I. FACTUAL AND PROCEDURAL HISTORY

Rodriguez, a former methamphetamine addict and current gambling addict,

was recruited by her friend “Martha” to smuggle drugs across the Mexico/U.S.

border for Alejandro Ibarra. Ibarra offered Rodriguez $4,000 to smuggle the drugs.

After she agreed, Ibarra purchased and registered a vehicle in Rodriguez’s name,

forging her signature. On the day of the operation, she drove to a location in Tijuana,

Mexico where a Hispanic male took the vehicle for a few hours so that the drugs

could be loaded into secret compartments. She was then told to drive across the

border and give the vehicle to a man called “J5” at a gas station in Fontana,

California. A week prior to this trip, Rodriguez had successfully smuggled drugs

using this plan. However, on this occasion, Rodriguez was stopped at the border and

arrested after 21.06 kilograms of methamphetamine and 2.25 kilograms of heroin

were found in the vehicle.

2 Rodriguez quickly confessed and gave a full statement. She denied knowing

the amount or type of drugs she was smuggling or where they were concealed. Her

probation officer, the prosecutor, and defense counsel agreed Rodriguez was entitled

to a minor role reduction under section 3B1.2(b) of the Sentencing Guidelines. The

parties noted that Rodriguez had no decision-making authority or leadership role,

her financial gain was minimal, and she knew little of the scope and structure of the

broader drug trafficking organization. Defense counsel and the probation officer

recommended the district court impose a thirty-six-month sentence. The prosecution

recommended forty-six months.

However, the district court denied Rodriguez a minor role reduction and

sentenced her to seventy-eight months. In denying the reduction, the district court

reviewed, inter alia, the five factors listed in application note 3(C) of the section

3B1.2 commentary and concluded that four of the five factors weighed against the

reduction.

The district court prefaced its discussion of the five minor role factors by

stating that it thought the reduction was “being applied in a way that was not

intended.”

Regarding the first minor role reduction factor, “the degree to which the

defendant understood the scope and structure of the criminal activity,” U.S.S.G. §

3B1.2 cmt. n.3(C)(i), the district court concluded that, while it was “sure, in this

3 case, the defendant was kept in the dark about” the details of the operation,

Rodriguez “did know . . . she was working for an organization that used automobiles

registered to the people that were driving them across,” and “she knew that the

organization would hide drugs in these cars, that she would drive them across. She

knew the location she was to go to at the end was J5, who would pick up the drugs,

take them out of the car, she’d come back and get paid.” The district court found that

Rodriguez “certainly” had “an understanding of the scope and structure of the

criminal activity [which was] importing drugs into the United States.” It provided

that, “[i]f you say, well, she didn’t know . . . who was at the top of this drug

organization, she had no idea where the methamphetamine came from, she didn’t

know all the players involved, that type of analysis would describe every importer

of drugs into the United States.” The district court concluded that this “factor doesn’t

help her.”

Concerning the second factor, “the degree to which the defendant participated

in planning or organizing the criminal activity,” id. § 3B1.2 cmt. n.3(C)(ii), the

district court noted that Rodriguez “took possession of the vehicle,” “was told, drive

down and meet somebody in Mexico,” turned over the car, knew that “the car

[would] be filled with drugs,” knew that her “mission [was] to come back and turn

it over to someone else [who would] retrieve the drugs,” and knew that she would

then “get paid.” The district court continued, “[a]nd she said, check, check, check,

4 check. I think that makes her part of the plan, don’t you?” The district court stated

that while Rodriguez “was not the initiator, she didn’t come up with the plan, she

didn’t devise it,” she “[o]f course” was “part of the plan” and “was a willing

participant in the plan. And there was an incentive for her to be involved.” The court

further concluded that “[s]he implemented the plan” and “she knew exactly what she

was doing. That factor doesn’t help her.”

