NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50140
Plaintiff-Appellee, D.C. No.
3:20-cr-02510-LAB-1
v.
JOSE ALFREDO SOLIS, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 21-50142
Plaintiff-Appellee, D.C. No.
3:17-cr-03121-LAB-1
v.
JOSE ALFREDO SOLIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted August 1, 2022
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SILER,** CALLAHAN, and H. THOMAS, Circuit Judges.
Dissent by Judge H. THOMAS.
Jose Alfredo Solis appeals from the district court’s imposition of an 84-
month sentence he received after pleading guilty to importing methamphetamine in
violation of 21 U.S.C. §§ 952 and 960.1 We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. Solis first argues that the district court erred in denying his request for
a two-level minor role reduction under Section 3B1.2(b) of the United States
Sentencing Guidelines. “[W]e review the district court’s identification of the
correct legal standard de novo and the district court’s factual findings for clear
error.” United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en
banc). “[A]s a general rule, a district court’s application of the Sentencing
Guidelines to the facts of a given case should be reviewed for abuse of discretion.”
Id.
Section 3B1.2(b) provides for a two-level reduction if the defendant “was a
minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b). To be eligible
for this adjustment, the defendant must establish that he is “substantially less
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
1
In Case No. 21-50142, Solis also appealed the revocation of his supervised
release. However, Solis expressly waived this argument in his consolidated
opening brief.
2
culpable than the average participant in the criminal activity.” Id. at cmt. 3(A). As
we recently held, in assessing whether the defendant has met this burden, the
district court must engage in a three-step analysis:
First, the court must identify all of the individuals for whom there is
sufficient evidence of their existence and participation in the overall
scheme. Second, the court must calculate a rough average level of
culpability for these individuals, taking into consideration the five
factors in comment 3(C) to the Mitigating Role Guideline. Third, the
court must compare the defendant’s culpability to that average. If the
defendant is substantially less culpable than that average and meets the
other criteria, he should be granted a mitigating role adjustment.
United States v. Dominguez-Caicedo, 40 F.4th 938, 2022 WL 2799169, at *17 (9th
Cir. 2022) (internal quotation marks and citations omitted).
We agree with Solis that the district court erred in articulating and applying
these standards. As an initial matter, while the district court identified two other
individuals involved in the criminal scheme, it disregarded the organizer of the
scheme as a valid comparator because the organizer was “not an average
participant,” and the intended recipient of the drugs because Solis had failed to
provide sufficient information about that person. This was error because “the
proper comparison is to the average of all of the individuals who participated in
[the] offense, including those that the district court believed were leaders or
organizers or who were otherwise highly culpable.” Id. at *18; see also id. at *17
(rejecting approach comparing “the defendant’s culpability to only the median
participants’ actual level of culpability”).
3
The district court also erred in identifying the legal standards applicable to
three of the non-exhaustive factors set forth in Comment 3(C) to U.S.S.G. § 3B1.2.
The first of these factors calls for a court to consider “the degree to which the
defendant understood the scope and structure of the criminal activity.” U.S.S.G.
§ 3B1.2 cmt. 3(C)(i). We have held that this factor requires the court to assess the
defendant’s knowledge of “the scope and structure of the criminal enterprise in
which he was involved.” United States v. Diaz, 884 F.3d 911, 917 (9th Cir. 2018).
However, the district court here focused on Solis’s knowledge of the importation
crime at issue, stating that it “cannot be the standard” that the court was required to
assess Solis’s knowledge of the criminal enterprise itself. This statement is
inconsistent with our decision in Diaz.
The second factor requires the district court to assess “the degree to which
the defendant participated in planning or organizing the criminal activity.”
U.S.S.G. § 3B1.2 cmt. 3(C)(ii). The district court held this factor weighed against
granting Solis an adjustment because Solis “was part of the plan,” though it “didn’t
originate with him” and “[h]e was a cog.” The district court’s apparent view that
being a “part of the plan” is the equivalent to participating in the planning of the
crime misconstrues the text of Comment 3(C)(ii).
Finally, the fifth factor identified in Comment 3(C) is “the degree to which
the defendant stood to benefit from the criminal activity.” U.S.S.G. § 3B1.2 cmt.
