United States v. Rosas , 615 F.3d 1058 ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 09-10011
v.  D.C. No.
4:02-cr-01016-JMR-
MIGUEL ANGEL ROSAS, CRP
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 09-10013
Plaintiff-Appellee, D.C. No.
v.  4:08-cr-00123-JMR-
MIGUEL ANGEL ROSAS, CRP
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Argued and Submitted
December 10, 2009—San Francisco, California
Filed July 27, 2010
Before: Betty B. Fletcher, Sidney R. Thomas, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
10795
UNITED STATES v. ROSAS 10799
COUNSEL
Christina M. Cabanillas, Assistant United States Attorney for
the District of Arizona, argued the cause for the appellee and
was on the briefs. Elizabeth Adair Strange, Assistant United
States Attorney for the District of Arizona, filed the briefs.
Diane J. Humetewa, United States Attorney for the District of
Arizona, also was on the briefs.
Stanton Bloom, of Tucson, Arizona, argued the cause for the
defendant-appellant and filed the briefs.
OPINION
N.R. SMITH, Circuit Judge:
A defendant may be convicted under 18 U.S.C. § 3146 for
failure to appear if he is convicted of a federal crime, released
pending sentencing, and then does not attend the sentencing
hearing for the initial conviction. The United States Sentenc-
ing Guidelines Manual (the “Guidelines”) instructs that, rather
than calculating the recommended sentences for failure to
appear and the underlying conviction separately, the district
court should account for failure to appear by enhancing the
sentence for the underlying conviction pursuant to Guidelines
§ 3C1.1 for obstruction of justice and Guidelines § 3C1.3 for
commission of an offense while on release. In addition to
using the defendant’s failure to attend the original sentencing
hearing as the basis for these two enhancements, the district
court may also use it as grounds for denying the defendant a
reduction for acceptance of responsibility under Guidelines
§ 3E1.1. Such a sentence does not (1) violate the defendant’s
constitutional rights to due process and protection from dou-
ble jeopardy, or (2) constitute impermissible double counting
under the Sentencing Guidelines.
10800 UNITED STATES v. ROSAS
I. PROCEDURAL HISTORY
Miguel Angel Rosas (“Rosas”) was convicted of conspir-
acy to possess with intent to distribute marijuana and posses-
sion with intent to distribute marijuana. He was later
convicted of failure to appear at his sentencing hearing on the
drug convictions. The district court sentenced Rosas to 63
months’ imprisonment, 53 months for the drug convictions
and 10 months for failure to appear.
On appeal, Rosas claims that the sentence imposed by the
district court violated his constitutional rights. Rosas raises
three constitutional claims: (1) the district court engaged in
impermissible double-counting in violation of the Fifth
Amendment’s protection against double jeopardy by imposing
two Guidelines sentencing enhancements and denying him
one reduction on the basis of the same conduct—his failure to
appear for sentencing on his 2002 drug conviction; (2) he was
deprived of his Fifth Amendment right to due process of law
because he did not receive notice that he could be subject to
an increased term of imprisonment for failing to appear at
sentence; and (3) the district court enhanced his sentence
beyond the statutory maximum for the crime based upon facts
that were not submitted to the jury and proven beyond a rea-
sonable doubt, as required by Apprendi v. New Jersey, 530
U.S. 466 (2000). Rosas also argues that the rule of lenity
applies here and raises non-constitutional challenges to his
sentence. Specifically, he claims that the district court erred
in denying him an acceptance of responsibility reduction and
a mitigating role reduction under the Guidelines.
II. FACTS
Rosas became involved in the drug transaction, for which
he was convicted, when he accepted the offer of his co-
worker, Donald Simms, to transport a load of marijuana for
$10 per pound. On January 15, 2002, Rosas, Simms, and
another participant, Jessie Tatum, drove together to a Tucson
UNITED STATES v. ROSAS 10801
restaurant to meet two potential buyers to arrange for the sale
of 250 pounds of marijuana; the buyers were an undercover
Drug Enforcement Administration (“DEA”) agent and a con-
fidential source. At the meeting, Simms provided the agent a
“sample” of marijuana, and the parties agreed to a purchase
of 250 pounds of marijuana at a price of $500 per pound,
totaling $125,000.
