Published dissent would have reversed use-of-violence sentencing enhancement

United States v. Zarate-Suarez, 970 F.3d 1330 (10th Cir. 8/18/20) (Colo.) – The majority issued an unpublished opinion at 823 Fed.Appx. 665 (10th Cir. 8/18/20), upholding the district court’s conclusion that Ms. Zarate-Suarez was an organizer or leader in the conspiracy to distribute meth and the application of a four-level enhancement based on that finding, as well as a two-level enhancement for directing the use of violence. In this published dissent, Judge Phillips concurred in the application of the aggravating role enhancement, but dissented in a published opinion from application of the USSG 2D1.1(b)(2) use-of-violence specific offense characteristic. He concluded there was insufficient evidence that Ms. Zarate-Suarez used violence, made a credible threat of violence, or directed the use of violence. She was not present when underlings assaulted a buyer who resisted their plan to steal from her and there was no evidence Ms. Zarate-Suarez directed associates to use violence or planned with them for an assault or kidnapping. The 2D1.1(b)(2) text limits a defendant’s responsibility to her own acts. Although the conduct of others may be considered under 1B1.3(a)(1)(B), there was no showing that others’ use of violence was reasonably foreseeable to Ms. Zarate-Suarez. Judge Phillips also disagreed with the majority’s application of the plain error standard to the district court’s error in relying on others’ conduct to enhance Ms. Zarate-Suarez’s sentence under 2D1.1(b)(2); she alerted the district court to her argument against increasing her sentence based on others’ conduct by asserting that it would be improper to enhance her sentence without proof that she herself used violence or threatened or directed the use of violence. Judge Phillips concluded she should prevail even under the plain error standard because under the plain GL text and case law, the district court incorrectly applied the GL. There was a reasonable probability that the district court’s error affected the outcome and the fourth prong of plain error was met as well because it would undermine judicial integrity to permit an individual to linger longer in prison because of an obvious judicial error.