United States v. Rodriguez-Cardenas ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-2494
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFONSO RODRIGUEZ-CARDENAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1017-1—Elaine E. Bucklo, Judge.
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ARGUED MARCH 3, 2004—DECIDED MARCH 31, 2004
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Before POSNER, ROVNER, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Alfonso Rodriguez-Cardenas
pleaded guilty to conspiracy to distribute heroin and
cocaine, 21 U.S.C. §§ 846, 841(a)(1). At sentencing
Rodriguez-Cardenas requested a two-level reduction for
being a minor participant in the conspiracy, U.S.S.G.
§ 3B1.2, but the district court denied his request and sen-
tenced him to 37 months’ imprisonment. On appeal
Rodriguez-Cardenas challenges the denial of the minor-
participant reduction, but the district court’s factual finding
on that question is unassailable. We are publishing this
2 No. 03-2494
opinion, however, to correct statements in several of our
recent cases that might be read as inconsistent with a 2001
amendment that expressly rejected a limitation we had
placed on eligibility for a mitigating-role reduction. U.S.S.G.
§ 3B1.2, App. C, amend. 635.
Rodriguez-Cardenas was charged along with co-conspira-
tor Rafael Gutierrez in a three-count indictment and
pleaded guilty to the conspiracy count pursuant to a plea
agreement. The factual basis for the plea recounts that
Gutierrez arranged two drug sales to persons who, unbe-
knownst to him, were cooperating with law enforcement
officers. After Gutierrez negotiated each of the sales,
Rodriguez-Cardenas completed the transactions by meeting
the “buyers” at prearranged locations on October 15, 2002,
to deliver heroin, and on October 21, 2002, to deliver
cocaine and collect the money for the heroin. Rodriguez-
Cardenas admitted at sentencing that he knew each time
that he was delivering drugs.
The probation officer who prepared Rodriguez-Cardenas’
presentence report had no information suggesting other
drug transactions during the conspiracy and thus counted
only the two October deliveries in calculating a base offense
level of 26. See U.S.S.G. § 2D1.1(a)(3). After receiving a
“safety valve” reduction, see U.S.S.G. §§ 5C1.2, 2D1.1(b)(6),
Rodriguez-Cardenas requested an additional reduction for
being what he characterizes as a minor participant in the
conspiracy. Rodriguez-Cardenas argued that he was not
precluded from receiving a minor-participant reduction
simply because he was being held accountable only for the
two deliveries on October 15 and 21. See U.S.S.G. § 3B1.2,
comment. (n.3(A)) (2004). The government responded that
the facts of the case did not warrant a reduction because
Rodriguez-Cardenas’ role in delivering the drugs made him
no less culpable than Gutierrez who negotiated the sales.
The district court denied the reduction:
No. 03-2494 3
I do agree [with the government] that in this case, it—
I just haven’t heard anything to say that his role wasn’t
major. It seems to me that the only thing I can say is,
since he wasn’t the one that had the drugs to begin with
or he wasn’t the one that negotiated it, that his role
wasn’t important. But it was.
On appeal Rodriguez-Cardenas argues that it was error
to deny him the reduction because, he says, he did not
organize the drug sales, did not have contact with the
suppliers or negotiate with the buyers, and acted only at
Gutierrez’s directions. We review the denial of a minor-
participant reduction only for clear error. See United States
v. Corral, 324 F.3d 866, 874 (7th Cir. 2003). A defendant
may receive the two-level reduction only if he is “substan-
tially less culpable than the average participant,” U.S.S.G.
§ 3B1.2, comment. (n.3(A)); see Corral, 324 F.3d at 874, and
so Rodriguez-Cardenas, as the proponent of the reduction,
was required to establish that he played a much smaller
role than Gutierrez, Corral, 324 F.3d at 874. Rarely will we
reverse a district court’s finding in this regard. See id.;
United States v. Arocho, 305 F.3d 627, 641 (7th Cir. 2002);
United States v. Castillo, 148 F.3d 770, 776 (7th Cir. 1998);
cf. United States v. Hunte, 196 F.3d 687, 694-95 (7th Cir.
1999).
Here, the district court decided that Rodriguez-Cardenas
did not play a minor role in the offense. The parties do not
dispute that Rodriguez-Cardenas made two deliveries.