4
3(C)(v). In applying this factor, courts are required to evaluate not only the
amount of payment, but whether the payment was set at a fixed sum or if the
defendant had a “ownership interest or other stake in the outcome of the trafficking
operation.” Diaz, 884 F.3d at 917; see also U.S.S.G. § 3B1.2 cmt. 3(C) (“[A]
defendant who does not have a proprietary interest in the criminal activity and who
is simply being paid to perform certain tasks should be considered for an
adjustment under this guideline.”). The district court erred by failing to consider
whether Solis had any proprietary interest in the criminal activity at issue here.
2. However, we agree with the government that the district court’s error
in articulating and applying these standards was harmless. A Guidelines
calculation error can be harmless in several circumstances, including where “the
district court: (1) acknowledges that the correct Guidelines range is in dispute and
performs his sentencing analysis twice, beginning with both the correct and
incorrect range; [and] (2) chooses a within-Guidelines sentence that falls within
both the incorrect and the correct Guidelines range and explains the chosen
sentence adequately.” United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5
(9th Cir. 2011); see also United States v. Mendoza, 121 F.3d 510, 513–14 (9th Cir.
1997). “To establish harmlessness, the Government must show that it is more
probable than not that the error did not affect the sentence.” Dominguez-Caicedo,
2022 WL 2799169, at *19 (internal quotation marks and citation omitted).
5
Without the minor role reduction, the district court calculated that the
Guidelines range for Solis’s offense was 188–235 months’ imprisonment. After
considering the factors set forth in 18 U.S.C. § 3553(a), the district court departed
downward from this range and instead imposed a sentence of 84 months’
imprisonment. The district judge stated that with the minor role adjustment, the
Guidelines range would have been 110–137 months, and that he “wouldn’t have
gone any lower [than 84 months], even if I had granted a minor role.”
Solis contends that any error could not have been harmless because the
district court miscalculated what the Guidelines range would have been if the
minor role adjustment had been granted. Solis contends the correct Guidelines
range would have been 92–115 months, not 110–137 months. Solis also argues
that the district court’s statement that it would not have imposed the same sentence
in any event was conclusory and entitled to less weight because it came near the
end of the sentencing hearing. See Dominguez-Caicedo, 2022 WL 2799169, at
*20.
We disagree. Even assuming that Solis is right that the alternative
Guidelines range was miscalculated,2 harmless error can still apply when the
2
In its briefing, the government initially conceded that the district court incorrectly
calculated the alternative Guidelines range. But at argument, the government
changed its position and stated that it now believes the district court’s calculation
was correct. We need not address this dispute because we find the district court’s
error was harmless even if Solis’s proposed range is accurate.
6
district court chooses a “within-Guidelines sentence that falls within both the
incorrect and the correct Guidelines range and explains the chosen sentence
adequately.” Munoz-Camarena, 631 F.3d at 1030 n.5. Here, the 84-month
sentence imposed by the district court was below even the “correct” Guidelines
range that Solis advocated for.
Further, the district judge explained the reasoning for his sentence in
significant detail. For example, the district judge considered the fact that Solis
attempted to smuggle a relatively small quantity of drugs, and the fact that he
pleaded guilty and promptly resolved the case. But the judge also factored in
Solis’s history, which was “bad” and indicated that Solis just “does not learn a
lesson.” He noted that this was the third time Solis has tried to import drugs. The
court considered Solis’s motivation—to help his girlfriend—but found that
“doesn’t get us very far” because the girlfriend herself was working for a drug
cartel. The court further justified the sentence by reference to the need for
punishment and the need to specifically deter a repeat offender like Solis from
continuing to commit these types of crimes. 18 U.S.C. § 3553(a)(2)(A)–(B).
Additionally, the fact that the district court sentenced Solis to a term of
imprisonment below even the Guideline range Solis argues should have applied
distinguishes this case from Dominguez-Caicedo. There, the district court imposed
a 180-month sentence. That sentence was below the incorrectly calculated
7
Guidelines range of 292–365 months, but still well above the alternative, correctly
calculated Guidelines range of 97–121 months. 2022 WL 2799169, at *19–20. By
contrast, Solis’s sentence was eight months below the low end of the Guidelines
range he now argues should have applied. This, when combined with the court’s
reasoned explanation for the sentence, was sufficient to establish harmless error
under these specific circumstances.
