United States v. Victor M. Diaz-Rios , 706 F.3d 795 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3130
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V ICTOR M ANUEL D IAZ-R IOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 697—Charles R. Norgle, Judge.
A RGUED D ECEMBER 12, 2012—D ECIDED JANUARY 30, 2013
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Victor Diaz-Rios pleaded guilty
to trafficking in a considerable quantity of cocaine and
received a substantial sentence. Too substantial, he be-
lieves. In this appeal, he argues only that he should
have received a mitigating-role reduction under U.S.S.G.
§ 3B1.2, which would have entitled him to a lower
advisory guideline range. Before the district court, both
the government and Diaz-Rios supported a two-level
2 No. 11-3130
reduction in Diaz-Rios’s offense level based on his minor
role in the offense. The district judge, however, never
discussed or even acknowledged any factor relevant
to § 3B1.2 apart from the drug quantity. The government
concedes that in this instance the court did not ade-
quately explain its ruling. Our independent review of
the record leads us to the same conclusion. We there-
fore vacate the sentence and remand.
I
Diaz-Rios was caught picking up a very large load of
cocaine—45 kilograms—and pleaded guilty to posses-
sion with intent to distribute seven months later. See
21 U.S.C. § 841(a)(1). Because of the drug amount he
faced a statutory minimum prison term of 10 years.
See 21 U.S.C. § 841(b)(1)(A)(ii). As part of a written plea
agreement, the government stipulated to a downward
adjustment for acceptance of responsibility and antici-
pated that Diaz-Rios would qualify for the “safety valve”
provided by 18 U.S.C. § 3553(f) and U.S.S.G. §§ 5C1.2,
2D1.1(b)(16). The government also noted that further
review of the case might “lead the government to
conclude that different or additional guideline provi-
sions apply in this case,” and either party could correct
errors in applying the guidelines before sentencing.
The plea agreement did not mention the possibility of
a reduction under § 3B1.2. After executing the agree-
ment but before sentencing, Diaz-Rios gave what the
government called a “fully honest” safety-valve proffer.
No. 11-3130 3
The proffer, as supplemented by the government’s
investigation, illuminates Diaz-Rios’s role in the drug-
trafficking conspiracy. According to both parties,
Diaz-Rios, a 21-year-old Mexican national with no
criminal history and a valid tourist visa, was staying
with his in-laws in Chicago while on vacation until he
was kicked out after an argument with his brother-in-
law. Diaz-Rios spoke no English and now lacked access
to his brother-in-law’s cars. Providentially (he thought),
a friend of his brother-in-law (known to Diaz-Rios only
as “Alex”) offered the use of a Jeep Liberty belonging
to someone called “Payaso.” Diaz-Rios gratefully ac-
cepted. Two weeks later Alex called Diaz-Rios and
asked him to drop off money and pick up some “luggage”
as a favor to Payaso for loaning his Jeep. Diaz-Rios sus-
pected that “luggage” meant illegal drugs, but he agreed
because he felt obliged to repay Payaso’s favor.
Payaso contacted Diaz-Rios, instructed him to meet a
woman who would give him the money he was to ex-
change for the luggage, and gave him a phone number
for someone named “Mascaria” (later identified as Jose
Luis Maciel), who would coordinate the luggage pick-
up. Diaz-Rios called Maciel, who said that he was not
yet in Chicago but would call Diaz-Rios when he was
close. A few hours later, at Maciel’s direction, Diaz-Rios
drove the Jeep to a gas station about 65 miles from Chi-
cago. Maciel was waiting by the tractor-trailer he had
driven from California. At that point, Diaz-Rios loaded
both a box containing 25 kilograms of cocaine and a
duffel bag with another 20 kilograms into the Jeep. As
he did so, Diaz-Rios unzipped the bag slightly; this al-
lowed him to see that it contained packages wrapped
4 No. 11-3130
in brown paper. Only then could he have known (as-
suming that he inferred that drugs lay inside the brown
paper) what was inside the containers. Before Diaz-
Rios could give Maciel the $2,000 as payment for
hauling the cocaine from California, Drug Enforcement
Administration (DEA) agents swept in, arrested the
pair, and seized the cocaine and money. They had been
watching the gas station because Maciel was known to
have delivered drugs there previously. There is no evi-
dence that Diaz-Rios had ever been involved in drug
trafficking in the past.