Regarding the third factor, “the degree to which the defendant exercised

decision-making authority or influenced the exercise of decision-making authority,”

id. § 3B1.2 cmt. n.3(C)(iii), the district court recognized that Rodriguez “didn’t

exercise decision-making authority,” and did not weigh this factor against her.

Regarding the fourth factor, “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,” id. § 3B1.2 cmt. n.3(C)(iv), the district court concluded that

Rodriguez’s participation in the crime was “extensive” given that she drove the car

and had previously smuggled a load of drugs for the same organization.

Concerning the fifth factor, “the degree to which the defendant stood to

benefit from the criminal activity,” id. § 3B1.2 cmt. n.3(C)(v), the district court

concluded that “she was going to make another 4,000. She’d already gotten 4,000.

$8,000 is not an insubstantial amount for importers of drugs.” The district court did

5 not weigh her payment against the worth of the drugs she smuggled, asserting that

“[i]t’s a metric, but it’s a foolish one. It’s an irrational one. Why does it make a

difference what the importer is paid versus what the value of the drugs is, I don’t get

that.”

The district court acknowledged that these five factors are not exclusive and

also considered the quantity and dangerousness of the drugs at issue. After noting

that Rodriguez was smuggling 21.06 kilograms of methamphetamine and 2.25

kilograms of heroin, it concluded “[t]hat’s a huge and deadly amount of drugs, and

it argues against making a finding that the defendant is in any way or can be

characterized in any way minor in this case.”

Rodriguez appeals the district court’s decision not to apply a minor role

reduction, arguing that the district court’s allegedly generalized rule of denying the

minor role reduction in this and a number of prior cases violates the Due Process and

Equal Protection clauses and that, regardless, it also abused its discretion in failing

to grant the reduction in her specific case. Given that we conclude the district court

abused its discretion in assessing Rodriguez for a minor role reduction, we find it

unnecessary to address Rodriguez’s broader constitutional claims. See United States

v. Sandoval-Lopez, 122 F.3d 797, 802 n.9 (9th Cir. 1997) (“We avoid constitutional

questions when an alternative basis for disposing of the case presents itself.”).

6

II. STANDARD OF REVIEW1

In applying the Sentencing Guidelines, we have directed district courts to

follow three steps. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)

(en banc). “First, the district court must identify the correct legal standard . . . .” Id.

We review this step de novo. Id. “Second, the court must find the relevant historical

facts, meaning the facts that answer primarily ‘what happened’ types of questions .

. . .” Id. We review this step for clear error. Id. “[T]hird, the court must apply the

appropriate guideline to the facts of the case—that is, decide whether the set of

historical facts as found satisfies the governing legal standard.” Id. We generally

review this final step for an abuse of discretion. Id. at 1171.

III. DISCUSSION

Section 3B1.2(b) of the United States Sentencing Guidelines provides: “[i]f

the defendant was a minor participant in any criminal activity, decrease by 2 levels.”

U.S.S.G. § 3B1.2(b). The reduction applies to a defendant “who is less culpable than

most other participants in the criminal activity, but whose role could not be described

as minimal.” Id. § 3B1.2 cmt. n.5.

“[W]e read § 3B1.2 as instructing courts to look beyond the individuals

brought before it to the overall criminal scheme when determining whether a

1 The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

7 particular defendant is a minor participant in the criminal scheme.” United States v.

Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000). “[D]istrict courts must compare

the defendant’s involvement to that of all likely participants in the criminal scheme

for whom there is sufficient evidence of their existence and participation.” United

States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018) (citing Rojas-Millan, 234 F.3d at

473).

In 2015, the Sentencing Commission amended the commentary to section

3B1.2 to include five factors that help guide this culpability analysis:

(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; [and] (v) the degree to which the defendant stood to benefit from the criminal activity.