The next day, Rosas, Simms, and Tatum again drove
together to meet the buyers. Simms then went with the DEA
agent to a separate location to make sure that the buyers had
the money. Once Simms was presented with a bag containing
$100,000 in cash, he called Tatum and instructed him to have
Rosas deliver the drugs to a predetermined drop-off point.
Rosas drove a truck to Simms’ house, where he helped load
it with the marijuana. Rosas then drove it to the drop off
point, while Tatum and Simms followed in a separate vehicle.
Upon arrival at the drop location, DEA agents attempted to
arrest the group; Simms and Rosas fled on foot and escaped.
Rosas was not arrested until May 29, 2002. At that time,
Rosas was indicted for Conspiracy to Possess with Intent to
Distribute Marijuana in violation of 21 U.S.C. § 846, and Pos-
session with Intent to Distribute Marijuana in violation of 21
U.S.C. § 841(a)(1).
Although Rosas did not enter into a plea agreement, he
pleaded guilty and cooperated with the authorities. Rosas was
released on $15,000 bond on June 17, 2002. On March 19,
2003, the day before a state court sentencing for possession
of a narcotic drug for sale (and two weeks before federal sen-
tencing on these charges), Rosas fled to Mexico. At some
later point in time, Rosas returned to the United States. On
December 3, 2007, he was again arrested for possession of
marijuana for sale. A federal grand jury indicted Rosas for
failure to appear in violation of U.S.C. § 3146. He pleaded
guilty. The failure to appear conviction and the underlying
2002 drug conviction cases were consolidated for sentencing.
10802 UNITED STATES v. ROSAS
This appeal arises out the sentencing hearing conducted in
that consolidated case.
Before Rosas fled the country, a Presentence Investigation
Report (“PSR”) had been completed in anticipation of his
upcoming sentencing. That PSR made findings and recom-
mendations regarding Rosas’s sentencing on the two drug
convictions, 21 U.S.C. §§ 841(a)(1) and 846, which carried a
statutory maximum of 40 years on each count. The Guidelines
base offense level for a violation of these statutes involving
100 kilograms of marijuana is 26. The PSR found Rosas eligi-
ble for a two level “safety valve” reduction, Guidelines
§ 5C1.2, and a three level reduction for acceptance of respon-
sibility, Guidelines § 3E1.1. This resulted in a total offense
level of 21. After calculating the total offense level and
Rosas’s Criminal History Category, the PSR arrived at a
Guidelines range of imprisonment from 37 to 46 months.
After Rosas’s arrest in December of 2007, a second PSR
was prepared for his sentencing (the “2008 PSR”). The 2008
PSR reflects the significant consequences for Rosas’s failure
to appear and flight from the jurisdiction. The PSR calculated
a base offense level of 24 for the 2002 drug charges,1 and
again found him eligible for a two level “safety valve” reduc-
tion pursuant to Guidelines § 5C1.2. However, because of
Rosas’s flight from custody, the PSR calculated (1) a two
level enhancement for obstruction of justice, pursuant to
Guidelines § 3C1.1; (2) a three level enhancement for com-
mission of an offense while on release, pursuant to Guidelines
§ 3C1.3 and 18 U.S.C. § 3147; and (3) no reduction for accep-
tance of responsibility, pursuant to Guidelines § 3E1.1. The
1
The 2008 PSR calculated the base offense level for a drug transaction
involving 80 to 100 kilograms of marijuana. The PSR provides no expla-
nation for this change from the 2002 PSR—which calculated the base
offense level for a drug transaction involving over 100 kilograms of mari-
juana. However, as no objection was raised to this discrepancy and as it
favors the Defendant, we see no reason to address it.
