. Supp. App. C, Amend. 821, pt. B (2023). Because of our remand disposition, we do not consider this request. However, the district court may grant Guía the benefit of Amendment 821 at his resentencing if it determines that he so qualifies.
- 7 - These are preserved challenges to the procedural
reasonableness of Guía's sentence. We therefore review them for
an abuse of discretion. See, e.g., United States v.
Mendoza-Maisonet, 962 F.3d 1, 20 (1st Cir. 2020) ("We generally
review procedural reasonableness challenges under 'a multifaceted
abuse-of-discretion standard.'" (quoting United States v.
Arsenault, 833 F.3d 24, 28 (1st Cir. 2016))). Under that standard,
we review the sentencing 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. Id.
III.
A.
We begin with Guía's challenge to the denial of his
request for a mitigating role adjustment under the Sentencing
Guidelines. Before sentencing a defendant, a court must correctly
calculate a guideline sentencing range. See United States v.
Millan-Isaac, 749 F.3d 57, 66 (1st Cir. 2014) (explaining that
district courts must "begin all sentencing proceedings by
correctly calculating the applicable Guidelines range" (quoting
Gall v. United States, 552 U.S. 38, 49(2007))). To calculate that
range, the court starts with the crime's base offense level and
then adjusts that figure up or down "for any aggravating or
mitigating factors" to yield a total offense level. United States
v. Martínez-Benítez, 914 F.3d 1, 2 n.2 (1st Cir. 2019). The total
- 8 - offense level is then combined with the defendant's criminal
history category to determine the applicable guideline sentencing
range. Id. Because a sentencing range can "substantially
influence a particular defendant's sentence," United States v.
Giggey, 551 F.3d 27, 29 (1st Cir. 2008), a court's determination
on whether to apply a sentencing adjustment, such as the mitigating
role adjustment, can have important implications for the sentence
finally imposed.
We turn now to the specifics of the mitigating role
provision of the Sentencing Guidelines. Section 3B1.2(b) of the
Guidelines authorizes the district court to consider reductions in
a defendant's offense level where the defendant is a minor or
minimal participant in the relevant criminal activity. See
U.S.S.G. § 3B1.2(a)-(b). "A defendant may receive 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." United
States v. Walker, 89 F.4th 173, 185 (1st Cir. 2023) (citing
U.S.S.G. § 3B1.2). A defendant "bears the burden of proving, by
a preponderance of the evidence, that he is entitled to [a
mitigating role adjustment]." United States v. Arias-Mercedes,
901 F.3d 1, 5 (1st Cir. 2018) (quoting United States v. Pérez, 819
F.3d 541, 545 (1st Cir. 2016)).
- 9 - To determine whether a defendant has met this burden, a
sentencing court performs a four-part analysis. First, it must
identify the universe of participants involved in the relevant
criminal activity. See Arias-Mercedes, 901 F.3d at 6 ("[T]he court
must consider a universe composed of those involved in '[the]
relevant conduct as a whole.'" (quoting United States v. Vargas,
560 F.3d 45, 50 (1st Cir. 2009))); see also United States v.
Dominguez-Caicedo, 40 F.4th 938, 960 (9th Cir. 2022) (explaining
that the defendant must be compared against "all likely
participants in the criminal scheme") (citation omitted). A
"participant" is someone "who is criminally responsible for the
commission of the offense, but need not have been convicted."
Arias-Mercedes, 901 F.3d at 6 (quoting U.S.S.G. § 3B1.1, cmt. n.1).
To be considered a participant, there must be sufficient evidence
of the person's existence and involvement in the crime. See id.
at 7 (citing United States v. Rodríguez De Varón, 175 F.3d 930,
944 (11th Cir. 1999) (noting that participants must be discernable
from the record)).
Second, the sentencing court must order each participant
along a continuum based on the degree of culpability in the
criminal activity. See Walker, 89 F.4th at 185. "'Those who are
primarily responsible stand on one end,' while 'the least culpable
participants . . . stand at the opposite end.'" Id. (quoting
United States v. Andino-Rodríguez, 79 F.4th 7, 34 (1st Cir. 2023)).
- 10 - Third, the sentencing court must identify the average
participant across all likely participants in the criminal scheme.