U.S.S.G. § 3B1.2 cmt. n.3(C). These factors were added to the commentary because

the Sentencing Commission believed that the minor role reduction was being under-

utilized. See Diaz, 884 F.3d at 915 (“In stating its purpose for the [2015]

Amendment, the Sentencing Commission explained that minor-role adjustments had

been ‘applied inconsistently and more sparingly than the Commission intended,’ and

that it intended to address caselaw that might discourage courts from applying

minor-role adjustments.”) (quoting U.S.S.G. App. C. Amend. 794); United States v.

8 Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016) (discussing that the 2015

amendments to the commentary of section 3B1.2 were enacted to encourage the

application of the minor role reduction).

We have also explained, however, that:

Once the court has considered all the factors . . . it may grant or deny a reduction even if some of the factors weigh toward the opposite result. A district court, therefore, may grant a minor role reduction even if some of the factors weigh against doing so, and it may deny a minor role reduction even if some of the factors weigh in favor of granting a reduction. And because the factors set forth in the Amendment are non- exhaustive, a district court may also consider other reasons for granting or denying a minor role reduction.

Quintero-Leyva, 823 F.3d at 523. Moreover, while the sentence must be adequately

reviewable on appeal, the district court is not required to discuss every factor in

detail. Diaz, 884 F.3d at 916. And the misapplication of any one factor does not

necessarily compel reversal. Ultimately, the record must show that the district court

applied the law properly, gave thoughtful consideration to the relevant factors, and

exercised sound discretion in their application.

Regarding defendants like Rodriguez specifically, the Sentencing

Commission commented that:

A defendant who is accountable . . . only for the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose participation in that offense was limited to transporting or storing drugs and who is accountable . . . only for the quantity of drugs

9 the defendant personally transported or stored may receive an adjustment under this guideline.

U.S.S.G. § 3B1.2 cmt. n.3(A). The Commission continued 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. § 3B1.2 cmt. n.3(C). Moreover, “[t]he fact that a defendant performs

an essential or indispensable role in the criminal activity is not determinative.” Id.

The district court discussed the five factors listed in application note 3(C) of

the section 3B1.2 commentary, as well as additional factors, and applied them to the

facts of this case.

A. The Application of Diaz and the 2015 Amendments to the Section 3B1.2 Commentary

We review the application of the minor role factors listed in the section 3B1.2

commentary to the facts of the case for abuse of discretion as part of the third step

of the analysis described in Gasca-Ruiz, 852 F.3d at 1170.

The defendant in Diaz, like Rodriguez, was a drug courier who pleaded guilty

to drug importation. 884 F.3d at 913. He too was denied a minor role reduction. Id.

at 914. We remanded the case for resentencing after concluding that the district court

incorrectly interpreted several of the factors listed in application note 3(C) to the

section 3B1.2 commentary. Id. at 918. We noted that the defendant: (1) “only knew

two other participants . . . [which] tends to show that he had minimal knowledge

10 regarding the scope and structure of the criminal operation,” id. at 917 (referencing

the first factor of section 3B1.2 cmt. n.3(C)); (2) “did not know the type or quantity

of the drugs hidden in his vehicle, [which] suggest[s] he did not play a significant

role in planning or organizing,” id. (referencing the second factor of section 3B1.2

cmt. n.3(C)); and (3) “was to receive a set fee of $1,000 and had no ownership

interest or other stake in the outcome of the trafficking operation,” indicating that

“he is among the offenders the Sentencing Commission described as not having a

‘proprietary interest in the criminal activity and who is simply being paid to perform

certain tasks.’” Id. at 917-18 (quoting Quintero-Leyva, 823 F.3d at 523) (referencing

the fifth factor of section 3B1.2 cmt. n.3(C)).

Under Diaz, and contrary to the district court’s analysis in this case, these

three factors2 also weigh in favor of awarding Rodriguez a minor role reduction.

