United States v. Josue Couto-Aguirre

MEMORANDUM

Josué Couto-Aguirre (Couto) and Saul Garcia-Cabello (Garcia) appeal the district court’s rejection of a two-level decrease in their offense level calculations based on their minor roles in the offense of conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand for resentencing.

The district court clearly erred in denying a minor role adjustment because there was no evidence in the record to support its finding that Couto and Garcia knew that there were drugs in the tires of the truck on the first trip. United States v. Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir.2011); United States v. Fitch, 659 F.3d 788, 797 (9th Cir.2011). The district judge erroneously relied on speculation as to what Couto and Garcia must have “felt” when driving or riding in the truck. The district court itself noted that in prior, similar cases, expert testimony on the effect of drug-laden tires had been introduced to address the issue of knowledge. Moreover, here Couto and Garcia crossed the border without incident, further undermining the court’s views as to the obviousness that substantial quantities of drugs were in the truck’s tires. The district judge…