United States v. Doe

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 09-1658, 09-1756 & 09-2242

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

JOHN D OE, a/k/a A DABERTO G UZMAN, a/k/a
JUAQUIN T APIA, A NDRES C UELLAR-C HAVEZ, and
E NEDEO R ODRIGUEZ, JR.,1
Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:06-cr-00060—Theresa L. Springmann, Judge.

A RGUED A PRIL 6, 2010—D ECIDED JULY 20, 2010

Before K ANNE, R OVNER, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. Appellants were conspirators in
a drug distribution ring. After their scheme was in-
filtrated by an undercover officer and they were arrested,

1
We will refer to Doe/Guzman/Tapia as “Tapia,” and to
Cuellar-Chavez as “Cuellar.”
2 Nos. 09-1658, 09-1756 & 09-2242

Appellants decided to take their chances at trial by jury.
Following a five-day trial, each was convicted of conspir-
acy to possess with intent to distribute more than
100 kilograms of marijuana. The district court held sen-
tencing hearings during which it overruled each defen-
dant’s sentencing objections and imposed a sentence on
each defendant. Appellants now appeal their sentences,
claiming that enhancements were improperly applied
and reductions were erroneously ignored. We affirm.

I. B ACKGROUND
The criminal conduct in this case involved an extensive
drug distribution scheme. Jose Hernandez first met
Andres Cuellar-Chavez in Mexico in April 2006. Later that
same summer, Hernandez, Jose Ramirez, and Enedeo
Rodriguez decided that they wanted a shipment of mari-
juana to sell in Indiana. Hernandez spoke with his new
friend Cuellar, who was still in Mexico, about trans-
porting marijuana into the United States. Hernandez
then traveled to Mexico to meet with Cuellar. At that
meeting, Cuellar explained that he could acquire the
marijuana and smuggle it across the border, but that they
needed a truck driver to transport the drugs north to
Indiana from Texas. Hernandez asked Rodriguez to
assist in finding a driver. Rodriguez had an acquain-
tance—Juaquin Tapia—who supposedly could secure
them transport.
Meanwhile, the Immigration Customs Enforcement
Office (“ICE”) in Brownsville, Texas, caught wind of the
plan after receiving information that an individual
Nos. 09-1658, 09-1756 & 09-2242 3

named Juaquin Tapia was looking for someone to trans-
port 2,200 pounds of marijuana from South Texas to Fort
Wayne, Indiana. ICE agents decided to infiltrate the
conspiracy and requested that an undercover officer
(“UC”) pose as a truck driver and meet with Tapia.
A confidential informant then introduced the UC and
Tapia in late August 2006. Tapia explained that he was
looking for someone to transport between 1,200 and
2,000 pounds of marijuana from the Rio Grande Valley
to Fort Wayne. The UC offered to transport the mari-
juana for a fee of $100 per pound. Tapia responded that
he needed to talk to his contact first, but that he was
going to request $20,000 to pay the UC. Tapia then ex-
plained that it would be a few days before they were
ready for the transport. The UC gave Tapia his phone
number and told Tapia to call him when the men were
ready.
On October 9, 2006, Tapia called the UC to arrange an
introduction between the UC and the owner of the mari-
juana. That afternoon, Tapia and the UC met in the
parking lot of a retail store in Texas. In prepping the UC
for the meeting with the owner, Tapia told the UC to
request $125 per pound as a transport fee because Tapia
needed to give someone else the extra $25 per pound.
During this discussion, Tapia also told the UC that the
men only had 600 to 700 pounds to load because 700
pounds had been heisted at the Mexican side of the
border by gangsters known as “Zetas.” He assured
the UC, however, that the owner was trying to secure
more marijuana to make up for the missing pounds so
4 Nos. 09-1658, 09-1756 & 09-2242

