696 F. App'x 886
10th Cir.2017Background
- Moreno was stopped in Kansas driving a rental car from Phoenix to Kansas City; a dog alerted and search found 6.605 kg of 100% methamphetamine hidden in the vehicle.
- He admitted prior similar trips (this was his third), said he was paid $3,000 to transport drugs, and described an arrangement: suppliers in Mexico → Arizona contacts → vehicles rented/loaded → driven to Kansas City stash house.
- Indicted for possession with intent to distribute >500 g methamphetamine, pled guilty without plea agreement; PSR used 2014 Guidelines to set offense level 35 (after adjustments), yielding a 168–210 month guideline range.
- Moreno sought a two‑level minor‑role reduction under USSG §3B1.2(b); district court denied and sentenced him to 168 months. Government and probation opposed mitigation.
- After sentencing, Sentencing Commission adopted Amendment 794 (2015) narrowing comparison to an internal one only; the Tenth Circuit declined to apply that amendment retroactively here and affirmed denial of the minor‑role adjustment.
Issues
| Issue | Moreno's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Amendment 794 (2015) to USSG §3B1.2 applies on appeal | Amendment 794 clarifies commentary; must be applied on appeal | Amendment 794 is substantive and non‑retroactive here; use 2014 Guidelines | Amendment 794 is substantive for this Circuit and does not apply retroactively; review uses 2014 Guidelines |
| Whether the district court applied the correct internal‑comparison standard for §3B1.2 | Judge failed to compare Moreno to other participants in this case (relied on external/typical courier comparison) | Judge made implicit internal comparison and considered Moreno’s contacts and role | District court’s internal comparison was adequate (no remand) |
| Whether Moreno was entitled to a two‑level minor‑role reduction under §3B1.2(b) | Moreno was a mere courier, paid a flat fee, did not own drugs or control price/amount/destination | Moreno had significant knowledge, multiple long‑distance trips, contacts with high‑level distributors and planning duties; thus not substantially less culpable | Moreno failed to prove he was substantially less culpable than the average participant; denial of adjustment affirmed |
| Standard of review for role adjustment denial | N/A (procedural) | N/A | Legal conclusions reviewed de novo; factual findings (denial of minor role) reviewed for clear error |
Key Cases Cited
- United States v. Caruth, 930 F.2d 811 (10th Cir. 1991) (courts may compare defendant to both co‑participants and a typical participant)
- Davidson v. Am. Online, Inc., 337 F.3d 1179 (10th Cir. 2003) (new law on appeal generally applies unless inapplicable to sentencing guidelines)
- United States v. Groves, 369 F.3d 1178 (10th Cir. 2004) (framework for distinguishing clarifying vs. substantive guideline amendments)
- United States v. Gigley, 213 F.3d 503 (10th Cir. 2000) (clarifying amendment factors include whether it overrules precedent and how Commission characterized it)
- United States v. Martinez, 512 F.3d 1268 (10th Cir. 2008) (no per se rule granting role reduction to couriers; denial reviewed for clear error)
- United States v. Salas, 756 F.3d 1196 (10th Cir. 2014) (a defendant’s self‑serving claim of minimal role insufficient to overcome clear‑error review)