United States v. Obed Torres-Hernandez
843 F.3d 203
5th Cir.2016Background
- Torres-Hernandez and three other adults were observed crossing from Mexico into Brownsville, TX carrying backpacks; five bundles (total 95 kg) of marijuana were recovered. Four adults (including Torres-Hernandez) were arrested; each admitted knowledge of transporting drugs.
- Torres-Hernandez pled guilty to possession with intent to distribute 95 kg of marijuana and was held accountable for the aggregate quantity transported by the group.
- Presentence calculation: offense level 19, criminal history category IV, guideline range 46–57 months; district court sentenced him to 57 months.
- Defendant sought a 2-level mitigating-role reduction under U.S.S.G. § 3B1.2 (minor participant), relying on Amendment 794 (effective Nov. 1, 2015) and commentary addressing ‘‘couriers and mules.’'
- District court denied the adjustment, reasoning that transporting the drugs into the U.S. was not a minor role and that defendant was culpable at least on par with the other transporters.
- This appeal challenges denial of the § 3B1.2 adjustment; the Fifth Circuit affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Torres-Hernandez was entitled to a § 3B1.2 minor-role (‑2 level) adjustment under Amendment 794 | Torres-Hernandez: as a courier/mule who only carried a backpack, lacked decisionmaking, proprietary interest, or knowledge of destination, so he is substantially less culpable than average participant | Government: he was accountable for the aggregate quantity, similar in role to co-transporters; prior identical conviction shows knowledge of the operation; transport into U.S. is a critical role | Court: Affirmed denial. He was accountable for the jointly undertaken activity and not shown to be substantially less culpable than co-participants. |
| Proper scope of the comparator for "average participant" after Amendment 794 | Torres-Hernandez: Amendment 794 broadened consideration to typical offenders and favors couriers | Government: Amendment 794 adopts comparison to co-participants in the instant criminal activity | Court: Amendment 794 generally follows Seventh/Ninth Circuits — compare defendant to participants in the specific criminal activity; court properly compared him to co-transporters. |
| Whether district court adequately considered the Amendment 794 factors and applied § 3B1.2 correctly | Torres-Hernandez: district court misstated law and failed to apply new commentary factors to find minor role | Government: district court heard counsel, considered arguments and rejected adjustment after weighing factors | Court: No clear error. Court was not required to spell out each factor on record; its weighing was plausible and within discretion. |
Key Cases Cited
- United States v. Cantrell, 433 F.3d 1269 (9th Cir.) (cited re: definition of “average participant”)
- United States v. Benitez, 34 F.3d 1489 (9th Cir.) (cited re: definition of “average participant”)
- United States v. DePriest, 6 F.3d 1201 (7th Cir.) (cited re: definition of “average participant”)
- United States v. Santos, 357 F.3d 136 (1st Cir.) (cited for alternate interpretation of “average participant”)
- United States v. Rahman, 189 F.3d 88 (2d Cir.) (cited for alternate interpretation of “average participant”)
- United States v. Skinner, 690 F.3d 772 (6th Cir.) (cited regarding courts denying adjustments because role was "integral")
- United States v. Deans, 590 F.3d 907 (8th Cir.) (cited regarding "integral" role decisions)
- United States v. Panaigua-Verdugo, 537 F.3d 722 (7th Cir.) (cited regarding "integral" role decisions)
- United States v. Carter, 971 F.2d 597 (10th Cir.) (cited regarding "integral" role decisions)
- United States v. Lige, 635 F.3d 668 (5th Cir.) (standard of review for Guidelines interpretation)
- United States v. Gomez-Valle, 828 F.3d 324 (5th Cir.) (standard for participant-role factual findings)
- United States v. Miranda, 248 F.3d 434 (5th Cir.) (clear-error standard and plausibility test)
- United States v. Alford, 142 F.3d 825 (5th Cir.) (factual findings standard)
- United States v. Morosco, 822 F.3d 1 (1st Cir.) (discussing consideration of §3B1.2 factors)