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Sentencing — minor participant adjustment

United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — minor participant adjustment

Where the district court did not address a defendant’s arguments in favor of a minor participant adjustment, the sentence must be vacated.

“Diaz-Rios’s other argument, however, is that the court did not fully consider all factors pertinent to the minor-role adjustment (or at least its explanation does not reveal that consideration). That point has merit. For example, we cannot tell whether the district court compared Diaz-Rios’s role in the offense against those of average participants, as it should have. See U.S.S.G. § 3B1.2 cmt. n.3-5; Leiskunas, 656 F.3d at 739; United States v. Saenz, 623 F.3d 461, 468 (7th Cir. 2010); United States v. Mendoza, 457 F.3d 726, 729-30 (7th Cir. 2006). Diaz-Rios identified three other participants who, in his view, were substantially more culpable. The court should have looked at his role in the conspiracy as a whole, including the length of his involvement in it, his relationship with the other participants, his potential financial gain, and his knowledge of the conspiracy. See U.S.S.G. § 3B 1.2 cmt. n.3(C); Saenz, 623 F.3d at 467; Mendoza, 457 F.3d at 730; United States v. Hunte, 196 F.3d 687, 694 (7th Cir. 1999); United States v. Stephenson, 53 F.3d 836, 850 (7th Cir. 1995). We have no evidence that it did that. Naturally, the court was entitled to take into account the substantial drug quantity involved here, but it is unclear what effect the court gave the government’s insistence that notwithstanding the substantial amount of cocaine entrusted to Diaz-Rios, his role in the offense was nonetheless minor. Where the reasons for a ruling under § 3B1.2 are ambiguous, we have no choice but to remand for a more complete explanation. See United States v. Agee, 83 F.3d 882, 889 (7th Cir. 1995); United States v. Gutierrez, 978 F.2d 1463, 1471 (7th Cir. 1992); United States v. Scroggins, 939 F.2d 416, 424 (7th Cir. 1991).”

Vacated and Remanded.

11-3130 U.S. v. Diaz-Rios

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Wood, J.

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