United States v. Rosas , 615 F.3d 1058 ( 2010 )


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  •                  FOR PUBLICATION
     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT
    
    UNITED STATES OF AMERICA,             
                    Plaintiff-Appellee,          No. 09-10011
                   v.                             D.C. No.
                                              4:02-cr-01016-JMR-
    MIGUEL ANGEL ROSAS,                               CRP
                 Defendant-Appellant.
                                          
    
    UNITED STATES OF AMERICA,                   No. 09-10013
                    Plaintiff-Appellee,            D.C. No.
                   v.                        4:08-cr-00123-JMR-
    MIGUEL ANGEL ROSAS,                               CRP
                 Defendant-Appellant.
                                                  OPINION
    
           Appeal from the United States District Court
                    for the District of Arizona
           John M. Roll, Chief District Judge, Presiding
    
                    Argued and Submitted
          December 10, 2009—San Francisco, California
    
                        Filed July 27, 2010
    
         Before: Betty B. Fletcher, Sidney R. Thomas, and
                 N. Randy Smith, Circuit Judges.
    
                   Opinion by Judge N.R. Smith
    
    
    
    
                               10795
                        UNITED STATES v. ROSAS                 10799
                              COUNSEL
    
    Christina M. Cabanillas, Assistant United States Attorney for
    the District of Arizona, argued the cause for the appellee and
    was on the briefs. Elizabeth Adair Strange, Assistant United
    States Attorney for the District of Arizona, filed the briefs.
    Diane J. Humetewa, United States Attorney for the District of
    Arizona, also was on the briefs.
    
    Stanton Bloom, of Tucson, Arizona, argued the cause for the
    defendant-appellant and filed the briefs.
    
    
                              OPINION
    
    N.R. SMITH, Circuit Judge:
    
       A defendant may be convicted under 18 U.S.C. § 3146 for
    failure to appear if he is convicted of a federal crime, released
    pending sentencing, and then does not attend the sentencing
    hearing for the initial conviction. The United States Sentenc-
    ing Guidelines Manual (the “Guidelines”) instructs that, rather
    than calculating the recommended sentences for failure to
    appear and the underlying conviction separately, the district
    court should account for failure to appear by enhancing the
    sentence for the underlying conviction pursuant to Guidelines
    § 3C1.1 for obstruction of justice and Guidelines § 3C1.3 for
    commission of an offense while on release. In addition to
    using the defendant’s failure to attend the original sentencing
    hearing as the basis for these two enhancements, the district
    court may also use it as grounds for denying the defendant a
    reduction for acceptance of responsibility under Guidelines
    § 3E1.1. Such a sentence does not (1) violate the defendant’s
    constitutional rights to due process and protection from dou-
    ble jeopardy, or (2) constitute impermissible double counting
    under the Sentencing Guidelines.
    10800               UNITED STATES v. ROSAS
                   I.   PROCEDURAL HISTORY
    
       Miguel Angel Rosas (“Rosas”) was convicted of conspir-
    acy to possess with intent to distribute marijuana and posses-
    sion with intent to distribute marijuana. He was later
    convicted of failure to appear at his sentencing hearing on the
    drug convictions. The district court sentenced Rosas to 63
    months’ imprisonment, 53 months for the drug convictions
    and 10 months for failure to appear.
    
       On appeal, Rosas claims that the sentence imposed by the
    district court violated his constitutional rights. Rosas raises
    three constitutional claims: (1) the district court engaged in
    impermissible double-counting in violation of the Fifth
    Amendment’s protection against double jeopardy by imposing
    two Guidelines sentencing enhancements and denying him
    one reduction on the basis of the same conduct—his failure to
    appear for sentencing on his 2002 drug conviction; (2) he was
    deprived of his Fifth Amendment right to due process of law
    because he did not receive notice that he could be subject to
    an increased term of imprisonment for failing to appear at
    sentence; and (3) the district court enhanced his sentence
    beyond the statutory maximum for the crime based upon facts
    that were not submitted to the jury and proven beyond a rea-
    sonable doubt, as required by Apprendi v. New Jersey, 
    530 U.S. 466
     (2000). Rosas also argues that the rule of lenity
    applies here and raises non-constitutional challenges to his
    sentence. Specifically, he claims that the district court erred
    in denying him an acceptance of responsibility reduction and
    a mitigating role reduction under the Guidelines.
    