that it would be worth the UC’s while to complete the
transport.
Tapia then left to pick up the owner of the marijuana.
When he returned, he was with Cuellar, whom Tapia
introduced as the person-in-charge and owner of the mari-
juana. Cuellar explained that they would have the load
ready in a few days. During this meeting, Cuellar con-
tacted someone by phone, inquiring whether the men
could secure another load of marijuana so that the ship-
ment contained at least 1000 pounds. Apparently thinking
that this was possible, Cuellar then proceeded to tell the
UC that he would pay him within two days of the
UC’s arrival in Fort Wayne.
Four days later, Tapia called the UC to request a meet-
ing. The two agreed to meet later that day to discuss the
logistics of initiating the transport. When Tapia arrived at
the meeting, he informed the UC that the load was ready
and waiting in Rio Grande City, Texas, but they would first
have to discuss the plan for pickup with Cuellar. Upon
meeting Cuellar, the three men sat in Tapia’s vehicle,
discussing the plan to retrieve the drugs. When the details
were finalized, the UC drove his van to the stash house,
following Cuellar. Tapia did not go to the stash house.
The stash house was located in a residential neighbor-
hood. Cuellar, the UC, and an unknown male and female
gathered behind the house and began loading the mari-
juana bundles onto the vehicle. Although the UC did not
count the bundles of marijuana, he overheard Cuellar
saying that there were eighty-three bundles in the load.
Nos. 09-1658, 09-1756 & 09-2242 5

Two days later, the UC again met with Tapia in Texas.
Tapia inquired about the size of the marijuana packages,
and explained that both he and Cuellar would be
waiting in Fort Wayne when the UC arrived with the
shipment. Tapia then gave the UC $500 and left. The UC
received an additional $990 and $980 in payment via wire
from other unknown individuals. With those payments
secured, the UC set out to transport the marijuana to
Indiana.
Unbeknownst to Appellants, however, the UC actually
delivered the marijuana bundles to ICE agents in Texas.
The officials weighed the marijuana and then placed it
in a secured vault pending a controlled delivery. The
agents later placed the entire load—1,011 pounds—into
lime boxes for transportation and shipped it to Indiana-
polis, Indiana by plane. The UC also flew to Indiana
where he picked up the transported load and drove it to
Fort Wayne.
Meanwhile, on October 17, 2006, Hernandez met with
Tapia and Rodriguez in Indiana to discuss the delivery of
the shipment the following day. Hernandez told the
men that he was expecting the UC to call him when the
marijuana had arrived.
The next day, the UC drove to a gas station near the Fort
Wayne airport. He contacted Cuellar to tell the latter
where he was waiting. During this call, Cuellar indicated
that he and Tapia were already in Fort Wayne. Cuellar
told the UC that someone would be at the gas station
shortly to direct the UC to the offload spot, and in the
meantime, to expect a call from “Jose.” The UC soon
received a call from Hernandez, who had arrived at the
6 Nos. 09-1658, 09-1756 & 09-2242

gas station. The UC then followed Hernandez to a resi-
dence about five miles from the gas station. The residence,
which was the place where the marijuana was to be
offloaded, belonged to Ramirez.
But the detached garage was locked, and because
Hernandez did not have a key, he tried to call Ramirez.
While the men waited for Ramirez to return Hernandez’s
phone call, Hernandez removed a panel from the stereo
area of his car and withdrew two bundles of U.S. currency
totaling $15,000. Hernandez gave the money to the UC
and explained that Ramirez would bring the remaining
$15,000 to $20,000 owed to the UC.
Also while waiting for Ramirez, Hernandez received
a call from Rodriguez who wanted to know if the mari-
juana had arrived and when he could come to collect
it. Around the same time, the UC and Hernandez both
saw the white van that Rodriguez drove slowly pass by
Ramirez’s residence. Hernandez told Rodriguez that
he could not come over yet because it would look suspi-
cious to have too many cars in front of the residence.
Unable to reach Ramirez, Hernandez was eventually
able to obtain a key to the garage from a neighbor. He
opened the door, and the UC backed the van into the
garage. The UC and Hernandez then began to unload
the marijuana. After the boxes were unloaded, the UC
and Hernandez went to a local restaurant where they
met Cuellar, Rodriguez, and Tapia. While Rodriguez
talked on his phone, Tapia and Cuellar discussed the
transport with the UC, inquiring about whether there
had been any problems. Cuellar then offered to sell mari-
juana to Rodriguez for $525 per pound. Rodriguez agreed
Nos. 09-1658, 09-1756 & 09-2242 7

