FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50273
Plaintiff-Appellee, D.C. No.
v. 3:10-cr-00549-
JUAN FELIPE RODRIGUEZ-CASTRO, LAB-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
May 4, 2011—Pasadena, California
Filed June 2, 2011
Before: Barry G. Silverman, Richard C. Tallman, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton;
Concurrence by Judge Silverman
7287
7290 UNITED STATES v. RODRIGUEZ-CASTRO
COUNSEL
Kurt D. Hermansen, San Diego, California, for the appellant.
Emily J. Keifer, Assistant United States Attorney, San Diego,
California, for the appellee.
OPINION
CLIFTON, Circuit Judge:
Juan Felipe Rodriguez-Castro (“Rodriguez”) pled guilty to
importing 33.46 kilograms of cocaine in violation of 21
U.S.C. §§ 952 and 960. Rodriguez was sentenced to 57
months imprisonment. Rodriguez appeals this sentence, con-
tending that the district court erred in declining to decrease
the base offense level, as recommended by the plea agreement
he had entered into with the government. The district court
found that Rodriguez failed to demonstrate he was a “minor
participant” in the offense. Accordingly, the court determined
that Rodriguez was not entitled to a minor-role adjustment to
the offense level. We conclude that the district court did not
clearly err in its factual determination or abuse its discretion
in declining to award the minor-role adjustment. We also con-
clude that the sentence imposed was substantively reasonable.
We thus affirm the sentence imposed upon Rodriguez by the
district court.
I. Background
Rodriguez was arrested for entering the United States from
Mexico with a large amount of cocaine, 33.46 kilograms, hid-
UNITED STATES v. RODRIGUEZ-CASTRO 7291
den within the gas tank of his vehicle. Rodriguez later admit-
ted that he knew an unlawful drug was concealed in the vehi-
cle but claimed that he did not know that it was cocaine. He
said that several weeks prior to his arrest, he was asked by a
coworker to accept a vehicle, register the vehicle in his name,
and cross the border with drugs hidden inside, in exchange for
between $3,500 and $4,000. Rodriguez agreed to the offer. In
order to develop a record at the Port of Entry, Rodriguez
crossed into the United States with the vehicle at least two or
three times prior to the crossing during which he was arrested.
After his arrest, Rodriguez entered into a plea agreement
with the government. The agreement noted that the sentence
was within the sole discretion of the sentencing judge, but
also provided that the parties would jointly make recommen-
dations as to the calculations to be made under the now-
advisory United States Sentencing Guidelines. In particular,
the parties recommended that Rodriguez be granted a two-
level downward adjustment in the offense level, pursuant to
U.S.S.G. § 3B1.2(b), on the ground that Rodriguez played a
minor role in the offense, as he was merely a courier.1 The
agreement stated that “Defendant must adequately set forth a
factual basis to support a minor role.” Had Rodriguez
received this minor-role adjustment, Rodriguez’s base offense
level would have also been decreased three levels pursuant to
U.S.S.G. § 2D1.1(a)(5)(ii).2 Assuming a minor-role adjust-
1
The relevant portion of section 3B1.2 provides: “Based on the defen-
dant’s role in the offense, decrease the offense level as follows: . . . (b)
If the defendant was a minor participant in any criminal activity, decrease
by 2 levels.” U.S.S.G. § 3B1.2(b).
2
U.S.S.G. § 2D1.1(a)(5) provides that the base offense level will be the
greatest of:
The offense level specified in the Drug Quantity Table set forth
in subsection (c), except that if (A) the defendant receives an
adjustment under § 3B1.2 (Mitigating Role); and (B) the base
offense level under subsection (c) is (i) level 32, decrease by 2
levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level
38, decrease by 4 levels. If the resulting offense level is greater
than level 32 and the defendant receives the 4-level (“minimal
participant”) reduction in § 3B1.2(a), decrease to level 32.
7292 UNITED STATES v. RODRIGUEZ-CASTRO
ment, the plea agreement recommended a sentence of
between 41 and 51 months.
The Presentencing Report recommended that Rodriguez not
be given a minor-role adjustment, and in calculating the
Guidelines sentencing range, the district court declined to
award such a minor-role adjustment to Rodriguez. Judge
Burns determined that Rodriguez failed to prove he had
played only a minor role in the offense, emphasizing Rodri-
guez’s role in preparing for the offense. Judge Burns also
expressed doubt that such a substantial quantity of cocaine
would have been entrusted to a minor participant.
The expressed dissatisfaction of Judge Burns with the gov-
ernment’s practice in his district of offering a minor-role
adjustment recommendation at an early stage of plea negotia-
tions became a matter of contention during Rodriguez’s sen-
tencing, and it is raised by Rodriguez as part of his appeal.
The government explained to the district court that its practice
was to offer the minor-role adjustment as part of a plea agree-
ment, even though relatively little might be known at that
point about the particular defendant’s actual role. The govern-
ment contended that it would later require the defendant to
factually support his qualification for the minor role, as the
agreement provided, and that it would withdraw the recom-
mendation if it concluded that the defendant did not provide
a sufficient basis. Judge Burns questioned this practice,
expressing his view that the government’s approach was
backwards and that a minor-role recommendation should not
be offered until there was a factual basis established for it.