3. Solis also argues that the district court erred by imposing, without
notice, a condition permitting law enforcement officers to conduct suspicionless
searches of Solis as part of the terms of his supervised release. Solis contends that,
during the district court’s oral pronouncement of the sentence, the district judge
indicated that Solis would not be subject to suspicionless searches, and that an
unambiguous oral pronouncement of a sentence controls when it conflicts with the
written judgment. United States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998);
United States v. Jones, 696 F.3d 932, 938 (9th Cir. 2012). Even if the oral
statement was ambiguous, Solis argues that the sentence should still be vacated and
remanded because Solis didn’t have adequate notice that the condition would be
imposed and thus didn’t have a chance to object. See United States v. Reyes, 18
F.4th 1130, 1133 (9th Cir. 2021).
We disagree. At the sentencing hearing, the district judge stated that:
[Solis is] subject to search, that includes his person, his property, his
residence, and his vehicle. . . . What this means, Mr. Solis, [is that] if
8
any cop wants to search you or your property, or your car, or your
house, you have to permit it. You can’t say no. You’re subject to a
waiver here. It’s forced on you. It’s not really a waiver. It’s a condition
of supervised release, but you have to permit search.
The district judge went on to state that “I’m not going to let that be abused. I’m not
going to let anybody arbitrarily, you know, search you or continually search you
when there’s no good reason.”
Read together, the hearing transcript does not support Solis’s argument that
the district judge unambiguously announced that Solis would not be subject to a
suspicionless search condition. While the district judge did not expressly state that
searches could be “suspicionless,” he clearly indicated that Solis would be required
to submit to any search by any peace officer and had no right to “say no.” This
inability to “say no” to any search (without reference to a minimum degree of
suspicion), at the very least, strongly implied that Solis would be subject to a
suspicionless search condition. Because there was ambiguity in the oral
pronouncement of the sentence, the unambiguous written judgment imposing the
suspicionless search condition controls. Fenner v. U.S. Parole Comm’n, 251 F.3d
782, 787 (9th Cir. 2001).
Nor is remand necessary because Solis lacked notice that a suspicionless
search requirement might be imposed. The district judge’s statement that he was
imposing a condition which required Solis to consent to any search was sufficient
to put Solis’s counsel on notice that the court was at least “considering” a
9
suspicionless search requirement. See Reyes, 18 F.4th at 1133 (noting that “at no
time prior to the imposition of sentence did the district court provide any notice to
the parties that it was considering a substantial modification and expansion of the
search condition”).
AFFIRMED.
10
FILED
United States v. Solis, No. 21-50140+ AUG 22 2022
MOLLY C. DWYER, CLERK
H. THOMAS, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I agree with the majority that the district court erred in interpreting and
applying the legal standards that determine eligibility for a minor role reduction
under Section 3B1.2(b) of the Sentencing Guidelines. See United States v.
Dominguez-Caicedo, — F.4th —, No. 19-50268, 2022 WL 2799169, at *18 (9th
Cir. July 18, 2022); United States v. Diaz, 884 F.3d 911, 916–18 (9th Cir. 2018).
But I cannot agree that the errors were harmless. In light of the multiple mistakes
of law committed during the sentencing proceedings, I do not believe it is more
likely than not that the errors did not affect Solis’ sentence. I would therefore
vacate and remand the sentence to give the district court the opportunity to
recalculate the sentence under the correct legal framework. See Molina-Martinez v.
United States, 578 U.S. 189, 198 (2016) (“When a defendant is sentenced under an
incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls
within the correct range—the error itself can, and most often will, be sufficient to
show a reasonable possibility of a different outcome absent the error.”); United
States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) (holding that a
district court’s statement that it would have imposed the same sentence no matter
the correct calculation “cannot, without more, insulate the sentence from remand”).
Because I do not believe Solis had proper notice of the district court’s intent
to impose a suspicionless search condition, I would also vacate and remand the
condition to give Solis the opportunity to object. See United States v. Reyes, 18
F.4th 1130, 1133 (9th Cir. 2021).
I therefore respectfully dissent from the majority’s decision affirming Solis’
sentence.
United States v. Jose Solis
Combined Opinion