United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 1997 Decided December 30, 1997
No. 97-3002
United States of America,
Appellee
v.
Lynn M. Soto, a/k/a Linn Johnson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 94cr00378-01)
Jerome A. Ballarotto argued the cause and filed the brief
for appellant.
Thomas C. Black, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Eric H.
Holder, Jr., U.S. Attorney at the time the brief was filed,
John R. Fisher, Robert A. Spelke and Laura A. Cordero,
Assistant U.S. Attorneys.
Before: Edwards, Chief Judge, Tatel, Circuit Judge and
Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Even though appellant appeared to
satisfy the standards for a downward adjustment of her
sentence under section 3B1.2 of the U.S. Sentencing Guide-
lines for minimal or minor participation, her lawyer failed to
request one. Finding this omission to be ineffective assis-
tance of counsel, we remand this case so the district court can
determine whether appellant in fact qualifies for a lesser
sentence.
I
Recognizing that not all offenders are equally culpable, the
Sentencing Guidelines authorize reduced sentences for defen-
dants whose participation in illegal conduct was minor, mini-
mal, or somewhere in between. Section 3B1.2 instructs:
Based on the defendant's role in the offense, decrease the
offense level as follows:
(a) If the defendant was a minimal participant in any
criminal activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any
criminal activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
U.S.S.G. s 3B1.2 (1995). According to the application notes,
the reduction "is intended to cover defendants who are plainly
among the least culpable of those involved in the conduct of a
group." U.S.S.G. s 3B1.2 comment. (n.1). As illustrations of
"least culpable" participants, the Guidelines refer to "an
individual [ ] recruited as a courier for a single smuggling
transaction involving a small amount of drugs," id. n.2, and
"someone who played no other role in a very large drug
smuggling operation than to offload part of a single marihua-
na shipment," id.
When appellant Lynn Soto was approached by a drug
dealer named "City," she had neither a criminal record nor
history of drug abuse. According to the prosecutor, City
offered her money to take a package of drugs from New York
to Rocky Mount, North Carolina. Having just lost her full-
time job and described by the probation officer as depressed
at the time, Soto agreed. City gave her a round-trip Amtrak
train ticket, issued in the name of Linn Johnson (the alias in
the caption of this case), and placed a duct-taped package in
her bag. Nothing in the record suggests that Soto knew how
much drugs City had given her. During a stop in Washing-
ton, D.C., a U.S. Drug Enforcement Agency officer boarded
the train, searched Soto's bag, and discovered the duct-taped
package. It contained 181.33 grams of powder cocaine and
235.24 grams of cocaine base or crack, worth approximately
$43,000. The government charged Soto with one count each
of possession with intent to distribute cocaine and possession
with intent to distribute crack. She pled guilty to the cocaine
count.
At sentencing, the district court accepted the recommenda-
tions of the probation officer contained in the presentence
investigation report. Based on the amount of drugs in her
bag, the court assigned Soto a base offense level of thirty-
four, with a three-point reduction for acceptance of responsi-
bility. On its own motion, the court gave her an additional
two-point reduction because she met the "safety valve" crite-
ria. See U.S.S.G. ss 2D1.1(b)(4), 5C1.2. The twenty-nine
point total produced a sentencing range of 87-108 months.
Although offering no objection to the presentence report,
Soto's lawyer argued in two separate sentencing memoranda
that the court should depart downward under section 5K2.0
because of Soto's extraordinary circumstances: She was a
first-time offender supporting a disabled child by herself, she
played a minor role in the trafficking scheme, her conduct
was aberrational, she showed remorse, and she had no history
of substance abuse. Counsel relied heavily on a district court
decision with similar facts, but we reversed that case prior to
Soto's sentencing. See United States v. Dyce, 874 F. Supp. 1
(D.D.C. 1994), vacated by 78 F.3d 610 (D.C. Cir.), amended
and superseded by and reh'g denied by 91 F.3d 1462 (D.C.
Cir.), cert. denied, 117 S. Ct. 533 (1996). Finding no extraor-
dinary circumstances, the district court declined to depart
below the Guideline range, sentencing Soto to eighty-seven
months, the lowest point on the range.
Now with new counsel, Soto makes three arguments on
appeal: that trial counsel was ineffective for failing to request
downward adjustment under section 3B1.2; that the district
court should have adjusted the sentence on its own motion;
and that the district court misunderstood its authority to
depart downward under section 5K2.0. We consider each
argument in turn.
II
Pointing to a single reference to section 3B1.2 in each of
appellant's sentencing memoranda, the government argues
that counsel raised the minimum participation issue and was
therefore not ineffective. We disagree. To "raise" the issue
properly, counsel had to do more than simply mention the
provision; he had to "specifically [ ] request an adjustment
under section 3B1.2." United States v. Foster, 988 F.2d 206,
210 (D.C. Cir. 1993) (emphasis added). In this case, counsel
did no more than cite section 3B1.2 in the course of arguing
for a downward departure under section 5K2.0, a much
tougher standard to meet. Not only did he fail to challenge
the presentence report, which made no reference to section
3B1.2, but his two sentencing memoranda cite only section
5K2.0. In one memorandum, he described the only issue
before the district court as "[w]hether the Court may depart
downward from the mandatory sentencing guidelines range
... upon a showing of the defendant's extraordinary family
circumstances, aberrant behavior, and lack of criminal rec-
ord." The memorandum concluded: "Based upon the forego-
ing arguments and authorities, and the record before this
Court, Defendant respectfully urges this Honorable Court to
grant a downward departure from the Federal Sentencing
Guidelines as permitted by U.S.S.G. s 5K2.0" (emphasis add-
ed).
