[00:00:06] Speaker 03: Please the court. [00:00:08] Speaker 03: Appellant Robledo in this case was the driver of the car that crossed into Tijuana. [00:00:15] Speaker 03: He did assist in transporting the packages back into the United States where he was arrested at the border. [00:00:22] Speaker 03: He made multiple statements during the course of the proceedings, which is why it is somewhat confusing. [00:00:28] Speaker 03: Most of those statements he disavowed. [00:00:30] Speaker 03: His disavowals were supported by the statements made by his co-defendant. [00:00:34] Speaker 03: Ms. [00:00:36] Speaker 03: Gaitan and essentially in this case, what was undisputed was that one day before the event which took place independently, Ms. [00:00:46] Speaker 03: Gaitan and Appellant Robledo were approached by a person in the town where they both resided. [00:00:53] Speaker 03: and asked if they would drive down to Tijuana to bring back drugs from Mexico. [00:00:58] Speaker 03: They independently and separately agreed. [00:01:00] Speaker 03: They did not meet nor know one another until the day that they drove down to Mexico in Ms. [00:01:05] Speaker 03: Gaitan's vehicle. [00:01:07] Speaker 03: Mr. Robledo was the driver. [00:01:09] Speaker 03: There was a third party that was in the car named Junior, and that evidence is supported both in the record and by government photographs of the border. [00:01:20] Speaker 04: So you're objecting that he did not receive a minor role adjustment? [00:01:26] Speaker 04: That's correct, Your Honor. [00:01:27] Speaker 04: So your contention is that the district court did not properly consider the role of Junior, the person who recruited Mr. Robledo, and perhaps some other persons? [00:01:41] Speaker 03: just his co-defendant, Ms. [00:01:44] Speaker 03: Gaetan, the three of them. [00:01:46] Speaker 04: Okay, so in their arguments before the district court, it seemed to me that Ms. [00:01:51] Speaker 04: Gaetan and Mr. Rubledo both compared their level of culpability to the other, not to junior recruiter or some other person. [00:02:00] Speaker 03: They did independently each discuss Junior. [00:02:04] Speaker 03: For example, Ms. [00:02:04] Speaker 03: Gaitan mentioned that Junior is the person that recruited her. [00:02:07] Speaker 03: They both mentioned that he was the person that was driving with them down to Tijuana. [00:02:12] Speaker 03: Ms. [00:02:12] Speaker 03: Gaitan specifically stated that Mr. Robledo had passed out in his hotel room the entire time they were there, and they were locked out, and she spent the time walking around Tijuana with Junior. [00:02:26] Speaker 03: The only reason that's important is because it refutes the idea that he was out packaging and weighing the drugs. [00:02:31] Speaker 04: Right, but there were his admissions that he had done that and then photographs on his phone. [00:02:35] Speaker 04: So there was some basis for the district court to conclude that Mr. Boledo had been, in fact, involved in packaging the drugs and putting them in the car. [00:02:44] Speaker 03: There was a basis, but the problem was that the facts were contested and the judge just chose which version of the facts to go by and did not do anything about the fact that there was a dispute. [00:02:55] Speaker 03: Both Ms. [00:02:56] Speaker 03: Gaitan and Mr. Robledo stated that they were recruited by Junior separately. [00:03:01] Speaker 03: Both of them stated that their role was to drive the car back across the border with the drugs and they were going to receive a phone call as to where to deliver them. [00:03:10] Speaker 03: in that they were to be paid $5,000. [00:03:12] Speaker 03: So that... She said she was to be paid $480. [00:03:16] Speaker 03: I think she's... There was some confusion as to what she said because she was sentenced separately, but she said in her pleadings that that was the original amount that she was offered by Junior. [00:03:29] Speaker 04: Okay, so the issue I'm having is that all of this information was before the district court. [00:03:35] Speaker 04: The district court knew about the testimony about Junior and the recruiter. [00:03:43] Speaker 04: and then determined that Mr. Robledo had an average participant's role based on other things that were in the record, the photographs, his statements, admissions in fact, that he had in fact packaged the drugs and put them in the car. [00:03:57] Speaker 04: So what more do you think the district court needed to say as it's clear under our case law that they don't have to list everything if we can tell from the record that they were fully aware of these other individuals? [00:04:07] Speaker 03: Two things. [00:04:07] Speaker 03: I think that the court's statement that Mr. Robledo was an average participant was all the facts that he used to make that statement were actually facts that support this court's decisions in what constitutes a minor role. [00:04:21] Speaker 03: It was one disputed issue, and that was the packaging. [00:04:24] Speaker 03: that there