                             II.   FACTS
    
      Rosas became involved in the drug transaction, for which
    he was convicted, when he accepted the offer of his co-
    worker, Donald Simms, to transport a load of marijuana for
    $10 per pound. On January 15, 2002, Rosas, Simms, and
    another participant, Jessie Tatum, drove together to a Tucson
                        UNITED STATES v. ROSAS               10801
    restaurant to meet two potential buyers to arrange for the sale
    of 250 pounds of marijuana; the buyers were an undercover
    Drug Enforcement Administration (“DEA”) agent and a con-
    fidential source. At the meeting, Simms provided the agent a
    “sample” of marijuana, and the parties agreed to a purchase
    of 250 pounds of marijuana at a price of $500 per pound,
    totaling $125,000.
    
       The next day, Rosas, Simms, and Tatum again drove
    together to meet the buyers. Simms then went with the DEA
    agent to a separate location to make sure that the buyers had
    the money. Once Simms was presented with a bag containing
    $100,000 in cash, he called Tatum and instructed him to have
    Rosas deliver the drugs to a predetermined drop-off point.
    Rosas drove a truck to Simms’ house, where he helped load
    it with the marijuana. Rosas then drove it to the drop off
    point, while Tatum and Simms followed in a separate vehicle.
    Upon arrival at the drop location, DEA agents attempted to
    arrest the group; Simms and Rosas fled on foot and escaped.
    Rosas was not arrested until May 29, 2002. At that time,
    Rosas was indicted for Conspiracy to Possess with Intent to
    Distribute Marijuana in violation of 21 U.S.C. § 846, and Pos-
    session with Intent to Distribute Marijuana in violation of 21
    U.S.C. § 841(a)(1).
    
       Although Rosas did not enter into a plea agreement, he
    pleaded guilty and cooperated with the authorities. Rosas was
    released on $15,000 bond on June 17, 2002. On March 19,
    2003, the day before a state court sentencing for possession
    of a narcotic drug for sale (and two weeks before federal sen-
    tencing on these charges), Rosas fled to Mexico. At some
    later point in time, Rosas returned to the United States. On
    December 3, 2007, he was again arrested for possession of
    marijuana for sale. A federal grand jury indicted Rosas for
    failure to appear in violation of U.S.C. § 3146. He pleaded
    guilty. The failure to appear conviction and the underlying
    2002 drug conviction cases were consolidated for sentencing.
    10802                  UNITED STATES v. ROSAS
    This appeal arises out the sentencing hearing conducted in
    that consolidated case.
    
       Before Rosas fled the country, a Presentence Investigation
    Report (“PSR”) had been completed in anticipation of his
    upcoming sentencing. That PSR made findings and recom-
    mendations regarding Rosas’s sentencing on the two drug
    convictions, 21 U.S.C. §§ 841(a)(1) and 846, which carried a
    statutory maximum of 40 years on each count. The Guidelines
    base offense level for a violation of these statutes involving
    100 kilograms of marijuana is 26. The PSR found Rosas eligi-
    ble for a two level “safety valve” reduction, Guidelines
    § 5C1.2, and a three level reduction for acceptance of respon-
    sibility, Guidelines § 3E1.1. This resulted in a total offense
    level of 21. After calculating the total offense level and
    Rosas’s Criminal History Category, the PSR arrived at a
    Guidelines range of imprisonment from 37 to 46 months.
    
       After Rosas’s arrest in December of 2007, a second PSR
    was prepared for his sentencing (the “2008 PSR”). The 2008
    PSR reflects the significant consequences for Rosas’s failure
    to appear and flight from the jurisdiction. The PSR calculated
    a base offense level of 24 for the 2002 drug charges,1 and
    again found him eligible for a two level “safety valve” reduc-
    tion pursuant to Guidelines § 5C1.2. However, because of
    Rosas’s flight from custody, the PSR calculated (1) a two
    level enhancement for obstruction of justice, pursuant to
    Guidelines § 3C1.1; (2) a three level enhancement for com-
    mission of an offense while on release, pursuant to Guidelines
    § 3C1.3 and 18 U.S.C. § 3147; and (3) no reduction for accep-
    tance of responsibility, pursuant to Guidelines § 3E1.1. The
      1
       The 2008 PSR calculated the base offense level for a drug transaction
    involving 80 to 100 kilograms of marijuana. The PSR provides no expla-
    nation for this change from the 2002 PSR—which calculated the base
    offense level for a drug transaction involving over 100 kilograms of mari-
    juana. However, as no objection was raised to this discrepancy and as it
    favors the Defendant, we see no reason to address it.
                        UNITED STATES v. ROSAS               10803
    2008 PSR recommended no reduction for acceptance of
    responsibility, because Rosas’s “failure to appear out-
    weigh[ed] his guilty plea and [was] inconsistent with affirma-
    tive acceptance of responsibility and genuine remorse.” The
    2008 PSR calculated his total offense level to be 27, resulting
    in a Guidelines range of 70 to 87 months imprisonment. The
    2008 PSR recommended a punishment of 70 months impris-
    onment, a $300 special assessment, a $15,000 fine, and 5
    years supervised release. Of that total term, 60 months were
    attributable to the 2002 drug conviction and another 10
    months to the failure to appear conviction.
    