UNITED STATES v. ROSAS 10803
2008 PSR recommended no reduction for acceptance of
responsibility, because Rosas’s “failure to appear out-
weigh[ed] his guilty plea and [was] inconsistent with affirma-
tive acceptance of responsibility and genuine remorse.” The
2008 PSR calculated his total offense level to be 27, resulting
in a Guidelines range of 70 to 87 months imprisonment. The
2008 PSR recommended a punishment of 70 months impris-
onment, a $300 special assessment, a $15,000 fine, and 5
years supervised release. Of that total term, 60 months were
attributable to the 2002 drug conviction and another 10
months to the failure to appear conviction.
Rosas lodged numerous objections to the PSR. Relevant to
this appeal, Rosas argued that (1) he should not have received
an enhancement for both obstruction of justice, Guidelines
§ 3C1.1, and commission of an offense while on release,
Guidelines § 3C1.3, as those two enhancements punish the
same behavior and enhancing for both constitutes double
counting; (2) even if that does not constitute double counting,
a statutory sentencing enhancement under 18 U.S.C. § 3147does not apply—rather, the statute under which he was con-
victed, § 3146, encompasses the field—and, therefore, he
should not have received an enhancement under Guidelines
§ 3C1.3; (3) he should have received an acceptance of respon-
sibility reduction, Guidelines § 3E1.1; and (4) he should have
received a mitigating role reduction, Guidelines § 3B1.2. The
Probation Office declined to amend the PSR as to these
issues.
At the sentencing hearing, the district court agreed with
most of the PSR. The court did grant Rosas’s request for a 1
level downward departure based on 18 U.S.C. § 3553 factors.
The court then sentenced Rosas to 53 months for the 2002
drug crimes and a consecutive 10 months for the failure to
appear, for a total of 63 months in prison. The court ordered
that Rosas pay the $300 special assessment, but waived the
$15,000 fine.
10804 UNITED STATES v. ROSAS
III. ANALYSIS
A. Challenges to the Nature of the Sentencing
Rosas’s failure to appear for sentencing and flight from the
jurisdiction was considered as relevant conduct at numerous
points in his 2008 sentencing calculation. We must decide
whether any of those calculations was in error and if the
cumulative affect of the enhancements violated Rosas’s con-
stitutional rights. We review de novo (1) the district court’s
interpretation of the Guidelines, United States v. Tankersley,
537 F.3d 1100, 1110 (9th Cir. 2008), and (2) claims that the
sentence is unconstitutional, United States v. Mercado, 474
F.3d 654, 656 (9th Cir. 2007).
[1] When sentencing a defendant for both an underlying
offense and an obstruction offense—such as § 3146, failure to
appear at sentencing—the Guidelines group the sentences
together and account for the obstruction offense by imposing
a two level enhancement to the underlying offense level,
under Guidelines § 3C1.1. U.S. Sentencing Guidelines Man-
ual § 3C1.1 cmt. n.8. By committing an obstruction offense,
a defendant has also committed an offense while on release,
potentially subjecting the defendant to an additional consecu-
tive sentence under § 3147. We must decide whether a sen-
tence enhancement pursuant to § 3147 may be applied to a
defendant when the only offense committed while on release
was a violation of § 3146, failure to appear, an issue of first
impression in this circuit. Therefore, if we find that § 3147
applies to those sentences where the only offense committed
while on release is the failure to appear, Rosas was properly
subject to two sentencing enhancements: (1) a two level
enhancement under Guidelines § 3C1.1; and (2) a three level
enhancement under Guidelines § 3C1.3. We hold that a defen-
dant convicted of the offense of failure to appear may be sub-
ject to a sentence enhancement (on his underlying conviction)
under § 3147, for committing an offense while on release.