See id. (explaining that "as a threshold matter," courts must
determine if a defendant is "substantially less culpable than the
average participant in the criminal activity" (quoting United
States v. Mendoza-Maisonet, 962 F.3d 1, 23 (1st Cir. 2020))). In
determining the average, the court need not "identify a single
'average participant'" among the universe of discernable
participants involved in the relevant conduct. United States v.
Chichande, 113 F.4th 913, 916 (9th Cir. 2024) (quoting
Dominguez-Caicedo, 40 F.4th at 963); see also Dominguez-Caicedo,
40 F.4th at 960 (explaining that "the mitigating role commentary
instructs courts to compare the defendant's culpability to . . .
the mathematical average, i.e., a 'single value that represents
the midpoint of a broad sample of subjects'" (quoting Average,
Black's Law Dictionary (11th ed. 2019))). Nor must the court
"engage in a precise, numerical calculation." Chichande, 113 F.4th
at 920. Rather, the court should seek to identify a ballpark
average among those involved in the relevant conduct.
Finally, the sentencing court must compare the
defendant's role in the criminal activity to the average
participant's role. See Walker, 89 F.4th at 185-86. This is a
two-part inquiry. The defendant must first demonstrate that they
are "substantially less culpable than the average participant in
- 11 - the criminal activity." Id. at 185 (quoting Mendoza-Maisonet, 962
F.3d at 23). Then, depending on whether the defendant seeks to be
considered a minor or minimal participant, they must either
demonstrate that they are "less culpable than most other
participants in the criminal activity," id. (quoting U.S.S.G.
§ 3B1.2 cmt. n.5), or "plainly among the least culpable of those
involved," id. (quoting U.S.S.G. § 3B1.2 cmt. n.4).
To measure a defendant's culpability against that of the
average participant, the sentencing court must consider five
non-exhaustive factors [hereinafter § 3B1.2 factors]. See
U.S.S.G. § 3B1.2 cmt. n.3(C); Walker, 89 F.4th at 187 ("[T]he
Guidelines have channeled decision-making about culpability
through five non-exhaustive factors to determine whether a
defendant is eligible for a mitigating-role reduction."). They
are as follows:
i. The degree to which the defendant understood the scope and structure of the criminal activity;
ii. The degree to which the defendant participated in planning or organizing the criminal activity;
iii. The degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
iv. The nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
- 12 - v. The degree to which the defendant stood to benefit from the criminal activity.
U.S.S.G. § 3B1.2 cmt. n.3(C).
In addition to the § 3B1.2 factors, the sentencing court
must consider "the totality of the circumstances and . . . the
facts of the particular case." Id. Whether a defendant played
"an essential or indispensable role in the criminal activity is
not determinative" of eligibility. Id.; see also Walker, 89 F.4th
at 188 (explaining that whether the defendant played an integral
role "is not the correct legal standard").
B.
In articulating its rationale for denying Guía a
mitigating role adjustment, the district court proceeded directly
to the § 3B1.2 factors, specifically the first and fourth factors.
See U.S.S.G. § 3B1.2 cmt. n.3(C). It began by reciting the first
factor -- "the degree [to which] the [d]efendant understood the
scope and structure of the criminal activity." It then stated
that the criminal activity
unfolded in stages but, eventually, there came a point where [Guía] was on board a vessel with narcotics. He did not step out of the vessel. He did not back out of the venture. What is the criminal activity here? A hazardous voyage to Puerto Rico, from the Dominican Republic, in a tiny vessel. He is one of two crew members.
The district court next focused on the fourth
factor -- "the nature and extent" of the defendant's participation
- 13 - in the venture. It recited the factor and stated, "[a]gain, [Guía]
is aiding and abetting that [m]aritime transport of narcotics."
Finally, the district court read the following sentence
from Arias-Mercedes: "When a person undertakes to provide material
assistance in transporting a large quantity of drugs, as a member
of a tiny crew in a hazardous voyage at sea, it ordinarily will
not be clear error for the [court] to refuse him a mitigating role
adjustment."4 901 F.3d at 8. The court then denied Guía's request
for any mitigating role adjustment.
C.