Describing Soto's role as minimal or minor is insufficient to
raise the section 3B1.2 issue; counsel cannot properly invoke
a particular Guideline provision "merely by reciting to the
court a list of mitigating facts." Id. (quoting United States v.
Sergio, 934 F.2d 875, 881 (7th Cir. 1991)). This is particularly
true where, as here, the guideline requires the district court
to make empirical judgments and where factual subtleties can
make a real difference. Whether Soto's role was minimal or
minor, as well as whether she would receive a two, three, or
four-point reduction, depends on the particular facts of the
case and how well counsel marshals them: For example, did
Soto play a particularly passive role or have little or no
knowledge of the larger distribution scheme? Was she sen-
tenced based on relevant conduct in which other actors played
a part? Do other circumstances demonstrate that her culpa-
bility was less than others involved in the scheme? Compare
United States v. Olibrices, 979 F.2d 1557, 1559-61 (D.C. Cir.
1992) (courier who was part of larger operation held responsi-
ble for the drugs that she was carrying and was not entitled
to an adjustment for minor participation) with United States
v. Caballero, 936 F.2d 1292, 1298 (D.C. Cir. 1991) (single
defendant courier entitled to section 3B1.2 consideration).
Developing these issues requires more than just reciting the
words "minimal participant."
Turning to the substance of Soto's ineffectiveness claim and
applying the familiar two-part test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), we ask whether coun-
sel's performance fell below professional standards and, if so,
whether it prejudiced Soto. Generally, we do not resolve
ineffectiveness claims on direct appeal except in those rare
circumstances where the record is so clear that remand is
unnecessary. United States v. Fennell, 53 F.3d 1296, 1303-04
(D.C. Cir. 1995) (ineffectiveness claims may be decided on
appeal without additional fact-finding either "when the trial
record alone conclusively shows that the defendant is entitled
to no relief ... [or] when the trial record conclusively shows
the contrary"). This is one of those clear cases.
" '[F]amiliarity with the structure and basic content of the
Guidelines," we have explained, "has become a necessity for
counsel who seek to give effective representation.' " United
States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997)
(quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)).
In Gaviria, defendant met Strickland's first test because his
lawyer, ignoring case law interpreting the Guidelines' career
offender provision, gave him flawed advice, which influenced
his decision to go to trial. The same principle applies where,
as here, counsel ignores a relevant Guideline provision alto-
gether. Whether lawyers get the Guidelines wrong by misin-
terpreting the implication of a particular provision (Gaviria)
or by failing to raise a potentially helpful provision altogether
(this case), such drastic missteps clearly satisfy Strickland's
first test: They amount to errors "so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment." Strickland, 466 U.S. at 687; see
United States v. Headley, 923 F.2d 1079, 1083-84 (3d Cir.
1991) (counsel's failure to seek potentially fruitful downward
adjustment under section 3B1.2 fell outside "prevailing pro-
fessional norms" and therefore was ineffective).
Soto satisfies Strickland's prejudice test as well: There is a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been differ-
ent." Strickland, 466 U.S. at 694. Not only would downward
adjustment have reduced Soto's sentence by at least seven-
teen months (two-point adjustment) or by as much as two and
one-half years (four-point adjustment), but according to sec-
tion 3B1.2's application notes, Soto is precisely the sort of
person the minimal/minor participation provision covers. She
sought out no illegal activity herself; instead, she was "re-
cruited [by City] as a courier for a single smuggling transac-
tion," U.S.S.G. s 3B1.2 comment. (n.2). She "lack[ed] knowl-
edge or understanding of the scope and structure of the
enterprise and of [City's] [ ] activities," id. n.1, she knew
nothing about what she would be paid, and perhaps not even
how much contraband she carried. Although it is not for us
to decide whether Soto's sentence should be reduced--"[t]he
application of section 3B1.2 is inherently fact-bound and
largely committed to the discretion of the trial judge," Ca-
ballero, 936 F.2d at 1299--we cannot imagine a defendant
better suited for serious consideration under section 3B1.2 or
more squarely prejudiced by counsel's failure to raise it. The
government's claim, advanced both in its brief and at oral
argument, that counsel was not ineffective for failing to raise
a losing argument, thus lacks merit. Indeed, we are sur-
prised that the United States, relying on a record so obvious-
ly flawed by the failings of constitutionally ineffective counsel,
would even offer such a theory.
III
In view of our conclusion that counsel was ineffective, we
need not reach Soto's alternative argument that the district
court committed plain error in failing to address section 3B1.2
on its own. As for her final contention that the court
misunderstood its authority to depart from the Guidelines
under section 5K2.0, we have no reason to believe that the
district court misconstrued our analysis in United States v.
Dyce that it could depart either if it found "extraordinary
family circumstances" or an "extremely rare" combination of
other factors. See Dyce, 91 F.3d at 1466-71 (defendant's
family responsibilities, lack of prior record, remorse, and
allegedly positive societal contributions insufficient to warrant
departure). Since the court expressly concluded that no such
exceptional circumstances or factors existed, we must uphold
its decision. United States v. Pinnick, 47 F.3d 434, 439 (D.C.
Cir. 1995).
We remand this case for further proceedings. Because
Soto's eligibility for a section 3B1.2 adjustment depends upon
further fact-finding by the district court, we will not vacate
the sentence, instead leaving it to the district court to deter-
mine whether a revised sentence is in order and, if so, to
fashion one consistent with the Guidelines.
So ordered.