NOT RECOMMENDED FOR PUBLICATION File Name: 22a0403n.06
No. 2 1

- 6046
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. R UB EN CORRALES, Defendant

- Appell ant
. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
OPINION

B efore : McKEAGUE , WHITE , and MURPHY, Circuit Judges. MURPHY, Circuit Judge. Ruben Corrales pleaded guilty to distributing several pounds of methamphetamine

. In his plea agreement, Corrales reserved the right to seek a reduction to his offense level under the Sentencing Guidelines on the ground that he played only a “minor” role in th e offense

. See U.S.S.G. § 3B1.2(b). Ultimately, however, Corrales’s attorney chose not to seek

a minor

- role reduction . He instead focus ed on persu ading the district court that Corrales’s limited role should affect the court’s balanc ing of the sentencing factors in 18 U.S.C. § 3553(a). C orrales

now argues that the district court should have grant ed him th e minor

- role reduction and that he
p reserved t h is claim by flagging it in his plea agreement. Yet t o preserve a request for a minor

role reduction, a defendant must make a request for a minor

- role reduction. Corrales did not. He instead told the district court that he was not request ing o ne . And e ven if he merely forfeited ( as opposed to waive d ) t his claim , th e district court did not commit plain error by failing to apply th e minor

- role reduction on its own initiative . We thus affirm Corrales’s sentence.No. 2 1

- 6046 , United States v. Corrales

2 I Ruben Molina ran a drug

- traffic king operation that eventually drew the attention of law enforcement in Lexington, Kentucky

. In October 2020, o f ficers coordinated with a confidential

source to set up a methamphetamine deal with Molina. The source purportedly agreed to buy two pounds of the drug at $3 , 8 00 per pound

. On the day of th e scheduled deal , officers monitor ed Molina’s home

. They knew that h e often used “runners” to distribute drugs and collect payments. The officers saw a man they later learned was Corrales d rive from Molina’s home to the place chosen for the deal

. The officers then watched Corrales get out of his vehicle , hand the confidential source a red bag , and accept in return the funds that the officers had given the source ($7,600)

. Yet it turns out that Molina and the confidential source had miscommunicated over the amount of methamphetamine involved in the exchange

. T he red bag that Corrales handed to the

source contained some 2.2 kilograms ( or just under 5 pounds) of methamphetamine. L ater that night, Molina called the confidential source complain ing that the source had not provided enough
money for the drugs and indicating that he would pick up the rest of his “bread” in the near future

. At the officers’ request s ome two weeks later, t he confidential source told Molina that the

source now had a portion of the money due . The parties agreed to exchange this money at a local grocery store
. On the arranged day, t he officers gave the source another $1,000. Molina arrived with Corrales at th e store and took the $1,000 from the source during a n interaction that the officers secretly recorded. After the transfer , t he officers stopped Molina’s car and arrested both M olina and Corrales

. Corrales entered into a plea agreement with the government

. He agreed to plead guilty to one count of distributing at least 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) ; the government agreed to dismiss two other counts. Turning to the proper calculationNo. 2 1

- 6046 , United States v. Corrales

3

of Corrales’s guidelines range , the parties next agreed that he had a base offense level of 36 . This level rested on their shared conclusion that the court should hold Corrales responsible for just over 2 kilograms of methamphetamine. The parties also agreed that Corrales reserved the right to argue for a 2

- level reduction of his offense level on the ground that he played only a “minor” role in the offense . U.S.S.G. § 3B1.2(b). The probation o fficer who prepar ed Corrales’s presentence report declined to recommend th is minor

- role reduction . But the officer did recommend two other offense

- level reductions

. When combined with Corrales’s minimal criminal history , th os e reductions led to a guideli nes range of 108 to 135 months’ imprisonment. At sentencing, Corrales did not object to the presentence report’s calculations . T he district court accepted them without change

. Although Corrales did not mov e for a minor

- role reduction under § 3B1.2 , his attorney asked the court to consider his “limited” involvement in the crime when balancing the sentencing factors in 18 U.S.C. § 3553(a). Sent. T r., R.169, PageID 901

. The government agreed that Corrales had a more “limited” role than Molina but cl arified that it would have opposed a minor

- role reduction. Id. , PageID 907. When balancing the § 3553(a) factors, the district court also noted that it would have denied a minor

- role reduction but acknowledged that Corrales had a “somewhat lesser” role t han Molina. Id. , PageID 910

– 11. The court chose a sentence of 118 months’ imprisonment. I I Corrales now argues that the district court miscalculated his guidelines range by failing to appl y the minor

- role reduction

. The relevant guideline states : “ If the defendant was a minor participant in any criminal activity, decrease by 2 levels. ” U.S.S.G. § 3B1.2(b). D efendant s at sentencing must prove that t he y qualif y for this reduction by a preponderance of the evidence