but wanted to look at a sample, so Hernandez left the
restaurant to obtain a sample from the stash waiting in
Ramirez’s garage.
When Hernandez arrived, Ramirez was home. The two
went into the garage, closed the door, and began opening
boxes. They were in the garage going through the boxes
when law enforcement arrived. Officers arrested Ramirez
and Hernandez and confiscated the marijuana and
some scales. Agents also arrested Cuellar, Tapia, and
Rodriguez at the restaurant.
At the state police post, the men were all advised of
their rights and provided a written form in either English
or Spanish. Tapia and Rodriguez chose English and
Cuellar chose Spanish. Despite being advised of their
rights, Tapia and Rodriguez both made incriminating
statements, which they later unsuccessfully sought to
suppress.
Both Hernandez and Ramirez pled guilty to the con-
spiracy charges against them, and Hernandez agreed
to assist the government. A pre-sentence report (PSR) was
prepared for each defendant. Ramirez was assessed
various reductions—two levels for being safety valve-
eligible, three levels for acceptance of responsibility,
and two levels for his minor role. Hernandez was
also assessed reductions—two levels for safety valve-
eligibility and three levels for acceptance of responsibility.
Hernandez received a sentence of thirty months’ impris-
onment while Ramirez received a sentence of thirty-seven
months’ imprisonment.
The remaining three defendants, Tapia, Cuellar, and
Rodriguez, proceeded to trial. Following the five-day
8 Nos. 09-1658, 09-1756 & 09-2242

trial, the jury returned separate guilty verdicts as to
each defendant. PSRs for each defendant were sub-
mitted to the court. The PSRs assessed both Tapia and
Cuellar two-level enhancements for their roles in the
offense under U.S.S.G. § 3B1.1. Rodriguez was assessed
a two-level enhancement for obstruction of justice. Prior
to sentencing, Tapia, Cuellar, and Rodriguez all objected
to the enhancements calculated in their PSRs, arguing
that they played lesser roles in the conspiracy than
the PSRs had determined. The district court overruled
these objections and sentenced Tapia to 151 months’
imprisonment, Cuellar to 121 months’ imprisonment, and
Rodriguez to 121 months’ imprisonment. Tapia, Cuellar,
and Rodriguez now appeal their sentences.

II. A NALYSIS
We examine a trial court’s interpretations of sentencing
guidelines de novo. United States v. Moreno-Padilla, 602
F.3d 802, 807 (7th Cir. 2010). But we apply a clear error
standard to the district court’s factual findings, including
the court’s application of sentencing enhancements or
reductions. United States v. Rodriguez-Cardenas, 362 F.3d
958, 959 (7th Cir. 2004). We will reverse a finding for
clear error only when “our review of the evidence leaves
us with a definite and firm conviction that a mistake has
been committed.” United States v. Haynes, 582 F.3d 686, 709
(7th Cir. 2009) (internal quotation marks omitted). A
district court’s decision about a defendant’s role in
an offense, however, is rarely reversed because that
court is in the best position to evaluate the defendant’s
role in the criminal activity. Id. at 709-10.
Nos. 09-1658, 09-1756 & 09-2242 9

The Sentencing Guidelines permit the application of
various enhancements and reductions to a defendant’s
total offense level, depending on the criminal activity
involved and the defendant’s conduct during the course
of the investigation and proceedings. See generally
U.S.S.G. Ch. 1, Pt. 1, Subpt. 1., et seq. The enhancement
applied to Tapia’s and Cuellar’s sentences in this case
was U.S.S.G. § 3B1.1(c), which is appropriate if a
defendant was an organizer, leader, manager, or supervi-
sor in any criminal activity not otherwise accounted for
in subparts (a) and (b). See also United States v. Fox, 548
F.3d 523, 529-31 (7th Cir. 2008). “There can, of course, be
more than one person who qualifies as a leader or orga-
nizer of a criminal association or conspiracy.” U.S.S.G.
§ 3B1.1, Application Note 4.
When determining whether a person was an organizer,
leader, manager, or supervisor, courts may consider
the exercise of decision-making authority, the
nature of participation in the commission of the
offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or
organizing the offense, the nature and scope of
the illegal activity, and the degree of control and
authority exercised over others.
Id. But “[n]o one of these factors is considered a prerequi-
site to the enhancement, and, at the same time, the
factors are not necessarily entitled to equal weight.”
United States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006).
10 Nos. 09-1658, 09-1756 & 09-2242