       Rosas lodged numerous objections to the PSR. Relevant to
    this appeal, Rosas argued that (1) he should not have received
    an enhancement for both obstruction of justice, Guidelines
    § 3C1.1, and commission of an offense while on release,
    Guidelines § 3C1.3, as those two enhancements punish the
    same behavior and enhancing for both constitutes double
    counting; (2) even if that does not constitute double counting,
    a statutory sentencing enhancement under 18 U.S.C. § 3147
    does not apply—rather, the statute under which he was con-
    victed, § 3146, encompasses the field—and, therefore, he
    should not have received an enhancement under Guidelines
    § 3C1.3; (3) he should have received an acceptance of respon-
    sibility reduction, Guidelines § 3E1.1; and (4) he should have
    received a mitigating role reduction, Guidelines § 3B1.2. The
    Probation Office declined to amend the PSR as to these
    issues.
    
       At the sentencing hearing, the district court agreed with
    most of the PSR. The court did grant Rosas’s request for a 1
    level downward departure based on 18 U.S.C. § 3553 factors.
    The court then sentenced Rosas to 53 months for the 2002
    drug crimes and a consecutive 10 months for the failure to
    appear, for a total of 63 months in prison. The court ordered
    that Rosas pay the $300 special assessment, but waived the
    $15,000 fine.
    10804               UNITED STATES v. ROSAS
                          III.   ANALYSIS
    
    A.   Challenges to the Nature of the Sentencing
    
       Rosas’s failure to appear for sentencing and flight from the
    jurisdiction was considered as relevant conduct at numerous
    points in his 2008 sentencing calculation. We must decide
    whether any of those calculations was in error and if the
    cumulative affect of the enhancements violated Rosas’s con-
    stitutional rights. We review de novo (1) the district court’s
    interpretation of the Guidelines, United States v. Tankersley,
    
    537 F.3d 1100
    , 1110 (9th Cir. 2008), and (2) claims that the
    sentence is unconstitutional, United States v. Mercado, 
    474 F.3d 654
    , 656 (9th Cir. 2007).
    
       [1] When sentencing a defendant for both an underlying
    offense and an obstruction offense—such as § 3146, failure to
    appear at sentencing—the Guidelines group the sentences
    together and account for the obstruction offense by imposing
    a two level enhancement to the underlying offense level,
    under Guidelines § 3C1.1. U.S. Sentencing Guidelines Man-
    ual § 3C1.1 cmt. n.8. By committing an obstruction offense,
    a defendant has also committed an offense while on release,
    potentially subjecting the defendant to an additional consecu-
    tive sentence under § 3147. We must decide whether a sen-
    tence enhancement pursuant to § 3147 may be applied to a
    defendant when the only offense committed while on release
    was a violation of § 3146, failure to appear, an issue of first
    impression in this circuit. Therefore, if we find that § 3147
    applies to those sentences where the only offense committed
    while on release is the failure to appear, Rosas was properly
    subject to two sentencing enhancements: (1) a two level
    enhancement under Guidelines § 3C1.1; and (2) a three level
    enhancement under Guidelines § 3C1.3. We hold that a defen-
    dant convicted of the offense of failure to appear may be sub-
    ject to a sentence enhancement (on his underlying conviction)
    under § 3147, for committing an offense while on release.
                        UNITED STATES v. ROSAS                 10805
       [2] “The starting point for our interpretation of a statute is
    always its plain language.” Rowe v. Educ. Credit Mgmt.
    Corp., 
    559 F.3d 1028
    , 1032 (9th Cir. 2009) (internal quotation
    omitted). “The plain meaning governs unless a clearly
    expressed legislative intent is to the contrary, or unless such
    plain meaning would lead to absurd results.” Dyer v. United
    States, 
    832 F.2d 1062
    , 1066 (9th Cir. 1987) (citation omitted).
    The text of the statute at issue provides that:
    
        A person convicted of an offense committed while
        released under this chapter shall be sentenced, in
        addition to the sentence prescribed for the offense to
        . . . a term of imprisonment of not more than ten
        years of the offense is a felony . . . . A term of
        imprisonment imposed under this section shall be
        consecutive to any other sentence of imprisonment.
    