UNITED STATES v. ROSAS 10805
[2] “The starting point for our interpretation of a statute is
always its plain language.” Rowe v. Educ. Credit Mgmt.
Corp., 559 F.3d 1028, 1032 (9th Cir. 2009) (internal quotation
omitted). “The plain meaning governs unless a clearly
expressed legislative intent is to the contrary, or unless such
plain meaning would lead to absurd results.” Dyer v. United
States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citation omitted).
The text of the statute at issue provides that:
A person convicted of an offense committed while
released under this chapter shall be sentenced, in
addition to the sentence prescribed for the offense to
. . . a term of imprisonment of not more than ten
years of the offense is a felony . . . . A term of
imprisonment imposed under this section shall be
consecutive to any other sentence of imprisonment.
18 U.S.C. § 3147. “Section 3147 clearly and unambiguously
mandates that the courts impose additional consecutive sen-
tences on persons convicted of crimes they commit while
released on bond.” United States v. Kentz, 251 F.3d 835, 840
(9th Cir. 2001) (quoting United States v. Lewis, 991 F.2d 322,
323 (6th Cir. 1993)); see also U.S. Sentencing Guidelines
Manual § 3C1.3. In this case, Rosas committed an obstruction
offense, failure to appear for sentencing, while on bond. The
statute contains no exception for § 3146 violations or for vio-
lations that, by their nature, can only be committed while on
bond (such as failure to appear). “There is nothing exceptional
about the statute, nor is it vague or ambiguous. The language
is plain and the meaning is clear. Our statutory construction
inquiry, therefore, is at an end.” United States v. Patterson,
820 F.2d 1524, 1526 (9th Cir. 1987) (citing Burlington N.
Railroad Co. v. Okla. Tax Comm’n, 481 U.S. 454 (1987)).
The § 3147 enhancement unambiguously applies to Rosas.
[3] We note that four other circuits “have held that the
plain language of the relevant statutes mandates application of
the § 3147 enhancement to the offense of failure to appear in
10806 UNITED STATES v. ROSAS
violation of § 3146.” United States v. Dison, 573 F.3d 204,
207 (5th Cir. 2009) (citing sister circuit opinions: United
States v. Clemendor, 237 F. App’x 473 (11th Cir. 2007) (per
curium) (unpublished); United States v. Fitzgerald, 435 F.3d
484 (4th Cir. 2006); and United States v. Benson, 134 F.3d
787 (6th Cir. 1998)). As to Rosas’s claim that the rule of len-
ity dictates a different result, we agree with our sister circuits
that, in the face of such unambiguous statutory language, the
rule of lenity does not apply here. See United States v. John-
son, 529 U.S. 53, 59 (2000) (“Absent ambiguity, the rule of
lenity is not applicable to guide statutory interpretation.”); see
also Dison, 573 F.3d at 208 (Fifth); Clemendor, 237 F. App’x
at 477-78 (Eleventh); United States v. Fitzgerald, 435 F.3d at
486-87 (Fourth); and Benson, 134 F.3d at 788 (Sixth).
[4] Contrary to Rosas’s assertion, a district court does not
violate the Fifth Amendment’s Double Jeopardy Clause by
accounting for a defendant’s failure to appear conviction by
enhancing the sentence for the underlying conviction for
obstruction of justice and commission of an offence while on
release. Nor does the court’s additional denial of an accep-
tance of responsibility reduction render the sentence unconsti-
tutional. “With respect to cumulative sentences imposed in a
single trial, the Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater punish-
ment than the legislature intended.” Missouri v. Hunter, 459
U.S. 359, 366 (1983). Here the legislature established a maxi-
mum sentence of ten years and Rosas’s sentence falls far short
of that mark, therefore Rosas’s constitutional claim must fail.
