United States v. Segundo Dominguez-Caicedo ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50268
Plaintiff-Appellee,
D.C. No.
v. 3:18-cr-00421-
BEN-2
SEGUNDO MARCIAL DOMINGUEZ-
CAICEDO,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-50271
Plaintiff-Appellee,
D.C. No.
v. 3:18-cr-00421-
BEN-3
VICTOR GASPAR CHICHANDE,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-50274
Plaintiff-Appellee,
D.C. No.
v. 3:18-cr-00421-
BEN-1
ANDRIAN ANDRES CORTEZ-
QUINONEZ, AKA Andrian Andres
Quinonez-Cortez, OPINION
Defendant-Appellant.
2 UNITED STATES V. DOMINGUEZ-CAICEDO
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted July 29, 2021
Pasadena, California
Filed July 18, 2022
Before: MILAN D. SMITH, JR. and KENNETH K. LEE,
Circuit Judges, and EDUARDO C. ROBRENO, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
UNITED STATES V. DOMINGUEZ-CAICEDO 3
SUMMARY **
Criminal Law
The panel affirmed Adrian Andres Cortez-Quinonez’s,
Segundo Marcial Domingez-Caicedo’s, and Victor Gaspar
Chichande’s convictions for conspiring to distribute cocaine
on board a vessel, possession of cocaine with intent to
distribute on board a vessel, and aiding and abetting;
affirmed Dominguez-Caicedo’s and Cortez-Quinonez’s
sentences; vacated Chichande’s sentence; and remanded for
Chichande’s resentencing.
Coast Guard officers boarded a suspicious panga boat
carrying the defendants near the Galapagos Islands after the
boat ignored warnings to stop. Officers then detained the
defendants, and the Coast Guard transferred them to a series
of Coast Guard cutters, eventually transferring them to DEA
custody in Long Beach, where a DEA agent had each
defendant sign a Rule 5 waiver that allowed them to be
transferred to San Diego instead of going before a magistrate
judge in Long Beach.
The defendants moved to dismiss the indictment for
outrageous government conduct based on their treatment
aboard the Coast Guard cutters. In order to secure dismissal
of an indictment due to outrageous government conduct, a
defendant must show a nexus between the conduct and either
securing the indictment or procuring the conviction. The
defendants claimed that the nexus between the
Government’s conduct and securing the indictment is
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. DOMINGUEZ-CAICEDO
satisfied because if the Coast Guard had chosen to treat the
defendants and other detainees humanely, they couldn’t have
conducted their Pacific operations. The panel wrote that this
is not the type of nexus this court generally considers
sufficient to establish outrageous government conduct
requiring dismissal of an indictment, noting that nearly all
police actions are broadly connected to securing indictments.
The panel wrote that the Ninth Circuit appears to have
assumed without deciding that outrageous government
conduct could apply to conditions of confinement, so long as
there is a nexus between the conduct and securing the
indictment or conviction. Because there is no nexus here,
the panel did not revisit that conclusion. The defendants
argued that even if outrageous government conduct does not
require dismissal of the indictment, the district court should
have used its supervisory powers to provide the same
remedy, asserting that the government should tread lightly in
international waters, and the court should not condone
mistreatment of foreigners with no connection to the United
States. The panel wrote that pursuant to United States v.
Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995), that is not a
sufficient reason to hold that the district court abused its
discretion by not dismissing the indictment. The panel
therefore affirmed the district court’s denial of the
defendants’ motions to dismiss the indictment.
The defendants also sought to dismiss the indictment for
violation of Fed. R. Crim. P. 5, which requires that the
Government bring defendants before a magistrate judge
without unnecessary delay. The panel held that a court has
the power to dismiss an indictment for egregious violations
of Rule 5, and that the proper inquiry is whether
transportation to the United States as a whole was
unnecessarily delayed, rather than whether there was some
other district in the United States in which the defendant
UNITED STATES V. DOMINGUEZ-CAICEDO 5
could have been brought before a magistrate judge more
quickly. The panel held that the district court did not clearly
err in its determination that 23 days was not an unreasonable
delay, given that the Coast Guard needed to transport the
defendants from near the Galapagos Islands to San Diego.
The panel therefore concluded that the Coast Guard’s
decision to take the defendants to California, rather than
Florida, did not violate Rule 5. The panel also held that the
district court did not clearly err in finding that the delays
between arrival in Long Beach and presentment before a
magistrate judge in San Diego were reasonable. Because the
panel held that the Government did not violate Rule 5, it did
not need to examine whether the defendants voluntarily
signed their Rule 5 waivers, or whether the facts of this case
present a Rule 5 violation that warrants dismissal of the
indictment.
Cortez-Quinonez argued that even if there was no Rule
5 violation, his statement still should have been suppressed
because it was involuntary. The panel held that the district
court did not err by finding that the statement was voluntary
under the Due Process Clause, where, at the time he gave his
statement, Cortez-Quinonez was no longer experiencing the
coercive government misconduct he alleged is the treatment
he received on the Coast Guard cutter.
The panel next addressed the defendants’ prosecutorial
misconduct claims. The panel held that the prosecutor’s use
of a “drug trafficker’s playbook” analogy during closing
argument did not constitute prosecutorial misconduct
because the prosecutor’s references to a “playbook” were not
meant to imply that there was an actual playbook in
evidence; instead, the prosecutor used the analogy to explain
why the defendants did what they did. Rejecting the
contention that the prosecutor committed misconduct by
6 UNITED STATES V. DOMINGUEZ-CAICEDO
arguing in closing that Dominguez-Caicedo was in charge
but arguing at sentencing that Cortez-Quinonez was the
leader, the panel wrote that the prosecutor did not argue facts
that he knew were untrue, and that it was not inconsistent for
him to point out all of these facts about Dominguez-Caicedo
and Cortez-Quinonez both in closing argument and at
sentencing. For the same reasons, the panel rejected Cortez-
Quinonez’s argument that the prosecutor’s alleged
misconduct resulted in depriving him of a minor role
reduction, violating his right to due process. The panel held
that the prosecutor’s statement that “throwing cocaine
overboard on a vessel is knowing possession of cocaine” was
harmless error in the context of the entire trial.
In order to corroborate his duress defense, Dominguez-
Caicedo attempted to call as an expert witness an attorney
who grew up near where Dominguez-Caicedo lived in
Colombia, and who would have testified that he is aware that
armed criminal paramilitary groups in the area kidnap,
intimidate, and use violence to further their criminal
enterprises. Dominguez-Caicedo contended that, in
excluding the testimony, the district court’s focus on the
Daubert factors of reliable principles and methods was
misplaced, where the subject of the testimony was to be his
knowledge and experience, rather than his scientific
analyses. The panel held that, given the extremely broad
latitude the Supreme Court has said district courts have in
conducting this inquiry, the district court did not abuse its
discretion by looking at these particular factors and finding
the proposed witness’s testimony wanting.
All three defendants challenged the district court’s denial
of their requests for minor role reductions at sentencing. The
panel clarified how district courts should conduct the minor
role analysis. To be eligible for either a “minimal” role
UNITED STATES V. DOMINGUEZ-CAICEDO 7
adjustment, which comes with a guidelines reduction of at
least four levels, U.S.S.G. § 3B1.2(a), cmt. 4, or a “minor’
role adjustment, which provides a reduction of at least two
levels, id. at cmt 5, the defendant must be substantially less
culpable than the average participant in the criminal activity.
The relevant comparison is to the other participants in the
defendant’s crime, not to typical defendants who commit
similar crimes. To determine whether a defendant is
substantially less culpable than the average participant in the
offense, a district court must (1) identify all of the
individuals for whom there is sufficient evidence of their
existence and participation in the overall scheme;
(2) calculate a rough average level of culpability for these
individuals, taking into consideration the five factors in
comment 3(C) to the Mitigating Role Guideline; and
(3) compare the defendant’s culpability to that average.
The panel agreed with Chichande that the district court’s
exclusion of his recruiter from the analysis was erroneous
because the proper comparison is the average of all of the
individuals who participated in Chichande’s offense,
including those that the district court believed were leaders
or organizers or who were otherwise highly culpable.
Because the district court misunderstood the appropriate
legal standard, the panel vacated Chichande’s sentence and
remanded for the district court to conduct the minor role
analysis applying the correct legal standard. The panel
concluded that the Government did not meet its burden of
establishing that any error was harmless.
The panel held that the district court did not abuse its
discretion in denying Cortez-Quinonez a minor role
adjustment. The panel wrote that the fact that illicit drugs
are often traceable to larger drug trafficking organizations
does not mean that district courts must compare the conduct
8 UNITED STATES V. DOMINGUEZ-CAICEDO
of each defendant convicted of a drug crime to that of every
hypothetical member of a drug trafficking organization; the
relevant comparators are the actual participants in the
defendant’s crime, and the district court is not required to
compare the defendant’s culpability with that of the
unidentified person.
The panel held that the district court likewise did not err
in denying Dominguez-Caicedo a minor role reduction. The
panel wrote that the district court did not determine that the
“guys with guns” and the “man who commandeered Mr.
Dominguez” were “likely participants,” and therefore did
not err by excluding them from the comparison. Because
Dominguez-Caicedo did not properly object to the
Presentence Report at all, the district court was not required
to address his argument raised for the first time in his
sentencing memorandum—and never mentioned during the
sentencing hearing—that there was sufficient evidence that
the individuals identified were involved in the crime.
UNITED STATES V. DOMINGUEZ-CAICEDO 9
COUNSEL
Robert H. Rexrode III, Law Offices of Robert Rexrode, San
Diego, California, for Defendant-Appellant Segundo
Marcial Dominguez-Caicedo.
Michael Marks (argued), Federal Defenders of San Diego
Inc., San Diego, California, for Defendant-Appellant
Andrian Andres Cortez-Quinonez.
Mark F. Adams, Law Offices of Mark F. Adams, San Diego,
California, for Defendant-Appellant Victor Gaspar
Chichande.
D. Benjamin Holley (argued), Assistant United States
Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal
Division; Robert S. Brewer, Jr., United States Attorney;
United States Attorney’s Office, San Diego, California; for
Plaintiff-Appellee.