During the time while the presentence report was
being prepared, Diaz-Rios declined to speak with the
probation officer. Apparently he already had debriefed
government agents about the others involved in the
drug transaction, but that information was not passed
on to the probation officer. The probation officer had
tried to contact the DEA case agent to get the details
from the debriefing, but the agent never responded.
The probation officer was aware that others besides Diaz-
Rios and Maciel had been involved, but at the time
he drafted the presentence report he knew only about
the gas-station rendezvous and the seizure of the
drugs and money. The probation officer concluded with-
out explanation that Diaz-Rios did not qualify for a
mitigating role reduction. He speculated in his con-
fidential sentencing recommendation, however, that
Diaz-Rios might have entered the United States not
to vacation but “for the sole purpose” of trafficking drugs.
Before sentencing Diaz-Rios objected to the absence of
a reduction under U.S.S.G. § 3B1.2 recognizing his small
No. 11-3130 5
role in the offense; he proposed a 2-level reduction as
a minor participant. See § 3B1.2(b). Through counsel,
he asserted that the facts showed that he was involved
in the crime only for a few hours on one occasion and
that his role was limited to exchanging the cash given
to him for the cocaine. It is unclear from the record
whether the probation officer addressed this objection
before sentencing.
At sentencing the prosecutor agreed that a reduction
was warranted, noting his view that Diaz-Rios had
been targeted for the role of courier because of his
naiveté and his lack of knowledge of the amount or type
of drugs involved. The prosecutor also revealed that
federal agents had been investigating Maciel. They identi-
fied a number of Maciel’s coconspirators through his
phone conversations. Without Diaz-Rios’s proffer, the
government would not have known enough to arrest
Alex or Payaso. The prosecutor explained that this in-
formation had been acquired later on; none of it had
been included in the written “Government’s Version of
Events” given to the probation officer because that docu-
ment had been drafted before Diaz-Rios’s proffer.
(The prosecutor did not explain why the written sub-
mission had not been supplemented or why the proba-
tion officer’s efforts to obtain more details had been
ignored.) The prosecutor acknowledged that the gov-
ernment typically took the position that being entrusted
with a large amount of cocaine suggests that the defen-
dant’s role is more than minor, but he stated that
the investigation in the present case had convinced the
government that Diaz-Rios was an exception.
6 No. 11-3130
In finding that Diaz-Rios was not a minor participant,
the district court offered this explanation:
Well, as the government’s version indicates, the
following occurred:
Lying on the back seat of the Jeep Liberty was the
duffel ba[g], inside of which was the duct-taped
package containing a kilogram of cocaine visible
through the open zipper. And a search of the bag
revealed approximately 20 kilograms of cocaine inside.
Additionally, a cardboard box underneath the
duffel bag contained an additional 25 kilograms
of cocaine, amounting, therefore, to 45 kilograms of
cocaine, which is a very substantial amount of cocaine.
And there are many cases involving the unintel-
ligent mules or those persons who consciously avoid
knowledge.
This case, however, is one in which any ordinary
person, even unintelligent or naive or not the most
brilliant of persons who knows he is about to deliver
controlled substances, would look into the bag.
He can’t close his eyes or consciously avoid opening
the zipper.
This is a simple duffel bag. And at least, according
to the government’s version, which is based upon
what the defendant told the government, there was
a kilogram of cocaine visible through the open zipper.
So under those circumstances the defendant knew
what he was doing and was not the victim of manipu-
No. 11-3130 7
lation by more sophisticated entrepreneurs. And
also, there was a cardboard box underneath the duffel
bag which contained 25 kilograms of cocaine. And
it doesn’t take much to look into a cardboard box.
The amount of cocaine here, as I have said, is very
significant. And I don’t think there is enough to sup-
port some motion for minor role under these circum-
stances.
This case can be distinguished from the others
[defense counsel] has mentioned. There are num-
erous cases going in the other direction.
Mules generally, to use that term, are not routinely
give minor-role positions for sentencing purposes.
But this is not an easy mule case.
Because of the amount, the presence of the drugs
in the Jeep Liberty, which was clear, Diaz, before
walking away, left both the driver’s and passenger
side rear seat door of the Jeep Liberty open, and it
was clear to anyone standing at or near the vehicle
that lying on the back seat of the Jeep Liberty was
a duffel bag which contained the drugs.