Guía makes two arguments regarding the mitigating role
adjustment. He first argues that the district court did not
properly identify the universe of participants in his criminal
activity, which, he says, is a necessary precondition for
performing an accurate mitigating role analysis. He separately
contends that the court did not use the § 3B1.2 factors to measure
his relative culpability vis-à-vis the other participants. We
agree in both respects.
4 As we note above, this passage comes from Arias-Mercedes, 901 F.3d at 8. However, when reciting this passage during the sentencing hearing, the district court appeared to have mistakenly referred to United States v. De La Cruz-Gutiérrez, 881 F.3d 221, 227 (1st Cir. 2018) as the source. De La Cruz-Gutiérrez does not include the relevant passage. Accordingly, we assume the court was reading from Arias-Mercedes.
- 14 - 1.
As already described, to decide whether to apply a
mitigating role adjustment, a sentencing court must conduct a
searching inquiry into a defendant's relative culpability. See
Walker, 89 F.4th at 187 (describing the analysis as requiring "a
judgment about the defendant's own conduct and a comparison to the
other participants"). The first step in such an inquiry is to
determine the universe of participants involved in the criminal
activity. See Arias-Mercedes, 901 F.3d at 6. That is the
essential starting point because a court cannot conduct a
meaningful comparison of relative culpability without first
identifying the field of comparators.
The district court conducted its mitigating role
analysis by identifying only two participants -- Guía and
Abel -- based on their presence aboard the boat when it was
apprehended. The court appeared to conclude that it was required
by Arias-Mercedes to narrowly circumscribe the universe of
participants to just the "tiny crew in [the] hazardous voyage at
sea" despite record evidence of other possible accomplices. As we
explain, the court's approach is not required by Arias-Mercedes
nor the Sentencing Guidelines. We first address the Guidelines.
The Sentencing Guidelines instruct courts on how to
determine the universe of participants for purposes of the
mitigating role adjustment. As a general matter, the Guidelines
- 15 - are unambiguous that any determination as to a "defendant's role
in the offense is to be made on the basis of all conduct within
the scope of [U.S.S.G.] § 1B1.3 (Relevant Conduct) . . . and not
solely on the basis of elements and acts cited in the count of
conviction." U.S.S.G. ch.3, pt. B, introductory cmt.
Turning to U.S.S.G. § 1B1.3, the Guidelines define the
scope of relevant conduct for "jointly undertaken criminal
activity" as "all acts and omissions of others that were -- (i)
within the scope of the jointly undertaken criminal activity, (ii)
in furtherance of that criminal activity, and (iii) reasonably
foreseeable in connection with that criminal activity." U.S.S.G.
§ 1B1.3(a)(1)(B). This not only includes all activities "that
occurred during the commission of the offense of conviction," but
also those undertaken "in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that
offense." Id.
However, § 1B1.3 contains an important qualifier: "[T]he
scope of the 'jointly undertaken criminal activity' is not
necessarily the same as the scope of the entire conspiracy." Id.
§ 1B1.3, cmt. n.3(B). When a defendant, for example, "joins an
ongoing drug distribution conspiracy," relevant conduct
constitutes only those drug shipments with which the defendant is
personally aware, not other shipments facilitated by the broader
conspiracy of which the defendant is unaware. Id.; see also
- 16 - U.S.S.G. § 3B1.2, cmt. n.3(A) ("[A] defendant who is convicted of
a drug trafficking offense . . . who is accountable under § 1B1.3
only for the quantity of drugs the defendant personally transported
or stored may receive an adjustment under this [G]uideline.").
Applied to drug shipments, the Guidelines require a
sentencing court, when performing a mitigating role assessment, to
limit the scope of the inquiry to the drug shipments for which the
defendant is accountable. See U.S.S.G. § 1B1.3, cmt. n.3(B),
n.4(A)(i); see also Arias-Mercedes, 901 F.3d at 7 (limiting the
scope of conduct to the "particular drug-smuggle"). From there,
the court must compare the defendant against all likely
participants involved with the shipment, including those involved
with the shipment's preparation and efforts to avoid detection.