10 UNITED STATES V. DOMINGUEZ-CAICEDO
OPINION
M. SMITH, Circuit Judge:
The defendants in these three consolidated cases—
Adrian Andres Cortez-Quinonez, Segundo Marcial
Dominguez-Caicedo, and Victor Gaspar Chichande—were
convicted of conspiring to distribute cocaine on board a
vessel, possession of cocaine with intent to distribute on
board a vessel, and aiding and abetting. In this appeal, they
challenge the district court’s denial of their pre-trial motions
to dismiss the indictment. Defendants also argue that the
prosecutor committed misconduct in his closing argument.
Individually, Dominguez-Caicedo contends that the district
court improperly excluded expert testimony that supported
his duress defense. Cortez-Quinonez individually appeals
the district court’s decision not to suppress his post-arrest
statements. He also argues that the prosecutor committed
misconduct by arguing at his sentencing that Cortez-
Quinonez was the ringleader, after arguing at trial that
Dominguez-Caicedo was in charge. Finally, all three
defendants argue that the district court erred by not granting
them minor role reductions at sentencing. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the
defendants’ convictions and Dominguez-Caicedo’s and
Cortez-Quinonez’s sentences. We vacate Chichande’s
sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On December 31, 2017, the Coast Guard cutter Stratton
spotted a suspicious vessel—a 30- to 40-foot “panga” boat—
carrying the three defendants near the Galapagos Islands.
The Coast Guard observed the vessel and determined that it
had no indicia of nationality. From a Coast Guard
helicopter, Officer Charles Arena activated the helicopter’s
UNITED STATES V. DOMINGUEZ-CAICEDO 11
blue law-enforcement lights and broadcast a message to the
boat via maritime radio in English and Spanish, informing
the vessel that the United States Coast Guard was ordering
them to halt. When the panga did not stop, Arena ordered
the “precision marksman” onboard the helicopter to fire
warning shots into the water in front of the panga, some of
which contained an orange tracer that makes the shots more
visible. After discharging the warning shots, Arena
observed “the occupants onboard start to throw items
overboard,” including “packages that were tied together.”
The Coast Guard later determined that the packages were
attached to a “GPS buoy” that was also thrown overboard.
When the panga still did not stop, the marksman fired two
more warning shots into the water aft of the panga’s engine,
apparently to signal that those on board should move away
from the engine, and then shot out the engine. Dominguez-
Caicedo testified that by the time he saw the helicopter, it
was shooting at the panga. He did not know that it was a
U.S. Coast Guard helicopter. Cortez-Quinonez stated that
he thought the shots from the helicopter were going to kill
them.
Three officers from the Coast Guard then boarded the
panga. Dominguez-Caicedo told the officers who boarded
the panga that they had been out fishing. Cortez-Quinonez
identified himself as the “master” of the vessel through an
interpreter, to one of the Coast Guard officers. Cortez-
Quinonez gave the officers his Ecuadorian identification
card. The other two defendants said that they did not have
any identification with them. The Coast Guard then detained
the three defendants and transferred them to the Stratton.
Several days later, on January 2, 2018, they were transferred
to the Northland, another Coast Guard vessel, where they
were detained until January 3.
12 UNITED STATES V. DOMINGUEZ-CAICEDO
On board the Stratton, according to Officer Welzant of
the Coast Guard, the standard protocol dictates that each
detainee is given an initial medical screening by the medical
corpsman—essentially a nurse. They are not told where they
are headed, they do not get an opportunity to contact their
families, and they do not know how long they will be on
board. Detainees are chained to a cable that runs the length
of the deck inside the helicopter hangar (emptied of
helicopters). Each detainee is chained to the cable using an
eighteen-inch ankle shackle. The detainees remain chained
at all times of the day and night, except for trips to the
bathroom and approximately one hour per day of exercise
time, during which the detainees are permitted to walk freely
on the deck. Detainees can shower periodically. Cortez-
Quinonez testified that he was forced to shower with the
other two defendants while officers laughed at their “private
parts and how [they] were naked,” though it was not clear on
which cutter this allegedly occurred. Welzant stated that
there were no group showers on the Stratton. Welzant
testified that detainees are escorted to use the restroom upon
request, unless the crew is launching a helicopter or a small
boat, which would take approximately ten minutes.
However, the Stratton’s detainee logbook showed that the
three defendants were rarely taken to the restroom between
6:30 p.m. and 7:00 a.m. the next morning. When the three
defendants in this case were detained, there were thirty-
seven total detainees on board the Stratton.
Welzant testified that Defendants were provided with
mats approximately half an inch thick on which to sleep.
The Coast Guard confiscated the clothes that the defendants
were wearing and gave them disposable Tyvek painters’
coveralls to wear instead. These coveralls often ripped and
exposed detainees. Each person also routinely receives a
blanket. Detainees are fed three meals per day, primarily
UNITED STATES V. DOMINGUEZ-CAICEDO 13
consisting of rice and beans, supplemented with fruit
approximately every other day. A jug of water is accessible
to detainees at all times. Welzant stated that the detainees
are also provided with dominoes, cards, and Spanish-
language Bibles. Officer Jordan Groff testified to the
conditions aboard the Northland, which were substantially
similar to those on board the Stratton, except that the
detainees ate eggs, potatoes, toast, enchiladas, spaghetti, and
chicken, rather than rice and beans.
On January 3, 2018, the defendants were transferred to
another Coast Guard cutter, the Mohawk. The defendants
were transferred to the Mohawk—which was heading for
Florida—because the Coast Guard suspected that the
Department of Justice would prosecute the case in Florida.
On the Mohawk, the detainees were kept on the top deck,
exposed to the elements. According to Coast Guard officer
Kristopher Meyer, the crew erects a tent on that deck while
detainees are on-board to provide some shelter from the
elements. The Mohawk crew does not provide any sleeping
mats, though they do give each detainee a blanket and a
towel.
While the defendants were on the Mohawk, there were
numerous rain squalls, which caused the deck to become
wet. When it rained during the night, the detainees would
either have to stand up or try to sleep while laying on the wet
deck. On the Mohawk, detainees were served rice and beans
for every meal. The defendants testified that the rice and
beans were very undercooked, and that these meals resulted
in them suffering gastrointestinal distress. The Mohawk’s
detainee log shows that Gaspar Chichande refused five
meals in a row, and that Cortez-Quinonez and Dominguez-
Caicedo refused three meals in a row. Cortez-Quinonez
14 UNITED STATES V. DOMINGUEZ-CAICEDO
testified that he was denied medical care on board the
Mohawk, despite complaining of pain.
The defendants were aboard the Mohawk for five days.
On January 8, 2018, they were transferred back to the
Stratton—which was heading to California—because the
Department of Justice had designated the Southern District
of California as the prosecuting district. If the defendants
had remained on the Mohawk, they would have arrived in
Florida on January 17, 2018. However, the Coast Guard
determined that there was no aircraft available to fly the
defendants from Florida to California to prosecute them in
the designated district.
On January 16, 2018, the defendants were transferred
from the Stratton to their final cutter, the Active. The
conditions of confinement on the Active were similar to
those on the Stratton, except that the area where the
defendants were shackled was protected from the elements
only by a canvas tarp, and the sleeping mats provided were
an inch-and-a-half thick. In addition, the temperature
dropped as low as 50 degrees during the time the defendants
were onboard the Active. Dominguez-Caicedo testified that
he was extremely cold on the Active.
Dominguez-Caicedo and Cortez-Quinonez testified that
the shackles and living conditions onboard the cutters caused
them significant physical pain. A psychologist, Dr. Julia
Kuck, testified as an expert witness at the defendants’
motion to dismiss hearing. Dr. Kuck had interviewed
Gaspar Chichande and diagnosed him with post-traumatic
stress disorder (PTSD) with dissociative symptoms and
panic attacks. This diagnosis was based on antecedent
traumatic events such as childhood neglect, abandonment,
and trauma. Dr. Kuck testified that the “primary triggering
event” for Gaspar Chichande’s PTSD was the Coast Guard
UNITED STATES V. DOMINGUEZ-CAICEDO 15
helicopter firing its gun at the panga. She also referred to the
treatment aboard the Coast Guard cutters as psychological
torture due to “unrelenting cold,” “wet conditions on deck,”
“feral treatment of individuals,” and “induced desperation.”
The Coast Guard had intended to land the Active in San
Diego, but due to bad weather, it was prevented from doing
so. Instead, the Active landed in Long Beach on January 22,
2018, where DEA Agent Brandon Pullen met the ship and
took custody of the defendants. Pullen testified that none of
the three defendants appeared to be ill or under the influence
of drugs or alcohol. Pullen had each defendant sign a Rule
5 waiver that allowed them to be transferred to San Diego
instead of going before a magistrate judge in Long Beach.
The waivers also advised Defendants that they were entitled
to remain silent and to have an attorney appointed to
represent them.
Pullen then advised each defendant of his Miranda rights
in Spanish through another DEA agent, who served as an
interpreter. Each defendant signed a Miranda waiver. After
signing the waiver, Cortez-Quinonez made incriminating
statements that suggested he knew that he was transporting
drugs. At a pre-trial hearing, Cortez-Quinonez testified that
at the time he signed the Miranda form, he did not
understand that a lawyer could be appointed for him free of
charge; the form does not specify that the appointed attorney
would be free of charge. The statements were nonetheless
introduced at trial. The jury convicted the defendants on all
charges.
STANDARDS OF REVIEW
We review de novo the district court’s decision on the
motion to dismiss for outrageous government conduct, and
we review for abuse of discretion the district court’s decision
16 UNITED STATES V. DOMINGUEZ-CAICEDO
not to use its supervisory powers to dismiss the indictment.
United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991).
We review “a district court’s finding that a pre-arraignment
delay was reasonable for clear error.” United States v. Liera,
585 F.3d 1237, 1242 (9th Cir. 2009) (citation omitted).
In reviewing alleged prosecutorial misconduct to which
a defendant objected at trial, we review under the harmless
error standard. United States v. Alcantara-Castillo, 788 F.3d
1186, 1190 (9th Cir. 2015). Under the harmless error
standard, we must view “the challenged conduct in the entire
context of the trial, and reverse only if it appears more
probable than not that prosecutorial misconduct materially
affected the fairness of the trial.” Id. (citation and internal
quotation marks omitted). If the defendant does not
contemporaneously object, we review the alleged
misconduct for plain error. Id. Under plain error, “[w]e may
reverse if (1) there was error; (2) it was plain; (3) it affected
the defendant’s substantial rights; and (4) viewed in the
context of the entire trial, the impropriety seriously affected
the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1190–91 (citation and internal quotation
marks omitted). Furthermore, where a defendant alleges
multiple instances of misconduct, we must consider the
combined prejudicial effect of the misconduct. Berger v.