Gutierrez, on the other hand, obtained the drugs, scheduled
the deliveries, and instructed Rodriguez-Cardenas where,
when, and what to deliver. The district court evaluated the
offense of conviction and determined that there had been no
relevant conduct beyond the two deliveries, see U.S.S.G. §
1B1.1, comment. (n.1(H)), and in its discretion denied the
reduction. In addition, we have held that a defendant is not
entitled to the reduction for merely being a courier rather
than the principal, United States v. McClinton, 135 F.3d
4 No. 03-2494
1178, 1190 (7th Cir. 1998), and couriers play an important
role in the drug distribution scheme, United States v.
Hamzat, 217 F.3d 494, 498 (7th Cir. 2000). Therefore the
court did not clearly err because it reasoned that the role
played by Rodriguez-Cardenas was no less significant than
that of Gutierrez. See Corral, 324 F.3d at 874.
Rodriguez-Cardenas notes that in recent opinions we have
continued to endorse the proposition that where a defen-
dant’s offense level is tied only to drug amounts he person-
ally handled he is precluded from receiving a § 3B1.2
reduction, a position that directly contradicts a 2001
amendment to the sentencing guidelines. See U.S.S.G.
§ 3B1.2, comment. (n.3(A)) and App. C, amend. 635; cf., e.g.,
United States v. Brown, 136 F.3d 1176, 1185-86 (7th Cir.
1998); United States v. Burnett, 66 F.3d 137, 140 (7th Cir.
1995). The amendment, effective on November 1, 2001,
explicitly rejected our position in Burnett, 66 F.3d at 140,
and stated that in all types of offenses, the court must
consider the defendant’s conduct against the relevant
conduct that he is held accountable for at sentencing, and
even in cases where the defendant is held accountable only
for conduct in which he was personally involved, he is not
precluded from receiving the reduction. U.S.S.G., App. C,
amend. 635.
Since the enactment of the amendment, we have uninten-
tionally repeated language from pre-amendment opinions
that appears to be more consistent with our now-rejected
view that a defendant held accountable only for his own
conduct cannot qualify for the mitigating-role reduction. See
Corral, 324 F.3d at 874 (citing United States v. Brown, 136
F.3d 1176, 1185-86 (7th Cir. 1998) for the proposition that
we consider “whether the defendant was a minor partici-
pant in the crime for which he was convicted, not whether
he was a minor participant in some broader conspiracy that
may have surrounded it” and that “one cannot be a minor
participant with respect to his own actions”); Arocho, 305
No. 03-2494 5
F.3d at 640-41 (citing the pre-2001 amendment language of
§ 3B1.2); United States v. Crowley, 285 F.3d 553, 560 (7th
Cir. 2002) (citing United States v. Felix-Felix, 275 F.3d 627,
637 (7th Cir. 2001) for the proposition that “a minor role
reduction was particularly unnecessary here because the
district court held Ms. Crowley responsible only for the
drugs she herself obtained”); United States v. Brumfield,
301 F.3d 724, 736 (7th Cir. 2002) (holding that the district
court properly denied the reduction where the “defendant
has been held accountable only for the drugs that he per-
sonally handled”); Felix-Felix, 275 F.3d at 637 (holding that
where the defendant “was sentenced only for the drugs that
he himself ‘had his hands on’ at the house . . . made the
downward departure neither necessary, nor, under our
interpretation of the existing guidelines, appropriate”);
United States v. Hunt, 272 F.3d 488, 497 (7th Cir. 2001)
(citing United States v. Griffin, 150 F.3d 778, 787 (7th Cir.
1998) for the proposition that “Hunt was held accountable
only for his conduct and therefore was ineligible for such a
reduction”). In contrast to the unintended language in these
decisions, a defendant is no longer precluded from receiving
a reduction under § 3B1.2 even if he is held accountable
only for his own conduct. See U.S.S.G. § 3B1.2, comment.
(n.3(A)). Recognition of Amendment 635 necessitates that
we disavow our post-amendment cases to the extent that
they can be read as inconsistent with the amended guide-
line.
However, this change has no effect on the outcome of this
appeal because the parties agreed that Rodriguez-Cardenas
was not precluded from receiving the minor-participant
reduction, and the district court considered his level of
culpability as compared to his co-conspirator. Id.; see
Corral, 324 F.3d at 874.
AFFIRMED.
6 No. 03-2494
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-31-04