United States v. Rodriguez-Cardenas

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2494

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALFONSO RODRIGUEZ-CARDENAS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 1017-1—Elaine E. Bucklo, Judge.

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ARGUED MARCH 3, 2004—DECIDED MARCH 31, 2004

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Before POSNER, ROVNER, and EVANS, Circuit Judges.

ROVNER, Circuit Judge. Alfonso Rodriguez-Cardenas

pleaded guilty to conspiracy to distribute heroin and

cocaine, 21 U.S.C. §§ 846, 841(a)(1). At sentencing

Rodriguez-Cardenas requested a two-level reduction for

being a minor participant in the conspiracy, U.S.S.G.

§ 3B1.2, but the district court denied his request and sen-

tenced him to 37 months’ imprisonment. On appeal

Rodriguez-Cardenas challenges the denial of the minor-

participant reduction, but the district court’s factual finding

on that question is unassailable. We are publishing this

2 No. 03-2494

opinion, however, to correct statements in several of our

recent cases that might be read as inconsistent with a 2001

amendment that expressly rejected a limitation we had

placed on eligibility for a mitigating-role reduction. U.S.S.G.

§ 3B1.2, App. C, amend. 635.

Rodriguez-Cardenas was charged along with co-conspira-

tor Rafael Gutierrez in a three-count indictment and

pleaded guilty to the conspiracy count pursuant to a plea

agreement. The factual basis for the plea recounts that

Gutierrez arranged two drug sales to persons who, unbe-

knownst to him, were cooperating with law enforcement

officers. After Gutierrez negotiated each of the sales,

Rodriguez-Cardenas completed the transactions by meeting

the “buyers” at prearranged locations on October 15, 2002,

to deliver heroin, and on October 21, 2002, to deliver

cocaine and collect the money for the heroin. Rodriguez-

Cardenas admitted at sentencing that he knew each time

that he was delivering drugs.

The probation officer who prepared Rodriguez-Cardenas’

presentence report had no information suggesting other

drug transactions during the conspiracy and thus counted

only the two October deliveries in calculating a base offense

level of 26. See U.S.S.G. § 2D1.1(a)(3). After receiving a

“safety valve” reduction, see U.S.S.G. §§ 5C1.2, 2D1.1(b)(6),

Rodriguez-Cardenas requested an additional reduction for

being what he characterizes as a minor participant in the

conspiracy. Rodriguez-Cardenas argued that he was not

precluded from receiving a minor-participant reduction

simply because he was being held accountable only for the

two deliveries on October 15 and 21. See U.S.S.G. § 3B1.2,

comment. (n.3(A)) (2004). The government responded that

the facts of the case did not warrant a reduction because

Rodriguez-Cardenas’ role in delivering the drugs made him

no less culpable than Gutierrez who negotiated the sales.

The district court denied the reduction:

No. 03-2494 3

I do agree [with the government] that in this case, it—

I just haven’t heard anything to say that his role wasn’t

major. It seems to me that the only thing I can say is,

since he wasn’t the one that had the drugs to begin with

or he wasn’t the one that negotiated it, that his role

wasn’t important. But it was.

On appeal Rodriguez-Cardenas argues that it was error

to deny him the reduction because, he says, he did not

organize the drug sales, did not have contact with the

suppliers or negotiate with the buyers, and acted only at

Gutierrez’s directions. We review the denial of a minor-

participant reduction only for clear error. See United States

v. Corral, 324 F.3d 866, 874 (7th Cir. 2003). A defendant

may receive the two-level reduction only if he is “substan-

tially less culpable than the average participant,” U.S.S.G.

§ 3B1.2, comment. (n.3(A)); see Corral, 324 F.3d at 874, and

so Rodriguez-Cardenas, as the proponent of the reduction,

was required to establish that he played a much smaller

role than Gutierrez, Corral, 324 F.3d at 874. Rarely will we

reverse a district court’s finding in this regard. See id.;

United States v. Arocho, 305 F.3d 627, 641 (7th Cir. 2002);

United States v. Castillo, 148 F.3d 770, 776 (7th Cir. 1998);

cf. United States v. Hunte, 196 F.3d 687, 694-95 (7th Cir.

1999).

Here, the district court decided that Rodriguez-Cardenas

did not play a minor role in the offense. The parties do not

dispute that Rodriguez-Cardenas made two deliveries.