United States, 295 U.S. 78, 89 (1935). In considering the
cumulative effect of alleged misconduct, where the
defendant objected to some—but not all—of the alleged
misconduct, we review for plain error. Alcantara-Castillo,
788 F.3d at 1191.
UNITED STATES V. DOMINGUEZ-CAICEDO 17
ANALYSIS
A
Prior to trial, the defendants moved to dismiss the
indictment for outrageous government conduct based on
their treatment aboard the Coast Guard cutters. They also
sought to dismiss the indictment for violation of Federal
Rule of Criminal Procedure 5, which requires that the
Government bring defendants before a magistrate judge
without unnecessary delay.
“The argument that an indictment must be dismissed
because of outrageous government conduct is derived from
a comment by the Supreme Court in United States v. Russell,
411 U.S. 423 (1973),” in which the Court distinguished a
claim of outrageous government conduct from a claim of
entrapment. Restrepo, 930 F.2d at 712. While entrapment
depends on the defendant’s criminal predisposition, “[a]n
indictment may be set aside because of outrageous
government conduct whether or not the defendant was
predisposed to engage in criminal activity.” Id. (citation
omitted).
“In order to show outrageous government conduct,
defendants must show conduct that violates due process in
such a way that it is ‘so grossly shocking and so outrageous
as to violate the universal sense of justice.’” United States
v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011) (quoting
Restrepo, 930 F.2d at 712). A claim of outrageous
government conduct is “a claim that government conduct in
securing an indictment was so shocking to due process
values that the indictment must be dismissed.” United States
v. Nickerson, 731 F.3d 1009, 1015 (9th Cir. 2013) (citation
omitted). Therefore, in order to secure dismissal of an
indictment due to outrageous government conduct, a
18 UNITED STATES V. DOMINGUEZ-CAICEDO
defendant must show a nexus between the conduct and either
“securing the indictment or [ ] procuring the conviction.” Id.Defendants claim that the nexus between the
Government’s conduct and securing the indictment is
satisfied because “if the Coast Guard had chosen to treat
Appellants and other detainees humanely, they simply
couldn’t have conducted their Pacific operations.”
Specifically,
[o]ne officer testified that feeding rice and
beans [to the detainees] was the only
affordable way for the Coast Guard to
accomplish its mission. Another testified that
the excessive restraint of defendants resulted
from too few watchmen and too many
detainees. Coast Guard testified that it
couldn’t get detainees to shore because its
helicopters were old and didn’t have long
range. They claimed they couldn’t wait for
diplomatic clearance to get people off the
cutters because it would upset the ability to
patrol the ocean.
This is not the type of nexus that we generally consider
sufficient to establish outrageous government conduct
requiring dismissal of an indictment. For example, in
Nickerson, the defendant argued that her indictment should
have been dismissed based on “outrageous government
conduct of videotaping her while she was using the toilet in
a holding cell at the police station.” 731 F.3d at 1014. The
video camera that captured the defendant in Nickerson
served a variety of purposes, including “medical and security
concerns, such as if a detainee attempts suicide, if a physical
altercation occurs between detainees, or if a detainee
UNITED STATES V. DOMINGUEZ-CAICEDO 19
becomes progressively more intoxicated or sick in the
holding cell and needs medical attention.” Id. at 1011.
Furthermore, the cameras “deter abusive police conduct[.]”
Id. We held that “there was no nexus between that conduct
and the criminal proceeding at issue.” Id. at 1015.
Accepting Dominguez-Caicedo’s logic would have
compelled the opposite conclusion. After all, if a medical or
security concern resulted in the death of an arrested person,
that would preclude the prosecutor from securing an
indictment against that person. In other words, nearly all
police actions are broadly connected to securing indictments.
That cannot mean that all police actions have a nexus within
the meaning of the outrageous government conduct doctrine.
We have dismissed an indictment due to outrageous
government conduct in a published opinion only once, in
Greene v. United States, 454 F.2d 783 (9th Cir. 1971). In
Greene, “the government supplied the equipment and raw
material for a bootlegging operation and was the defendant’s
sole customer.” United States v. Mayer, 503 F.3d 740, 754
(9th Cir. 2007). We held that the government could not
“involve itself so directly and continuously over such a long
period of time in the creation and maintenance of criminal
operations, and yet prosecute its collaborators.” Greene,
454 F.2d at 787. The type of nexus in Greene between the
allegedly outrageous conduct and securing an indictment or
conviction is not present in this case.
Indeed, the development of the outrageous government
conduct concept suggests that it does not even apply to
conditions of pre-trial detention. For that reason, the
Eleventh Circuit has rejected claims similar to those
Defendants raise here. See United States v. Jayyousi,
657 F.3d 1085, 1112 (11th Cir. 2011) (holding that the
outrageous government conduct doctrine “does not apply” to
20 UNITED STATES V. DOMINGUEZ-CAICEDO
alleged mistreatment between arrest and indictment). Unlike
the Eleventh Circuit, our circuit appears to have assumed
without deciding that outrageous government conduct could
apply to conditions of confinement, so long as there is a
nexus between the conduct and securing the indictment or
conviction. E.g., Nickerson, 731 F.3d at 1015. Because
there is no nexus here, it is unnecessary to revisit that
conclusion.
Separate from the outrageous government conduct
claim, federal courts also “have inherent supervisory powers
to order dismissal of prosecutions” for three reasons: (1) to
remedy “the violation of a recognized statutory or
constitutional right”; (2) to ensure “that a conviction rests on
appropriate considerations validly before a jury”; and (3) “to
deter future illegal conduct.” United States v. Matta-
Ballesteros, 71 F.3d 754, 763 (9th Cir. 1995) (citation
omitted). Defendants argue that even if outrageous
government conduct does not require dismissal of the
indictment, the district court should have used its
supervisory powers to provide the same remedy. Their
reasoning rests on the assertion that the “government should
tread lightly in international waters, and the court should not
condone mistreatment of foreigners with no connection to
the United States.” Pursuant to Matta-Ballesteros, that is not
a sufficient reason to hold that the district court abused its
discretion by not dismissing the indictment. Therefore, we
affirm the district court’s denial of Defendants’ motions to
dismiss for outrageous government conduct.
B
Defendants’ joint Rule 5 claim requires us to determine
(1) whether dismissal of an indictment is a remedy available
for violation of Rule 5; and (2) if so, whether Defendants
have shown that they are entitled to this remedy. We hold
UNITED STATES V. DOMINGUEZ-CAICEDO 21
that a court has the power to dismiss an indictment for
egregious violations of Rule 5, but that the Government did
not violate Rule 5 in this case.
1
“A person making an arrest outside the United States
must take the defendant without unnecessary delay before a
magistrate judge[.]” Fed. R. Crim. P. 5(a)(1)(B). This is
termed the “‘presentment’ requirement,” and it is meant “to
prevent secret detention” and “inform a suspect of the
charges against him[.]” Corley v. United States, 556 U.S.
303, 306 (2009). The predecessor to Rule 5(a) was McNabb
v. United States, 318 U.S. 332 (1943), in which the Supreme
Court held that “unwarranted detention” between arrest and
presentment “led to tempting utilization of intensive
interrogation.” Mallory v. United States, 354 U.S. 449, 453
(1957). “[I]t was deemed necessary to render inadmissible
incriminating statements elicited from defendants during a
period of unlawful detention.” Id. Thus, the normal remedy
for violation of Rule 5 is suppression of statements made
during the unnecessary delay. Id. When an individual does
not make any incriminating statements during the delay in
presentment, we have previously suggested that vacating the
conviction and dismissing the indictment is a “drastic
remedy” that the court can “invoke.” United States v.
Jernigan, 582 F.2d 1211, 1214 (9th Cir. 1978). However,
we appear never to have granted that remedy in any prior
case.
In Bayless v. United States, 381 F.2d 67, 70–71 (9th Cir.
1967), we affirmed the district court’s denial of a motion to
dismiss based on violation of Rule 5(a). We held that
because the Government did not obtain any incriminating
evidence between arrest and presentment, the defendant was
not prejudiced by the Government’s violation of Rule 5(a).
22 UNITED STATES V. DOMINGUEZ-CAICEDO
Id. at 71. Consequently, the motion to dismiss the
indictment “was correctly denied.” Id.; see United States v.
Mejia, 39 F. App’x 568, 569–70 (9th Cir. Apr. 29, 2002)
(finding that a thirteen-day delay in presentment, while
“reprehensible,” did not warrant dismissal of the
indictment). Conversely, in United States v. Osunde, 638 F.
Supp. 171, 176 (N.D. Cal. 1986), the Northern District of
California reasoned that a 106-day delay between arrest and
presentment was a “flagrant” violation of Rule 5(a). And
“[a]lthough the Court [could not] point to case law
supporting dismissal, rather than suppression of evidence,
for flagrant violations of Rule 5(a),” it held that Osunde’s
lengthy delay—with no incriminating evidence to
suppress—made dismissal of the indictment appropriate. Id.at 176–77.
The Second and Eighth Circuits have outright rejected
dismissal of the indictment as a remedy for violation of Rule
5, with holdings that appear to foreclose dismissal even in
egregious circumstances. United States v. Peeples, 962 F.3d
677, 687–88 (2d Cir. 2020); United States v. Cooke,
853 F.3d 464, 471 (8th Cir. 2017) (holding that because the
purpose of Rule 5 is to deter purposeful delay in presentment
in order to extract a confession, “the appropriate remedy for
a violation of Rule 5(a)(1)(A) is not dismissal of an
indictment, but suppression of evidence illegally obtained as
a result of the violation.”). However, we are bound by
Bayless and Jernigan, both of which determined that
dismissal could be a remedy for particularly egregious
violations of Rule 5 where no other relief is available. Thus,
we examine whether the Government violated Rule 5.
Because we conclude that it did not, we need not reach the
question of whether the district court should have dismissed
the indictment on that basis.
UNITED STATES V. DOMINGUEZ-CAICEDO 23
2
Defendants argue that the Government violated Rule
5(a) by (1) having Defendants travel to California instead of
Florida; and (2) having Defendants sign Rule 5 waivers that
then allowed the Government to interrogate them before
presentment, which took place the day after they arrived in
the United States.
