FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

WILLIAM DAVID KLENSCH, 

Defendant-Appellant.

No. 22-50222 

D.C. No. 

3:22-cr-01359-

BAS-1 

OPINION

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted July 18, 2023

Pasadena, California

Filed December 8, 2023

Before: A. Wallace Tashima and Danielle J. Forrest, 

Circuit Judges, and Kathleen Cardone,* District Judge.

Opinion by Judge Forrest;

Partial Dissent by Judge Cardone

* The Honorable Kathleen Cardone, United States District Judge for the 

Western District of Texas, sitting by designation.
2 USA V. KLENSCH

SUMMARY**

Criminal Law

The panel affirmed in part and vacated in part a sentence 

imposed following the defendant’s guilty plea to one count 

of transportation of an illegal alien, and remanded for 

resentencing.

Klensch argued that the district court applied the wrong 

legal standard when it determined that he was not entitled to 

a minor-role reduction under U.S.S.G. § 3B1.2 because he 

personally transported two men. Observing that the district 

court’s cursory explanation for denying the minor-role 

reduction gives no indication that it considered the factors 

set forth in the Guideline commentary or did any 

comparative analysis of Klensch’s conduct, the panel 

concluded that the district court did not apply the correct 

legal standard in denying a minor-role reduction. Because 

the Government did not argue harmless error, the panel 

vacated the sentence and remanded for the district court to 

determine whether Klensch played a minor role in the 

transportation of illegal aliens consistent with the factors 

listed in § 3B1.2 cmt. n.3(c) and this opinion. 

Klensch argued that the district court erred by imposing 

a dangerous-weapons enhancement under U.S.S.G. 

§ 2L1.1(b)(5)(C) because he did not possess the stun gun in 

his car in connection with his illegal smuggling activity. The 

panel held that even assuming that a nexus standard is 

required under § 2L1.1(b)(5)(C), as it is under U.S.S.G. 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. KLENSCH 3 

§ 2D1.1, the district court could still have applied the 

dangerous-weapon enhancement. The panel therefore 

concluded that even if the district court applied an incorrect 

standard of proof by not requiring the Government to prove 

a nexus to the stun gun, such error was harmless.

District Judge Cardone dissented from the majority’s 

decision to vacate and remand for resentencing on the minorrole adjustment. She wrote that the majority’s decision 

marks the first time that this Court has remanded for minorrole resentencing on a record that contains no affirmative 

misstatement of the law by either the district court or the 

party whose argument the district court adopted, and does so 

on a record that would easily sustain the denial of minor role 

for Klensch’s failure to meet his burden to submit sufficient 

evidence of other known participants. 

COUNSEL

Jessica Agatstein (argued), Federal Defenders of San Diego 

Inc., San Diego, California, for Defendant-Appellant. 

Andrew Y. Chiang (argued), Assistant United States 

Attorney; Daniel E. Zipp, Assistant United States Attorney, 

Appellate Section Chief, Criminal Division; Randy S. 

Grossman, United States Attorney; United States 

Department of Justice, United States Attorney’s Office, San 

Diego, California; for Plaintiff-Appellee.
4 USA V. KLENSCH

OPINION

FORREST, Circuit Judge:

Defendant-Appellant William Klensch appeals his 

sentence after pleading guilty to one count of transportation 

of an illegal alien. Over Klensch’s objection, the district 

court followed the presentence report’s (PSR) 

recommendations to not grant a minor-role reduction under 

U.S.S.G. § 3B1.2 and to impose a six-level dangerousweapon enhancement under § 2L1.1(b)(5)(C) because 

Klensch possessed a stun gun during his offense. We have 

jurisdiction under 28 U.S.C. § 1291, and we affirm as to the 

dangerous-weapon enhancement and vacate and remand for 

resentencing for the district court to conduct a proper minorrole analysis. 