.No. 2 1

- 6046 , United States v. Corrales

4

See United States v. Perry , 908 F.2d 56, 58 (6th Cir. 1990). As with other guidelines, the Sentencing Commission has offered extensive commentary to guide district courts on whether the reduction appl ies

. U.S.S.G. § 3B1.2 cmt. nn.1

– 6. The commentary explains that a minor participant must be “less culpable than most other participants in the crim inal activity[

. ]” Id. § 3B1.2 cmt. n.5. Whether a participant meets this test , the commentary goes on to say , “is heavily dependent” on all of th e facts

. Id. § 3B1.2 cmt. n. 3(C)

. The commentary then highlights several common questions to consider : Did the defendant have knowledge of the crim e ’s scope ? Did the defendant participate in planning t he crime ? Could the defendant make deci sions about it ? What acts did the defe ndant perform? How did the defendant benefit? Id. Given the inquiry’s fact

intensive nature, w e have long treated a district court’s ultimate conclusion that a defendant did (or did not) have a minor role as a factual finding subject to the deferential clear

- error standard of review

. See United States v. D a neshvar , 925 F.3d 766, 790 (6th Cir. 2019) ; Perry , 908 F.2d at 58. In this case , however, it would be difficult even to engage in this clear

- error review . T he district court m ad e no find ings about the ancillary factual issues highlighted in the commentary

. It merely noted in passing that Corrales “would not qualify for a role reduction under 3B1.2 based on his particular actions.” Sent. Tr., R.169, PageID 910. Corrales asserts that thi s unadorned comment makes his case identical to one in which we found legal error in a district court’s conclusory rejection of a minor

- role reduction

. See Daneshvar , 925 F.3d at 790. But Corrales overlooks a key difference between Daneshvar and his case . In Daneshvar , defense counsel objected at sentencing to the presentence report’s recommendation that the court deny a minor

- role reduction

. See id. In this case, counsel did not object to the presentence report’s rejection of the minor

- role reduct ion . Sent. Tr., R.169, PageID 897. To the contrary , counsel acknowledged the potential for the argument but clarified that he was not making it :No. 2 1

- 6046 , United States v. Corrales

5

Frankly, Your Honor, we struggled a little bit as to whether to formally request a minor role reduction. Ult imately we decided that we can discuss these matters with the Court in the context of [the sentencing factors in 18 U.S.C. §] 3553, and just perhaps mention to the Court that his role was limited in the sense that he did deliver a package containing metham phetamine at the behest of Mr. Molina. He did allow Mr. Molina to use his phone and there were messages and so forth on the phone that involved trading the drugs. Id. , PageID 901. In other words, counsel strategically steer ed the district court to consid er the nature of Corrales’s involvement only in the context of exercising its sentencing discretion

— n ot in the context of calculating the proper guideline s range . Corrales’s decision not to formally request a minor

- role reduction under § 3B1.2 shows that he at least forfeited

— and perhaps even waived

—his claim that the district court miscalculated his guidelines range

. Although c ourts regularly ( if wrongly) use the words forfeiture and waiver interchangeably , the two terms refer to different things

. See United States v. Montgomery , 998 F.3d 693, 69 7

– 9 8 (6th Cir. 2021)

. A party “waives” a n argument by intentionally abandoning the argument
. See United States v. Olano , 507 U.S. 725, 733 (1993); compare United States

v. Baskerville , 820 F. App’x 383, 385

– 87 (6th Cir. 2020) (waiver) , with United States v. Mabee , 765 F.3d 666, 67 1

– 7 3 (6th Cir. 2014) (no waiver)

. A party “forfeits” a n argument by negligently failing to adequately raise the argument at the proper time

. See Olano , 507 U.S. at 733 ; co mpare United States v. Vonner , 516 F.3d 382, 385

– 87 (6th Cir. 2008) (en banc) (forfeiture) , with United States v. Petlechkov , 922 F.3d 762, 768 (6th Cir. 2019) (no forfeiture). Th is distinction matters for more than a semantic reason because t he two doctrines trigger different effects . Appellate courts categorically refuse to consider a waived claim and will not

save a defendant from an intentional choice to abandon it

. See United States v. Jackson , 995 F.3d 47 6, 484 (6th Cir. 2021). Appellate cour ts , by contrast, have discretion to accept a valid claim that

a defendant forfeite d if the defendant can meet the four elements of the “ plain error ” test thatNo. 2 1