In fact, we have recognized that an enhancement
may be appropriate even when the sentencing court
does not make an explicit finding that a defendant exer-
cised control; it is sufficient if the criminal activity
involved more than one participant and the defendant
played a coordinating or organizing role. United States v.
Young, 590 F.3d 467, 472 (7th Cir. 2009); United States v.
Pira, 535 F.3d 724, 729-30 (7th Cir. 2008); United States v.
Martinez, 520 F.3d 749, 752 (7th Cir. 2008). The reason
for this reading of § 3B1.1(c) is that the aggravating
role enhancement is designed to penalize more heavily
those defendants who bear greater responsibility for
crimes. See U.S.S.G. § 3B1.1, Background.
Paralleling § 3B1.1 is § 3B1.2, which provides that a
defendant who is a “minimal” participant in criminal
activity may receive a four-level decrease. Id. § 3B1.2. But
this reduction is rarely applied. See id. at Application
Note 4. A defendant is a minimal participant when he
“plays [such] a minimal role” in the offense that he
is “plainly the least culpable” of the participants. Id. A
defendant can show that he was a minimal participant
by demonstrating his lack of knowledge or under-
standing of the scope and structure of the enterprise and
of the activities of others. Id. If a person is not a minimal
participant, but is still less culpable than the average
participant, the guidelines also provide for a downward
adjustment of two levels for the defendant’s “minor”
participation. Id. at Application Note 5. And if a defendant
is more than a minimal participant, but less than a
minor participant, the court may reduce his sentence
by three levels. Id. § 3B1.2.
Nos. 09-1658, 09-1756 & 09-2242 11

The application of any of these enhancements or reduc-
tions is based largely on the facts of a particular case. Id. at
Application Note 3(C). A defendant must prove his
eligibility for a role reduction by a preponderance of the
evidence, United States v. Emerson, 501 F.3d 804, 816
(7th Cir. 2007), and a district court’s decision about a
defendant’s entitlement to a role reduction will be
reversed infrequently, United States v. Mendoza, 457 F.3d
726, 729 (7th Cir. 2006). The mere fact that other con-
spirators were more involved does not entitle a defen-
dant who was an essential component of the conspiracy
to the reduction. United States v. Gallardo, 497 F.3d 727,
741 (7th Cir. 2007).
With this context in mind, we turn now to the errors
charged by Appellants.

A. Tapia
The district court assessed Tapia a two-level enhance-
ment because it found that he satisfied the definition of
manager/supervisor under U.S.S.G. § 3B1.1(c). Tapia claims
that the district court erred in finding that Tapia was
a manager or supervisor and in failing to reduce
Tapia’s sentence under § 3B1.2. We disagree.
Looking to the relevant factors set out in § 3B1.1, we
conclude that the district court did not clearly err in
concluding that Tapia played a managerial or super-
visory role in the conspiracy. First, Tapia was in charge
of recruiting other participants, namely, the driver.
Second, although Tapia had to get confirmation from
his fellow conspirators, he was in charge of negotiating
12 Nos. 09-1658, 09-1756 & 09-2242

the price with the driver. This certainly involved the
exercise of some decision-making authority. Finally, the
nature of Tapia’s participation was such that he was
involved in the process from start to finish. He first
secured the driver, without which the conspiracy surely
would have been stillborn. He then remained the UC’s
main contact, and was in charge of coordinating meetings
between Cuellar and the UC. He also orchestrated
the logistics of transportation, including the initial
pickup of the drugs and the UC’s communication with
Cuellar. Similarly, Tapia ensured that the venture suc-
ceeded by having repeated meetings with the UC. He
also was present in Indiana when the UC arrived with
the marijuana.
The district court recognized that while supplying drugs
or negotiating their sale does not, by itself, justify an
enhancement, Tapia had more involvement than simply
supplying or negotiating. We think this assessment was
correct, based on the degree of Tapia’s participation, the
control he exercised over others, and his continuing
involvement in ensuring the conspiracy’s success.
Tapia also argues that the court erred when it failed
to recognize that §§ 3B1.1 and 3B1.2 are not mutually
exclusive. Particularly, Tapia had argued for a three-
level reduction in his sentence due to his claimed mini-
mal/minor role, but the court found that because Tapia
was receiving an enhancement under § 3B1.1, he was
ineligible for a reduction under § 3B1.2. Tapia based
this argument on our decision in United States v. Jackson,
where we commented that “Section 3B1.2 does not say
that a manager or supervisor cannot be a minor partici-
Nos. 09-1658, 09-1756 & 09-2242 13