I. BACKGROUND

In May 2022, a home inspector with whom Klensch had 

worked offered him $500.00 to pick up an unspecified 

number of “workers” at a grocery store near the border in 

Jacumba, California and transport them to Spring Valley, 

California. Klensch drove to the designated location and 

picked up two men. That same day, a United States Border 

Patrol agent working in the area was notified to watch for a 

rental car matching the general description of Klensch’s 

vehicle that had raised law enforcement’s suspicion. The 

agent observed Klensch’s vehicle drive behind a local store, 

reappear a few minutes later, pull onto the highway, and 

drive away at a high rate of speed. Another agent was 

contacted and pulled over Klensch’s vehicle. Klensch 

consented to the agent opening the rear door of his car, and 

the agent discovered two men trying to hide in the back seat. 
USA V. KLENSCH 5

Border Patrol determined that the two men were 

Mexican citizens without authorization to be in the United 

States, and all the occupants in the car were arrested and 

transported to a Border Patrol station. Agents discovered that 

Klensch had an extensive criminal history. They also found 

a stun gun and several packages of personal-use drugs in 

Klensch’s driver-side door compartment. Klensch later 

explained that most of his personal property was in his car 

because he was homeless and preparing to move to 

Washington. 

The two male passengers confirmed that they were 

Mexican citizens without authorization to be in the United 

States. One of them disclosed that he paid $8,500 to be 

illegally smuggled into the United States. He also explained 

that someone directed him by phone to an initial location,

where he hid until he received instructions to go to the 

location where Klensch picked him up. 

The Government charged Klensch with two counts of 

illegal transportation of an alien under 8 U.S.C. 

§ 1324(a)(1)(A)(ii). Klensch pleaded guilty to one count

under a plea agreement, and he agreed to request a PSR. The 

PSR calculated an offense level of 15 and a category VI 

criminal history, resulting in a Guideline range of 33–41 

months’ imprisonment. The PSR recommended against 

applying a two-level minor-role reduction because the 

evidence was insufficient “to support that [Klensch] was 

substantially less culpable than other participants to support 

a reduction under USSG § 3B1.2.” And in its offense-level 

calculation, the PSR applied a six-level dangerous-weapon 

enhancement under U.S.S.G. § 2L1.1(b)(5)(C) for

possession of the stun gun during the offense. The PSR 

recommended 37 months’ imprisonment and three years’ 

supervised release. 
6 USA V. KLENSCH

Klensch objected in writing to the PSR. He argued that 

he was entitled to a minor-role reduction because the factors 

governing this analysis weighed in his favor and he was 

“substantially less culpable than the average participant in 

the criminal activity of migrant smuggling.” He also argued 

that the dangerous-weapon enhancement was improper 

because the Government had not proven by clear and 

convincing evidence that he possessed the stun gun in 

relation to the crime charged. 

Klensch calculated his Guideline range as 6–12 months’ 

imprisonment based on, among other things, a base offense 

level of 12, a two-level minor-role reduction, and no 

dangerous-weapon enhancement. He argued for a 13-month 

custody sentence with no supervision because of “the things 

in his car.” The Government calculated a 18–24 months

Guideline range and requested a 21-month sentence. 

At the sentencing hearing, Klensch argued both the 

minor-role reduction and dangerous-weapons enhancement. 

The district court did not inquire about the minor-role 

reduction, but it did ask Klensch why he had the stun gun. 

Klensch responded that he had it for “protection” in case he 

needed “to deter anybody away from” him. Klensch’s 

counsel interjected and explained that Klensch was homeless 

and in the process of moving to Washington to be with 

family, and thus had all his personal property with him in his 

car. 

After hearing the parties’ arguments, the district court

issued its decision from the bench, following the 

recommendations in the PSR. In cursory terms, the district 

court stated that it declined to apply a minor-role reduction 

because “Klensch was the one transporting the individuals”

and the evidence did not show “his role was minor.” And the 
USA V. KLENSCH 7

district imposed the dangerous-weapon enhancement

because “[Klensch] was engaged in a dangerous venture,” 

and there was “evidence that [the stun gun] was related to 

the offense. It was possessed right where he could grab it, in 

case he needed it against the individuals who were in the car 

with him or anyone who challenged him while he was 

committing this offense.” Based on its findings, the district 

court calculated a Guideline range of 33-41 months, and it 

sentenced Klensch to a low-end 33 months’ imprisonment 

with three years of supervised release. Klensch timely 

appealed. 

II. DISCUSSION

A. Minor-Role Adjustment

Klensch contends that he was entitled to a minor-role 

reduction because he had no knowledge of the full alien 

smuggling operation, he was asked to pick up “workers” and 

did not know he would be transporting illegal aliens, and he

was paid only a small sum. He argues that the district court 

applied the wrong legal standard when it determined that he 

was not entitled to this reduction because he personally 

transported the two men. 