were photographs of the packages on Mr. Robledo's phone. [00:04:28] Speaker 03: There was a dispute as to what those photographs meant. [00:04:31] Speaker 03: Mr. Robledo stated that he took those photographs because he did not want to be accused of stealing drugs. [00:04:37] Speaker 04: And in fact, there was- Why is the fact that Mr. Robledo made admissions when he was stopped at the border by the agents and then later recanted? [00:04:46] Speaker 04: Why isn't the district court allowed to weigh the evidence and make a determination? [00:04:52] Speaker 03: I just think that the district court was not interested in hearing anything other than what the district court had decided was an average role. [00:05:00] Speaker 02: Did the court cut off anybody? [00:05:02] Speaker 02: I'm sorry. [00:05:03] Speaker 02: You said the court wasn't interested. [00:05:05] Speaker 02: Did the court cut off? [00:05:06] Speaker 02: Was there any tender or proffer of proof or evidence that the court said, I'm not interested in hearing it? [00:05:11] Speaker 02: Or was this entirely the decision of the advocates? [00:05:14] Speaker 03: Well, the court did cut me off during argument when I stated what my position was as to why Mr. Robledo's [00:05:22] Speaker 03: the actions that were being considered were more consistent with that of a courier than that of an average participant or somebody higher and cut me off and said that he had hundreds of those cases that the typical case of an average of a minor participant was someone who was down in Tijuana got drunk in a bar and then agreed to drive a car back across. [00:05:42] Speaker 03: The court had a very firm view of what it considers to be [00:05:46] Speaker 03: minor participant or an average participant which I don't believe is consistent with this court's decisions in Rodriguez and and the other decisions that are mentioned in my in my pleadings but even if that is we're correct even if we accepted that [00:06:01] Speaker 04: Wouldn't any error here be harmless given the sentence that was ultimately imposed, which would be below the sentence he would have received if he had gotten the departures or reductions for being a minor participant? [00:06:13] Speaker 03: That's a very valid point, but I think the problem is that the district court judge was very, I think, moved by some of the mitigating circumstances that Appellant Robledo had. [00:06:25] Speaker 03: However, he started so high that his opinion of what the mitigating circumstances were only reduced it down to the sentence that he ultimately gave. [00:06:35] Speaker 04: Had he started at a more appropriate—let's say, for example, that he— But we have to—what the standard is, is if we can determine from the record that the district judge would have given the same sentence. [00:06:46] Speaker 04: And he said on the record, I cannot justify a sentence any lower than what I'm giving you. [00:06:51] Speaker 04: It seems pretty clear on the record that that was the sentence that the district judge was going to impose. [00:06:59] Speaker 03: That's a valid point, Your Honor, but I disagree with you. [00:07:01] Speaker 03: I believe that what the judge was saying was that given how high the guidelines were, that was the maximum amount of love that he was prepared to give to Mr. Robledo because he did not find him to be a courier. [00:07:11] Speaker 03: Had he found him to be a courier, [00:07:14] Speaker 03: differently calculated what the guidelines were. [00:07:16] Speaker 04: Wait, the district judge specifically said that it doesn't turn on whether you're a courier. [00:07:21] Speaker 04: It's a very fact-specific analysis. [00:07:24] Speaker 04: You could be a courier who has an average role. [00:07:26] Speaker 04: You could be a courier who receives a minor participant deduction, but the judge seemed pretty aware of the standard. [00:07:36] Speaker 03: I mean, he did say that, correct? [00:07:38] Speaker 04: In the record, he said, it doesn't turn on whether you're a courier. [00:07:41] Speaker 04: It's a fact-specific determination. [00:07:43] Speaker 03: Well, then he made those statements about what he considers a courier to be. [00:07:46] Speaker 03: There was a real difference of opinion in whether or not, for example, Mr. Robledo's argument was, look, Ms. [00:07:52] Speaker 03: Gaitana and I went down there. [00:07:54] Speaker 03: We didn't know where we were. [00:07:55] Speaker 03: We stayed overnight in the hotel. [00:07:57] Speaker 03: We were given the drugs, and we were told to bring them back. [00:07:59] Speaker 03: When we got across the border, we were going to get a phone call telling us where to drop them, and I was going to be paid $5,000. [00:08:05] Speaker 03: That's classic courier behavior in the Southern District of California. [00:08:10] Speaker 03: We have literally tens of thousands of those cases all the time. [00:08:15] Speaker 03: That was the position that I was arguing Mr. Robledo was in, that that is exactly what he did, that's what the evidence