Under these circumstances I don’t think that
Mr. Diaz-Rios should be given a minor-role determina-
tion by the Court . . . .
The court said nothing about Diaz-Rios’s role relative to
the other participants—a point that the prosecutor had
discussed. It calculated an imprisonment range of 87 to
108 months, which included application of the safety
valve but not a mitigating-role reduction. The court
8 No. 11-3130
sentenced Diaz-Rios to 87 months. Had the court found
him to be a minor participant, he would have received
not only a two-level reduction under § 3B1.2(b), but also
an additional three-level reduction under U.S.S.G.
§ 2D1.1(a)(5). Those downward adjustments would have
resulted in an imprisonment range of 51 to 63 months.
II
On appeal Diaz-Rios contends, and the govern-
ment concedes, that the reasons given by the district
court for refusing a mitigating-role reduction do not
demonstrate that the court evaluated all of the relevant
factors under § 3B1.2. Both parties also suggest that
the district court may have concluded incorrectly that a
downward adjustment could not be awarded because
Diaz-Rios was held accountable only for the amount of
cocaine he personally possessed, and not for amounts
possessed by other persons in the conspiracy.
A determination of the defendant’s role in the offense
is a factual finding reviewed for clear error, but ques-
tions about a district court’s interpretation or application
of § 3B1.2 are reviewed de novo. United States v.
Leiskunas, 656 F.3d 732, 739 (7th Cir. 2011). The issue
here concerns interpretation or application, and so the
latter standard applies.
We can quickly set to one side the argument that
the district court erred by acting as if it was precluded
from finding that Diaz-Rios was a minor participant
because he was not held accountable for drug transac-
No. 11-3130 9
tions beyond his own. That contention has no support
in the record. The judge apparently thought that the
large amount of cocaine was a significant factor—possibly
the most significant factor—in the evaluation of the
mitigating-role adjustment; such a position finds sup-
port in a number of cases. See United States v. Gonzalez,
534 F.3d 613, 617 (7th Cir. 2008); United States v.
Bautistia, 532 F.3d 667, 674 (7th Cir. 2008); United States
v. Gallardo, 497 F.3d 727 (7th Cir. 2007); United States v.
Navarro, 90 F.3d 1245, 1263 (7th Cir. 1996). Moreover, the
judge never indicated that he was refusing the reduc-
tion on the assumption that Diaz-Rios had gotten a
break and not been held accountable for an even larger
drug quantity.
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 com-
pared 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 par-
ticipants who, in his view, were substantially more culpa-
ble. The court should have looked at his role in the con-
spiracy as a whole, including the length of his involve-
ment 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
10 No. 11-3130
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 notwith-
standing 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).
On remand the district court might still conclude
that Diaz-Rios was not a minor participant, but we
observe that there is significant evidence indicating that
he was “substantially less culpable than the average
participant.” See U.S.S.G. § 3B1.2 cmt. n.3(A). If the in-
formation supplied by the parties is credited, then
Diaz-Rios participated in drug trafficking on one
occasion only, and his role was limited to exchanging
money for an unknown quantity of drugs. See Saenz, 623
F.3d at 467-68 (remanding for reconsideration of § 3B1.2
adjustment where record indicated that drug courier
committed offense on single occasion). Diaz-Rios was
involved in the conspiracy for a matter of hours, had no
financial stake in the operation, and did not even know
the other participants. He also presented the sentencing
judge with 48 letters of support consistently describing
No. 11-3130 11
him as an honest, hard-working young man, expressing
surprise that he would have been involved in the
offense, and opining that the principal offenders likely
relied on his lack of education and youth to manipulate
him into participating. The government echoed the
same sentiment at sentencing.
The other known participants seem substantially
more culpable. Alex cultivated a friendship with
Diaz-Rios for the apparent purpose of later persuading
him to pick up cocaine for Payaso. Payaso loaned
Diaz-Rios the Jeep, gave him the drug money, and
directed him to Maciel through a fourth, unnamed con-
spirator. Maciel had a long record of drug dealing. Thus,
although the district court is free to draw whatever con-
clusion seems supported by the record, we comment
only that it would be possible as a matter of law for it
to find that Diaz-Rios was a minor player even though
he was briefly entrusted with the custody of 45 kilograms
of cocaine.
Diaz-Rios’s sentence is VACATED and the case is
REMANDED for further proceedings consistent with
this opinion.
1-30-13