    18 U.S.C. § 3147. “Section 3147 clearly and unambiguously
    mandates that the courts impose additional consecutive sen-
    tences on persons convicted of crimes they commit while
    released on bond.” United States v. Kentz, 
    251 F.3d 835
    , 840
    (9th Cir. 2001) (quoting United States v. Lewis, 
    991 F.2d 322
    ,
    323 (6th Cir. 1993)); see also U.S. Sentencing Guidelines
    Manual § 3C1.3. In this case, Rosas committed an obstruction
    offense, failure to appear for sentencing, while on bond. The
    statute contains no exception for § 3146 violations or for vio-
    lations that, by their nature, can only be committed while on
    bond (such as failure to appear). “There is nothing exceptional
    about the statute, nor is it vague or ambiguous. The language
    is plain and the meaning is clear. Our statutory construction
    inquiry, therefore, is at an end.” United States v. Patterson,
    
    820 F.2d 1524
    , 1526 (9th Cir. 1987) (citing Burlington N.
    Railroad Co. v. Okla. Tax Comm’n, 
    481 U.S. 454
     (1987)).
    The § 3147 enhancement unambiguously applies to Rosas.
    
       [3] We note that four other circuits “have held that the
    plain language of the relevant statutes mandates application of
    the § 3147 enhancement to the offense of failure to appear in
    10806                UNITED STATES v. ROSAS
    violation of § 3146.” United States v. Dison, 
    573 F.3d 204
    ,
    207 (5th Cir. 2009) (citing sister circuit opinions: United
    States v. Clemendor, 237 F. App’x 473 (11th Cir. 2007) (per
    curium) (unpublished); United States v. Fitzgerald, 
    435 F.3d 484
     (4th Cir. 2006); and United States v. Benson, 
    134 F.3d 787
     (6th Cir. 1998)). As to Rosas’s claim that the rule of len-
    ity dictates a different result, we agree with our sister circuits
    that, in the face of such unambiguous statutory language, the
    rule of lenity does not apply here. See United States v. John-
    son, 
    529 U.S. 53
    , 59 (2000) (“Absent ambiguity, the rule of
    lenity is not applicable to guide statutory interpretation.”); see
    also Dison, 573 F.3d at 208 (Fifth); Clemendor, 237 F. App’x
    at 477-78 (Eleventh); United States v. Fitzgerald, 435 F.3d at
    486-87 (Fourth); and Benson, 134 F.3d at 788 (Sixth).
    
       [4] Contrary to Rosas’s assertion, a district court does not
    violate the Fifth Amendment’s Double Jeopardy Clause by
    accounting for a defendant’s failure to appear conviction by
    enhancing the sentence for the underlying conviction for
    obstruction of justice and commission of an offence while on
    release. Nor does the court’s additional denial of an accep-
    tance of responsibility reduction render the sentence unconsti-
    tutional. “With respect to cumulative sentences imposed in a
    single trial, the Double Jeopardy Clause does no more than
    prevent the sentencing court from prescribing greater punish-
    ment than the legislature intended.” Missouri v. Hunter, 
    459 U.S. 359
    , 366 (1983). Here the legislature established a maxi-
    mum sentence of ten years and Rosas’s sentence falls far short
    of that mark, therefore Rosas’s constitutional claim must fail.
    
       [5] Further, the district court did not engage in impermissi-
    ble double counting under the Guidelines. We have held that
    the Sentencing Commission understands double counting and
    “expressly forbids it where it is not intended.” United States
    v. Reese, 
    2 F.3d 870
    , 894 (9th Cir. 1993) (quoting United
    States v. Williams, 
    954 F.2d 204
    , 208 (4th Cir. 1992)). Here,
    the Guidelines allow for failure to appear to provide the basis
    for two enhancements, obstruction of justice and commission
                          UNITED STATES v. ROSAS                     10807
    of an offense while on release. Finally, denying Rosas a
    reduction for Acceptance of Responsibility on the basis of his
    failure to appear did not constitute double counting “because
    the acceptance provision constitutes a sentencing benefit
    which a defendant may be entitled to receive. The fact that a
    defendant may fail to receive the reduction does not result in
    an additional enhancement.” United States v. Rutledge, 
    28 F.3d 998
    , 1004 (9th Cir. 1994). Therefore, the district court
    did not engage in impermissible double counting.
    