“Whether or not undue delay occurred . . . must be
determined upon the individual facts of each case.” Gray v.
United States, 394 F.2d 96, 100 (9th Cir. 1967). The district
court found that “the 23-day delay [between interdiction and
arraignment] was reasonable” because “[o]n average, it takes
20 days to transport a detained individual from the Eastern
Pacific to the U.S.” Further, the district court stated, “the
coast guard needed to determine which district in the United
States would be responsible for the prosecution of the case
and, therefore[,] where the defendants would be
transported.” According to the district court, the officer in
charge of “figuring out how to transport the defendants to
this district as quickly as possible” considered several
options, including taking the defendants by ship to Florida,
with a connecting flight to San Diego. However, because
“[e]ach of these options had drawbacks,” the officer
“determined that transporting via coast guard cutter [to San
Diego] was the most expeditious way of transporting [the
defendants].” Finally, the district court stated that the
timeline of transportation to San Diego and presentment the
next morning constituted “bringing the defendants before a
magistrate judge without unnecessary delay.”
i
First, Defendants contend that the district court engaged
in the wrong inquiry when examining their transportation to
24 UNITED STATES V. DOMINGUEZ-CAICEDO
California. Instead of asking whether the Government
transported Defendants to the prosecuting district without
unnecessary delay, Defendants claim that the district court
should have asked whether the Government transported
Defendants to a magistrate judge without unnecessary
delay. 1 It is undisputed that Defendants could have arrived
in Florida five days earlier than they arrived in California.
The issue is whether delay caused by the choice to transport
Defendants directly to the prosecuting district (California, in
this case) is an “unnecessary” delay for Rule 5 purposes.
The district court implicitly held that it was not, and we
agree.
Until now, we have not addressed whether a delay in
arraignment caused by the Government’s choice to send a
defendant interdicted on the high seas directly to the
prosecuting district (rather than the closest magistrate judge)
is “unnecessary delay.” In the Fourth Amendment
unreasonable seizure context, the Supreme Court has stated
that “[e]xamples of unreasonable delay [in presentment] are
delays for the purpose of gathering additional evidence to
justify the arrest, a delay motivated by ill will against the
arrested individual, or delay for delay’s sake.” Cnty. of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). In
McLaughlin, the Court specifically cited the “often
unavoidable delays in transporting arrested persons from one
facility to another” as a “practical realit[y]” that would not
qualify as unreasonable. Id. at 57.
1
Defendants’ joint brief incorrectly states that Rule 5(a) requires
transportation to “the nearest available magistrate.” This was the
language in an outdated version of Rule 5. The current language does
not require that Defendants be transported to the nearest magistrate, only
that they are transported to one without unnecessary delay.
UNITED STATES V. DOMINGUEZ-CAICEDO 25
Other courts that have addressed delays in presentment
of defendants arrested on the high seas have uniformly held
that such delays are reasonable. See, e.g., United States v.
Savchenko, 201 F.R.D. 503, 506 (S.D. Cal. 2001) (holding
that sixteen days to transport defendants apprehended
500 nautical miles from Mexico to the Southern District of
California was reasonable); United States v. Barahona-
Estupinan, 2004 WL 7333779, at *5 (S.D. Cal. Mar. 19.
2004) (six days to transport Defendants from near the
Mexico-Guatemala border to San Diego was not
unreasonable); United States v. Torres-Iturre, 2016 WL
2757283, at *3–4 (S.D. Cal. May 12, 2016) (twenty-one days
to transport Defendants 2439 nautical miles to San Diego
was reasonable); United States v. Aragon, 2017 WL
2889499, at *14 (S.D.N.Y. Jul. 5, 2017) (sixteen-day delay
caused by transporting Defendants from the Pacific Ocean
to New York for prosecution was not unreasonable).
Importantly, none of these cases compare the time it took
the Government to bring the defendants to the prosecuting
district to the time it would have taken to bring the
defendants to the closest district. The Eleventh Circuit
addressed this distinction, writing that “the MDLEA does
not prohibit the government from taking offenders to Florida
rather than California” because “[a] person violating the
MDLEA may be tried in any district, if the offense was
begun or committed upon the high seas.” United States v.
Cabezas-Montano, 949 F.3d 567, 591 (11th Cir. 2020)
(citation and internal quotation marks omitted). Therefore,
the Eleventh Circuit said, “the issue here is not where the
defendant was taken, but why it took the government 49 days
to present the defendant arrested outside the United States
before a magistrate judge in the United States for a probable
cause hearing.” Id. The court then applied the Eleventh
Circuit’s test for determining whether a particular delay was
26 UNITED STATES V. DOMINGUEZ-CAICEDO
unnecessary. Id. at 591–92. Like the Eleventh Circuit, we
hold that the proper inquiry is whether transportation to the
United States as a whole was unnecessarily delayed, rather
than whether there was some other district in the United
States in which the defendant could have been brought
before a magistrate judge more quickly.
The district court did not clearly err in its determination
that twenty-three days was not an unnecessary delay, given
that the Coast Guard needed to transport Defendants from
near the Galapagos Islands to San Diego. In fact, Defendants
do not contend that twenty-three days was an unreasonable
amount of time to reach California. We therefore conclude
that the Coast Guard’s decision to take Defendants to
California, rather than Florida, did not violate Rule 5.
ii
There was a second period of delay between Defendants
arriving in Long Beach and their presentment in San Diego.
Defendants argue that this period of delay also violated Rule
5. Although they signed Rule 5 waivers in Long Beach,
Defendants say that this was involuntary. Defendants also
contend that the waiver only excused the Government from
presenting them to a magistrate judge in Long Beach; it did
not allow delay of presentment once Defendants arrived in
San Diego.
Defendants arrived in Long Beach on January 22 at
approximately 11:30 a.m., and cleared customs at 11:50 a.m.
Agent Pullen took Defendants to the San Diego DEA office,
arriving about 3:00 p.m. (with a stop for food at In-N-Out).
That morning or the day before, Pullen had made an
appointment for the 5:30 p.m. booking window for the
defendants at the prison in San Diego. After Mirandizing
Defendants, Pullen conducted brief interviews with each (ten
UNITED STATES V. DOMINGUEZ-CAICEDO 27
to twenty minutes), and then took them to the prison for
booking. They went before a magistrate judge the next
morning, January 23.
We have never addressed whether the standard
procedures for booking arrestees in the Southern District of
California violate Rule 5. However, numerous district courts
have concluded that they do not. In United States v. Lauina,
2016 WL 1573195, at *1 (S.D. Cal. Apr. 18, 2016), the
district court found “it necessary to revisit the current
presentment procedures” because “certain detainees are still
not presented on either the day of their arrest or the day
following their arrest.” The court explained, “In this district,
rather than transporting detainees directly to a Magistrate
Judge, arresting agents take detainees to the Metropolitan
Correctional Center (“MCC”) for initial processing.” Id.This is because “the MCC provides the necessary function
of organizing detainees prior to their initial appearance.” Id.The court wrote that “bringing detainees directly to the Court
would likely be disorganized, cause unsafe conditions, and
be an inefficient use of the Court’s time.” Id. At the time of
Lauina, “[t]he MCC maintain[ed] three booking windows
each day at approximately 9:00 a.m., 12:30 p.m., and
5:00 p.m.” Id. at *2.
Following Lauina, in United States v. Portocarrero-
Angulo, 2017 WL 3283856, at *8 (S.D. Cal. Aug. 1, 2017),
the district court rejected an international-waters defendant’s
argument that a Friday-to-Monday delay between arrival in
San Diego and presentment was unnecessary. The court
wrote, “General Order No. 605 of this Court requires the
Department of Justice, through the Bureau of Prisons and the
U.S. Marshal Service, to ensure that every detainee being
brought before the Court has been screened for and
determined not to have transmittable tuberculosis.” Id. The
28 UNITED STATES V. DOMINGUEZ-CAICEDO
court went on to state that “[t]he need to complete this
screening makes the delay between Defendant’s arrival in
San Diego on Friday afternoon and his presentment the next
Monday reasonable.” Id.Defendants arrived in Long Beach around 11:50 a.m., so
the 5:30 p.m. booking window was the earliest available.
Although Cortez-Quinonez states that the Magistrate Judge
was arraigning defendants until “at least 5 p.m.,” that does
not support the contention that Defendants could have been
arraigned after their tuberculosis screening at 5:30 p.m.
Furthermore, there is no evidence that Pullen purposely
delayed the booking and presentment to interrogate the
defendants. Under these circumstances, the district court’s
finding that the delays in presentment were reasonable was
not clearly erroneous. Because we hold that the Government
did not violate Rule 5, we need not examine whether
Defendants voluntarily signed their Rule 5 waivers, or
whether the facts of this case present a Rule 5 violation that
warrants dismissal of the indictment.
C
Cortez-Quinonez also argues that in the event we find
that there was no Rule 5 violation, his statement still should
have been suppressed because it was involuntary.
Upon arrival at the DEA office in San Diego, Cortez-
Quinonez and the Spanish-language interpreter had the
following exchange in Spanish, which has been translated
into English. Per the court translator, “Non-standard
spelling, word choice and grammar in English reflect the
manner of the Spanish spoken, and have been underlined.
Ambiguous utterances have been rendered with different
UNITED STATES V. DOMINGUEZ-CAICEDO 29
possibilities (or inferred meaning) in brackets.” 2
Additionally, words the agent spoke in English are italicized.
Agent: Okay. Before doing it any questions,
you have to understand your rights. You
have… right to… remeintz silent. Anything
that you say can be useds against you. Before
of a kert. Before doing it any questions, you
have the right to consult an attorney. You
have the right to have an attorney present
during the… inter-egation. In the event of
not being able to pay for the services of a
attorney, and if you so wish, an [would/were
to] be… appointed… before doing it any
questions. Have you understood
[his/her/its/your] rights?
Cortez-Quinonez: Yes.
Agent: Okay. Are you availab-, wel-, willing
to answer somes questions, or do you want an
attorney?
Cortez-Quinonez: Yes, I am willing to… to
the questions, because… now, being here—
you do understand me?—one, one’s family
members—you understand me?—things,
how they are in [one’s] country… when one
suffers from hardship…
2
We have reproduced the translation of the transcript exactly as it
appears in the record. The translation appears to be a literal word-for-
word substitution of English for Spanish.