See U.S.S.G. § 1B1.3(a)(1)(B); see also Vargas, 560 F.3d at 49-50
(explaining that courts should consider relevant conduct not
"predicated 'solely on the basis of elements and acts cited in the
count of conviction'" but also those acts that "were reasonably
foreseeable by the defendant and committed in furtherance of the
conspiracy" (first quoting U.S.S.G. ch.3, pt. B, introductory
cmt.; and then quoting United States v. García, 954 F.2d 12, 15
(1st Cir.1992)); see also Dominguez-Caicedo, 40 F.4th at 963
(finding legal error where the court excluded from its mitigating
role analysis "leaders or organizers" such as the recruiter);
United States v. Rodriguez, 44 F.4th 1229, 1234 (9th Cir. 2022)
- 17 - (same). In the specific situation of maritime drug shipments,
this squarely implicates not just those who operated the vessel,
but also those who helped recruit other participants, loaded and
unloaded the drugs on and off the vessel, and monitored for law
enforcement.
Limiting the universe of participants to only those
aboard "the hazardous voyage" when performing a mitigating role
analysis, as the district court did here, is inconsistent with the
Guidelines' intent for courts to consider a defendant's role based
on all relevant conduct under U.S.S.G. § 1B1.3. It also does not
meet the purpose of the adjustment: to ensure that a sentence
reflects the defendant's actual role in the offense. See United
States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994) (stating that "the
role-in-the-offense adjustment . . . is aimed . . . at measuring
the culpability of a defendant's conduct in the commission of the
offense and increasing (or reducing) the punishment in rough
proportion to the defendant's involvement"). Instead, it yields
a guideline range that inaccurately reflects the defendant's
relative culpability in the criminal activity.
Moreover, the Guidelines have been specifically amended
to address the reality that courts have applied § 3B1.2 "more
sparingly than the Commission intended." United States v.
Sarmiento-Palacios, 885 F.3d 1, 5 (1st Cir. 2018) (quoting U.S.S.G.
Supp. App. C, Amend. 794, at 116-18 (2015) [hereinafter Amend.
- 18 - 794]). Yet, comparing a defendant in a maritime drug shipment
case only to those aboard the vessel, despite evidence of conduct
by other participants, works to limit the availability of the
adjustment by guaranteeing that the defendant often will be
compared against a smaller, less representative pool of
participants.
Having established that foundation, we turn to
Arias-Mercedes. As we note above, the district court appeared to
read Arias-Mercedes to require that it confine its mitigating role
analysis to the participants on the boat when law enforcement
interceded. To the contrary, Arias-Mercedes closely follows the
Guidelines' approach for identifying the universe of participants
in a maritime drug shipment prosecution.
Like this case, Arias-Mercedes involved a defendant who
was "one of three men who brought a drug-laden vessel into the
maritime jurisdiction of the United States." 901 F.3d at 7. On
appeal, the defendant challenged the denial of a mitigating role
reduction, arguing that the sentencing court "did not properly
identify the universe of participants." Id. at 6. The defendant
claimed that the court erred in "compar[ing] his conduct only to
that of [the two crewmembers on his boat], not to the full pantheon
of co-conspirators (whether indicted or unindicted) in the broader
drug-smuggling enterprise." Id. We found no clear error in
- 19 - restricting the universe of participants to those individuals on
the vessel at the time that it was intercepted. Id. at 7-8.
Our analysis in Arias-Mercedes began by stating that
when considering a mitigating role adjustment, "court[s] must
consider a universe composed of those involved in '[the
defendant's] relevant conduct as a whole.'" Id. at 6 (quoting
Vargas, 560 F.3d at 50). The analysis then turned to the operative
question: where to draw the line between relevant conduct and the
"broader drug-smuggling enterprise." Id. We held that when
evaluating relevant conduct, courts must appraise a defendant's
role "in the specific criminal activity for which he is being held
accountable" and not "in the broader conspiracy." Id. (citing
Amend. 794). In the specific case, "[w]here a defendant is hired
to transport a single shipment of drugs and does not otherwise
participate in the larger conspiracy," a defendant's "relevant
conduct ordinarily will be limited to that shipment." Id.
(alteration in original) (quoting Vargas, 560 F.3d at 49-50).
Applying that standard, we found that because the "defendant's
base offense level was determined by reference to the specific
drug quantity involved in that singular transport[,] not the amount
trafficked through any broader conspiracy . . . the conduct for
which the defendant is being held responsible is his role in that
voyage." Id. at 7.