supported that he did, and that that was a courier role. [00:08:29] Speaker 02: He made the decision to go ahead and cross that border on his own. [00:08:34] Speaker 03: didn't he I mean there was no no hadn't his passengers bailed out of the right at the port of entry yeah so he did not know and the evidence is undisputed that they drove up together to the port of entry and then she just got out and said pick me up on the other side there wasn't he did not know that ahead of time is there is there evidence of whether he could have turned around at that point or not I don't and stayed in Mexico yeah [00:09:02] Speaker 03: There is no particular evidence. [00:09:04] Speaker 02: I would note that the record... I don't want to hear anything that's not in the record. [00:09:08] Speaker 03: No, the only evidence that was in the record was that he had never been to Tijuana before. [00:09:12] Speaker 03: He had no idea where he was going and that he was right at the port of entry. [00:09:17] Speaker 03: I don't know if the court is familiar with the port of entry. [00:09:19] Speaker 03: It's not easy to do a U-turn when you get right there. [00:09:22] Speaker 02: I am, yes. [00:09:23] Speaker 02: Thank you. [00:09:23] Speaker 04: I don't want to cut off my colleagues, but did you want to reserve any time for rebuttal? [00:09:28] Speaker 04: Yes, thank you, Your Honor. [00:09:32] Speaker 04: We only have 37 seconds, but I'll give you a little more than that. [00:09:43] Speaker 00: Good morning. [00:09:44] Speaker 00: May it please the Court, David Keat again on behalf of the United States. [00:09:47] Speaker 00: This court should affirm the sentence imposed by the district court denying minor role because the defendant did not meet his burden to show that he was substantially less culpable than the average participant in the offense. [00:09:58] Speaker 00: In making this determination, the district court correctly followed the three-step process set forth in Dominguez's cicado. [00:10:05] Speaker 00: First, it determined [00:10:06] Speaker 00: who the actual participants in this offense were. [00:10:08] Speaker 00: And here there appears to be no dispute between the government and the defense. [00:10:12] Speaker 00: The actual participants are limited to the two unnamed recruiters that Mr. Abledo mentioned, his co-defendant, Ms. [00:10:19] Speaker 00: Gayton, Mr. Abledo himself, of course, [00:10:21] Speaker 00: as well as this man named Junior. [00:10:23] Speaker 00: So the court did analyze the level of culpability of those five actual participants. [00:10:29] Speaker 01: Council, that's the point that I want to ask about. [00:10:31] Speaker 01: I think it's definitely fair on this record to conclude that the district court knew of the various people involved in this situation. [00:10:40] Speaker 01: What I'm looking for is an indication in the transcript that the district court did step two and actually sort of analyze the relative culpability of all the different participants that had been identified. [00:10:51] Speaker 01: So where in the record does it show me that the district court actually did that part? [00:10:55] Speaker 00: So that is inferred both from the active questioning of the court to the various parties. [00:11:02] Speaker 00: So the court questioned both defense and the government. [00:11:07] Speaker 00: They both walked through the five factors from the sentencing guidelines, section 3B1.2, comment three. [00:11:13] Speaker 00: And then the court at the end, before it imposed a sentence, before it found that there was no minor role in this case, said, quote, in looking at all the other indicia of knowledge, control, planning, involvement, [00:11:25] Speaker 00: That's what puts him in an average role. [00:11:27] Speaker 01: Okay, so that seems to me like step three, where you analyze the defendant's culpability. [00:11:32] Speaker 01: And I think that step three is absolutely met. [00:11:34] Speaker 01: I'm still struggling with where is step two analyzed and how do I know that the district court actually was sort of weighing. [00:11:42] Speaker 01: But candidly, I'm not quite sure that the analysis that we've set forth in Dominguez makes a whole lot of sense in terms of this sort of supposed mathematical calculation. [00:11:49] Speaker 01: But that's what the court has said. [00:11:51] Speaker 01: And I still am not quite sure I see how step two was done. [00:11:55] Speaker 00: Well, the fact that the court made that conclusion that there was a comparison between the defendant and an average participant suggested the court must have therefore come to a conclusion of who the average participant was. [00:12:06] Speaker 01: So you just want us to draw an imprint from the fact that the district court said that the defendant here was average. [00:12:11] Speaker 00: Well, not just that, Your Honor, but the fact that the calculation was done in the sentencing papers of the defendant, as well as in the oral argument by the government and the defense, and