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United States v. Amieva-Rodriguez

United States Court of Appeals, Fifth Circuit

November 2, 2017


         Appeal from the United States District Court for the Southern District of Texas

          Before JONES, OWEN, and HAYNES, Circuit Judges.

          PRISCILLA R. OWEN, Circuit Judge

         Armando Amieva-Rodriguez pled guilty to possession with the intent to distribute more than 50 kilograms of marijuana. The district court declined to apply a mitigating-role reduction and sentenced him to 30 months of imprisonment and three years of supervised release. Amieva-Rodriguez appeals. Because the district court properly applied the sentencing guidelines and did not clearly err in its factual findings, we affirm.


         Armando Amieva-Rodriguez was born in Mexico in 1991, and he does not have legal status in the United States. He paid $800 for assistance in attempting to cross the United States-Mexico border illegally. When he reached the Mexican banks of the Rio Grande River on March 31, 2015 in his attempt to enter this country, he agreed to smuggle marijuana across the border for $200. Amieva-Rodriguez and 10 to 12 others built a makeshift raft from a ladder and marijuana bundles and used the raft to cross the Rio Grande and enter the United States. Once across, Amieva-Rodriguez spotted several officers from the United States Bureau of Customs and Border Protection (CBP) and ran into a field of sugar cane to hide. The CBP officers found him beneath the brush and apprehended him. Officers located 101.4 kilograms of marijuana nearby.

         One month later, Amieva-Rodriguez pled guilty to possession with intent to distribute more than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2. The district court accepted his plea, and the case proceeded to sentencing. The Probation Office prepared a Presentence Investigation Report (PSR) and, based on the 2014 edition of the Sentencing Guidelines Manual, calculated Amieva-Rodriguez's total offense level to be 21. That offense level yielded a Guidelines sentencing range of 37 to 46 months of imprisonment. The Probation Office did not recommend applying a mitigating-role reduction to the offense level, because it concluded that Amieva-Rodriguez was an "active, knowing, and willing" participant whose role as a drug courier was "instrumental" to the offense.

         Amieva-Rodriguez objected in writing to the Probation Office's conclusion. He asked the district court to consider "proposed guideline changes" that he said "urg[ed] a finding of minor participant for mere carriers of drugs." At the sentencing hearing, Amieva-Rodriguez again objected to the Probation Office's finding. He argued that his main objective was to cross the border and that his guides forced him to transport the marijuana. The Government contended that Amieva-Rodriguez knowingly agreed to smuggle the marijuana and expected payment for his efforts, and it emphasized the case's trans-national nature. The district court adopted the Probation Office's factual findings as to the mitigating-role reduction, found that Amieva- Rodriguez was a more-than-minor participant and not entitled to a mitigating-role reduction, and imposed a sentence of 30 months of imprisonment and a three-year term of supervised release. Amieva-Rodriguez appealed.


         This appeal was held administratively by our court pending the issuance of the mandate in United States v. Sanchez-Villarreal.[1] The mandate in that case issued June 14, 2017. Amieva-Rodriguez was released from federal prison on June 28, 2017, after serving his term of imprisonment. We accordingly address whether his appeal is moot.

         A person sentenced to supervised release faces "an ongoing consequence that is a sufficient legal interest to support [jurisdiction]" if the district court can modify or terminate the supervised release obligations.[2] This circuit has not resolved whether a district court can modify a mandatory supervised release term, [3] but there was no mandatory sentence in his case. The district court found that Amieva-Rodriguez met the safety valve criteria under 18 U S C. § 3553(f) and U.S.S.G. § 5C1.2, and concluded that none of Amieva- Rodriguez's convictions carried a mandatory sentence. Because Amieva- Rodriguez's sentence was non-mandatory it is not "immune to modification, "[4]and if this court were to conclude that the district erred in failing to apply a minor-participant adjustment, and we were to remand, the district court could conceivably conclude that a shorter prison term was appropriate and adjust the term of supervised release since Amieva-Rodriguez had served a longer sentence. Since it might be possible for Amieva-Rodriguez to obtain relief, his appeal is not moot.


         Central to Amieva-Rodriguez's appeal is Amendment 794 to § 3B1.2 of the Sentencing Guidelines. In general, Section 3B1.2 authorizes district courts to reduce a defendant's offense level based on his or her role in the crime.[5] The district court can reduce a defendant's offense level by two if the defendant "was a minor participant, " by four if the defendant was a "minimal participant, " and by three if the defendant's participation fell between minor and minimal.[6] Only those defendants who were "substantially less culpable than the average participant in the criminal activity" may qualify for a mitigating-role reduction.[7] Amieva-Rodriguez asserts that he was a minor participant and therefore entitled to a two-level reduction. The commentary to § 3B1.2 explains that a minor participant is a person who is "less culpable than most other participants in the criminal activity, but whose role could not be described as minimal."[8]

         Several months before Amieva-Rodriguez was sentenced, the Sentencing Commission published proposed Amendment 794 to § 3B1.2.[9] The effective date of this amendment was November 1, 2015, a few months after the district court sentenced Amieva-Rodriguez.[10] But this court recently held that Amendment 794 was a clarifying amendment.[11] A clarifying amendment does not change the meaning of a Guideline; it merely provides guidance regarding an existing Guideline.[12] Clarifying amendments therefore have retroactive effect.[13] We may consider on appeal whether and how the district court applied Amendment 794.[14]

         Amendment 794 expands § 3B1.2's commentary but left its text unchanged.[15] The amendment resolved a split among the Circuit courts as to the meaning of "average participant."[16] The amendment clarifies that "the defendant is to be compared with the other participants 'in the criminal activity'" at issue in the defendant's case.[17] Second, it explains that a person who is paid to perform certain tasks but does not have a proprietary interest in the criminal activity should still be considered for a § 3B1.2 role reduction.[18]Third, the commentary expressly provides that a defendant who is essential or indispensable to the criminal activity may still receive a § 3B1.2 reduction "if he or she is substantially less culpable than the average participant in the criminal activity"; a defendant's essential or indispensable nature is not dispositive.[19] Finally, the revised commentary directs district courts to consider the following non-exhaustive list of factors when considering a mitigating-role reduction:

(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;
(v) the degree to which the defendant stood to benefit from the criminal activity.[20]

         The Commission explained that it promulgated the amendment to increase how often, and to improve how consistently, district courts apply the mitigating-role reduction.[21] However, the amendment did not create bright-line rules as to whether drug couriers such as Amieva-Rodriguez qualify for the reduction.[22] Courts may still take into account a defendant's indispensable role, so long as it is "not ...

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