In sentencing Rodriguez, the district court calculated the
adjusted offense level under the Sentencing Guidelines to be
27. The court also considered the factors under 18 U.S.C.
§ 3553(a), and in the course of doing that, exercised its discre-
tion to vary downward from the Guidelines calculation by two
additional levels, to avoid unwarranted disparities when com-
pared to similarly situated defendants. That effectively
UNITED STATES v. RODRIGUEZ-CASTRO 7293
reduced Rodriguez’s adjusted offense level to 25. Because
Rodriguez was in criminal history category I, that variation
suggested a Guidelines sentencing range of 57 to 71 months.
The court imposed a sentence of 57 months.
Because the court imposed a sentence greater than the
Guidelines range proposed in the plea agreement, the waiver
of appeal contained in the plea agreement did not apply.
Rodriguez timely appealed.
II. Discussion
Rodriguez raises several arguments on appeal. First, he
contends that judicial estoppel and the plea agreement pre-
clude the government from arguing on appeal in support of
the imposed sentence. Second, he asserts that Judge Burns
abused his discretion by declining to award a minor-role
downward adjustment in the offense level decrease on the
basis of his personal disagreement with the government’s plea
policy. Third, Rodriguez contends that the sentence imposed
was substantively unreasonable.
We review de novo the district court’s interpretation of the
Sentencing Guidelines. United States v. Rodriguez-Cruz, 255
F.3d 1054, 1058 (9th Cir. 2001). The district court’s applica-
tion of the Guidelines to the facts of a particular case is
reviewed for an abuse of discretion. Id. Similarly, we review
the substantive reasonableness of a sentence for abuse of dis-
cretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc). A district court’s finding that a defendant is
not a minor participant in criminal activity is a factual deter-
mination reviewed for clear error. United States v. Hursh, 217
F.3d 761, 770 (9th Cir. 2000).
A. Judicial Estoppel and the Plea Agreement
We first address whether the government is judicially
estopped from arguing in support of the sentence imposed by
7294 UNITED STATES v. RODRIGUEZ-CASTRO
the district court, and whether in so arguing the government
is in breach of the plea agreement. Clearly, it is not.
[1] Under the plain terms of the plea agreement, the gov-
ernment is “free to support on appeal the sentence actually
imposed.” The government has not violated the plea agree-
ment by taking the position on appeal that the sentence should
be affirmed. See United States v. Schuman, 127 F.3d 815,
817-18 (9th Cir. 1997) (per curiam).
[2] The government’s position on appeal is not that Rodri-
guez was not entitled to a minor-role adjustment, but that the
district court did not err in declining to award the adjustment.
This argument is not inconsistent with its argument to the dis-
trict court, so estoppel cannot apply here. See Russell v. Rolfs,
893 F.2d 1033, 1037 (9th Cir. 1990) (noting that estoppel
applies where a party makes an assertion in a legal proceeding
that directly contradicts an earlier assertion).
B. Minor-Role Adjustment
We next turn to the issue of whether Rodriguez was entitled
to a minor-role adjustment and, more broadly, whether the
court properly calculated the appropriate Sentencing Guide-
lines range. We conclude that the district court did not clearly
err in finding that Rodriguez failed to establish that he played
a minor role in the offense and did not abuse its discretion in
applying the Guidelines.
[3] A decrease of two offense levels is warranted under
U.S.S.G. § 3B1.2(b) if the “defendant was a minor participant
in any criminal activity.” The comments to the Guidelines
clarify that a minor participant is one who “plays a part in
committing the offense that makes him substantially less cul-
pable than the average participant.” Id. § 3B1.2 cmt. n.3(A)
(emphasis added); see United States v. Cantrell, 433 F.3d
1269, 1283 (9th Cir. 2006). The determination of a “minor
UNITED STATES v. RODRIGUEZ-CASTRO 7295
role” is “heavily dependent upon the facts of the particular
case.” U.S.S.G. § 3B1.2 cmt. n.3(C).
[4] Rodriguez’s appeal is largely premised upon his asser-
tion that Judge Burns denied the minor-role adjustment solely
because he disagreed with the government’s plea agreement
policy. That premise is incorrect.
[5] Judge Burns’s critique of the government’s policy did
not reflect a practice on his part to automatically reject all
minor-role pleas. To the contrary, Judge Burns noted during
the sentencing hearing that he had given minor-role reduc-
tions to some other couriers in the past. Judge Burns acted
within his authority to determine whether the particular facts
regarding this particular defendant supported a minor-role
adjustment. He found that they did not. The court was not
bound by the parties’ recommendation, and Rodriguez does
not contend that it was.
We begin our review of the challenged finding with the
understanding that a defendant “may be a courier without
being either a minimal or a minor participant.” United States
v. Lui, 941 F.2d 844, 849 (9th Cir. 1991). We have “denied
downward adjustments to defendants who were couriers
where some additional factor showing that they were not a
[sic] minor or minimal participants existed.” United States v.