[5] Further, the district court did not engage in impermissi-
ble double counting under the Guidelines. We have held that
the Sentencing Commission understands double counting and
“expressly forbids it where it is not intended.” United States
v. Reese, 2 F.3d 870, 894 (9th Cir. 1993) (quoting United
States v. Williams, 954 F.2d 204, 208 (4th Cir. 1992)). Here,
the Guidelines allow for failure to appear to provide the basis
for two enhancements, obstruction of justice and commission
UNITED STATES v. ROSAS 10807
of an offense while on release. Finally, denying Rosas a
reduction for Acceptance of Responsibility on the basis of his
failure to appear did not constitute double counting “because
the acceptance provision constitutes a sentencing benefit
which a defendant may be entitled to receive. The fact that a
defendant may fail to receive the reduction does not result in
an additional enhancement.” United States v. Rutledge, 28
F.3d 998, 1004 (9th Cir. 1994). Therefore, the district court
did not engage in impermissible double counting.
[6] So long as these enhancements do not raise a defen-
dant’s total sentence to a term longer than the statutory maxi-
mum, the conduct upon which these enhancements are based
need not have been submitted to a jury. See Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). In order to bring an
Apprendi claim, the defendant must show that “the actual sen-
tence imposed [is] longer than the maximum sentence” for the
crime of conviction. United States v. Ellis, 241 F.3d 1096,
1104 (9th Cir. 2001). Here, Rosas faced a statutory maximum
of 40 years for each of the two drug offenses and 10 years for
his failure to appear. Because his actual sentence falls far
below that (at a little over five years), he cannot make out an
Apprendi claim.
[7] Finally, we reaffirm this Circuit’s position that a PSR
gives pre-sentence notice, satisfying both constitutional due
process requirements and the Guidelines notice requirement.
Kentz, 251 F.3d at 840. The Ninth Circuit recognizes a notice
requirement for enhancements under § 3147 as calculated in
Guidelines § 3C1.3. Id. (citing U.S. Sentencing Guidelines
Manual § 3C1.3, comment. (backg’d)). “[T]his is a pre-
sentence requirement rather than a pre-release requirement.”2
Id. at 841 (emphasis in original). A PSR satisfies that require-
ment. Id. at 840. Rosas admits that he signed a PSR stating
2
Having found this a pre-sentence requirement, rather than pre-release
requirement, Rosas’s argument that he did not understand the 2002 PSR,
which he signed, is moot.
10808 UNITED STATES v. ROSAS
the conditions of release and appearance. We recognize that
the Government stipulated that Rosas was not advised of the
consequences of failing to appear at sentencing (for reasons
unclear on this record). However, both parties concede that
Rosas signed the PSR, which constitutes sufficient notice as
a matter of law. Id. Therefore, we find that Rosas received
sufficient notice of the potential consequences of his decision
not to appear for his original sentencing hearing.
B. Challenges to the Application of the Guidelines
The district court denied offense level reductions for accep-
tance of responsibility and having a mitigating role in the
criminal activity. Having held the application of these assess-
ments constitutional above, we now review the court’s appli-
cation of these Guidelines to Rosas’s case.
When reviewing a district court’s sentencing for error, “we
first consider whether the district court committed significant
procedural error, then we consider the substantive reasonable-
ness of the sentence.” United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). Because Rosas makes no chal-
lenge to the substantive reasonableness of the sentence, we
review only for significant procedural error in the district
court’s interpretation and application of the Guidelines. We
review “the district court’s interpretation of the Sentencing
Guidelines de novo, the district court’s application of the Sen-
tencing Guidelines to the facts of [the] case for abuse of dis-
cretion, and the district court’s factual findings for clear
error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th
Cir. 2005). “A district court’s decision about whether a defen-
dant has accepted responsibility is a factual determination
reviewed for clear error.” United States v. Cantrell, 433 F.3d
1269, 1284 (9th Cir. 2006) (alteration omitted) (quoting
United States v. Velasco-Medina, 305 F.3d 839, 853 (9th Cir.
