Published on: Monday, March 12, 2018

On March 9, 2018, the Ninth Circuit in United States v. Aguilar Diaz, Case No. 16-50102, confronted Amendment 794 to the Sentencing Guidelines, which amended USSG §3B1.2 (Mitigating Role) and became effective on November 1, 2015. Amendment 794 made several critical changes to the way a court decides whether to apply a minor role adjustment. First, the court noted that in stating its purpose for the Amendment, the Sentencing Commission explained that minor role adjustments had been “applied inconsistently and more sparingly than the Commission intended” and that the Commission intended to address caselaw which might discourage applying a minor role adjustment. Second, the Amendment resolved a circuit split which had developed concerning the interpretation of the average participant – some circuits allowed defendants to compare their culpability to other hypothetical typical offenders. The Amendment provided that the appropriate comparison for determining the average participant was between the defendant and other participants in the same criminal scheme.

Finally, the Commission provided a non-exhaustive list of factors for courts to use to determine whether to apply the adjustment: the degree to which the defendant understood the scope and structure of the criminal activity; the degree to which the defendant participated in planning or organizing the criminal activity; the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and the degree to which the defendant stood to benefit from the criminal activity.

The Ninth Circuit remanded the case to the district court because, based on the record, the district court’s decision to deny the adjustment rested on incorrect interpretations of §3B1.2, as amended by Amendment 794. The Training Division provides sentencing resources that will help you argue for the best sentence possible for your clients here.