- 20 - We then considered the "persons directly involved in
this particular drug-smuggle." Id. Describing the inquiry as
"invariably fact-specific," id. (quoting United States v.
Meléndez-Rivera, 782 F.3d 26, 28 (1st Cir.2015)), we concluded
that the defendant had not identified, with sufficient
particularity, any other participants beyond those aboard the
vessel, see id. (citing as support "'references' [in the record]
to unindicted and unidentified persons who had links to the broader
criminal organization").
Our analysis in Arias-Mercedes tracks the Guideline
methodology. It instructs sentencing courts to "consider a
universe composed of those involved in '[the] relevant conduct as
a whole.'" Id. at 6 (quoting Vargas, 560 F.3d at 50). It clarifies
that relevant conduct does not extend to a defendant's "role in
the broader conspiracy" but only to the defendant's "role in the
specific criminal activity for which he is being held accountable."
Id. In the particular instance "[w]here a defendant is hired to
transport a single shipment of drugs," it limits the scope of
relevant conduct to only that shipment. Id. (quoting Vargas, 560
F.3d at 49-50). And it directs courts to perform a fact-intensive
inquiry to identify all those participating in that shipment. Id.
at 7.
While Arias-Mercedes ultimately upheld the district
court's decision to compare the defendant's role only against the
- 21 - crewmembers aboard the vessel, that was a fact-specific
determination based on the absence of record evidence showing other
identifiable participants. Id. (noting that a sentencing court
cannot make mitigating role adjustments based on speculation). To
infer from that determination a broad rule that the universe of
participants always consists of only those on the boat -- even
when there are other discernable participants involved in the
criminal activity -- is to mistake the factual outcome of
Arias-Mercedes for the legal principles underlying it.
The government contends otherwise. It starts from the
premise that sentencing courts should only consider participants
involved in "the specific criminal activity for which [the
defendant] is being held accountable." It then argues that
Arias-Mercedes expressly defined the specific criminal activity as
the defendant's "role in that voyage" and only considered "those
coconspirators who participated" in the voyage. Generalizing from
this reasoning, the government contends that as a rule, "even when
there are other known participants in the conspiracy, the court
should consider only those participants on a voyage when the
defendant is being held responsible only for his 'role in that
voyage.'"
This argument rests on an overly literal interpretation
of the word "voyage" as used in Arias-Mercedes. In the opinion,
we used the term "voyage" to refer to the specific criminal act of
- 22 - transporting a single shipment of drugs, not just the activity on
the boat. Id. at 6-7. As the opinion notes, "[w]here a defendant
is hired to transport a single shipment of drugs and does not
otherwise participate in the larger conspiracy, his relevant
conduct ordinarily will be limited to that shipment." Id. at 6
(quoting Vargas, 560 F.3d at 49-50). The opinion continues, the
"defendant's base offense level was determined by reference to the
specific drug quantity involved in that singular transport -- not
the amount trafficked through any broader conspiracy." Id. at 7.
Only after that statement does the opinion assert, "[i]t follows
that the conduct for which the defendant is being held responsible
is his role in that voyage." Id. Finally, in the very next
sentence, the opinion refers again to the drug shipment, writing
that "[g]iven the scope of the conduct . . . there is no principled
way in which we can find clear error in the district court's
decision to limit its comparison only to those persons directly
involved in this particular drug-smuggle." Id. (emphasis added).
When read as a whole, it is clear that the opinion used "voyage"
to generally describe the single drug shipment with which the
defendant was involved.
The government's reading of Arias-Mercedes also does not
account for the opinion's focus on a fact-specific inquiry. The
opinion establishes a two-step analysis for determining the
universe of participants. First, sentencing courts must identify
- 23 - the "relevant conduct as a whole." Id. at 6 (quoting Vargas, 560
F.3d at 50). This is a legal determination requiring a court to
identify the "scope of the conduct for which the defendant is being
held accountable." Id. at 7. After that, courts must conduct an
"invariably 'fact-specific' inquiry" in order "to identify the
universe of participants involved in the particular conduct." Id.