Additionally, because the district court correctly found that the third factor (the

degree to which the defendant exercised decision-making authority)3 weighed in

favor of a reduction, at least four of five factors support granting the reduction.4

2 U.S.S.G. §3B1.2 cmt. n.3(C)(i), (ii), (v). 3 U.S.S.G. §3B1.2 cmt. n.3(C)(iii). 4 We perceive no obvious abuse of discretion regarding the district court’s application of the fourth factor (the nature and extent of the defendant’s participation in the commission of the criminal activity), or its consideration of the additional factor of the type and amount of drugs at issue.

11 Regarding the first factor, “the degree to which the defendant understood the

scope and structure of the criminal activity,” U.S.S.G. § 3B1.2 cmt. n.3(C)(i), the

district court concluded that the factor weighed against the reduction despite

acknowledging that Rodriguez knew very little of the larger scope of the enterprise.

In Diaz, we recognized that “a true minor participant may be unable to identify other

participants with specificity” and that knowing only a few other participants “tends

to show that [the defendant] had minimal knowledge regarding the scope and

structure of the criminal operation.” 884 F.3d at 917. Like the defendant in Diaz,

who only knew two other participants, id., Rodriguez only knew two participants by

name and two others by description. The district court recognized that Rodriguez

“was kept in the dark,” but found the fact largely irrelevant. The district court

provided that, “[i]f you say, well, she didn’t know . . . who was at the top of this drug

organization, she had no idea where the methamphetamine came from, she didn’t

know all the players involved, that type of analysis would describe every importer

of drugs into the United States.” Even if true in some cases, Diaz teaches that this

exact fact is indicative of a minor role in the crime. Id. The fact that Rodriguez “was

kept in the dark” is an important consideration under Diaz that weighs in favor of a

minor role reduction. As a result, the district court abused its discretion in applying

the first factor.

12 Regarding the second factor, “the degree to which the defendant participated

in planning or organizing the criminal activity,” U.S.S.G. § 3B1.2 cmt. n.3(C)(ii),

the district court found that because Rodriguez participated in the plan, this factor

weighed against the reduction. The district court explained that while Rodriguez

“didn’t come up with the plan,” she “[o]f course” was “part of the plan.” In light of

Diaz, as well as the plain wording of application note 3(C)(ii), the district court

abused its discretion in reaching this conclusion. Participating in the plan is not

participating in the planning of the plan. Every person involved in the crime

participates in the plan, but minor participants do not generally participate in the

planning of the crime.

Additionally, like the defendant in Diaz, Rodriguez claimed to “not know the

type or quantity of the drugs hidden in [her] vehicle,” which also suggests she “did

not play a significant role in planning or organizing.” 884 F.3d at 917. During the

sentencing hearing, however, the district court suggested that the fact a defendant

did not know the type and amount of drugs he or she was transporting should only

weigh in favor of the reduction if the defendant actually tried to investigate that fact

for him or herself. The district court asked:

Did she ever ask [the type of drugs]? I mean, it seems to me – I understand that not knowing what kind of drug is involved can be a mitigating fact, but it seems to me one has to say, hey, methamphetamine, I know what a pox that is on our community. You know, a little weed, sure, I’ll cross that. I can live with that, but methamphetamine, no . . . . Did she ever ask that?

13 Such an inquiry negates the dictate in Diaz that this lack of knowledge weighs in

favor of the minor role reduction, as well as the purpose of the 2015 amendments to

the section 3B1.2 commentary of broadening the reduction’s application. As the

district court recognized, it would be very atypical for a courier to ask such

questions, especially given the disparity of power between a drug courier and

someone with such knowledge. To the extent the district court imposed a duty of

inquiry upon Rodriguez in connection with the application of the second factor of

note 3(C), this too was an abuse of discretion.

Regarding the fifth factor, “the degree to which the defendant stood to benefit

from the criminal activity,” U.S.S.G. § 3B1.2 cmt. n.3(C)(v), the district court

concluded that this factor weighed against the reduction since “$8,000 is not an

insubstantial amount for importers of drugs.” 5 The district court also contended that

it was “foolish” and “irrational” to weigh the defendant’s compensation against the

value of the drugs at issue.