       [6] So long as these enhancements do not raise a defen-
    dant’s total sentence to a term longer than the statutory maxi-
    mum, the conduct upon which these enhancements are based
    need not have been submitted to a jury. See Apprendi v. New
    Jersey, 
    530 U.S. 466
    , 490 (2000). In order to bring an
    Apprendi claim, the defendant must show that “the actual sen-
    tence imposed [is] longer than the maximum sentence” for the
    crime of conviction. United States v. Ellis, 
    241 F.3d 1096
    ,
    1104 (9th Cir. 2001). Here, Rosas faced a statutory maximum
    of 40 years for each of the two drug offenses and 10 years for
    his failure to appear. Because his actual sentence falls far
    below that (at a little over five years), he cannot make out an
    Apprendi claim.
    
       [7] Finally, we reaffirm this Circuit’s position that a PSR
    gives pre-sentence notice, satisfying both constitutional due
    process requirements and the Guidelines notice requirement.
    Kentz, 251 F.3d at 840. The Ninth Circuit recognizes a notice
    requirement for enhancements under § 3147 as calculated in
    Guidelines § 3C1.3. Id. (citing U.S. Sentencing Guidelines
    Manual § 3C1.3, comment. (backg’d)). “[T]his is a pre-
    sentence requirement rather than a pre-release requirement.”2
    Id. at 841 (emphasis in original). A PSR satisfies that require-
    ment. Id. at 840. Rosas admits that he signed a PSR stating
      2
       Having found this a pre-sentence requirement, rather than pre-release
    requirement, Rosas’s argument that he did not understand the 2002 PSR,
    which he signed, is moot.
    10808               UNITED STATES v. ROSAS
    the conditions of release and appearance. We recognize that
    the Government stipulated that Rosas was not advised of the
    consequences of failing to appear at sentencing (for reasons
    unclear on this record). However, both parties concede that
    Rosas signed the PSR, which constitutes sufficient notice as
    a matter of law. Id. Therefore, we find that Rosas received
    sufficient notice of the potential consequences of his decision
    not to appear for his original sentencing hearing.
    
    B.   Challenges to the Application of the Guidelines
    
       The district court denied offense level reductions for accep-
    tance of responsibility and having a mitigating role in the
    criminal activity. Having held the application of these assess-
    ments constitutional above, we now review the court’s appli-
    cation of these Guidelines to Rosas’s case.
    
       When reviewing a district court’s sentencing for error, “we
    first consider whether the district court committed significant
    procedural error, then we consider the substantive reasonable-
    ness of the sentence.” United States v. Carty, 
    520 F.3d 984
    ,
    993 (9th Cir. 2008) (en banc). Because Rosas makes no chal-
    lenge to the substantive reasonableness of the sentence, we
    review only for significant procedural error in the district
    court’s interpretation and application of the Guidelines. We
    review “the district court’s interpretation of the Sentencing
    Guidelines de novo, the district court’s application of the Sen-
    tencing Guidelines to the facts of [the] case for abuse of dis-
    cretion, and the district court’s factual findings for clear
    error.” United States v. Kimbrew, 
    406 F.3d 1149
    , 1151 (9th
    Cir. 2005). “A district court’s decision about whether a defen-
    dant has accepted responsibility is a factual determination
    reviewed for clear error.” United States v. Cantrell, 
    433 F.3d 1269
    , 1284 (9th Cir. 2006) (alteration omitted) (quoting
    United States v. Velasco-Medina, 
    305 F.3d 839
    , 853 (9th Cir.
    2002)). The district court’s determination about whether a
    defendant was engaged in a mitigating role is also reviewed
    for clear error. See Cantrell, 433 F.3d at 1283-84 (applying
                           UNITED STATES v. ROSAS                       10809
    the clear error standard to its review). Under the clear error
    standard of review, we give the district court a great degree
    of deference, reversing only if we come to a “definite and
    firm conviction that a mistake has been committed.” Easley
    v. Cromartie, 
    532 U.S. 234
    , 242 (2001) (quoting United
    States v. United States Gypsum Co., 
    333 U.S. 364
    , 395
    (1948)). We hold that the district court did not clearly err in
    its denial of an offense level reduction for (1) acceptance of
    responsibility; and (2) involvement in the criminal activity in
    a mitigating role.3
    
