Minor role reduction incorrectly denied; remanded for resentencing

United States v. Delgado-Lopez, 2020 WL 5509691 (September 14, 2020) (KS): The panel reverses the district court’s denial of a minor role reduction. Unfortunately, this decision imparts to the district courts the lesson that less is more. The panel noted that a sentencing court is not required to explain its credibility determinations, which on appeal are entitled to “extreme deference.” But, when the court details legally unsound reasons for its decision, the reviewing court cannot be “willfully blind” to those errors. Here, the court’s “optional discussion” explaining its finding that Delgado’s statements were not credible and therefore could not support a role reduction was not based on evidence before it. Rather, it was founded on speculation or hypothesis. At the sentencing hearing, the court questioned Delgado. From that, it concluded it made no financial sense for him to be a courier: he could have earned the same, if not more, at his existing job. The panel said the figures the court used to make this comparison were based on speculation. It had no evidence that Delgado could work more hours at his job, nor of the costs involved in the four trips he made, nor that he knew the financial benefits of the arrangement prior to accepting. The court then erred in relying on its own speculation to find Delgado was not credible. The panel also found the court incorrectly based its decision on Delgado not cooperating with the government. The court said without cooperation, he did not deserve to get the same kind of break as those who did. The panel held this was legal error because the court applied the “wrong test” in making a factual finding at sentencing. Nothing in USSG § 3B1.2 permits a sentencing court to consider an accused’s cooperation in making a factual finding about whether he played a minor role. Additionally, the court also erred in not addressing Delgado’s culpability relative to other participants in the drug trafficking organization. (The panel noted on remand, this was not necessary if the court first found Delgado's testimony about his role "incredible."). Judge Eid dissented. Setting aside the court’s credibility decision, in her opinion, there was enough “uncontroverted evidence” in the record to support the denial.