Davis, 36 F.3d 1424, 1436 (9th Cir. 1994). Such instances
include when the defendant imported a substantial amount of
drugs. Id. at 1436-37 (citing Lui, 941 F.2d at 849). In addi-
tion, it is well established that “[t]he defendant bears the bur-
den of proving that he is entitled to a downward adjustment
based on his role in the offense.” Cantrell, 433 F.3d at 1282
(citations and alterations omitted).
[6] In support of its finding, the district court cited both
Rodriguez’s role in preparing for the offense and the substan-
tial quantity of drugs involved. As to the first, the court noted
that Rodriguez accepted the car, registered it in his name in
7296 UNITED STATES v. RODRIGUEZ-CASTRO
advance, and made several crossings across the border to
create a crossing record. With respect to the quantity of drugs,
the parties do not dispute that 33.46 kilograms of cocaine was
a substantial amount. We have “recognized that possession of
a substantial amount of narcotics is grounds for refusing to
grant a sentence reduction,” even in amounts smaller than 1
kilogram. Lui, 941 F.2d at 849 (citations omitted). The court
was justifiably skeptical that this amount of drugs would be
entrusted to a minor player.
[7] The district court did not clearly err in finding that
Rodriguez did not meet his burden to prove he had a minor
role in the offense, and it did not abuse its discretion in
declining to award Rodriguez the minor-role reduction under
§ 3B1.2(b). Because the § 3B1.2(b) adjustment was not war-
ranted, Rodriguez was not entitled to the additional reduction
under § 2D1.1(a)(5). A reduction under § 2D1.1(a)(5) is
applied only “if . . . the defendant receives an adjustment
under § 3B1.2” (emphasis added). There is no support in the
record for Rodriguez’s claim that Judge Burns purposefully
circumvented § 2D1.1(a)(5), and therefore no procedural error
occurred.
C. Substantive Reasonableness of the Imposed Sentence
[8] Finally, Rodriguez contends that his 57-month sentence
was substantively unreasonable under the 18 U.S.C. § 3553(a)
factors. We disagree.
With respect to Rodriguez’s primary objection, the fact that
Judge Burns stated the sentence was an “appropriate sen-
tence” instead of a sentence “not greater than necessary” does
not indicate the court applied an incorrect standard. This
Court has itself stated that a district court should arrive at an
“appropriate sentence.” Carty, 520 F.3d at 991. Moreover, the
district court is not required to articulate each specific § 3553
factor or use specific phrases during the sentencing process.
See United States v. Diaz-Argueta, 564 F.3d 1047, 1051-52
UNITED STATES v. RODRIGUEZ-CASTRO 7297
(9th Cir. 2009). Rodriguez’s reliance on this particular phrase
is therefore unavailing.
[9] The district court did not abuse its discretion when
weighing the totality of the circumstances and the § 3553 fac-
tors. See Gall v. United States, 552 U.S. 38, 51 (2007). Judge
Burns considered Rodriguez’s work history, the lack of a
criminal record in Mexico, his role as a “conscientious
father,” and the need to avoid unwarranted sentence dispari-
ties. The court was also cognizant, however, of the need to
deter Rodriguez and other individuals from bringing in “huge
amounts of cocaine.”
III. Conclusion
The sentence imposed upon Rodriguez by the district court
is affirmed.
AFFIRMED.
SILVERMAN, Circuit Judge, with whom Judge TALLMAN
joins, concurring:
George Gobel once said that he sometimes feels like the
whole world is a tuxedo and he, a pair of brown shoes. That
must be how Judge Burns feels when the AUSA and defense
counsel jointly and routinely present for his approval plea
agreements containing fact-based sentencing inducements
before the facts are even known. When Judge Burns refuses
to rubber-stamp these agreements, counsel balk. Who does he
think he is? Doesn’t he understand that he’s messing up the
plea bargaining process? As the appellant’s opening brief puts
it, “The district court abused its discretion by failing to apply
the minor-role adjustment when both parties recommended
the adjustment.” A.O.B. at 16. Never mind that the district
judge is obligated — not just encouraged but obligated — to
7298 UNITED STATES v. RODRIGUEZ-CASTRO
accurately calculate the sentencing guidelines no matter what
the parties would like it to be. Once the guidelines have been
calculated correctly, a district judge is then free to deviate
from them for good cause, which is exactly what Judge Burns
did here, in the defendant’s favor, no less.
I completely agree with my colleagues that no matter how
eagerly both counsel sought to get rid of this case by way of
plea agreement, Judge Burns was well within his discretion in
ruling that this defendant was not shown to be entitled to a
minor-role adjustment. Other reductions, yes, but not that one.
The majority opinion, which I fully join, explains why.
Sentencing is solely the responsibility of the judge. Like the
little boy who tells the emperor he’s not wearing any clothes,
Judge Burns can hardly be faulted for telling the parties that
their boilerplate factual findings lack a basis in fact.