pant; all that is required is that he be less culpable than
most of the other participants.” 207 F.3d 910, 922 (7th
Cir. 2000), rev’d on other grounds, 531 U.S. 953 (2000). We
opined that it was incorrect to assert that “there can
never be a situation in which a defendant could receive
both a punishment bonus for being a manager or super-
visor and a punishment decrease for being a minor par-
ticipant.” Id.
Based on Jackson, we agree with Tapia that it was
error for the district court to conclude categorically that
when a defendant receives an enhancement under § 3B1.1,
he is automatically ineligible for a reduction under § 3B1.2.
This conclusion is of no matter, however, because any
error on the district court’s part is harmless. Tapia is
not the ideal candidate to test our ruminations that one
can simultaneously receive an enhancement under § 3B1.1
and a reduction under § 3B1.2. Tapia was not a mini-
mal/minor participant in the scheme; in fact, he was
significantly involved, as demonstrated by the evidence
already discussed.
Tapia’s own claim that he was less culpable than
other participants is not enough to obtain a reduction.
He must demonstrate this by a preponderance of the
evidence, Emerson, 501 F.3d at 816, and he has failed to do
so. In fact, the evidence he points to in support of his
claim is simply incorrect. For example, Tapia asserts that
he did not receive proceeds from the conspiracy even
though he actually received $7,500. He further attempts
to minimize his role by claiming that he was only respon-
sible for finding the driver. But, as discussed above,
14 Nos. 09-1658, 09-1756 & 09-2242

Tapia did more than secure a driver. He negotiated fees
with the driver, arranged meetings between himself,
Cuellar, and the UC, and helped ensure the conspiracy’s
success by traveling to Indiana.
And even if we were to simply adopt Tapia’s claims
that other conspirators were more involved, that alone
does not entitle him to a reduction because he was
an essential component in the conspiracy. United States
v. Gonzalez, 534 F.3d 613, 616 (7th Cir. 2008). Securing
transport for the marijuana was essential to the conspir-
acy’s success. Tapia was essential to that goal, not only
because he found the driver, but also because he di-
rected the driver throughout the course of the conspiracy.
For these same reasons, the district court was also
correct in finding that Tapia was not a minor participant
deserving of a two-level reduction. Although the
minor participant reduction is not subject to the same
limited usage as the minimal participant reduction, the
court must still consider Tapia’s involvement in
assessing his worthiness of the reduction. See United
States v. Hunte, 196 F.3d 687, 693-94 (7th Cir. 1999). As
we have already determined, Tapia’s involvement was
substantial and essential to the conspiracy’s success. He
is therefore unworthy of the reduction for being a
minor participant.
Tapia also claims that the district court judge was
biased against him because the court believed that Tapia
lied about his ability to speak English. Tapia claims that
as a result of the judge’s bias, he was denied the minor-
role reduction.
Nos. 09-1658, 09-1756 & 09-2242 15

There is no evidence that the court was biased against
Tapia. Rather, the court concluded that Tapia attempted
to obstruct justice by claiming that he did not under-
stand English even though the court witnessed Tapia
speaking English with his attorney. The court’s decision
to enhance Tapia’s sentence was not based on bias, but
instead on its impression that Tapia had lied. Further-
more, because Tapia raises this argument as part of his
role-reduction argument rather than as a separate argu-
ment challenging the obstruction of justice enhance-
ment, the district court’s impression of Tapia’s verity
matters little. Tapia was not denied a role reduction
because the court thought that he lied, but rather because
the court found that his involvement was too significant
to be minor. We have already affirmed the district court’s
findings in this regard, and we need not dwell on them
further. The district court did not err in refusing to
grant Tapia a sentence reduction.

B. Cuellar
Like Tapia, Cuellar argues that the court erred by
increasing his sentence under § 3B1.1. Cuellar also
claims that the court erred in finding that he was not
safety-valve eligible. Finally, he argues that the court
incorrectly applied the 18 U.S.C. § 3553(a) factors in
sentencing him to the maximum recommended sentence
under the guidelines rather than considering the sen-
tences of his co-defendants. We take each argument in
turn.
16 Nos. 09-1658, 09-1756 & 09-2242

