United States v. Hector Hurtado , 760 F.3d 1065 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50170
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-04756-BEN-1
HECTOR HURTADO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted July 7, 2014*
Pasadena, California
Filed July 29, 2014
Before: Barry G. Silverman, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Silverman
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. HURTADO
SUMMARY**
Criminal Law
The panel affirmed a sentence imposed for importation of
cocaine into the United States, in a case in which the
defendant challenged the district court’s denial of a “minor
role” reduction pursuant to U.S.S.G. § 3B1.2(b).
The panel held that the district court applied the correct
legal standard, did not abuse its discretion in its application
of the guideline to the facts of the case, and did not clearly err
when it found that the defendant was a typical commercial
drug smuggler – no better, no worse – and not entitled to a
minor role reduction. The panel held that the district court
was not clearly erroneous in finding that although the
defendant may have been a cog in some larger wheel, he was
an essential cog who, solely for a sizeable sum of money,
knowingly smuggled a large quantity of narcotics into the
United States via a hidden compartment in his truck.
Rejecting the defendant’s contention that he played a minor
role simply because he acted as a courier, the panel observed
that the district court clearly understood the defendant’s role
vis-a-vis other possible participants, and did not abuse its
discretion or clearly err in concluding that the defendant’s
role was not minor on these facts.
The panel rejected the defendant’s contention that his
sentence was substantively unreasonable, and his challenges
to the district court’s imposition of a $450 fine.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. HURTADO 3
COUNSEL
James Fife, Federal Defenders of San Diego, Inc., San Diego,
California for Defendant-Appellant.
Kyle B. Martin, Special Assistant United States Attorney, San
Diego, California for Plaintiff-Appellee.
OPINION
SILVERMAN, Circuit Judge:
Hector Hurtado appeals the 46-month sentence imposed
by the district court following his guilty plea to intentionally
and knowingly importing 11.64 kilograms of cocaine into the
United States from Mexico in violation of 21 U.S.C. §§ 952
and 960. Hurtado was caught driving a truck loaded with
cocaine across the border, for which he was paid $3,500.
Hurtado argues that the district court erred when it held that
he was not entitled to the “minor role” reduction provided for
in United States Sentencing Guideline § 3B1.2(b).
Hurtado’s argument is essentially this: Just as all children
in Lake Wobegon are above average, all drug couriers are, by
definition, below average and entitled to the minor role
reduction. Like the district court, we reject that argument.
We hold today that the district court applied the correct legal
standard, did not abuse its discretion in its application of the
guideline to the facts of the case, and 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. The district court was not clearly erroneous
in finding that although Hurtado may have been a cog in
4 UNITED STATES V. HURTADO
some larger wheel, he was an essential cog who, solely for a
sizeable sum of money, knowingly smuggled a large quantity
of narcotics into the United States via a hidden compartment
in his truck. The district court clearly understood Hurtado’s
role vis-a-vis other possible participants, see United States v.
Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000), but
concluded that Hurtado’s role was not minor on these facts.
In so ruling, the district court did not abuse its discretion or
clearly err.
I. Background
On October 25, 2012, Hurtado drove his pick-up truck
from Mexico to the United States through the Calexico,
California East Port of Entry. Agents referred him to
secondary after observing that he was nervous. At secondary,
the narcotics dog alerted to the firewall of the vehicle. A
subsequent search revealed 10 packages of cocaine, weighing
11.64 kilograms (25.6 pounds), concealed within the firewall
of the truck.
Hurtado stated that he worked for a drug trafficking
organization in Mexico and was being paid $3,500 to
smuggle the drugs into the United States in his truck. He had
received $1,000 in advance and had allowed the organization
to register the truck in his name. According to Hurtado,
someone in the organization would contact him with further
instructions after he crossed the border.
Hurtado was charged with knowingly and intentionally
importing 11.64 kilograms (25.6 pounds) of cocaine into the
United States from Mexico on October 25, 2012, in violation
of 21 U.S.C. §§ 952 and 960. Hurtado pled guilty to the
charge pursuant to a written fast-track plea agreement. The
UNITED STATES V. HURTADO 5
parties agreed that Hurtado could seek a downward
adjustment for minor role, but the government was free to
oppose the request. Hurtado retained his right to appeal if the
district court denied his request for a minor role reduction.
The crime carried a mandatory minimum sentence of 10
years and a maximum sentence of life. 21 U.S.C.
§ 960(b)(1)(B). The 2012 Sentencing Guidelines, in effect
when Hurtado was sentenced on April 15, 2013, were applied
at sentencing.
Assuming the applicability of a safety-valve departure
below the statutory minimum, the presentence report
recommended a sentence of 46 months, the low end of its
calculated guideline range. It did not recommend a
§ 3B1.2(b) minor role reduction, reasoning that Hurtado had
not established that he was substantially less culpable than the
average drug smuggler.
At sentencing, the parties jointly requested a minor role
reduction, arguing that couriers occupy a minor role when
compared to other individuals in drug organizations. Hurtado
and the government agreed that the guideline range was 30 to
37 months, and they jointly recommended a sentence of 30
months. The agreed-upon guideline calculation included a
two-level reduction for minor role.
The district court ruled that Hurtado had not established
that he was entitled to a minor role adjustment, but rather,
that Hurtado was the average drug smuggler who was paid a
sizeable sum of money to drive a significant amount of drugs
across the border, in a truck he agreed to have registered in
his name. The district court calculated an adjusted offense
6 UNITED STATES V. HURTADO
level of 23. With a criminal history category of I, the
guideline range computed by the judge was 46 to 57 months.
