- A recent Ninth Circuit case applies and gives force to changes in the mitigating role guideline that encourage its application in more cases.
- The changes include commentary that says courts in the past have applied the guideline more sparingly than the Sentencing Commission intended, that a defendant who does not have a proprietary interest in the activity should be considered for a reduction, and that having performed an essential or indispensable role does not disqualify the defendant.
- The case also held the guideline retroactive so it applies to pending appeals and so it can be used for pre-amendment offenses without accepting disadvantageous amendments under the “one book rule.”
NOW THE BLOG:
Last year, I put up a couple of posts about the year’s guidelines amendments which included a favorable amendment to the mitigating role guideline. (See “It’s Not Too Early to Start Thinking About the Future: The Upcoming Guidelines Amendments” and “An Update on the 2015 Guidelines Amendments” in the January 2015 and May 2015 links at the right.) The amendment included an explanation that the mitigating role reduction had been applied less frequently than the Commission originally intended, commentary expressly stating that “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative,” and a list of several factors which the sentencing court “should consider.” U.S.S.G. § 3B1.2, comment. (n.3); U.S.S.G. App. C, Amend. 794.
The Ninth Circuit recently issued an opinion considering this amendment in United States v. Quintero-Leyva, ___ F.3d ___, 2016 WL 2865713 (9th Cir. May 17, 2016), which is helpful in several respects. To begin, the opinion gives substantial force to the changes in the guideline and the Commission’s explanation for the changes. First, the opinion recognizes – by directly quoting – the Commission’s explanation that minor role reductions were being “applied inconsistently and more sparingly than the Commission intended.” Quintero-Leyva, 2016 WL 2865713, at *2 (quoting U.S.S.G. App. C, Amend. 794). See also Quintero-Leyva, 2016 WL 2865713, at *3 (noting Commission’s concern that prior wording of guideline “may have had the unintended effect of discouraging courts from applying the mitigating role adjustment in otherwise appropriate circumstances” (quoting U.S.S.G. App. C, Amend. 794)). Second, the opinion recognizes – by directly quoting the new commentary – that (a) “a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered” for the reduction and (b) “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative.” Quintero-Leyva, 2016 WL 2865713, at *3 (quoting U.S.S.G. § 3B1.2, comment. (n.3)). Third, the opinion notes the list of factors added by the amendment and the directive that the sentencing court “should consider” – not simply “may consider” – those factors. Quintero-Leyva, 2016 WL 2865713, at *3 (quoting U.S.S.G. § 3B1.2, comment. (n.3)). On the other hand, the court “may grant or deny a reduction even if some of the factors weigh toward the opposite result” and the list of factors added by the amendment is “non-exhaustive[, so] a district court may also consider other reasons for granting or denying a minor role reduction.” Quintero-Leyva, 2016 WL 2865713, at *3.
The Quintero-Leyva opinion also includes another potentially important holding. In addition to its discussion of the substance of the mitigating role guideline amendment, it holds the amendment was a clarifying amendment, so it guides application of the pre-2015 guidelines as well as the post-2015 guidelines. See id., 2016 WL 2865713, at *2-3. This is important for two reasons. First, it means the amendment applies in pending appeals by defendants who were sentenced prior to the amendment’s effective date. Second, it means you can use it in sentencing for a pre-November 1, 2015 offense without having to accept any disadvantageous 2015 amendments under the “one book rule” in section 1B1.11(b)(2) of the guidelines. You can argue the ex post facto clause prevents application of the bad 2015 amendment and argue the good mitigating role amendment applies because it was a clarification of the already existing pre-2015 mitigating role guideline.
So you now have not just a favorable guidelines amendment to support your mitigating rule argument, but also a favorable Ninth Circuit case. And remember the potential impact is broader than just the role reduction guideline. Application of a mitigating role adjustment also reduces the base offense level in large quantity drug cases, by between 2 and 4 levels. See U.S.S.G. § 2D1.1. The reductions combined can cut a drug sentence by more than half in some cases.