In Diaz, we focused on whether the defendant had a proprietary or ownership

interest in the criminal activity. See 884 F.3d at 917-18; see also U.S.S.G. § 3B1.2

cmt. n.3(C) (providing that “a defendant who does not have a proprietary interest in

5 The district court also erred by considering $8,000 rather than $4,000 in connection with Rodriguez’s compensation since the lesser amount is what Rodriguez was promised for committing the crime to which she pleaded guilty.

14 the criminal activity and who is simply being paid to perform certain tasks should

be considered for an adjustment under this guideline”). Rodriguez undisputedly did

not have such an interest; she received only a relatively modest fixed payment.

Therefore, this factor weighs in favor of the reduction. As in Diaz, the district court

here abused its discretion and erroneously “ignored that [Rodriguez’s] compensation

was relatively modest and fixed,” which is indicative of a minor role. 884 F.3d at

918.

Moreover, our focus in Diaz on the defendant’s proprietary interest in the

criminal enterprise necessarily requires a comparison of the monetary value of the

drugs or enterprise to the defendant’s stake. Similarly, the use of the word “degree”

in application note 3(C)(v) underscores that the benefit to the defendant requires

some sort of comparative scale. The district court appeared to conclude that the

comparison should be between the amount received and the amount the court thinks

a courier would believe is a lot of money. This proposed comparison is purely

speculative. The more concrete comparison is between the payment amount and the

monetary value of the cargo, or some other scale that places the payment in relation

to the worth of, or risk to, the enterprise. Contrary to the district court’s

understanding, this comparison envisioned under Diaz helps define the defendant’s

interest in the criminal activity.

15 In light of Diaz and the 2015 amendments to the commentary of section

3B1.2, we conclude that the district court abused its discretion in failing to properly

consider: (1) factor one of application note 3(C), i.e., Rodriguez’s limited knowledge

of the scope and structure of the criminal activity, even though the court recognized

Rodriguez was largely “kept in the dark” regarding the operation; (2) factor two, i.e.,

that, while Rodriguez participated in the planned crime, she did not participate in the

planning of the crime, and that she did not know the type and amount of drugs in the

vehicle; and (3) factor 5, i.e., Rodriguez’s lack of a proprietary interest in the

criminal activity and the fixed nature of her payment, and the degree to which she

benefited from the crime.

B. Relative Culpability

To determine whether a particular defendant is “substantially less culpable

than the average participant in the criminal activity,” the district court should

consider the factors set forth in U.S.S.G. § 3B1.2 cmt. n.3(C) and discussed above.

In this case, the district court also separately considered whether, unconnected to the

factors and as a general matter, Rodriguez was less culpable than other participants

(and thus warranted a section 3B1.2 minor role reduction). Rodriguez argues that in

doing so the district court erred by not comparing her culpability to that of other

unidentified individuals who are generally involved in drug trafficking

organizations. She cites a report the Sentencing Commission sent to Congress that

16 lists roles of individuals often involved in drug trafficking organizations in order of

their typical culpability, notes that “courier” appears second from the bottom, and

argues that the district court should have compared her conduct to individuals

occupying these roles who participated in her crime.

We disagree. The relevant comparators are the individuals involved in the

crime for whom there is “sufficient evidence of their existence and participation in

the overall scheme.” United States v. Rojas-Millan, 234 F.3d 464, 474 (9th Cir.

2000). Thus, in Rojas-Millan, we held that the district court was required to compare

the defendant’s conduct to “the alleged Los Angeles supplier” from whom the

defendant obtained the drugs and “the Reno distributor” to whom the defendant was

delivering the drugs. Id. We did not hold that the court was required to compare

Rojas-Millan’s culpability to other unknown and unidentified individuals who may

or may not have been involved in a larger drug trafficking organization. Indeed, we

have rejected the argument Rodriguez raises here: “Every drug trafficking defendant

could point to an unknown network preceding them in the drug trade. Such an

argument will normally be ineffective when considering whether the defendant is

entitled to a mitigating role reduction.” United States v. Rosas, 615 F.3d 1058, 1068

(9th Cir. 2010). Because Rodriguez did not produce any evidence that the individuals

identified in the Sentencing Commission’s report existed and participated in her

17 crime, the district court did not err by declining to compare her conduct to the

imagined conduct of those hypothetical participants.