the fact that the judge actively engaged in that analysis. [00:12:26] Speaker 00: It's similar, we would submit, to the Diaz case, and dissimilar, we would say, to perhaps the Clench case, where there was no questioning with respect to the factors related in minor role analysis and no discussion of the individual facts. [00:12:41] Speaker 00: So this case we would submit is entirely dissimilar from there and much more similar to Diaz where this court held that in fact we could look to the PSR, to the sentencing papers of the parties in determining that the judge had that information before him when he made the decision, considered it, and stated in fact here on the record that he considered it before deciding that minor role did not in fact apply. [00:13:05] Speaker 01: I think that's a fair position. [00:13:07] Speaker 01: I'm just trying to figure out sort of what this test means if we say that, right? [00:13:12] Speaker 01: So if the record is clear that step one is met and the record is clear that step three is met and then the record is clear that all the participants are at least identified in some way, either on the papers or at the hearing, then step two is met. [00:13:26] Speaker 01: What does step two even mean if that's all that the record needs to reflect? [00:13:29] Speaker 00: Step two means that there has to be some determination of an average level of culpability against which the defendant can be compared. [00:13:36] Speaker 00: And that means, in order to make that determination, it means identifying the actual participants and then determining for each of those participants, analyzing the five factors, how culpable are each of them and coming to some mathematical average as opposed to mathematical median as discussed in Dominguez-Sicado. [00:13:55] Speaker 00: So in this case, the court did, in fact, do that analysis, did conclude properly that minor role was not appropriate, and sentenced the defendant, as Your Honors have mentioned, to a 110-month sentence, which represents [00:14:07] Speaker 00: the low end of the guidelines as even if minor role would have applied. [00:14:12] Speaker 00: And so therefore, your honors, even if this court finds that it was error to deny minor role, this such error would be harmless for two separate reasons under this court's opinion in Munoz Camarena. [00:14:24] Speaker 00: First, because the court did in fact do that alternative calculation, albeit not directly, but the government went through the alternative calculation. [00:14:33] Speaker 00: The district court said, I did the same math and I agree. [00:14:36] Speaker 00: and then only after that analyzed the 3553A factors and came to the conclusion that the sentence was appropriate. [00:14:43] Speaker 00: Separate and apart from that analysis, the fact that the ultimate sentence imposed was 110 months, which represents, again, the low end of the guidelines if minor role were to have applied, also renders any error harmless if indeed this court finds that it was error. [00:14:58] Speaker 02: What is the Ninth Circuit law on whether it can be harmless error if the sentencing judge started from the wrong point? [00:15:07] Speaker 02: That is, it doesn't matter where the end result is. [00:15:11] Speaker 02: There are circuits that take the view that if you start from the wrong point, it's not going to be harmless. [00:15:16] Speaker 00: So our argument in this case relies on Munoz Camarena and footnote five entirely, your honor. [00:15:23] Speaker 00: So in that case, the court listed several different examples, not exhaustive, but several different examples of a situation where [00:15:32] Speaker 00: an improperly calculated guidelines range would lead to harmless error. [00:15:37] Speaker 00: And one of those ways is if the court calculates the guidelines in the alternative, both with and without minor error, minor role, I apologize, and then after that impose a sentence. [00:15:48] Speaker 00: Separate and apart, another example, again in a non-exhaustive list that the court delineated in Minos Camarena, the court said [00:15:55] Speaker 00: If the ultimate sentence is within, in that case, the example was within both the properly and improperly calculated guidelines, it's harmless error. [00:16:04] Speaker 00: Here, it's not within both. [00:16:06] Speaker 00: It's within the guidelines that would be most favorable to the defendant with minor role. [00:16:11] Speaker 00: Thank you. [00:16:12] Speaker 00: And if the court has no further questions, we would submit. [00:16:15] Speaker 01: I guess I have one final question. [00:16:18] Speaker ?: Yes. [00:16:20] Speaker 01: Do you think that Dominguez undermines it all, Munoz-Camarena, in terms of, I mean, in Dominguez, the court said, if we think that the three-step analysis isn't followed, we vacate and remand for resentencing. [00:16:33] Speaker 01: And I'm just curious, how do you reconcile those two cases, or do you think that there is a need to reconcile the two cases? [00:16:38] Speaker 00: I don't believe