Gutierrez, on the other hand, obtained the drugs, scheduled

the deliveries, and instructed Rodriguez-Cardenas where,

when, and what to deliver. The district court evaluated the

offense of conviction and determined that there had been no

relevant conduct beyond the two deliveries, see U.S.S.G. §

1B1.1, comment. (n.1(H)), and in its discretion denied the

reduction. In addition, we have held that a defendant is not

entitled to the reduction for merely being a courier rather

than the principal, United States v. McClinton, 135 F.3d

4 No. 03-2494

1178, 1190 (7th Cir. 1998), and couriers play an important

role in the drug distribution scheme, United States v.

Hamzat, 217 F.3d 494, 498 (7th Cir. 2000). Therefore the

court did not clearly err because it reasoned that the role

played by Rodriguez-Cardenas was no less significant than

that of Gutierrez. See Corral, 324 F.3d at 874.

Rodriguez-Cardenas notes that in recent opinions we have

continued to endorse the proposition that where a defen-

dant’s offense level is tied only to drug amounts he person-

ally handled he is precluded from receiving a § 3B1.2

reduction, a position that directly contradicts a 2001

amendment to the sentencing guidelines. See U.S.S.G.

§ 3B1.2, comment. (n.3(A)) and App. C, amend. 635; cf., e.g.,

United States v. Brown, 136 F.3d 1176, 1185-86 (7th Cir.

1998); United States v. Burnett, 66 F.3d 137, 140 (7th Cir.

1995). The amendment, effective on November 1, 2001,

explicitly rejected our position in Burnett, 66 F.3d at 140,

and stated that in all types of offenses, the court must

consider the defendant’s conduct against the relevant

conduct that he is held accountable for at sentencing, and

even in cases where the defendant is held accountable only

for conduct in which he was personally involved, he is not

precluded from receiving the reduction. U.S.S.G., App. C,

amend. 635.

Since the enactment of the amendment, we have uninten-

tionally repeated language from pre-amendment opinions

that appears to be more consistent with our now-rejected

view that a defendant held accountable only for his own

conduct cannot qualify for the mitigating-role reduction. See

Corral, 324 F.3d at 874 (citing United States v. Brown, 136

F.3d 1176, 1185-86 (7th Cir. 1998) for the proposition that

we consider “whether the defendant was a minor partici-

pant in the crime for which he was convicted, not whether

he was a minor participant in some broader conspiracy that

may have surrounded it” and that “one cannot be a minor

participant with respect to his own actions”); Arocho, 305

No. 03-2494 5

F.3d at 640-41 (citing the pre-2001 amendment language of

§ 3B1.2); United States v. Crowley, 285 F.3d 553, 560 (7th

Cir. 2002) (citing United States v. Felix-Felix, 275 F.3d 627,

637 (7th Cir. 2001) for the proposition that “a minor role

reduction was particularly unnecessary here because the

district court held Ms. Crowley responsible only for the

drugs she herself obtained”); United States v. Brumfield,

301 F.3d 724, 736 (7th Cir. 2002) (holding that the district

court properly denied the reduction where the “defendant

has been held accountable only for the drugs that he per-

sonally handled”); Felix-Felix, 275 F.3d at 637 (holding that

where the defendant “was sentenced only for the drugs that

he himself ‘had his hands on’ at the house . . . made the

downward departure neither necessary, nor, under our

interpretation of the existing guidelines, appropriate”);

United States v. Hunt, 272 F.3d 488, 497 (7th Cir. 2001)

(citing United States v. Griffin, 150 F.3d 778, 787 (7th Cir.

1998) for the proposition that “Hunt was held accountable

only for his conduct and therefore was ineligible for such a

reduction”). In contrast to the unintended language in these

decisions, a defendant is no longer precluded from receiving

a reduction under § 3B1.2 even if he is held accountable

only for his own conduct. See U.S.S.G. § 3B1.2, comment.

(n.3(A)). Recognition of Amendment 635 necessitates that

we disavow our post-amendment cases to the extent that

they can be read as inconsistent with the amended guide-

line.

However, this change has no effect on the outcome of this

appeal because the parties agreed that Rodriguez-Cardenas

was not precluded from receiving the minor-participant

reduction, and the district court considered his level of

culpability as compared to his co-conspirator. Id.; see

Corral, 324 F.3d at 874.

AFFIRMED.

6 No. 03-2494

A true Copy:

Teste:

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Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-31-04