Cuellar’s first argument is almost too meritless for us
to consider. Despite the substantial evidence pointing
to Cuellar’s role as a leader in the conspiracy, he argues
that he was just a “middleman.” The thrust of Cuellar’s
argument is that because he was working at the direc-
tion of a supplier in Mexico, he was not a manager or
supervisor.
We begin with the factors that § 3B1.1 instruct courts
to consider. First, it is evident that Cuellar exercised
decision-making authority. He determined the date on
which the shipment would leave Texas, the ultimate fee
paid to the UC, and the amount that Rodriguez would pay
to purchase marijuana, among other things. Second, the
nature of his participation was such that the other partici-
pants viewed as him as the leader, and the evidence
supports their perceptions. For example, Cuellar arranged
the initial transport, storage, and loading of the mari-
juana for its ultimate delivery in Indiana. He determined
the dates of shipment, and was also in charge of paying
everyone once the marijuana was successfully delivered.
These are certainly the activities of a leader. Third, he
exercised a significant degree of participation in the
planning of the offense. As mentioned, he determined
the dates and times that the shipment would leave and
the location of the safe houses. He also met with the UC
and Tapia on a few occasions to discuss details of the
conspiracy. Cuellar traveled to Indiana to help ensure
that the conspiracy was a success. And, perhaps most
importantly, he was the person in charge of securing
passage of the shipment from Mexico into this country,
and in procuring more marijuana when half of the
Nos. 09-1658, 09-1756 & 09-2242 17

original shipment was stolen at the border. Finally, Cuellar
exercised a significant amount of control over other
participants. He demanded meetings with Tapia and the
UC, directed Hernandez to secure a driver, and ordered
Hernandez to meet the UC for unloading.
As in Tapia’s case, the district court recognized that a
defendant’s role as the supplier of drugs, standing
alone, is unworthy of the enhancement. But the court
found that Cuellar did more than simply supply the
drugs. We agree that the evidence detailed above is
more than enough to support the district court’s conclu-
sion. Therefore, the district court did not err in en-
hancing Cuellar’s sentence.
Because we find that Cuellar’s sentence was properly
enhanced under § 3B1.1 for his aggravating role, he is
ineligible for application of the safety-valve provision
contained in U.S.S.G. § 5C1.2. Section 5C1.2 of the Sen-
tencing Guidelines provides that a defendant convicted
of certain offenses may receive a two-level reduction in
his total offense level, as well as a sentence below the
mandatory minimum sentence fixed by statute, if the
defendant meets all of five enumerated criteria. One of
those criteria is that a defendant was not an organizer,
leader, manager, or supervisor of others. Id. Because
we agree with the district court that Cuellar was a
manager or supervisor, he was not eligible for a safety-
valve reduction.
Finally, Cuellar argues that the court incorrectly applied
18 U.S.C. § 3553 by refusing to consider the disparity
between Cuellar’s sentence and those of his co-defendants.
18 Nos. 09-1658, 09-1756 & 09-2242

In Gall v. United States, the Supreme Court commented
that “[s]ection 3553(a)(6) requires judges to consider the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found
guilty of similar conduct.” 552 U.S. 38, 54 (2007) (internal
quotation marks omitted). Cuellar argues that Gall, in
combination with § 3553, required the district court to
sentence him to less than the maximum recommended
sentence because his co-conspirators all received less time.
A within-guidelines sentence is entitled to a presump-
tion of reasonableness on appeal. Id. at 57. Because
Cuellar’s sentence was within the recommended guide-
lines range, we presume that it is reasonable. Gall
certainly does not require district courts to sentence simi-
larly situated defendants the same. And even if it did,
Cuellar was not similarly situated to his co-defendants.
Although Hernandez and Ramirez pled guilty, both
received reductions for acceptance of responsibility and
safety-valve eligibility. Hernandez also cooperated with
the government, and Ramirez received a reduction for
his minor role. These differences resulted in very dif-
ferent recommended sentencing ranges, and therefore,
these defendants were not similarly situated to Cuellar.
Any sentencing disparity between them and Cuellar was
thus warranted.
With regard to the sentences imposed on Tapia and
Rodriguez, there is little disparity with Cuellar’s sentence.
As mentioned, Tapia received the longest sentence of the
three—151 months. Cuellar cannot complain that his
sentence was not on par with Tapia’s, unless he is re-
Nos. 09-1658, 09-1756 & 09-2242 19

questing more prison time. Because we assume he is not,
and because his sentence of 121 months’ imprisonment
was the same as the one given to Rodriguez (whose
sentence was enhanced for obstruction of justice), Cuellar’s
§ 3553 argument fails.