(quoting Meléndez-Rivera, 782 F.3d at 28). It is at this second
"fact-specific" step that Arias-Mercedes finds insufficient
evidence of other participants to question the district court's
decision to focus only on the people aboard the vessel. Id.
The government's preferred reading of Arias-Mercedes
would negate any reason for this second step. Such an inquiry is
necessary, however, because the universe of participants in a
maritime drug shipment may vary based on the extent to which the
record permits a court to identify participants beyond those on
the boat. If sentencing courts were required to limit the universe
of participants only to those aboard the vessel, the fact-specific
inquiry would serve no purpose.
Finally, the government identifies United States v.
Castillo, 995 F.3d 14 (1st Cir. 2021), as further support for its
argument that the universe of participants in maritime drug
shipment cases should be relegated to only those on the vessel.
As in Arias-Mercedes, the case involved three men on a vessel near
Puerto Rico who were caught smuggling drugs. See 995 F.3d at 16,
- 24 - 17. In addressing whether the defendant warranted a mitigating
role adjustment, Castillo defined the relevant conduct as the act
of "transporting this particular batch of drugs." Id. at 18.
Relying on Arias-Mercedes, this Court then summarily dismissed the
defendant's argument "that the district court should have
considered Castillo's role in the larger drug conspiracy." Id.
Nothing we say here conflicts with Castillo. Again,
"[w]here a defendant is hired to transport a single shipment of
drugs and does not otherwise participate in the larger conspiracy,
his relevant conduct ordinarily will be limited to that shipment."
Arias-Mercedes, 901 F.3d at 6 (quoting Vargas, 560 F.3d at 49-50).
Moreover, when performing a mitigating role analysis, sentencing
courts should include in their comparison only those persons
directly involved in that shipment. Id. We simply add that in
establishing the universe of relevant participants, courts must
consider all likely participants involved in the relevant conduct
pursuant to U.S.S.G. § 1B1.3 -- and not just those on the boat.
Based on this understanding of the Sentencing Guidelines
and Arias-Mercedes, the district court should not have limited the
universe of participants only to the "tiny crew in a hazardous
voyage at sea." Rather, the court should have considered the
record evidence to determine whether there were other discernable
participants in the drug shipment. On remand, the district court
must consider the scope of Guía's relevant conduct and then decide,
- 25 - based on the record, which individuals were sufficiently involved
in that conduct such that they should be included in the universe
of participants under U.S.S.G. § 3B1.2.
2.
The specific error of incorrectly assessing the universe
of participants was compounded by the district court's
misapplication of the § 3B1.2 factors for purpose of comparing
Guía's conduct to that of other participants.
It is insufficient for a sentencing court to merely
recite the relevant § 3B1.2 factors and apply them to a defendant's
conduct. The point of the § 3B1.2 factors is to assist a court in
making "a judgment about the defendant's own conduct and a
comparison to the other participants." Walker, 89 F.4th at 187;
see also Rodriguez, 44 F.4th at 1234 (noting that sentencing courts
cannot "treat each factor as presenting a binary choice . . .
[rather,] courts [must] analyze the degree to which each factor
applies to the defendant").
Here, the district court made no such comparison. It
instead relied on the factors to recapitulate why Guía was guilty
of the offense. Consider the district court's treatment of the
first § 3B1.2 factor -- Guía's knowledge of the scope of the
criminal activity. U.S.S.G. § 3B1.2 cmt. n.3(C). Instead of
evaluating how Guía's knowledge compared to other participants,
the court noted only that Guía "did not back out of the venture."
- 26 - Similarly, when assessing the fourth factor, "the nature and extent
of the defendant's participation," id., the court observed that
Guía "aid[ed] and abett[ed] [the] [m]aritime transport of
narcotics." These are the facts that made Guía guilty. They do
not illuminate his relative culpability.