- 6046 , United States v. Corrales

6

applies to forfeited claim s . Fed. R. Crim. P. 5 2 (b); Rosales

- Mireles v. United States , 138 S. Ct. 1897, 1904

– 05 (2018); United States v. Ramamoorthy , 949 F.3d 955, 962 (6th Cir. 2020). Corrales’s case falls on our precedent’s border line between waiver and forfeiture. On the one hand, he knew of the minor

- role reduction because h is plea agreement p reserved his right to seek it and his lawyer expressly contemplated asking for it at the sentencing hearing. So Corrales apparently made an intentional choice not to formally pursue the reduction when he did not object to the sentencing report and his cou nsel explained their decision to focus on his role within the
context of the § 3553(a) factors. W e have indicated that this type of decision

— t o intentionally raise an argument only under the § 3553(a) factors rather than under the guideline s

— c ould amount
to a waiver of a guidelines claim

. See United States v. Sherrill , 972 F.3d 752, 769 & n.7 (6th Cir. 2020)

. On the other hand, we have suggested that a waiver in this context require s a “plain, explicit concession ” that a guideline does (or does not ) apply. Mabee , 765 F.3d at 673. So , for example, we have concluded that a defendant only forfeited (and did not waive) a guidelines objection when defense counsel indicated that the defendant’s presentence report was “accurate as tendered , ” but counsel did not specifically agree to the report’s decision not to include an additional acceptance

of

- responsibility reduction. Baskerville , 820 F. App’x at 387

– 88

. And here, Corrales’s counsel

never “explicitly agreed” that Corrales did not have a minor role u nder § 3B1.2

. United States

v. Aparco

- Centeno , 280 F.3d 1084, 1088 (6th Cir. 2002). Counsel expressly indicated only that Corrales was not formally requesting a guidelines reduction on that basis

. In the end , we opt not to decide whether Corrales waived his request for a minor

- role reduction because this forfeiture

- v ersus - waiver distinction “ does not matter” to the outcome. Sherrill , 972 F.3d at 770. H is request lacks merit even if we could review it under the moreNo. 2 1

- 6046 , United States v. Corrales

7

defenda nt

- friendly forfeiture framework

. Cf. id. As its name implies, the “ plain error ” test that governs forfeited claims requires Corrales to prove, among other things, that the district court’s failure to grant the minor

- role reduction w a s an obvious (i.e., plain) error. See Vonner , 516 F.3d at 386

. Corrales has not shown th is type of error because we are not convinced th at the district
court was required to apply the reduction on the record that Corrales created at sentencing

. See United States v. Miller , 562 F. App’x 272, 307 (6th Cir. 2014). To begin with, Corrales had significant responsibility for the crime

. In fact , h e (not Molina) was the one who actually distributed the drugs to the confidential source. But Corrales did more than just transfer the drugs. He also accompanied Molina to the subsequent exchange in which the source provided additional funds for the l arger - than

- expected amount of methamphetamine. And when Corrales was arrested, he was sitting near the phone that had been used to communicate with the source to set up the drug deal and the money transfer

. Notably, moreover, Corrales’s base offense level held him accountable only for the quantity of drugs that he personally distributed, not for Molina’s broader drug operation. At one time , this fact would have likely rendered Corrales categorically ineligib le for a minor

- role reduction under our caselaw. See United States v. Roberts , 223 F.3d 377, 380 (6th Cir. 2000) ; United States v. Walton , 908 F.2d 1289, 1303 (6th Cir. 1990 )

. The Sentencing Commission has since amended its commentary to note that defend ants may qualify for a reduction even if they are held responsible only for their own conduct

. See U.S.S.G. § 3B1.2 cmt. n.3(A) ; U nited States

v. Rodri g uez - Padilla , 439 F. App’x 754, 758 n.4 (10th Cir. 2011); United States v. Rodri g uez Cardenas , 362 F.3d 958, 960

– 61 (7th Cir. 2004)

. Yet our cases still find it relevant to the minor

- role reduction that a defendant has been held responsible only for the defendant’s ownNo. 2 1

- 6046 , United States v. Corrales

8

conduct and not for any broader scheme of distribution

. S e e United States v. Vicari , 228 F. App’x 593, 597

– 98 (6th Cir. 2007)

. Apart from the basic facts that we have mentioned, t he record is otherwise silent on Corrales’s full involvement (or lack thereof), including on the factors highlighted in § 3B1.2’s commentary. How much knowledge did Corrales have of Molina’s operation ? How involved was Corrales? Did he have any decisionmaking power over this deal? Wh at did he get in exchange for delivering the drugs to the confidential source? See U.S.S.G. § 3B1.2 cmt. n.3(C). We do not know

. Indeed, Corrales repeatedly highlights that there is “no evidence” on many of these issues. Appellant’s Br. 6