The district court sentenced the defendant to the low end
of this range, 46 months, followed by five years of supervised
release. The district court also fined the defendant $450,
finding that he could pay it in $25 quarterly payments during
incarceration. The district court specifically found that
Hurtado was a young man who could work in prison and
could afford to pay the fine.
II. Jurisdiction and standards of review
On April 15, 2013, Hurtado timely appealed the April 17,
2013, judgment. Fed. R. App. P. 4(b). We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review the district court’s interpretation of the
guidelines de novo and application of the guidelines to the
facts for an abuse of discretion. United States v. Rodriguez-
Castro, 641 F.3d 1189, 1192 (9th Cir. 2011). The finding
that Hurtado is not a minor participant is a factual finding that
we review for clear error. Id. We review the substantive
reasonableness of the sentence for an abuse of discretion. Id.
We review the district court’s decision to impose the fine and
the amount of the fine for reasonableness. United States v.
Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009). The district
court’s finding that Hurtado is able to pay the fine is reviewed
for clear error. Id.
III. Minor role adjustment
Hurtado argues that the district court applied the wrong
legal standard when it decided that he did not qualify for a
UNITED STATES V. HURTADO 7
minor role adjustment pursuant to § 3B1.2(b). He argues that
the district court erroneously focused on the facts of the crime
and failed to compare him to other supposed participants in
the offense. Hurtado also claims that he played a minor role
simply because he acted as a courier. We reject each of these
arguments.
The district court clearly understood and applied the
correct legal standard when it denied Hurtado’s request for a
minor role adjustment. The guideline provides a two-level
decrease in the offense level if the defendant proves that he
“was a minor participant in any criminal activity.” U.S.S.G.
§ 3B1.2(b) (2012); Rodriguez-Castro, 641 F.3d at 1193. A
minor participant is “substantially less culpable than the
average participant.” Rodriguez-Castro, 641 F.3d at 1193
(emphasis in the original). The guidelines recognize that, in
some circumstances, a courier may play a minor role, but we
have already held that simply being a courier does not
automatically entitle a defendant to the minor role
adjustment. Id.; United States v. Lui, 941 F.2d 844, 849 (9th
Cir. 1991).
There’s an old saying: Crime doesn’t pay, but at least
you’re your own boss. In this case, Hurtado wasn’t even his
own boss; he was paid by others to commit the crime.
However, the mere fact that Hurtado may have been doing
criminal work for hire does not itself establish that he was a
minor participant. That Hurtado’s supervisors, organizers,
recruiters, and leaders may have above-average culpability –
and thus are subject to aggravating role enhancements under
U.S.S.G. § 3B1.1 – doesn’t mean that Hurtado is
“substantially less culpable than the average participant.”
U.S.S.G. § 3B1.2 n.3(A) (emphasis added). The requisite
8 UNITED STATES V. HURTADO
comparison is to average participants, not above-average
participants.
The district court also properly considered the facts of the
crime and the totality of the circumstances. Rodriguez-
Castro, 641 F.3d at 1193. It properly considered the quantity
of drugs, the amount paid to Hurtado, and the fact that he
allowed the truck to be registered in his name. Any of these
facts alone may justify denial of a minor role. Id.; United
States v. Hursh, 217 F.3d 761, 770 (9th Cir. 2000).
This is not to say that some other courier in some other
case might not be eligible for a minor role adjustment. We
hold only that the district court did not clearly err in finding
that in this case, Hurtado was an average participant and not
substantially less culpable than others who may have been
involved in the crime.
IV. Substantive reasonableness of the sentence
Hurtado argues that his 46-month sentence was
substantively unreasonable because he was a routine,
unskilled courier without managerial or decision-making
authority. But the district court did not abuse its discretion by
sentencing the defendant to 46 months after considering the
relevant sentencing factors and arguments made by the
parties. The sentence was the low-end guideline sentence
recommended by the presentence report and, thanks to the
operation of the safety valve provisions of 18 U.S.C.
§ 3553(f) and U.S.S.G. § 5C1.2, well below the 120-month
statutory mandatory minimum for the 11.64 kilograms of
cocaine Hurtado imported into the country.
UNITED STATES V. HURTADO 9
V. Fine
Finally, Hurtado argues that the district court imposed the
fine without stating that it considered all of the factors set
forth in 18 U.S.C. § 3572(a) and U.S.S.G. § 5E1.2 and
without considering his lack of resources. However, the
district court was not required to list the factors or to
“articulate every factor” that it considered when it assessed
the fine. Orlando, 553 F.3d at 1240. The district court
clearly considered relevant factors, including Hurtado’s
ability to pay the fine, ability to pay over a period of time, his
earning capacity, and his financial resources. See U.S.S.G.
§ 5E1.2(d)(2); 18 U.S.C. § 3572(a).
Nor did the district court clearly err when it found that
Hurtado could afford to pay a $450 fine in future quarterly
installments of $25. United States v. Haggard, 41 F.3d 1320,
1329 (9th Cir. 1994). Even if Hurtado was indigent at the
time of sentencing, the district court could impose a fine if it
found that Hurtado had “earning capacity to pay the fine in
the future.” Orlando, 553 F.3d at 1240. In this case, Hurtado
admitted that he is in good health and is a trained auto
mechanic, admissions which fully support the district court’s
finding. United States v. Hernandez-Arias, 745 F.3d 1275,
1285 (9th Cir. 2014).
Finally, the fine of $450, which is well below the
guideline minimum of $10,000 set forth in U.S.S.G.
§ 5E1.2(c)(3), is reasonable.
AFFIRMED.