C. Rodriguez
Finally, Rodriguez argues that the district court erred
in denying him a participant-based reduction. Specifically,
he claims that the court erred by failing to compare him
to conspirators who were “average participants.” If the
court had compared him to average participants, so
goes the argument, it would have found that he was a
minimal participant.
Rodriguez initially argues that because he stood trial
with the “leaders” of the conspiracy, his role was deter-
mined average “by default.” Rodriguez is simply incor-
rect. He was not deemed an average participant by default;
rather, he was deemed an average participant because
his conduct was essential to the conspiracy, even if it was
less significant than that of the leaders. Although his
involvement was certainly less substantial than Tapia’s
and Cuellar’s, that alone does not mean that the court
erred in denying him a reduction. When a defendant
serves an essential role in the conspiracy, he is not
entitled to a reduction simply because other conspirators
were more involved. Gallardo, 497 F.3d at 741. Rodriguez
was integral to the conspiracy’s success, and the district
court made an explicit finding that Rodriguez’s involve-
ment was such that he did not deserve a reduction.
20 Nos. 09-1658, 09-1756 & 09-2242

The court had ample evidence on which to base such a
conclusion. First, Rodriguez’s participation in the offense
was essential to its success. He helped initiate the con-
spiracy and was integral in the planning. He first
provided Tapia’s number to Hernandez. Rodriguez also
arranged for Tapia’s flight to Indiana by requesting that
his girlfriend purchase the ticket. Once Tapia was in
Indiana, Rodriguez picked Tapia up from the airport,
hosted him overnight, and chauffeured him around
during his stay in Fort Wayne. Second, he was directly
responsible for recruiting Tapia and was indirectly re-
sponsible for recruiting the UC. Third, he “coordinated”
the activities of others, both in directing Tapia to hire a
driver and in arranging Tapia’s trip to Indiana. Finally,
Rodriguez had extensive knowledge of the scope and
inner workings of the conspiracy, as demonstrated by his
statements to arresting officers and the evidence of his
involvement. The fact that he possessed such extensive
knowledge of the conspiracy significantly deflates the
strength of his minimal-role reduction claim in light of
§ 3B1.2’s dictates. U.S.S.G. § 3B1.2, Application Note 4.
The district court did not clearly err in determining that
Rodriguez was unworthy of a sentencing reduction,
even if Tapia and Cuellar were more culpable.
But that does not dispose of Rodriguez’s argument that
the court erred by failing to compare his participation
with Ramirez’s and Hernandez’s in assessing whether his
role was minimal. He claims that when his conduct is
juxtaposed with their conduct, it is evident that he is
worthy of a minimal role reduction. Rodriguez fares no
better on this argument.
Nos. 09-1658, 09-1756 & 09-2242 21

Even if the court should have expressly compared
Rodriguez’s conduct to Hernandez’s and Ramirez’s, the
result would have been the same, rendering any potential
error harmless. Ramirez was the only defendant who
received a participant-based reduction for his minor
role; no defendant received a minimal-role reduction. The
district court found that Ramirez was worthy of the
reduction because his role in the offense was limited to
providing the stash house and paying the driver the
remainder of his fee.
Hernandez, who was deemed an average participant,
received no reductions or enhancements. His conduct
included initiating the conspiracy, paying the UC upon
arrival in Indiana, and offloading the marijuana at
Ramirez’s home. The court recognized that Hernandez
was more involved than Ramirez, but less involved
than Tapia and Cuellar. Rodriguez’s conduct was also
more extensive than Ramirez’s and on par with
Hernandez’s. Therefore, the court did not err in denying
Rodriguez a participant-based reduction.
But Rodriguez argues that United States v. Hunte, 196
F.3d 687 (7th Cir. 1999) compels the opposite conclusion.
In Hunte, we reversed a trial court’s determination that
a conspirator was undeserving of a reduction because
she “actively participated” in the conspiracy. We rea-
soned that as compared to other conspirators, Hunte was
among the least, if not the least, culpable. Id. at 690.
Hunte is inapposite for one obvious reason— Rodriguez
was not the least culpable defendant. His argument is
therefore without merit.
22 Nos. 09-1658, 09-1756 & 09-2242

III. C ONCLUSION
Because the district court did not clearly err in sen-
tencing Tapia, Cuellar, or Rodriguez, we A FFIRM .

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