– 7. Recall, however , that Corrales bore the burden to prove that this minor

- role reduction applied. See Perry , 908 F.2d at 58. We thus must hold this lack of evidence against him , not the government. Cf. United States v. Wilson , 802 F. App’x 976, 981 (6th C ir. 2020). In this respect , Corrales’s case resembles those in which we have refrained from undertak ing plain

- error review

. Ramamoorthy , 949 F.3d at 96 2

– 64 ; United States v. Turner , 602 F.3d 778, 787 (6th Cir. 2010)

. Federal Rule of Criminal Procedure 52 (b) says that courts “may” consider a forfeited claim, so they have discretion to decline the invitation . Fed. R. Crim. P. 52(b). W e have refused to engage in this review when a defendant has raise d a fact

- intens ive claim but has failed to obtain factual findings from the district court

. See Ramamoorthy , 949 F.3d at 962

– 6 4

. Appellate courts are not designed for fact finding

. See id. A nd the record that exists might “paint a misleading picture” because the opposing party lacked the chance to admit evidence in
respon se to the forfeited claim. Id. Our concern that this case’s record might paint a misleading picture of Corrales’s involvement reinforces o u r decision to hold the lack of evidence against him

. Corrales’s responses lac k merit. Starting with the standard of review, he suggests that he did not even forfeit his guidelines claim, let alone waive it. Corrales points out that a party canNo. 2 1

- 6046 , United States v. Corrales

9

preserve a claim merely by object ing with the specificity required to put the district court on notice that the party is raising it

. See United States v. Bostic , 371 F.3d 865, 87 1

– 73 (6th Cir. 2004). W hen he relied on his “ limited ” role to advocate for a lower sentence under the § 3553(a) factors , Corrales adds, he made factual arguments that were equally relevant to § 3B1.2’s minor

- role reduction. Reply Br. 2

– 4. Th ese arguments , he concludes , should have put the district court on notice that he was seeking a minor

- role reduction too
. Not so. Throughout the sentencing hearing, Corrales ’s counsel made clear that he was not asserting a guidelines claim

. At the outset, he did not object to the presentence report’s guidelines calcula tions

— calculations that rejected the minor

- role reduction that Corrales now seeks. Corrales’s c ounsel next noted that he and Corrales had debated whether to seek the minor

- role reduction but had decided against it

— conf i rming that the reduction was not at issue. The district court lastly asked at the end of the hearing whether Corrales had any final objections , and Corrales did not mention th e minor

- role reduction. In short, the record leaves no doubt that nobody at sentencing

— not Corrales ’s c ounsel, not the prosecutor, and not the judge

— b elieved that Corrales

was requesting a minor

- role reduction under § 3B1.2

. He thus did not make his argument s with the specificity necessary to preserve this claim. See Bostic , 371 F.3d at 871. Corrales also cites no case s to support his argument that a defendant can preserve a claim by raising a different ( but related ) one . That logic conflicts with many of our cases. To give one example, we held that a defendant forfeited a request for a minor

- role reduct ion when the defendant advocated only for an even larger “ minimal

- role ” reduction in the district court. See United States v. Griffith , 663 F. App’x 446, 453

– 54 (6th Cir. 2016). The factual arguments for both “role” reductions plainly overlap ped, but that fact made no difference to our forfeiture ruling

. See id.No. 2 1

- 6046 , United States v. Corrales

10

Turning to the merits, Corrales argues that the district court committed a n obvious legal error under D a neshvar because it reject ed his minor

- role argument “without elaboration [.] ” 925 F .3d at 790. Yet Corrales cannot raise this type of alleged “procedural” error in the plain

- error context. A district court does not commit an error by insufficiently explaining its reasons for rejecti ng an argument that a defendant fails to make . That i s true even if the court ’s explanation would have been insufficient had the defendant made the argument. Some alleged errors , in other words, depend on a defendant having actually rais ed a claim . Corrales ’s purported error under
D an eshvar fits into this category of error

. Corrales lastly asserts that his conduct makes him the prototypical defendant for the minor

role reduction because he was “simply a courier.” Appellant’s Br. 6. This contention rests on factual and legal misconceptions

. Factually, we do not know if the district court would have accepted Corrales’s description of his mere “courier” role because the parties did not present evidence tailored to the question . Legally, we have repeatedly refused to accept the claim that a def endant w as merely a “low

- level drug courier [] ” a s the ground to reverse a district court’s denial of a minor

- role reduction. Miller , 562 F

. App’x at 307 (citing United States v. Salas , 455 F.3d 637, 643

– 44 (6th Cir. 2006); United States v. Quijada , 307 F. App ’ x 986, 991 (6th Cir. 2009) ) ; see also Rodri g uez - Cardenas , 362 F.3d at 960

. This case

— which arises in the plain

- error
context

— can be no different. We affirm

.