2002)). The district court’s determination about whether a
defendant was engaged in a mitigating role is also reviewed
for clear error. See Cantrell, 433 F.3d at 1283-84 (applying
UNITED STATES v. ROSAS 10809
the clear error standard to its review). Under the clear error
standard of review, we give the district court a great degree
of deference, reversing only if we come to a “definite and
firm conviction that a mistake has been committed.” Easley
v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395
(1948)). We hold that the district court did not clearly err in
its denial of an offense level reduction for (1) acceptance of
responsibility; and (2) involvement in the criminal activity in
a mitigating role.3
1. Acceptance of Responsibility
[8] A defendant may receive a decrease in his total offense
level when the defendant “clearly demonstrates acceptance of
responsibility for his offense.” U.S. Sentencing Guidelines
Manual § 3E1.1 (emphasis added). However, “[c]onduct
resulting in an enhancement under § 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates
that the defendant has not accepted responsibility for his crim-
inal conduct. There may, however, be extraordinary cases in
which adjustments under both §§ 3C1.1 and 3E1.1 may
apply.” U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.4.
Thus, Rosas’s conviction under 18 U.S.C. § 3146, by itself,
renders the district court’s decision to deny an acceptance of
responsibility reduction reasonable absent an extraordinary
case.
[9] Of course, Rosas believes that he has an extraordinary
case. In support of his position, he presented medical docu-
ments and letters to the district court during sentencing. Rosas
attempted to show that he left for Mexico because his grand-
3
The government argues that Rosas failed to challenge the district
court’s application of the Guidelines at sentencing. Where the appealing
party fails to raise an issue at sentencing, we review for plain error. See
Fed. R. Crim. P. 52(b). However, because we find that Rosas’s claims fail
under the clear error standard of review, we decline to reach this issue.
10810 UNITED STATES v. ROSAS
father was ill and was calling for Rosas, the only one capable
of managing the family ranch. These facts, while not irrele-
vant, do not change the fact that his flight was voluntary and
that he had not accepted the responsibility for, and conse-
quences of, his actions. Therefore, the court’s denial of an
acceptance of responsibility reduction was not clearly errone-
ous.
2. Mitigating Role
[10] In order to qualify for a mitigating role reduction, a
defendant must demonstrate by a preponderance of the evi-
dence that he was a minimal or minor participant in the crimi-
nal activity. United States v. Zakharov, 468 F.3d 1171, 1181
(9th Cir. 2006). “It is not enough that [Rosas] was less culpa-
ble than [his] co-participants, or even that [he] was among the
least culpable of the group, because a minimal or minor par-
ticipant adjustment under § 3B1.2 is available only if [Rosas]
was ‘substantially’ less culpable than [his] co-participants.”
United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir.
2006).
[11] We hold that the district court’s consideration of
Rosas’s failure to appear at his 2002 sentencing hearing was
not improper. “[T]he amended guidelines permit district
courts to consider all relevant conduct, including collateral
conduct beyond the charged offense.” United States v. Web-
ster, 996 F.2d 209, 212 (9th Cir. 1993). Relevant collateral
conduct includes all purposeful acts committed “in the course
of attempting to avoid detection or responsibility for that
offense.” U.S. Sentencing Guidelines Manual § 1B1.3.
[12] The district court properly considered Rosas’s 2008
failure to appear conviction. The district court concluded that
Rosas fled, because Rosas believed that he would not be
caught and, therefore, would not have to take responsibility
for his actions. Because the court found that the conduct asso-
ciated with Rosas’s 2008 failure to appear conviction was
UNITED STATES v. ROSAS 10811
related to an attempt to avoid responsibility for the earlier
offense, the district court did not err in considering that conduct.4
[13] Finding that consideration of Rosas’s failure to appear
was not error, we now must determine whether the district
court abused its discretion when it found that Rosas was not
a minor participant in the crime. The mitigating role reduction
is a “determination that is heavily dependent upon the facts of
the particular case.” United States v. Duran, 189 F.3d 1071,
1089 (9th Cir. 1999) (quoting U.S. Sentencing Guidelines
Manual § 3B1.2, cmt. (backg’d)).