so, Your Honor. [00:16:40] Speaker 00: I think the Munoz-Camarena analysis is separate and apart, because under Dominguez-Sicado, if those three steps are not followed, there is error. [00:16:50] Speaker 00: And then the only question is, is it harmless error? [00:16:52] Speaker 00: And you have to satisfy one of those factors set forth in the footnote to Munoz-Camarena. [00:16:57] Speaker 00: So a sentence that didn't qualify, if the guidelines weren't calculated twice, if none of the other ways in which you can create harmless error were met, [00:17:06] Speaker 00: to be remanded, then it would need to be remanded for new sentencing. [00:17:12] Speaker 04: Thank you very much. [00:17:23] Speaker 03: I think in this case there is reason to wonder what Judge Battaglia would have done, what the district court judge would have done had he calculated the guidelines differently and that is because he placed great credence on where he was starting from and only then and at that point did he go into any of the mitigating factors. [00:17:44] Speaker 03: The mitigating factors were very significant and again I repeat [00:17:49] Speaker 01: I'm trying to play that out in my mind. [00:17:52] Speaker 01: Is your thought then that if he had applied the minor role, he would have been at a lower offense level starting point, and then maybe he would have varied down to the same extent that he did? [00:18:03] Speaker 01: I think that he would have varied down on the same factors that he varied down on. [00:18:07] Speaker 01: Well, that seems like a given, but it's about the math at this point in terms of whether it's harmless or not. [00:18:12] Speaker 01: The same factors would have been there, the same equities, sure. [00:18:15] Speaker 01: But your argument to work means that he would have had to apply the minor role and then varied downward to the same degree that he varied downward without the minor role. [00:18:25] Speaker 01: And what tells us that he would have done that? [00:18:29] Speaker 03: It's not in the record, but I have been in front of him for 20 years and I've seen how he's sentenced. [00:18:34] Speaker 03: It's very important where he starts, where he believes the case starts as to what degree he's going to, you know, what variances and what degree he's going to do. [00:18:42] Speaker 03: So I think that on this record, it is both wrong for me to infer that I know what he would have done, just as it would be wrong for the government to infer that he would have given the same sentence. [00:18:53] Speaker 03: There's just no indication that that's the case. [00:18:56] Speaker 04: So he applied variances and went to the very bottom of the guidelines range. [00:19:00] Speaker 04: So to go lower than that, wouldn't he have had to apply a departure? [00:19:06] Speaker 04: He would have had to have sentenced outside of the variances that are set forth in the guidelines and departed from the guidelines, which is a much bigger deal, right? [00:19:16] Speaker 04: So to go below 110 months, you would have had to persuade him and persuade us that he was going to depart. [00:19:26] Speaker 03: That's correct, Your Honor. [00:19:27] Speaker 03: I do have that burden of persuasion, but I believe that the facts of the case and the way the judge treated those departures during the sentencing . [00:19:34] Speaker 03: . [00:19:34] Speaker 03: . [00:19:34] Speaker 04: But he didn't depart. [00:19:35] Speaker 04: He gave variances. [00:19:37] Speaker 04: There's a difference, as you well know. [00:19:38] Speaker 04: Was there anything in the sentencing? [00:19:43] Speaker 04: Was there an argument for him to depart? [00:19:44] Speaker 04: Did anybody suggest that he should depart and go below the guidelines? [00:19:48] Speaker 03: Well, the problem was that the judge [00:19:52] Speaker 03: The judge cut off argument about minor role at a certain point, and that was all he wanted to hear about that. [00:19:58] Speaker 04: Then he said on the record, this is as low as I can go, which seemed to be a pretty strong indication that he wasn't contemplating a departure. [00:20:08] Speaker 03: I think Your Honor makes a fair point, but I do not think the record is clear that that is the case. [00:20:12] Speaker 03: And it's, to me, a slippery slope to infer that had a judge calculated the guidelines as I believe to be correctly, which would have been a huge difference, that in that case, the judge would have simply imposed the same sentence. [00:20:25] Speaker 03: There's no evidence that that's the case, and I think that that's a dangerous precedent to set. [00:20:32] Speaker 04: So you are now over the time that I allotted for a rebuttal, but my colleagues have any more questions? [00:20:40] Speaker 04: All right. [00:20:40] Speaker 04: Thank you. [00:20:40] Speaker 03: Thank you very much, Your Honor. [00:20:51] Speaker 04: Oh, yes. [00:20:52] Speaker 04: We are adjourned for the day. [00:20:54] Speaker 04: Thank you. [00:21:06] Speaker 04: This court for this session stands adjourned.