United States v. Hurtado

When determining whether a defendant qualifies for a minor role sentence reduction, the comparison is between average participants, not above-average participants for the “substantially less culpable than the average participant” test.

Hector Hurtado pled guilty to intentionally and knowingly importing 11.64 kilograms of cocaine across the US/Mexico border and was subsequently sentenced to 46-months in prison. Hurtado took issue with the sentence imposed and argued that he should have qualified for a “minor role” reduction. He further argued that couriers occupy a minor role when compared to other individuals in drug organizations. The district court disagreed and held that Hurtado was a “typical commercial drug smuggler…and not entitled to a minor role reduction.” The Ninth Circuit affirmed the district court’s holding. The panel noted that Hurtado did not establish that he was substantially less culpable than the average drug smuggler. Further, the panel found that simply being a courier does not automatically entitle a defendant to the minor role reduction. Hurtado also argued on appeal that the district court imposed a $450 fine without stating that it considered all of the factors set forth in 18 U.S.C. § 3572(a) and U.S.S.G. § 5E1.2, and without considering his lack of resources. The panel rejected this argument, noting that the district court was not required to list the factors or to “articulate every factor” that it considered when it assessed the fine. According to the panel, the district court clearly considered relevant factors, including Hurtado’s ability to pay the fine, ability to pay over a period of time, his earning capacity, and his financial resources. AFFIRMED.