By not assessing Guía's relative culpability, the court
did not fully perform the mitigating role analysis. See Walker,
89 F.4th at 188 (emphasizing "that comparing participants based on
the Guideline factors is critical"). The purpose of the § 3B1.2
factors is not to establish guilt; it is to help a court decide
whether to apply leniency because a defendant, while guilty, played
a substantially subordinate role in the criminal activity. On
remand, the district court should employ the § 3B1.2 factors to
assess relative culpability among the universe of participants to
determine whether Guía should receive a mitigating role
adjustment.5
5 Guía makes two related arguments. He first contends that the district court erred by failing to address each of the § 3B1.2 factors. We have held that courts need not "list expressly the factors enumerated in Application Note 3(C)." Castillo, 995 F.3d at 18; see also United States v. Wynn, 37 F.4th 63, 68 (2d Cir. 2022). However, courts must address all § 3B1.2 factors that are pertinent to the inquiry. See Wynn, 37 F.4th at 68-69 (vacating a sentence where district court failed to consider several relevant mitigating role factors). Moreover, when addressing the § 3B1.2 factors, courts "must give sufficient explanation to 'allow for meaningful appellate review.'" Walker, 89 F.4th at 187 (quoting Gall v. United States, 552 U.S. 38, 50 (2007)); see also Wynn, 37 F.4th at 68 (remanding for resentencing
- 27 - 3.
Finally, we address the government's contention that
even if the district court did not properly perform a mitigating
role analysis, we should nevertheless find the error harmless.
The government argues harmlessness on the ground that the district
court (1) imposed a sentence below the advisory guideline range
and (2) stated, just before closing the sentencing hearing, that
seventy-two months was the "sentence that [it] would have given in
this case regardless of the objections."
"A district court's error in calculating the guideline
range requires resentencing where it 'affects or arguably affects
the sentence imposed.'" United States v. Lacouture, 835 F.3d 187,
189 (1st Cir. 2016) (quoting United States v. Ramos–Paulino, 488
F.3d 459, 463 (1st Cir. 2007)). Where "there is at least a
possibility that the court would have imposed an even more lenient
sentence had it started with a lower [guideline range]," that
because "[t]he district judge's decision lack[ed] any analysis of [four of the] relevant mitigating role factors that the Guidelines provide"). As we are remanding for reconsideration under the proper legal standard, we leave it to the district court to decide in the first instance which § 3B1.2 factors are relevant here. Guía separately contests the district court's specific consideration of the § 3B1.2 factors, arguing that "[e]ach of these factors shows . . . Guía was substantially less culpable than any other participant." Again, because we are remanding for application of the proper legal standard, we do not reach this argument. We leave it to the district court to decide, in accordance with the proper legal test, whether there is a sufficient basis to find a mitigating role adjustment.
- 28 - "possibility . . . is enough to preclude a finding that an error
in calculating the [guideline range] is harmless." United States
v. Alphas, 785 F.3d 775, 780 (1st Cir. 2015) (emphasis omitted);
cf. United States v. Ahmed, 51 F.4th 12, 23 (1st Cir. 2022)
(finding that "[t]he record 'does not admit of such a possibility'
here" (quoting United States v. Ayala, 991 F.3d 323, 327 (1st Cir.
2021))). However, where "a sentencing court makes clear that it
would have entered the same sentence regardless of the Guidelines,
any error in the court's Guidelines calculation is harmless."
United States v. Rivera, 51 F.4th 47, 53 (1st Cir. 2022) (quoting
United States v. Ouellette, 985 F.3d 107, 110 (1st Cir. 2021); see
also id. (citing cases).
That said, it is not enough for a court simply to assert
its intention to impose the same sentence. See United States v.
Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) ("A district
court's mere statement that it would impose the same . . . sentence
no matter what the correct calculation cannot, without more,
insulate the sentence from remand."). The record must contain
some justification for imposing that sentence. See
Molina-Martinez v. United States, 578 U.S. 189, 201 (2016) ("Where
. . . the record is silent as to what the district court might
have done had it considered the correct Guidelines range, the
court's reliance on an incorrect range in most instances will
suffice to show an effect on the defendant's substantial rights.");
- 29 - cf. United States v. Rijos-Rivera, 53 F.4th 704, 710 (1st Cir.
2022) (finding harmlessness where court's statement that it would
enter the same sentence regardless of the Guidelines was coupled
with "the evident basis in the record for a finding that the
defendant's relevant conduct warranted a sentence of that
length").
Here, the district court calculated an advisory
guideline range of 108 to 135 months and then granted a downward
variance, settling on a 72-month sentence. Then, in response to
the defendant's formal objection to the mitigating role ruling,
the court stated that it would have imposed a seventy-two-month
sentence in any event.
