NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 9, 2013
Decided March 12, 2013
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐2296
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 07 CR 00125
CRUZ SAENZ,
Defendant‐Appellant. Sarah Evans Barker,
Judge.
O R D E R
Last time this case was before us, the district court had sentenced Cruz Saenz to 293
months’ imprisonment for transporting drug money, but we vacated and remanded because
there was no evidentiary basis to support the district court’s denial of a minor role reduction
pursuant to U.S.S.G. § 3B1.2. United States v. Saenz, 623 F.3d 461, 467 (7th Cir. 2010) (hereinafter
“Saenz I”). We then explained that applying the minor role reduction requires comparing the
culpability of the defendant to that of the average member of the conspiracy. See id. at 468. On
remand, after a hearing, the district court sentenced Saenz to 252 months’ imprisonment and
again denied the minor role reduction, but the district court did not compare Saenz’s
culpability to that of the average member of the conspiracy, which was error. We acknowledge
that determining the culpability of an “average” member of a complex conspiracy is not
No. 11-2296 Page 2
straightforward, and that Saenz I did not provide sufficient guidance on this score, which we
hope to rectify in this order. But because of the error, and because it is not clear that Saenz
would have received the same 252‐month sentence had the minor role reduction been applied,
we vacate his sentence and remand.
I. BACKGROUND
As this is the second appeal in this case and the issue on appeal is narrow, we
summarize the facts only briefly. Saenz and his co‐defendants were involved in a large‐scale
cocaine distribution network based in Mexico. Those based in Mexico obtained cocaine and
arranged cocaine shipments out of Mexico and into the United States. Others in Texas arranged
cocaine deliveries into Indianapolis. Upon delivery, another co‐defendant passed the cocaine
onto suppliers in the region and also arranged for truck drivers to take cocaine proceeds back
to Mexico and Texas. Saenz was one of those truck drivers, and on one occasion attempted to
deliver about $500,000 in cocaine proceeds to Texas, when he was arrested. Saenz was
convicted of conspiring to distribute more than five kilograms of cocaine in violation of 21
U.S.C. § 846, and he was sentenced to 293 months’ imprisonment. During the sentencing
proceeding, the district court found that Saenz was “far more than a courier” and denied him
a minor role reduction under U.S.S.G. § 3B1.2.
On appeal, we vacated the sentence and remanded, principally because the district
court’s finding that Saenz was “far more than a courier” lacked an evidentiary basis. See Saenz
I, 623 F.3d at 467. We added:
[T]he minor participant determination is heavily fact‐dependent. A drug courier
should neither automatically receive nor automatically be precluded from
receiving a role reduction. Instead, the controlling standard is whether the
defendant is substantially less culpable than the average participant in the
offense. When assessing whether a defendant is substantially less culpable such
that he should receive a role reduction, a defendant’s role should be compared
to that of the average member of the conspiracy, not with the leaders. The
question here is whether this one‐time courier is less blameworthy than the
average defendants in the conspiracy.
Id. at 468 (citations and quotation marks omitted). We noted that Saenz was “certainly less
culpable” than the Mexico‐based co‐defendants who coordinated the cocaine shipments from
Mexico, that he was less culpable than the co‐defendant in charge of the Indianapolis hub of
the conspiracy, that he never touched any drugs or participated in any negotiations, and that
he had no decision‐making authority beyond choosing the route he could take from
Indianapolis to Texas. Id.
No. 11-2296 Page 3
On remand, the district court again denied the minor role reduction. In doing so, it said:
“The task that the Court faces in trying to figure out the average member of the conspiracy is
a rather daunting task, and so it seems logical to look at other people in the conspiracy who
were charged with similar conduct as Mr. Saenz.” It then “narrow[ed] the scope of inquiry to
the other courier[s]” in the conspiracy, noted that “none of the other four couriers got any
reduction for being a minor participant,” and concluded that Saenz was therefore also
undeserving of this reduction. The district court did not conduct any analysis concerning the
culpability of the average member of the conspiracy. It found that, without the minor role
reduction, the advisory Guidelines range was 240 months to 293 months, and went on to
consider “whether the additional 53 months” on top of the 240‐month statutory minimum was
warranted. It concluded that a sentence of 252 months was sufficient, as it was “one year more
[than the statutory minimum] in light of the perjury that the defendant committed” at trial.
Saenz appealed.