In making its determination regarding Rosas’s role in the
criminal enterprise, the court looked to Rosas’s conduct in
comparison to that of Simms and Tatum. Before the sentenc-
ing proceeding, the district court reviewed the PSR, Rosas’s
objections, sentencing memoranda from both the government
and Rosas, seventy pages of DEA reports relating to the crim-
inal activity, and letters on behalf of Rosas submitted by
defense counsel, Rosas himself, and other individuals. The
district court also allowed extensive argument from the parties
and invited input from the Probation Department. While the
court recognized that Rosas’s conduct was less culpable than
that of Simms or Tatum, it did not find that Rosas’s conduct
was so much less that he was entitled to a mitigating role
reduction.
[14] The district court based its finding on Rosas’s “entire
involvement in the case.” Consistent with Cantrell, the court
recognized that “you can have three people who have varying
4
Rosas also claims that the district court considered drug activity he
engaged in after he failed to appear at the 2002 sentencing hearing. We
recognize that the district court’s language was ambiguous and perhaps
inarticulate, when it commented about “not only [Rosas’s] past and future
involvement in drugs . . . .” However, upon his objection to consideration
of his involvement in drugs after 2002, the district court clarified its posi-
tion when it expressly stated that it would not consider any later drug
charge.
10812 UNITED STATES v. ROSAS
degrees of culpability but who all play major roles.” The dis-
trict court found that Rosas (1) was the driver and loader of
the truck, (2) was responsible for the drug load, (3) knew
where the drugs were being kept, and (4) fled after the bust
went awry. Given the district judge’s extensive review, we are
not left with a “definite and firm conviction that a mistake has
been committed.” The district court’s ruling was not clearly
erroneous.
Rosas argues that the district court erred, because it com-
pared his conduct with that of Simms and Tatum but did not
consider other unknown participants in the drug chain, includ-
ing “the source of the marijuana, distributers, packagers, sell-
ers, etc.” Rosas relies on United States v. Rojas-Millan, 234
F.3d 464, 472 (9th Cir. 2000), which stated that “the district
court should have evaluated [the defendant’s] role relative to
all participants in the criminal scheme for which he was
charged.”
However, as Rojas-Millan recognizes, defendants are not to
be compared to the hypothetical “average participant.” Id. at
473. In Rojas-Millan, the defendant was stopped as he carried
drugs from a supplier in Los Angeles to a distributor in Reno;
he was, apparently, nothing more than a courier. Id. at 468.
The defendant and his passenger were charged with posses-
sion with intent to distribute, conspiracy to possess with intent
to distribute, and interstate travel in aid of racketeering. Id. at
467. The district court found that the defendant was not enti-
tled to a mitigating role reduction, because he was not sub-
stantially less culpable than the passenger of the car. Id. at
472. We reversed, requiring the district court to first deter-
mine whether it had “sufficient evidence of [the supplier’s
and distributor’s] existence and participation in the overall
scheme,” id. at 474; and, if so, to then determine whether the
defendant was substantially less culpable than “other likely
actors, such as the alleged Los Angeles supplier and the Reno
distributor,” id. at 473-74.
UNITED STATES v. ROSAS 10813
[15] The facts here are unlike those found in Rojas-Millan.
There exists little to no evidence concerning criminals supply-
ing the marijuana to Rosas, Simms, and Tatum. Further,
Rosas, Simms, and Tatum were more than mere couriers, they
were traffickers, who set up their own deals and supplied the
buyers directly from their stores. Every drug trafficking
defendant could point to an unknown network preceding them
in the drug trade. Such an argument will normally be ineffec-
tive when considering whether the defendant is entitled to a
mitigating role reduction.
IV. CONCLUSION
Accordingly, we AFFIRM the sentence imposed by the
district court.