30 UNITED STATES V. DOMINGUEZ-CAICEDO
Agent: Yes, but, are you sure, or, or… do you
want an attorney?
Cortez-Quinonez: [Okay…/What?] There,
there isn’t, there isn’t any money to pay an…
Agent: That’s fine. The, uh, here, in this
country, they give you an… attorney. You
don’t have to pay.
[pause]
Agent: So, so, do you want to talk, or [does
he/does she/do you] want to wait? Until
speaking with your attorney.
Cortez-Quinonez: But, the attorney, [until
when/for how long]? This morning?
Agent: Yes, but… [that’s that/nothing can be
done]. You can’t… leave. You do
understand me?
[pause]
Agent: So, do you want to wai’ for, for… an
attorney?
Cortez-Quinonez: No, well, my buddy
doesn’t have [enough] for… an attorney
neither, just the… the questions—you do
understand me?
Agent: Okay, so, you want to talk?
UNITED STATES V. DOMINGUEZ-CAICEDO 31
[pause]
Agent: Okay. so put yours… initials here, at
each point. And then, “have you… uh,
understood [his/her/its/their/your] rights?”
put “yes.” And then “are you are willid to
asnwer somes questions”, “yes.” Okay? So,
initials, at each point…
Cortez-Quinonez: [UI] the, of my first name,
or—
Agent: —Mm-hmm—
Cortez-Quinonez: —of my last name?
Agent: Yes. Your, uh, first name.
Cortez-Quinonez: My first name. Like that,
like it is here, written down?
Agent: Yes. Mm-hmm.
....
Agent: And then, here, uh… that “yes,” you
have understood.
[pause]
Agent: And then, here, that “yes,” you want
to talk.
[pause]
32 UNITED STATES V. DOMINGUEZ-CAICEDO
Agent: Initials, at each point.
Cortez-Quinonez: Just of my name?—
Agent: —Yes.
[pause]
Agent: Okay, and the [Ø] goes; put your
signature, here.
[pause]
Agent: Thank you.
Cortez-Quinonez then gave an incriminating statement that
was used against him at trial.
Pursuant to the Due Process Clause, a statement is
voluntary only if it is “the product of a rational intellect and
a free will.” Blackburn v. Alabama, 361 U.S. 199, 208
(1960). “[T]he characteristics of the accused and the details
of the interrogation” are relevant considerations. United
States v. Kelley, 953 F.2d 562, 564–65 (9th Cir. 1992).
However, introduction of a statement at trial that was given
without “coercive government misconduct” does not violate
the Due Process Clause. Colorado v. Connelly, 479 U.S.
157, 163 (1986). It appears that the only coercive
government misconduct Cortez-Quinonez has alleged is his
treatment on board the Coast Guard cutter. However, at the
time Cortez-Quinonez gave his statement, he was no longer
experiencing this treatment. Cortez-Quinonez was advised
of his rights, indicated he understood them, asked a
clarifying question about his right to counsel, and then gave
an inculpatory statement. The district court did not err by
UNITED STATES V. DOMINGUEZ-CAICEDO 33
finding that the statement was voluntary under the Due
Process Clause.
D
1
We turn next to Defendants’ prosecutorial misconduct
claims. In closing argument, the prosecutor stated, “when
the coast guard showed up, [Defendants] had to pull from the
drug trafficker’s playbook. Play number one. You saw it on
the video. Don’t move. They might not spot you.” After
defense counsel objected, and the court overruled the
objection, the prosecutor clarified, “I’m not talking about a
playbook somewhere. I’m talking about what they did and
what the facts in evidence show. Okay? Just so we’re clear.”
The prosecutor went on to discuss “Plan B. Act normal.
Nothing to see here,” “Plan C, speed away,” and “Plan D,”
which “was throw the drugs overboard.” After Plan D,
“there’s more in the playbook,” because “Plan E” is to
“deceive.” Finally, “Plan F” was “[t]hings that they have
said” at trial—namely, that they were forced to transport the
narcotics. The prosecutor returned to the playbook analogy
several times.
Defense counsel objected to the prosecutor’s use of the
playbook analogy, so we review under the harmless error
standard. First, we must determine whether the reference to
a playbook was error. Alcantara-Castillo, 788 F.3d at 1190.
Defendants characterize the prosecutor’s alleged misconduct
as stating facts that were not in evidence—namely, that there
was a drug trafficker’s playbook that Defendants were
following.
The prosecutor’s reference to the playbook analogy is
distinct from statements of facts not in evidence that this
34 UNITED STATES V. DOMINGUEZ-CAICEDO
court has held to be misconduct requiring reversal. See, e.g.,
United States v. Toomey, 764 F.2d 678, 681 (9th Cir. 1985)
(holding that a prosecutor’s statement that “[w]e know that
the delivery of heroin base . . . occurred on April 28” when
there was no evidence that the package contained heroin
base was harmless); United States v. Wilkes, 662 F.3d 524,
540 (9th Cir. 2011) (holding that a prosecutor’s statement
that a defense witness lied because he “has an ax to grind”
was not improper reference to facts not in evidence).
In this case, the prosecutor’s references to a “playbook”
clearly were not meant to imply that there was an actual
playbook in evidence that listed Plans A–F. 3 Instead, the
prosecutor was using the playbook analogy to provide a
framework to consider Defendants’ different actions during
the Coast Guard’s interdiction.
Defendants also argue that the prosecutor’s use of the
playbook analogy constituted improper vouching and
implied extra-record knowledge not available to the jury.
The transcript of the prosecutor’s closing argument simply
does not bear this out. As stated above, the playbook
analogy was used to explain why the defendants did what
they did, creating an overarching narrative for the video
showing the interdiction. The prosecutor’s argument was
based on the facts in evidence. We hold that this argument
did not constitute prosecutorial misconduct, and so we do
not address whether the referenced misconduct was harmless
error.
3
This contrasts with the case Defendants cite, United States v.
McGill, 815 F.3d 846 (D.C. Cir. 2016), in which the court held that a
prosecutor committed misconduct by arguing that the defendant’s letters
from jail constituted a “playbook” that the defense attorney and
witnesses all consulted in order to put on a false defense.
UNITED STATES V. DOMINGUEZ-CAICEDO 35
2
Defendants also contend that the prosecutor committed
misconduct by arguing in closing that Dominguez-Caicedo
was in charge but arguing at sentencing that Cortez-
Quinonez was the leader.
In closing, the prosecutor said:
Here is [Gaspar Chichande’s] testimony from
this trial. “In fact, you indicated Mr. Cortez
was the captain, he was in charge, didn’t
you?” And he said, “Well, because he had a
device with him, and that’s why I said he was
the captain.” “But he had a device, and he
would tell you to drive such and such route?”
“Yes, sir.” “And in fact, you specifically
called him the captain?” “Yes, sir.”
“Because he was in charge?” And he says, “I
think so.” Right? He thinks he’s in charge
because he’s manning the engines, but you
know from watching the video that
Mr. Dominguez is the one calling the shots.
You see it. He’s this one that turns around
and gives the order.
The prosecutor also stated “Mr. Dominguez [is] the man
giving the order for the boat to take off[.]” In other words,
Gaspar Chichande testified that he believed Cortez-
Quinonez was the captain of the boat, but the video of the
interdiction showed that Dominguez-Caicedo gave the order
for the boat to take off.
At Cortez-Quinonez’s sentencing, the district court
began by giving counsel his tentative on the sentence—
240 months. Cortez-Quinonez’s attorney “strongly urge[d]”
36 UNITED STATES V. DOMINGUEZ-CAICEDO
the court to “come off [its] tentative” based on the argument
that Cortez-Quinonez was more similar to Gaspar Chichande
(who got 180 months) in terms of relative culpability than he
was to Dominguez-Caicedo (who got 216 months). The
court stated, “I haven’t disregarded your arguments yet, but
so far, it kind of has struck me that it’s Mr. Cortez that really
was the one that was most culpable and most in charge.” The
prosecutor then argued:
In terms of the suggestion that [Cortez-
Quinonez] wasn’t in charge, our trial strategy
is not what is necessarily 100 percent what
actually is—who’s in charge, right?
The fact that we may highlight a particular
person in closing argument is a trial strategy
in light of how the trial played out and the
evidence, but what we do know—so I
wouldn’t take too much from that.
But what we do know is that Mr. Gaspar
Chichande testified, and he said that it was
Mr. Cortez who had the GPS communication
device. . . . Mr. Cortez says in his post-arrest
statement that, in fact, [the bosses] were
telling him—giving instructions, that sort of
stuff [through the device].
He’s also the one who instructs Mr. Gaspar
Chichande to activate the GPS device. That’s
testimony that’s uncontroverted in the
trial. . . . When the coast guard comes
onboard, who is it that says he’s the captain?
It’s Mr. Cortez.
UNITED STATES V. DOMINGUEZ-CAICEDO 37
In context, it is clear that the prosecutor did not argue
facts in closing that he knew were untrue. The trial evidence
showed both that Dominguez-Caicedo gave the order for the
boat to take off, attempting to outrun the Coast Guard, and
that Cortez-Quinonez was driving the boat, communicating
with the bosses back in South America, and gave the order
for Gaspar Chichande to activate the GPS buoy before
throwing the narcotics overboard. It was not inconsistent for
the prosecutor to point out all of these facts, both in closing
argument and at sentencing. We hold that this alleged
misconduct also does not constitute error.
3
Cortez-Quinonez argues that the prosecutor’s alleged
misconduct resulted in depriving him of a minor role
reduction, violating his right to due process. However, for
the same reasons that the prosecutorial misconduct claim
fails, Cortez-Quinonez’s due process claim also fails—the
prosecutor highlighted different facts that were not
inconsistent with each other at different stages of the
proceeding.
4
In closing argument, the prosecutor said, “Ladies and
gentlemen, throwing cocaine overboard on a vessel is
knowing possession of cocaine. All right? Just watch this
[video] clip. That’s the element in a heartbeat.” Defense
counsel objected, and the district court overruled the
objection. The prosecutor then immediately clarified:
The evidence shows that what they’re doing
is knowing possession of the cocaine. They
know that it’s there, they have control of it,
and they’re throwing it overboard, and you
38 UNITED STATES V. DOMINGUEZ-CAICEDO
infer from their actions that they know it’s
cocaine or some other drug . . . and clearly
when the coast guard comes, they don’t
throw the fuel barrels and all that overboard.