      1.    Acceptance of Responsibility
    
       [8] A defendant may receive a decrease in his total offense
    level when the defendant “clearly demonstrates acceptance of
    responsibility for his offense.” U.S. Sentencing Guidelines
    Manual § 3E1.1 (emphasis added). However, “[c]onduct
    resulting in an enhancement under § 3C1.1 (Obstructing or
    Impeding the Administration of Justice) ordinarily indicates
    that the defendant has not accepted responsibility for his crim-
    inal conduct. There may, however, be extraordinary cases in
    which adjustments under both §§ 3C1.1 and 3E1.1 may
    apply.” U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.4.
    Thus, Rosas’s conviction under 18 U.S.C. § 3146, by itself,
    renders the district court’s decision to deny an acceptance of
    responsibility reduction reasonable absent an extraordinary
    case.
    
       [9] Of course, Rosas believes that he has an extraordinary
    case. In support of his position, he presented medical docu-
    ments and letters to the district court during sentencing. Rosas
    attempted to show that he left for Mexico because his grand-
      3
       The government argues that Rosas failed to challenge the district
    court’s application of the Guidelines at sentencing. Where the appealing
    party fails to raise an issue at sentencing, we review for plain error. See
    Fed. R. Crim. P. 52(b). However, because we find that Rosas’s claims fail
    under the clear error standard of review, we decline to reach this issue.
    10810               UNITED STATES v. ROSAS
    father was ill and was calling for Rosas, the only one capable
    of managing the family ranch. These facts, while not irrele-
    vant, do not change the fact that his flight was voluntary and
    that he had not accepted the responsibility for, and conse-
    quences of, his actions. Therefore, the court’s denial of an
    acceptance of responsibility reduction was not clearly errone-
    ous.
    
      2.    Mitigating Role
    
       [10] In order to qualify for a mitigating role reduction, a
    defendant must demonstrate by a preponderance of the evi-
    dence that he was a minimal or minor participant in the crimi-
    nal activity. United States v. Zakharov, 
    468 F.3d 1171
    , 1181
    (9th Cir. 2006). “It is not enough that [Rosas] was less culpa-
    ble than [his] co-participants, or even that [he] was among the
    least culpable of the group, because a minimal or minor par-
    ticipant adjustment under § 3B1.2 is available only if [Rosas]
    was ‘substantially’ less culpable than [his] co-participants.”
    United States v. Cantrell, 
    433 F.3d 1269
    , 1283 (9th Cir.
    2006).
    
       [11] We hold that the district court’s consideration of
    Rosas’s failure to appear at his 2002 sentencing hearing was
    not improper. “[T]he amended guidelines permit district
    courts to consider all relevant conduct, including collateral
    conduct beyond the charged offense.” United States v. Web-
    ster, 
    996 F.2d 209
    , 212 (9th Cir. 1993). Relevant collateral
    conduct includes all purposeful acts committed “in the course
    of attempting to avoid detection or responsibility for that
    offense.” U.S. Sentencing Guidelines Manual § 1B1.3.
    
       [12] The district court properly considered Rosas’s 2008
    failure to appear conviction. The district court concluded that
    Rosas fled, because Rosas believed that he would not be
    caught and, therefore, would not have to take responsibility
    for his actions. Because the court found that the conduct asso-
    ciated with Rosas’s 2008 failure to appear conviction was
                            UNITED STATES v. ROSAS                        10811
    related to an attempt to avoid responsibility for the earlier
    offense, the district court did not err in considering that conduct.4
    
       [13] Finding that consideration of Rosas’s failure to appear
    was not error, we now must determine whether the district
    court abused its discretion when it found that Rosas was not
    a minor participant in the crime. The mitigating role reduction
    is a “determination that is heavily dependent upon the facts of
    the particular case.” United States v. Duran, 
    189 F.3d 1071
    ,
    1089 (9th Cir. 1999) (quoting U.S. Sentencing Guidelines
    Manual § 3B1.2, cmt. (backg’d)).
    