However, had the district court granted Guía a
mitigating role adjustment, the advisory guideline range may well
have dropped below the seventy-two-month sentence that the court
imposed.6 In that situation, the court only could have sentenced
Guía to seventy-two months by identifying aggravating factors
warranting an above-guideline sentence. See United States v.
Colón-Cordero, 91 F.4th 41, 51 (1st Cir. 2024) ("When a court
imposes a sentence above the guidelines sentencing range, 'it must
6 Notwithstanding any retroactive amendments for which Guía may be eligible, it is possible that were the court to grant a minimal role reduction, Guía could receive a total offense level of 24, which corresponds to a sentencing guideline range of 51 to 63 months. Guía's counsel confirmed this range at oral argument.
- 30 - justify the upward variance.'" (quoting United States v. Del
Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014))).
The district court identified no such factors. In
sentencing Guía, the court focused solely on mitigating
considerations, including, inter alia, that Guía was a nonviolent,
first-time offender who played a limited role in the venture.
Given that (1) the court identified no aggravating factors and (2)
Guía may, on remand, obtain an appreciably lower advisory guideline
range, we are unable to conclude that there is no "possibility" of
a "more lenient sentence" after a remand to correctly apply a
mitigating role analysis under U.S.S.G. § 3B1.2. See Alphas, 785
F.3d at 780. For that reason, we reject the government's harmless
error argument. Id. (holding the "possibility . . . enough to
preclude a finding that an error in calculating the [guideline
range] is harmless").
D.
Guía also challenges the district court's application of
a two-level enhancement for the possession of a firearm during the
drug offense pursuant to U.S.S.G. § 2D1.1(b)(1). Guía argues that
the proper test for applying a firearm enhancement is whether it
was "reasonably foreseeable" that a coconspirator would possess a
weapon in furtherance of the criminal activity. He asserts that
the district court did not make a proper "reasonably foreseeable"
- 31 - finding and therefore lacked grounds for applying the enhancement.
We disagree.
Under U.S.S.G. §§ 2D1.1(b)(1) and 1B1.3(a)(1), a
sentencing court may apply a firearm enhancement where a defendant
either knew that a coconspirator possessed a gun during the
conspiracy or where possession was reasonably foreseeable. See,
e.g., United States v. Alejandro-Montanez, 778 F.3d 352, 361 (1st
Cir. 2015); United States v. Quiñones–Medina, 553 F.3d 19, 23 (1st
Cir. 2009). Once knowledge or foreseeability is established,
"[t]he enhancement should be applied . . . unless it is clearly
improbable that the weapon was connected with the offense."
U.S.S.G. § 2D1.1 cmt. n.11(A); United States v. Hernández, 964
F.3d 95, 105-06 (1st Cir. 2020). Where there is sufficient
evidence that a defendant knew a coconspirator possessed a gun
during the conspiracy, a court need not make a foreseeability
finding. See United States v. Greig, 717 F.3d 212, 219 (1st Cir.
2013) (describing reasonable foreseeability as a condition
precedent to a more demanding showing of knowledge).
Here, it was undisputed that Guía knew that Abel
possessed a firearm. During the sentencing, Guía conceded that he
saw a man provide Abel with a gun before they boarded the boat.
The court subsequently referred to this admission, stating that
there was "uncontroverted evidence, even from [Guía's] own
submissions . . . that the other crew person . . . did possess a
- 32 - firearm." Given this evidence, the district court had a sufficient
basis to apply the firearm enhancement. See United States v.
Coleman, 854 F.3d 81, 86 (1st Cir. 2017) (affirming a firearm
enhancement where defendant's "own admissions established his
knowledge that others possessed firearms during the conspiracy").
Guía separately argues that the district court not only
failed to make a finding as to "reasonable foreseeability," but
also applied the enhancement based solely on "Guía's guilt for the
drug conspiracy alone." Not so. As discussed above, the court
based its decision on Guía's representations that he knew that
Abel possessed a firearm. The firearm enhancement was properly
applied.
IV.
We vacate Guía's sentence and remand for resentencing
consistent with this opinion.
So ordered.
- 33 -