II. ANALYSIS
In Saenz I, we instructed the district court to compare Saenz’s culpability with that of the
average member of the conspiracy, but nothing from the transcript suggests that the district
court did so. See, e.g., United States v. Diaz‐Rios, — F.3d —, 2013 WL 332277, at *4 (7th Cir. Jan.
30, 2013) (“[W]e cannot tell whether the district court compared Diaz‐Rios’s role in the offense
against those of average participants, as it should have.”). The district court instead looked
simply at whether comparable couriers in the conspiracy also received minor role reductions.
Though this approach is appealing (and it might be relevant to making the separate
determination of whether the sentence should be adjusted so as to avoid unwarranted
sentencing disparities under 18 U.S.C. § 3553(a)(6)), merely looking at whether other couriers
in the conspiracy received a minor role reduction does not necessarily demonstrate how Saenz’s
culpability is comparable to that of the average member of the conspiracy. Absent a finding
as to whether the couriers themselves represent average members of the conspiracy, comparing
Saenz to other couriers simply does not indicate how Saenz compares to the average member
of the conspiracy. The other couriers may not have received a minor role reduction because
they did not advance that argument, or perhaps certain evidence was not part of the record
when the other couriers were sentenced. If there were any findings relevant to analyzing the
culpability of the average member of the conspiracy in the sentencing proceedings of the other
couriers, we do not know to what extent the district court relied on them. In sum, we have no
direct or indirect indication that the district court compared Saenz’s culpability to that of the
average member of the conspiracy, and so we conclude that the district court’s minor role
determination was error.
No. 11-2296 Page 4
Sentencing errors do not warrant remand if the error is harmless, but here we cannot say
that the error is harmless. See United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009) (“To prove
harmless error, the government must be able to show that the Guidelines error did not affect
the district court’s selection of the sentence imposed.” (quotation marks and citation omitted)).
The district court placed significant weight on the Guidelines range, specifically discussing
what sentence within the 240‐to‐293 month range was appropriate (e.g., asking “whether the
additional 53 months” on top of the 240‐month statutory minimum was warranted). A minor
role reduction, however, would have resulted in a flat Guidelines range of 240 months, see
U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence [240 months here] is
greater than the maximum of the applicable guideline range [135 to 168 months with the minor
role reduction here, see Saenz I, 623 F.3d at 466], the statutorily required minimum sentence
shall be the guideline sentence.”), putting the 252‐month sentence above the applicable
Guidelines range. Given the importance of the Guidelines range in the district court’s analysis,
we cannot be convinced that “the sentence the judge impose[d] [would have been] identical.”
United States v. Hill, 645 F.3d 900, 906 (7th Cir. 2011) (quotation marks and citation omitted); see,
e.g., United States v. Love, 680 F.3d 994, 998 (7th Cir. 2012) (“Even though Love received a
sentence that was significantly below the guidelines range, the range on which his sentence was
based was erroneously calculated. Such an error is not harmless because it is impossible to
know whether the district court would have imposed the same sentence had it not committed
this procedural error.”). The government correctly observes that the district court attributed
the 12‐month addition to the 240‐month minimum to Saenz’s perjury, but this finding was not
made until after the court expressly satisfied itself that it was working within the Guidelines
range. Had the minor role reduction been applied, the district court might not have found that
the reprehensibility of the perjury was enough to justify going above the resulting flat
Guidelines range of 240 months. Therefore we must vacate Saenz’s sentence and remand.
We note that the district court’s observation that “trying to figure out the average
member of the conspiracy is a rather daunting task” was understandable, especially given the
relative lack of guidance provided in Saenz I. So we attempt to provide additional guidance
below as to how the minor role analysis might be done in this case, though we emphasize that
the following is merely illustrative and should not be taken as a mandatory blueprint.
Innumerable alternative approaches could also pass muster.
However the district court wishes to determine whether the minor role reduction
applies, it must make some explicit or implicit finding concerning the culpability of the average
member of the conspiracy. In doing so, the court might start by broadly summarizing the levels
of involvement of the various groups of defendants in the conspiracy. See, e.g., United States v.