       In making its determination regarding Rosas’s role in the
    criminal enterprise, the court looked to Rosas’s conduct in
    comparison to that of Simms and Tatum. Before the sentenc-
    ing proceeding, the district court reviewed the PSR, Rosas’s
    objections, sentencing memoranda from both the government
    and Rosas, seventy pages of DEA reports relating to the crim-
    inal activity, and letters on behalf of Rosas submitted by
    defense counsel, Rosas himself, and other individuals. The
    district court also allowed extensive argument from the parties
    and invited input from the Probation Department. While the
    court recognized that Rosas’s conduct was less culpable than
    that of Simms or Tatum, it did not find that Rosas’s conduct
    was so much less that he was entitled to a mitigating role
    reduction.
    
       [14] The district court based its finding on Rosas’s “entire
    involvement in the case.” Consistent with Cantrell, the court
    recognized that “you can have three people who have varying
      4
        Rosas also claims that the district court considered drug activity he
    engaged in after he failed to appear at the 2002 sentencing hearing. We
    recognize that the district court’s language was ambiguous and perhaps
    inarticulate, when it commented about “not only [Rosas’s] past and future
    involvement in drugs . . . .” However, upon his objection to consideration
    of his involvement in drugs after 2002, the district court clarified its posi-
    tion when it expressly stated that it would not consider any later drug
    charge.
    10812                UNITED STATES v. ROSAS
    degrees of culpability but who all play major roles.” The dis-
    trict court found that Rosas (1) was the driver and loader of
    the truck, (2) was responsible for the drug load, (3) knew
    where the drugs were being kept, and (4) fled after the bust
    went awry. Given the district judge’s extensive review, we are
    not left with a “definite and firm conviction that a mistake has
    been committed.” The district court’s ruling was not clearly
    erroneous.
    
       Rosas argues that the district court erred, because it com-
    pared his conduct with that of Simms and Tatum but did not
    consider other unknown participants in the drug chain, includ-
    ing “the source of the marijuana, distributers, packagers, sell-
    ers, etc.” Rosas relies on United States v. Rojas-Millan, 
    234 F.3d 464
    , 472 (9th Cir. 2000), which stated that “the district
    court should have evaluated [the defendant’s] role relative to
    all participants in the criminal scheme for which he was
    charged.”
    
       However, as Rojas-Millan recognizes, defendants are not to
    be compared to the hypothetical “average participant.” Id. at
    473. In Rojas-Millan, the defendant was stopped as he carried
    drugs from a supplier in Los Angeles to a distributor in Reno;
    he was, apparently, nothing more than a courier. Id. at 468.
    The defendant and his passenger were charged with posses-
    sion with intent to distribute, conspiracy to possess with intent
    to distribute, and interstate travel in aid of racketeering. Id. at
    467. The district court found that the defendant was not enti-
    tled to a mitigating role reduction, because he was not sub-
    stantially less culpable than the passenger of the car. Id. at
    472. We reversed, requiring the district court to first deter-
    mine whether it had “sufficient evidence of [the supplier’s
    and distributor’s] existence and participation in the overall
    scheme,” id. at 474; and, if so, to then determine whether the
    defendant was substantially less culpable than “other likely
    actors, such as the alleged Los Angeles supplier and the Reno
    distributor,” id. at 473-74.
                        UNITED STATES v. ROSAS               10813
       [15] The facts here are unlike those found in Rojas-Millan.
    There exists little to no evidence concerning criminals supply-
    ing the marijuana to Rosas, Simms, and Tatum. Further,
    Rosas, Simms, and Tatum were more than mere couriers, they
    were traffickers, who set up their own deals and supplied the
    buyers directly from their stores. Every drug trafficking
    defendant could point to an unknown network preceding them
    in the drug trade. Such an argument will normally be ineffec-
    tive when considering whether the defendant is entitled to a
    mitigating role reduction.
    
                        IV.   CONCLUSION
    
       Accordingly, we AFFIRM the sentence imposed by the
    district court.
    

Document Info

DocketNumber: 09-10011

Citation Numbers: 615 F.3d 1058

Filed Date: 7/27/2010

Precedential Status: Precedential

Modified Date: 3/14/2017

Authorities (27)

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united-states-v-juan-dale-reese-united-states-of-america-v-scott-matthew , 2 F.3d 870 ( 1993 )

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United States v. Maurillo Rojas-Millan , 234 F.3d 464 ( 2000 )

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