They’re throwing the cocaine overboard.
Defendants argue that although “the prosecutor softened the
categorical nature of this incorrect statement of the law,”
“that softening came too late,” resulting in the jury being
“most likely left with the incorrect view of the law that
simply possessing something that turned out to be cocaine is
sufficient to prove knowing possession under the law.”
The jury was instructed that “an act is done knowingly if
the defendant is aware of the act and does not act through
ignorance, mistake, or accident. . . . You may consider
evidence of the defendant’s words, acts, or omissions along
with all the other evidence in deciding whether the defendant
acted knowingly.” Although it is true that throwing wrapped
bales overboard without knowing that there is cocaine inside
is not in itself enough to establish knowing possession, the
prosecutor immediately clarified that he meant the jury could
infer knowledge of the contents of the packages based on
their throwing them overboard. This error was harmless in
the context of the entire trial.
E
Dominguez-Caicedo attempted to call an expert witness,
Diego Alexander Marinez, an attorney in Colombia.
Mr. Marinez grew up approximately 40 miles from the area
where Dominguez-Caicedo lived (Barbacoas). He travels to
Barbacoas at least once per month for work. According to
the offer of proof submitted to the district court, Mr. Marinez
was prepared to testify that he is familiar with armed
criminal paramilitary groups in that area. He also would
UNITED STATES V. DOMINGUEZ-CAICEDO 39
have testified that he “is aware” that these groups kidnap,
intimidate, and use violence to further their criminal
enterprises, including drug trafficking. Mr. Marinez also
stated that he “is aware” that these groups dress in military
garb and carry assault rifles in broad daylight in the area.
Mr. Marinez’s testimony would have been offered to
corroborate Dominguez-Caicedo’s duress defense. At trial,
Dominguez-Caicedo testified that five paramilitary
members carrying machine guns kidnapped him and forced
him to transport narcotics. However, the district court
excluded Mr. Marinez’s expert testimony on the grounds
that it was not “based on sufficient facts or data which is the
product of reliable principles and methods” and that the
witness had not “applied the principles and methods reliably
to the facts in the case.” The district court continued:
I can’t find what principles and methods the
supposed expert would use. I don’t even
know what he’s an expert in. There’s no
indicia that any other experts would accept
the principles or the opinions or conclusions
that this so-called expert would proffer. I
don’t know what his educational background
is on the subject. I don’t know of any
publications or other certifications or
professional memberships that he belongs to
that would allow him to express an opinion
on any of the things that he has proffered. I
don’t know what materials he may have
received or reviewed. I don’t know his prior
experience as an expert in the area. I don’t
know what records he may have reviewed,
what procedures, and what methodology did
he use once in arriving at this so-called
40 UNITED STATES V. DOMINGUEZ-CAICEDO
opinion, what examinations, what research,
what testing, what surveys, or what
verifications were used. I don’t know what,
if anything, he did to, for example, try to
disprove any hypothetical or ultimate
conclusion that he has reached. I don’t know,
in fact, looking at this, any of this, whether he
really has any knowledge whatsoever of any
of the things that [he] has testified or
proposes to testify to.
In all, the district court found “absolutely no indicia
whatsoever of reliability,” and that the testimony would not
be helpful.
Dominguez-Caicedo contends that the district court’s
focus on the Daubert factors of reliable principles and
methods was misplaced. Instead, Dominguez-Caicedo
argues that the district court’s focus should have been on the
“knowledge and experience” of the expert, since the subject
of the expert’s testimony was to be his knowledge and
experience, rather than his scientific analyses.
In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), the Supreme Court listed several
relevant factors for assessing the reliability of scientific
expert testimony under Federal Rule of Evidence 702.
Among these were whether the expert’s theory or technique
has been tested; whether it “has been subjected to peer
review and publication”; the “error rate” of “a particular
scientific technique”; and the general acceptance of a theory
or technique within the scientific community. 509 U.S.
at 593–94. Then, in Kumho Tire, the Supreme Court
discussed how to apply Daubert to expert testimony that was
not scientific in nature:
UNITED STATES V. DOMINGUEZ-CAICEDO 41
We conclude that Daubert’s general
holding—setting forth the trial judge’s
general “gatekeeping” obligation—applies
not only to testimony based on “scientific”
knowledge, but also to testimony based on
“technical” and “other specialized”
knowledge. We also conclude that a trial
court may consider one or more of the more
specific factors that Daubert mentioned when
doing so will help determine that testimony’s
reliability. But, as the Court stated in
Daubert, the test of reliability is “flexible,”
and Daubert’s list of specific factors neither
necessarily nor exclusively applies to all
experts or in every case. Rather, the law
grants a district court the same broad latitude
when it decides how to determine reliability
as it enjoys in respect to its ultimate reliability
determination.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141–42
(1999) (internal citations omitted).
Although some of the factors the district court listed are
not obviously relevant to Mr. Marinez, some are. For
example, Mr. Marinez’s offer of proof omits how
Mr. Marinez “is aware” of the activities of FARC. As the
district court stated, then, there is no indicia that other
experts on FARC would agree with Mr. Marinez’s opinion
that FARC uses “intimidation and violence in the town of
Barabaoas [sic] and its surrounding area to further their
criminal enterprises” and that “these armed groups do little
to hide their existence in the town of Barbacoas.” It was also
unclear “what, if anything,” Mr. Marinez did to try to
disprove his opinion that these individuals are part of FARC.
42 UNITED STATES V. DOMINGUEZ-CAICEDO
In short, the offer of proof fell short of showing the basis for
Mr. Marinez’s expert opinion that Dominguez-Caicedo’s
testimony about FARC kidnapping him was plausible.
Dominguez-Caicedo is correct in that the factors the
district court listed apply more directly to testimony of a
scientific nature, which Mr. Marinez’s was not. However,
given the extremely broad latitude the Supreme Court has
said district courts have in conducting this inquiry, we hold
the district court did not abuse its discretion by looking at
these particular factors and finding Mr. Marinez’s testimony
wanting. See Kumho Tire, 526 U.S. at 142.
F
All three defendants challenge the district court’s denial
of their requests for minor role reductions at sentencing.
When reviewing sentencing decisions, we review the district
court’s identification of the relevant legal standard de novo,
its factual findings for clear error, and its application of the
legal standard to the facts for abuse of discretion. United
States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)
(en banc). We begin by clarifying how district courts should
conduct the minor role analysis before turning to each
defendant’s specific arguments.
1
A defendant who is “plainly among the least culpable of
those involved in the conduct of a group” may receive a
“minimal” role adjustment, which comes with a Sentencing
Guidelines reduction of at least four levels. 4 U.S.S.G.
4
We say “at least” because a mitigating role adjustment can interact
with other provisions of the Sentencing Guidelines to trigger additional
adjustments. See, e.g., U.S.S.G. § 2D1.1(a)(5).
UNITED STATES V. DOMINGUEZ-CAICEDO 43
§ 3B1.2(a), cmt. 4. A defendant “who is less culpable than
most other participants in the criminal activity, but whose
role could not be described as minimal” may receive a
“minor” role adjustment, which provides a reduction of at
least two levels. Id. at cmt. 5. To be eligible for either
adjustment, the defendant must also be “substantially less
culpable than the average participant in the criminal
activity.” Id. at cmt. 3(A).
The relevant comparison is to the other participants in
the defendant’s crime, not to typical defendants who commit
similar crimes. 5 See United States v. Diaz, 884 F.3d 911,
916 (9th Cir. 2018). Thus, in this case, the district court was
required to compare the defendants to the other participants
in their crimes, not to typical defendants occupying their
roles, such as typical drug transporters. Further, when the
mitigating role commentary instructs courts to compare the
defendant’s culpability to that of “the average participant in
the criminal activity,” it is not referring to the actual level of
culpability of any single participant. It is instead referring to
the mathematical average, i.e., a “single value that represents
the midpoint of a broad sample of subjects.” Average,
Black’s Law Dictionary (11th ed. 2019). Thus, “all likely
participants in the criminal scheme” must be included in
calculating the average. Diaz, 884 F.3d at 916–17 (emphasis
added); United States v. Rojas-Millan, 234 F.3d 464, 472
(9th Cir. 2000).
To determine whether a defendant is substantially less
culpable than the average participant in the offense, a district
5
In the past we have referred to these typical defendants as
“hypothetical average participants,” but we use the term “typical
defendant” here because it is more precise, and it avoids confusion with
our discussion of the “average participant” referred to in comment 3(A).
44 UNITED STATES V. DOMINGUEZ-CAICEDO
court must proceed in three steps. First, the court must
identify all of the individuals for whom there is “sufficient
evidence of their existence and participation in the overall
scheme.” Rojas-Millan, 234 F.3d at 474. Second, the court
must calculate a rough average level of culpability for these
individuals, taking into consideration the five factors in
comment 3(C) to the Mitigating Role Guideline. See Diaz,
884 F.3d at 916. Third, the court must compare the
defendant’s culpability to that average. If the defendant is
substantially less culpable than that average and meets the
other criteria, he should be granted a mitigating role
adjustment. If the defendant is not substantially less
culpable than that average, he is not eligible for the
adjustment.
The Government and some district courts appear to have
interpreted United States v. Hurtado, 760 F.3d 1065, 1069
(9th Cir. 2014), overruled on other grounds by Gasca-Ruiz,
852 F.3d at 1174, to suggest that a court must first identify
all participants in the crime and then disregard participants
of above-average culpability (and, presumably, those of
below-average culpability) and compare the defendant’s
culpability only to the remaining individuals whom the
district court deems to be of average culpability. A court
following this approach compares the defendant’s
culpability to only the median participants’ actual level of
culpability instead of comparing the defendant’s culpability
to the average level of culpability of all the participants in
the offense.
This understanding of Hurtado is incorrect. At the
outset, we note that much of Hurtado has been overruled or
UNITED STATES V. DOMINGUEZ-CAICEDO 45
abrogated. 6 But to the extent anything remains of Hurtado,
it simply stands for the proposition that comparing a
defendant to only the most culpable subset of the participants
in the offense does not demonstrate that the defendant is
entitled to a minor role reduction. Instead, the district court
must compare the defendant’s culpability with the average
level of culpability of all of the participants in the crime.
Hurtado did not set forth an entirely different method of
performing the minor role analysis.
