United States v. Saenz

509 F. App'x 543
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 12, 2013
DocketNo. 11-2296
StatusPublished
Cited by1 cases

This text of 509 F. App'x 543 (United States v. Saenz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Saenz, 509 F. App'x 543 (7th Cir. 2013).

Opinion

ORDER

Last time this case was before us, the district court had sentenced Cruz Saenz to 293 months’ imprisonment for transporting drug money, but we vacated and remanded because there was no evidentiary basis to support the district court’s denial of a minor role reduction pursuant to U.S.S.G. § 3B1.2. United States v. Saenz, 623 F.3d 461, 467 (7th Cir.2010) (hereinafter “Saenz I ”). We then explained that applying the minor role reduction requires comparing the culpability of the defendant to that of the average member of the conspiracy. See id. at 468. On remand, after a hear[545]*545ing, the district court sentenced Saenz to 252 months’ imprisonment and again denied the minor role reduction, but the district court did not compare Saenz’s culpability to that of the average member of the conspiracy, which was error. We acknowledge that determining the culpability of an “average” member of a complex conspiracy is not straightforward, and that Saenz I did not provide sufficient guidance on this score, which we hope to rectify in this order. But because of the error, and because it is not clear that Saenz would have received the same 252-month sentence had the minor role reduction been applied, we vacate his sentence and remand.

I. BACKGROUND

As this is the second appeal in this case and the issue on appeal is narrow, we summarize the facts only briefly. Saenz and his co-defendants were involved in a large-scale cocaine distribution network based in Mexico. Those based in Mexico obtained cocaine and arranged cocaine shipments out of Mexico and into the United States. Others in Texas arranged cocaine deliveries into Indianapolis. Upon delivery, another co-defendant passed the cocaine onto suppliers in the region and also arranged for truck drivers to take cocaine proceeds back to Mexico and Texas. Saenz was one of those truck drivers, and on one occasion attempted to deliver about $500,000 in cocaine proceeds to Texas, when he was arrested. Saenz was convicted of conspiring to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846, and he was sentenced to 293 months’ imprisonment. During the sentencing proceeding, the district court found that Saenz was “far more than a courier” and denied him a minor role reduction under U.S.S.G. § 3B1.2.

On appeal, we vacated the sentence and remanded, principally because the district court’s finding that Saenz was “far more than a courier” lacked an evidentiary basis. See Saenz I, 623 F.3d at 467. We added:

[T]he minor participant determination is heavily fact-dependent. A drug courier should neither automatically receive nor automatically be precluded from receiving a role reduction. Instead, the controlling standard is whether the defendant is substantially less culpable than the average participant in the offense. When assessing whether a defendant is substantially less culpable such that he should receive a role reduction, a defendant’s role should be compared to that of the average member of the conspiracy, not with the leaders. The question here is whether this one-time courier is less blameworthy than the average defendants in the conspiracy.

Id. at 468 (citations and quotation marks omitted). We noted that Saenz was “certainly less culpable” than the Mexico-based co-defendants who coordinated the cocaine shipments from Mexico, that he was less culpable than the co-defendant in charge of the Indianapolis hub of the conspiracy, that he never touched any drugs or participated in any negotiations, and that he had no decision-making authority beyond choosing the route he could take from Indianapolis to Texas. Id.

On remand, the district court again denied the minor role reduction. In doing so, it said: “The task that the Court faces in trying to figure out the average member of the conspiracy is a rather daunting task, and so it seems logical to look at other people in the conspiracy who were charged with similar conduct as Mr. Saenz.” It then “narrow[ed] the scope of inquiry to the other eourier[s]” in the conspiracy, noted that “none of the other four couriers got any reduction for being a minor participant,” and concluded that Saenz was therefore also undeserving of this reduc[546]*546tion. The district court did not conduct any analysis concerning the culpability of the average member of the conspiracy. It found that, without the minor role reduction, the advisory Guidelines range was 240 months to 293 months, and went on to consider “whether the additional 53 months” on top of the 240-month statutory minimum was warranted. It concluded that a sentence of 252 months was sufficient, as it was “one year more [than the statutory minimum] in light of the perjury that the defendant committed” at trial. Saenz appealed.

II. ANALYSIS

In Saenz I, we instructed the district court to compare Saenz’s culpability with that of the average member of the conspiracy, but nothing from the transcript suggests that the district court did so. See, e.g., United States v. Diaz-Rios, 706 F.3d 795, 799 (7th Cir.2013) (“[W]e cannot tell whether the district court compared Diaz-Rios’s role in the offense against those of average participants, as it should have.”). The district court instead looked simply at whether comparable couriers in the conspiracy also received minor role reductions. Though this approach is appealing (and it might be relevant to making the separate determination of whether the sentence should be adjusted so as to avoid unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6)), merely looking at whether other couriers in the conspiracy received a minor role reduction does not necessarily demonstrate how Saenz’s culpability is comparable to that of the average member of the conspiracy. Absent a finding as to whether the couriers themselves represent average members of the conspiracy, comparing Saenz to other couriers simply does not indicate how Saenz compares to the average member of the conspiracy. The other couriers may not have received a minor role reduction because they did not advance that argument, or perhaps certain evidence was not part of the record when the other couriers were sentenced. If there were any findings relevant to analyzing the culpability of the average member of the conspiracy in the sentencing proceedings of the other couriers, we do not know to what extent the district court relied on them. In sum, we have no direct or indirect indication that the district court compared Saenz’s culpability to that of the average member of the conspiracy, and so we conclude that the district court’s minor role determination was error.

Sentencing errors do not warrant remand if the error is harmless, but here we cannot say that the error is harmless. See United States v. Abbas, 560 F.3d 660, 667 (7th Cir.2009) (“To prove harmless error, the government must be able to show that the Guidelines error did not affect the district court’s selection of the sentence imposed.” (quotation marks and citation omitted)).

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Bluebook (online)
509 F. App'x 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-saenz-ca7-2013.