McGee, 408 F.3d 966, 987 (7th Cir. 2005) (conducting similar type of summary analysis); United
States v. Hunte, 196 F.3d 687, 694 (7th Cir. 1999) (same); see also United States v. Mendoza, 457 F.3d
726, 729‐30 (7th Cir. 2006) (“[A]n examination of each codefendant’s total role in the criminal
No. 11-2296 Page 5
offense provides a much more thorough insight into their responsibility as well as position in
the conspiracy and, indeed, is required under the guidelines.”); Diaz‐Rios, 2013 WL 332277, at
*4 (culpability may depend on factors such as the relationship with the leaders of the
conspiracy, length and extent of involvement, potential financial gain, and knowledge of the
conspiracy). The district court need not exhaustively detail the culpability of each and every
co‐defendant. See United States v. Stephenson, 53 F.3d 836, 850 (7th Cir. 1995) (“The district court
need not articulate its comparison [of culpability] on a person by person basis with each
member of the conspiracy.”). For instance, four of the conspirators (Fierro‐Mendez, Martinez,
“Alex,” and “Lalo”) were based in Mexico and oversaw the entire distribution network, likely
making them the most culpable in the conspiracy. Next most culpable might be Danny
Delgado, who handled the United States point of contact in El Paso, Texas and ensured that
cocaine would move onto Indianapolis, and Manual Mascorro, who oversaw the Indianapolis
hub and was the point of contact for the regional distributors, which included Quinton Dews.
Three other co‐defendants, Pedro Mendoza, Carrera Camilo, and Ramiro Gonzalez, helped
Mascorro offload cocaine shipments, weigh and package cocaine, and count drug proceeds, so
they were likely less culpable than Mascorro. Last we have the couriers, whose culpability may
vary depending on the nature of their roles. See, e.g., Mendoza, 457 F.3d at 729‐30.
Next the district court should determine what might represent the culpability of the
average member of the conspiracy and then compare it to Saenz’s culpability. See United States
v. Gallardo, 497 F.3d 727, 741 (7th Cir. 2007) (“David’s role should be compared to that of the
average member of the conspiracy . . . .”); United States v. Leiskunas, 656 F.3d 732, 739 (7th Cir.
2011) (“Rather than relying on a determination of whether Leiskunas’s act was necessary or
repeated, the court should have evaluated Leiskunas’s role in context of the other participants
in the scheme, keeping in mind that a minor player is substantially less culpable than the
average participant, not the leaders.”). Mathematical precision is not required. For example,
if the involvement of the couriers was particularly extensive and made their culpability
comparable to the distributors’, then the couriers might indeed represent an average member
of the conspiracy, and Saenz would likely not be entitled to a minor role reduction. See, e.g.,
McGee, 408 F.3d at 987 (“This was a wide‐ranging drug conspiracy, and King, Keith McGee, and
Smith all played roles that could be fairly described as average.”); United States v. Castillo, 148
F.3d 770, 776 (7th Cir. 1998) (“In this five person conspiracy, three members, Castillo, Gonzales,
and Manzanares, had approximately the same level of involvement. The district court
concluded that they were average members of this conspiracy.”). On the other hand, if most
of the conspirators’ level of involvement substantially exceeded that of Saenz, then Saenz might
qualify for a minor role reduction.
We repeat that the above examples are illustrative and not the only way the district
court could conduct the analysis. For instance, it may not be necessary to specifically describe
what the “average member of the conspiracy” looks like, if the district court’s comparison of
No. 11-2296 Page 6
the defendant’s culpability to those of the other members of the conspiracy leaves us confident
that such a finding was at least implicitly made. See, e.g., Diaz‐Rios, 2013 WL 332277, at *4 (“The
court should have looked at his role in the conspiracy as a whole . . . .”); United States v. Osborne,
931 F.2d 1139, 1159 (7th Cir. 1991) (concluding that defendant was not “substantially less
culpable than the conspiracy’s remaining participants” without affirmatively stating what the
average member of the conspiracy looked like). And we do not at all suggest that the district
court’s analysis needs to be as lengthy as the above illustration.
We also note that none of the above discussion should be construed as factual findings
that the district court must adopt, and in that sense we reject Saenz’s suggestion that Saenz I’s
brief discussion about Saenz’s relative culpability is “law of the case” that is binding upon the
district court. Much of the above is hypothetical and greatly simplified for purposes of
illustration. It is the district court that is most intimately familiar with the facts and should, in
the first instance, make the factual findings necessary to support a minor role determination.
McGee, 408 F.3d at 987 (“[T]he role in the offense adjustment is a fact‐intensive inquiry that the
district court is best suited to address in the first instance, especially after becoming intimately
acquainted with the roles of the members of a drug conspiracy . . . .”).
III. CONCLUSION
For the above‐stated reasons, we VACATE Saenz’s sentence and we REMAND for
further proceedings consistent with this order.