Nor could it have. Fourteen years earlier, we held that
courts should compare a defendant’s culpability to “all
participants in the criminal scheme for which he was
charged” even if those co-participants are not charged.
Rojas-Millan, 234 F.3d at 472. There, the Nevada Highway
Patrol stopped Rojas-Millan as he was couriering drugs east
from Los Angeles to Nevada. Id. at 467–68. In the car with
6
For instance, Hurtado states that the district court “did not clearly
err when it found that Hurtado was a typical commercial drug
smuggler—no better, no worse,—and not entitled to a minor role
reduction” and that “[t]he district court was not clearly erroneous in
finding that although Hurtado may have been a cog in some larger wheel,
he was an essential cog who . . . knowingly smuggled a large quantity of
narcotics into the United States . . . .” 760 F.3d at 1067. But the 2015
amendments to the mitigating role commentary made clear that the
relevant comparison is to other participants in the defendant’s crime, not
to “typical” defendants committing similar crimes, and that “[t]he fact
that a defendant performs an essential or indispensable role in the
criminal activity is not determinative.” U.S.S.G § 3B1.2 cmt. n.3(C).
Similarly, Hurtado suggested that various factors “alone” could “justify
denial of minor role” but we have since held that “the assessment of a
defendant’s eligibility for a minor-role adjustment must include
consideration of the factors identified by the Amendment, not merely the
benchmarks established by our caselaw that pre-dates Amendment 794’s
effective date.” Diaz, 884 F.3d at 916. We have also since held that
Hurtado applied the wrong standard of review. See Gasca-Ruiz,
852 F.3d at 1174.
46 UNITED STATES V. DOMINGUEZ-CAICEDO
him was Jorge Adame-Farias. Id. After being convicted of
various drug crimes, Rojas-Millan sought a minor role
reduction, which the district court denied. Id. at 472. The
district court concluded that Rojas-Millan was not
substantially less culpable than Adame-Farias, who was
charged alongside Rojas-Millan, and that it could not
compare Rojas-Millan’s conduct against the drug supplier in
Los Angeles and the recipient in Nevada because they were
not charged. Id.
We vacated the sentence and remanded, holding that “the
district court should have evaluated [Rojas-Millan’s] role
relative to all participants in the criminal scheme for which
he was charged.” Id. We explained that “ignoring the
actions of other participants . . . subjects less culpable
defendants to longer sentences simply because their more
involved co-conspirators managed to escape arrest or were
tried separately. We see no reason why the Guidelines
would sanction such a regime, and we find confirmation in
the language of § 3B1.2 that the intent was not to do so.” Id.
at 473. We thus vacated Rojas-Millan’s sentence and
remanded for the district court to compare Rojas-Millan’s
culpability “relative to the involvement of other likely
actors, such as the alleged Los Angeles supplier and the
Reno distributor . . . if the district court found sufficient
evidence of their existence and participation.” Id. at 473–
74. The only limit on the comparison group we recognized
in Rojas-Millan was that the district court was required to
find “sufficient evidence of [the comparators’] existence and
participation” in the crime. Id. at 474. If the district court
found on remand that the Los Angeles supplier and Reno
distributor participated, it was required to compare Rojas-
Millan’s culpability to theirs. Id. at 473–74. We did not hold
that the district court could decline to consider the Los
Angeles and Reno participants’ culpability if it determined
UNITED STATES V. DOMINGUEZ-CAICEDO 47
that they were leaders or organizers or were otherwise of
“above-average” culpability. Indeed, to do so would be
inconsistent with our observation that “ignoring the actions
of other participants” undermines the purpose of the minor
role reduction because doing so “subjects less culpable
defendants to longer sentences simply because their more
involved co-conspirators managed to escape arrest or were
tried separately.” Id. at 473.
Since we already held in Rojas-Millan that “all
participants in the criminal scheme” must be included in the
comparison, we could not have departed from that rule in
Hurtado to require district courts to exclude the most highly
culpable participants. See Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc). Further, while the “median”
approach does not turn on who is charged, it is even less
consistent with the purposes of the minor role reduction than
the approach we disapproved of in Rojas-Millan because it
would exclude the most culpable participants in every case,
even if they were charged, simply because they are highly
culpable. This approach grossly distorts the court’s
assessment of the defendant’s relative role. Finally, in the
eight years since it was decided, we have never cited
Hurtado in a published opinion for the proposition that
district courts may exclude highly culpable participants from
the comparison.
In sum, Hurtado did not change our longstanding
approach to the mitigating role analysis, which requires
district courts to include “all participants in the criminal
scheme” in the comparison. Rojas-Millan, 234 F.3d at 472;
see also Diaz, 884 F.3d at 916–17. With these clarifications
in mind, we turn to each defendant’s arguments.
48 UNITED STATES V. DOMINGUEZ-CAICEDO
2
Chichande argues that the district court erred by
excluding his recruiter from the comparison. We agree. The
district court concluded that Chichande’s recruiter existed
and participated, yet it excluded him from the comparison
group. The court stated at sentencing:
So the defendant has to show me well, who’s
the average participant so that I can then
make a determination as to whether or not the
defendant is, in fact, substantially less
culpable than the average participant . . . . So
what do we know? Well, we know this
gentleman was recruited by someone who, in
my opinion, if that individual were before
me, would receive an aggravated role for
being a leader/organizer. We have the people
with the guns . . . . So taking a look at the
people that are involved, there are three
people on the boat. I believe, frankly, that
probably one of them is somewhat more
culpable than the other two. And I do believe
that this defendant, given the fact that he was
more candid and forthright, probably
deserves a break in that regard. It doesn’t
really affect my assessment of minor role
. . . . So what do I know? I know that there
were men with guns. I know that there was a
recruiter or someone that got this fellow into
this venture. But I don’t know who the
average participant would be. And I don’t
know that this defendant would be
substantially less culpable than whoever that
average participant is.
UNITED STATES V. DOMINGUEZ-CAICEDO 49
This discussion shows that the district court attempted to
identify a single “average participant” with whom to
compare Chichande. When the district court could not
identify such an individual, it denied the minor role
adjustment, apparently without comparing Chichande’s
culpability with anyone’s. At a minimum, the court
excluded the recruiter. This analysis was erroneous. As we
have explained, the proper comparison is to the average of
all of the individuals who participated in Chichande’s
offense, including those that the district court believed were
leaders or organizers or who were otherwise highly culpable.
Because the district court misunderstood the appropriate
legal standard, we vacate Chichande’s sentence and remand
for the district court to conduct the minor role analysis
applying the correct legal standard.
The Government argues that any error in the district
court’s minor role analysis was harmless because the district
court made an alternative Guidelines calculation assuming it
granted Chichande a minor role reduction and stated that it
would impose the same “sentence regardless of whether [it]
gave him minor role.” We disagree.
“A mistake in calculating the recommended Guidelines
sentencing range is a significant procedural error that
requires us to remand for resentencing.” United States v.
Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011).
“When a defendant is sentenced under an incorrect
Guidelines range—whether or not the defendant’s ultimate
sentence falls within the correct range—the error itself can,
and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).
Accordingly, we have vacated sentences and remanded for
resentencing when district courts have misunderstood the
50 UNITED STATES V. DOMINGUEZ-CAICEDO
law governing the minor role reduction. See, e.g., Diaz,
884 F.3d at 918; Rojas-Millan, 234 F.3d at 475. At the same
time, a sentencing error can be harmless. See Munoz-
Camarena, 631 F.3d at 1030 n.5. To establish harmlessness,
the Government must show that “it is more probable than
not” that the error did not affect the sentence. United States
v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc);
see also United States v. Olano, 507 U.S. 725, 734 (1993).
A “district court’s mere statement that it would impose
the same . . . sentence no matter what the correct calculation
cannot, without more, insulate the sentence from remand.”
Munoz-Camarena, 631 F.3d at 1031; see also United States
v. Williams, 5 F.4th 973, 978 (9th Cir. 2021). This is because
a district court’s analysis must “flow from an initial
determination of the correct Guidelines range,” id. at 1031,
and the district court must keep that range “in mind
throughout the process,” id. at 1030 (quoting United States
v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)). At the same
time, a sentencing error may be harmless if the district court
“acknowledges that the correct Guidelines range is in dispute
and performs [its] sentencing analysis twice, beginning with
both the correct and incorrect range.” Id. at 1030 n.5.
The Government argues that that is what the district
court did here. We disagree. When it came time to impose
the sentence, the district court started by determining that
Chichande’s criminal history category was I, his base
offense level was 38, and a two-level upward adjustment was
warranted because he co-piloted the boat, for a total offense
level of 40. This yielded a Guidelines range of 292 to
365 months. See U.S.S.G. Manual Ch. 5 Pt. A (U.S. Sent’g
Comm’n 2018). The district court then concluded that a
292-month sentence “would be excessive” because
Chichande was a first-time offender, discussed the 18 U.S.C.
UNITED STATES V. DOMINGUEZ-CAICEDO 51
§ 3553(a) factors, and ultimately imposed a sentence of
180 months. After imposing the sentence, the district court
provided Chichande with a copy of the supervised release
conditions and informed him that he could appeal.
Immediately afterward the following exchange occurred:
Counsel for Chichande: Yes, I’ve told him
that I will file that Notice of Appeal this
morning.
The Court: All right. Is there anything else I
need to address? Is there anything – well, I
guess for purposes of making sure we all
understand – by the way, I did do a guideline
calculation assuming that I gave him minor
role. I think that would have resulted in, if
I’m not mistaken, a range of 121 to
151 months. I think I did a calculation giving
him acceptance. That would result in 97 to
121 months.
But as I said, my sentence was based on [the]
3553(a) factors. Given the seriousness of the
offense and the nature of the offense, the
circumstances of the offense, the amount of
the drugs, the fact that a shooting was
required, I think 180 months is a reasonable
sentence, and I would impose that sentence
regardless of whether I gave him minor role.
In that case, I would be varying up. In this
case, I’m varying down. Anything else I’ve
missed?
The district court’s discussion of the alternative ranges
at the very end of the sentencing hearing does not
52 UNITED STATES V. DOMINGUEZ-CAICEDO
demonstrate that the district court conducted the sentencing
a second time starting with the correct range and keeping it
in mind throughout the process. The conclusory nature of
this discussion, and the fact that it occurred after the district
court had already imposed Chichande’s sentence and only in
response to Chichande’s declaration that he would appeal
suggest that the district court did not meaningfully consider
this range in arriving at its sentence. Since the Government
has not met its burden of establishing that any error was
harmless, we vacate Chichande’s sentence and remand for
resentencing so that the district court may apply the correct
legal standard.