IV. CONCLUSION

The district court abused its discretion when analyzing: (1) factor one of

application note 3(C), i.e., the degree to which Rodriguez understood the scope and

structure of the criminal activity; (2) factor two, i.e., the degree to which she

participated in the planning of the crime; and (3) factor five, i.e., the degree to which

she stood to benefit from the crime.

Thus, we vacate Rodriguez’s sentence and remand “because the decision to

deny the adjustment rested on incorrect interpretations of the § 3B1.2 Guideline”

and “we cannot determine whether the district court would have granted a minor role

adjustment had these factors been properly applied.” Diaz, 884 F.3d at 918.

VACATED and REMANDED.

18

FILED

DEC 27 2021

LEE, Circuit Judge, concurring-in-part and dissenting-in-part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

This case presents a very close call on whether the district court abused its

discretion in denying a minor role reduction for Sandra Rodriguez. While I concur

in most of the majority’s excellent opinion, I disagree with the majority’s assessment

for the second (knowledge of scope and structure of criminal scheme) and fifth

factors (degree to which defendant stood to benefit) under § 3B1.2. I thus

respectfully dissent.

* * * * *

First, I do not believe the district court abused its discretion in assessing

Rodriguez’s knowledge of the scope and structure of the criminal activity. She knew

four participants in the scheme, including their roles and how she would interact

with them. She also knew about the general smuggling scheme: she understood that

the vehicle was registered to her, that she would have it loaded with drugs in Mexico,

that she would cross the border, that drugs would be dropped off to an individual in

the United States, and that she was carrying a large quantity of illegal drugs across

the border. As the district court found, this all suggests more than a limited

understanding of the scope and structure of the scheme. Cf. United States v.

Quintero-Leyva, 823 F.3d 519, 521, 523 (9th Cir. 2016) (stating that district court

may not have abused discretion in denying minor role reduction where defendant

“did not purchase or register the vehicle, was not present when the narcotics were

19 loaded into the vehicle … [and] did not know where he was supposed to drop off the

vehicle after crossing into the United States”).

Second, I also do not think the district court abused its discretion in finding

that Rodriguez substantially benefited from this criminal scheme. When analyzing

this factor, a court considers “the degree to which the defendant stood to benefit from

[it].” U.S.S.G. § 3B1.2 cmt. 3(C)(v). This factor may support a minor role reduction

if “[t]here [i]s no evidence that [defendant] had a proprietary interest in the outcome

of the operation or stood to benefit more than minimally.” Diaz, 884 F.3d at 918.

Here, she still stood to gain $4,000, which is not an insignificant amount of money.

See Hurtado, 760 F.3d at 1069 (concluding that defendant’s $3,500 benefit from

drug smuggling supported denial of minor role reduction).

Comment 3(C) is not to the contrary, as it merely states that a defendant “who

is simply being paid to perform certain tasks should be considered for an

adjustment.” U.S.S.G. § 3B1.2 cmt. 3(C) (emphasis added). This language is not

mandatory, and it leaves room for the district court to exercise its discretion.

Finally, I note that the district court within its discretion properly considered

the large quantity of dangerous drugs and Rodriguez’s prior smuggling run. See

United States v. Rodriguez-Castro, 641 F.3d 1189, 1193 (9th Cir. 2011) (“The

[district] court was justifiably skeptical that [33.46 kg.] of drugs would be entrusted

20 to a minor player.”); Hurtado, 760 F.3d at 1069 (amount of drugs supported denial

of minor role reduction).

I thus respectfully dissent.

21