3
Cortez-Quinonez argues that the district court erred
because it “expressly acknowledged the existence of a
Pablo-Escobar-type drug lord” and “a giant, complex drug-
trafficking organization” but nevertheless refused to include
members of that organization in the comparison. In the
district court, Cortez-Quinonez cited a report that the
Sentencing Commission sent to Congress listing roles of
individuals often involved in drug trafficking organizations
in order of their typical culpability and argued that the court
was required to compare his conduct to individuals
occupying those roles who “likely” were involved in his
crime.
The fact that illicit drugs are often traceable to larger
drug trafficking organizations does not mean that district
courts must compare the conduct of each defendant
convicted of a drug crime to that of every hypothetical
member of a typical drug trafficking organization. See
United States v. Rosas, 615 F.3d 1058, 1068 (9th Cir. 2010)
(“Every drug trafficking defendant could point to an
unknown network preceding them in the drug trade. Such an
UNITED STATES V. DOMINGUEZ-CAICEDO 53
argument will normally be ineffective when considering
whether the defendant is entitled to a mitigating role
reduction.”). We have repeatedly held that the relevant
comparators are the actual participants in the defendant’s
crime. See, e.g., Diaz, 884 F.3d at 916–18; United States v.
Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); United States v.
Petti, 973 F.2d 1441, 1447 (9th Cir. 1992). The 2015
Amendments to the mitigating role commentary confirmed
that interpretation. See United States v. Quintero-Leyva,
823 F.3d 519, 522–23 (9th Cir. 2016). By “actual
participants,” we mean only participants for whom there is
“sufficient evidence of their existence and participation.”
Rojas-Millan, 234 F.3d at 474. Even if one can assume
based on how drug trafficking organizations typically
operate that it is likely that another unidentified person
participated in the crime, the district court is not required to
compare the defendant’s culpability with that of the
unidentified person. Indeed, without evidence of the
proposed comparator’s existence or participation the district
court has nothing against which to compare the defendant’s
conduct. In this case, for example, Cortez-Quinonez invited
the district court to speculate about what roles hypothetical
participants in drug trafficking organizations typically
occupy and to compare those hypothetical participants’
imagined conduct to his own. We have repeatedly rejected
these kinds of comparisons in the past, and we do so again
today. See Diaz, 884 F.3d at 913–18 (holding that district
court properly limited the comparison group to Diaz’s
recruiter and co-participant and properly declined to
compare Diaz’s culpability to that of “‘unknown’
individuals who ‘have to exist in order for a drug trafficking
organization to function’”); Rosas, 615 F.3d at 1068(holding that district court properly limited the comparison
group to Rosas’ two co-participants and properly declined
to compare him to “unknown participants in the drug chain,
54 UNITED STATES V. DOMINGUEZ-CAICEDO
including ‘the source of the marijuana, distributors,
packagers, sellers, etc.’”).
In arguing to the contrary, Cortez-Quinonez relies
heavily on our statements in Diaz and Rojas-Millan
instructing district courts to consider “likely” participants.
But Cortez-Quinonez takes the word “likely” out of context.
We have referred to likely participants to make clear that the
defendant does not necessarily need to know the
participant’s name or see the participant for there to be
sufficient evidence of that person’s participation in the
offense. See Diaz, 884 F.3d at 917; Rojas-Millan, 234 F.3d
at 473–74. But we have never required a comparison to
unknown persons one might assume participated but about
whom there is no evidence of their actual participation.
Therefore, the district court did not err by declining to
compare Cortez-Quinonez’s culpability to the unknown
“Pablo-Escobar-type drug lord” and unknown members of
“a giant, complex drug-trafficking organization” that may
have been involved in the manufacture and distribution of
the drugs Cortez-Quinonez was transporting.
Cortez-Quinonez next argues that the district court erred
by “ignor[ing] [his] lack of ownership in the drugs and his
relatively low compensation.” But the district court heard
argument regarding this factor, stated that it considered all
“five nonexhaustive factors,” and ultimately adopted the
Government’s analysis of them. And even if the district
court erroneously weighed that factor against Cortez-
Quinonez, that one of the five factors in comment 3(C)
weighed in favor of Cortez-Quinonez does not mean that the
district court abused its discretion in denying the minor role
adjustment. See Quintero-Leyva, 823 F.3d at 523.
UNITED STATES V. DOMINGUEZ-CAICEDO 55
4
Dominguez-Caicedo’s arguments are similar. He claims
that the district court identified “the man who
commandeered Mr. Dominguez into participating in this
offense” and “the ‘guys with the guns’ who approached
Dominguez” as “potential likely participants” but
nevertheless improperly refused to compare his culpability
to theirs. He also argues that the district court improperly
“overlooked” “all the persons” the Government identified in
its pre-trial expert disclosure, “those who actually own the
cocaine at the heart of this case,” and “those who recruited
and tricked Mr. Dominguez’s co-defendants.” Once again,
we disagree.
With respect to the “guys with guns” and “man who
commandeered Mr. Dominguez into participating in this
offense” Dominguez-Caicedo’s characterization is not
consistent with the record. Dominguez-Caicedo testified at
trial that while he was harvesting bananas in rural Colombia,
he was kidnapped by five armed men wearing hoodies and
masks who told him they needed him for a mission. He
testified that these men eventually placed him on the boat
carrying the drugs at issue here. At sentencing, the district
court made clear that it did not believe Dominguez-
Caicedo’s account and did not find these individuals to be
likely participants in the offense. The court explained: “I
mean, Mr. Dominguez-Caicedo was hoping that by telling
his story, he was going to [be] able to convince the jury that
he was acting under duress. The jury didn’t believe it. It’s
a self-serving statement that I frankly – I don’t buy, either. I
don’t accept it.” Therefore, contrary to Dominguez-
Caicedo’s argument, the district court did not determine that
the “guys with guns” and the “man who commandeered
56 UNITED STATES V. DOMINGUEZ-CAICEDO
Mr. Dominguez” were “likely participants,” and therefore
did not err by excluding them from the comparison.
Next, the district court was not required to address the
people the Government identified in its pre-trial expert
disclosure, the people who allegedly owned the cocaine, and
the people who allegedly recruited Dominguez-Caicedo’s
co-defendants because Dominguez-Caicedo failed to object
to the Presentence Report’s (PSR) conclusion that he did not
provide evidence of their existence and participation in the
offense.
The PSR concludes that “the defendant has presented no
information supporting the fact that he was substantially less
culpable than the other identified participants in this offense
as he appears to have held the same role as CORTEZ and
GASPAR.” It also says that “Defense counsel . . . believes
a minor role adjustment is appropriate, but did not provide
any basis for it.” Federal Rule of Criminal Procedure
32(f)(1) requires parties to “state in writing any objections,
including objections to material information . . . contained in
or omitted from the [PSR].” If a party objects to a material
factual assertion in or omission from the PSR, the district
court must rule on the objection. Fed. R. Crim. P.
32(i)(3)(B); see also United States v. Petri, 731 F.3d 833,
837–39 (9th Cir. 2013). But if a party does not object, the
district court is not required to address factual assertions
raised for the first time in a sentencing memorandum or at
the sentencing hearing. Petri, 731 F.3d at 841.
Petri is illustrative. There, Petri objected to the PSR’s
recommendation that the district court deny Petri’s request
for a minor role reduction because, among other things, he
alleged that he was “used by the more sophisticated
individuals in the scheme, including a man named ‘Sorin,’
whom Petri identified as the ringleader.” Id. at 836. But
UNITED STATES V. DOMINGUEZ-CAICEDO 57
while Petri cited Sorin’s alleged involvement in support of
his objection to the PSR’s recommendation to deny him a
minor role reduction, he did not specifically object to the
omission of factual information about Sorin in the PSR. Id.
at 836, 841. In other words, Petri objected to the probation
officer’s ultimate recommendation that the court deny the
minor role reduction but did not specifically object to the
probation officer’s decision not to include “any factual
assertion regarding whether ‘Sorin’ manipulated or coerced
Petri into complicity.” Id. at 841. In his sentencing
memorandum and during the sentencing hearing, Petri’s
attorney attempted to supplement the record with details
about Sorin’s alleged coercion and argued that recently
discovered documents showed Sorin was involved. Id.
at 836–37. The district court ultimately denied the minor
role reduction without addressing whether Sorin coerced
Petri. Id. at 837. On appeal, we held that the district court
“had no responsibility to rule on . . . if ‘Sorin’ coerced” Petri
because Petri’s objection to the PSR was not specifically
directed at the alleged factual omissions in the PSR. Id.
at 841.
Dominguez-Caicedo did not properly object to his
presentence report at all. 7 Therefore, the district court was
7
Dominguez-Caicedo included a footnote in his sentencing
memorandum citing to Cortez-Quinonez’s objections to his PSR and
stated that “Mr. Dominguez joins in his co-defendant’s analysis
regarding the applicability of a mitigating role adjustment in this case.”
Dominguez-Caicedo’s footnote is not a proper objection to the PSR.
First, it does not dispute any of the factual assertions or alleged omissions
in his own PSR. Second, we held in Petri that an argument in a
sentencing memorandum does not constitute an objection to a PSR.
Third, Dominguez-Caicedo filed his sentencing memorandum after the
deadline for objecting to the PSR. The deadline for objecting to the PSR
is “14 days after receiving” it, Fed. R. Crim. P. 32(f)(1), and Dominguez-
58 UNITED STATES V. DOMINGUEZ-CAICEDO
not required to address his argument raised for the first time
in his sentencing memorandum—and never mentioned
during the sentencing hearing—that there was sufficient
evidence that the individuals he identified were involved in
the crime.
CONCLUSION
We affirm all three defendants’ convictions, and
Dominguez-Caicedo’s and Cortez-Quinonez’s sentences.
We vacate Chichande’s sentence and remand for
resentencing consistent with this opinion.
AFFIRMED in part, and VACATED and
REMANDED in part.
Caicedo filed his sentencing memorandum 28 days after the PSR was
filed. For each of these reasons, Dominguez-Caicedo’s footnote was not
a proper objection to the PSR, and it did not require the district court to
address whether these individuals participated in the crime.