1.

As an initial matter, the Government argues that this 

issue must be reviewed for plain error because Klensch did 

not challenge the sufficiency of the district court’s reasoning 

below. Federal Rule of Criminal Procedure 51(b) sets out “a 

contemporaneous-objection rule”: to preserve a claim of 

error, a party must “‘inform[] the court—when the court 

ruling or order is made or sought—of the action the party 

wishes the court to take, or the party’s objection to the 

court’s action and the grounds for that objection.’” Puckett 
8 USA V. KLENSCH

v. United States, 556 U.S. 129, 135 (2009) (quoting Fed. R. 

Crim. P. 51(b)). Sentencing objections “must have a specific 

substantive basis” that “provides the district court with an 

opportunity to address the error in the first instance and 

allows this court to engage in more meaningful review.” 

United States v. Grissom, 525 F.3d 691, 694 (9th Cir. 2008) 

(citation omitted). Such objections may be raised at the 

sentencing hearing or in written objections to the PSR. See 

United States v. Hammond, 742 F.3d 880, 884 (9th Cir. 

2014) (concluding that objections made in a “sentencing 

memorandum and at sentencing” are “preserved”); United 

States v. Barnes, 993 F.2d 680, 684 (9th Cir. 1993)

(concluding that “written objections to the presentence 

report” are “sufficient to preserve the issue”).

Here, Klensch argued, both in his objections to the PSR 

and at his sentencing hearing, that he was “less culpable than 

the average” participant and thus was entitled to the minorrole reduction. He specifically asserted that a comparative 

analysis is required and that it is not determinative “that a 

defendant performs an essential or indispensable role in the 

criminal activity.” This is the same thrust of his argument on 

appeal: that the district court erred by not comparing his 

level of culpability to that of the other participants involved 

in his criminal activity and by mistakenly asserting that he 

did not qualify for a minor-role reduction because he “was 

the one transporting the individuals.” Because we conclude 

that Klensch properly preserved his challenge related to the 

minor-role reduction, we review de novo whether the district 

court applied the correct legal standard in denying a minorrole reduction, and we review its factual findings for clear 

error and its application of the Guidelines to the facts for 

abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 

1167, 1170 (9th Cir. 2017) (en banc).
USA V. KLENSCH 9

2.

Turning to the merits, § 3B1.2(b) of the Guidelines

allows for a reduction in the offense level if the defendant

“was a minor participant in [the] criminal activity.” To 

receive this reduction, the defendant must prove that he is 

“substantially less culpable than the average participant in 

the charged criminal activity.” United States v. Diaz, 884 

F.3d 911, 914 (9th Cir. 2018) (internal quotation marks and 

citation omitted). Before 2015, there was confusion in the 

courts about whether the proper comparison was to the 

defendant’s co-participants in the specific crime charged or 

to those involved in the type of crime at issue more 

generally. Id. at 915. The Sentencing Commission amended 

the Guideline commentary to make clear that the proper 

comparison is to the co-participants in the crime charged. Id. 

The Commission also determined that the minor-role 

reduction “was being ‘applied inconsistently and more 

sparingly than the Commission intended,’” and it amended

the commentary “to induce district courts to grant 

mitigating-role adjustments more frequently.” United States 

v. Rodriguez, 44 F.4th 1229, 1233 (9th Cir. 2022) (citation 

omitted). 

In its amendment, the Commission listed five factors that 

we have held district courts must consider “when 

determining whether to grant a mitigating-role adjustment.” 

Id. Of particular import here, the Commission also cautioned 

that “[t]he fact that a defendant performs an essential or 

indispensable role in the criminal activity is not 

determinative.” U.S.S.G. § 3B1.2 cmt. n.3(C) (emphasis 

added); see also Diaz, 884 F.3d at 915. It expressly 

disapproved of cases denying minor-role adjustments to 

defendants because they were “‘integral’ or ‘indispensable’
10 USA V. KLENSCH

to the commission of the offense.” U.S.S.G. Supp. to App. 

C. Amend. 794. 

We have since instructed that “a district court must 

proceed in three steps” when determining “whether a 

defendant is substantially less culpable than the average 

participant in the offense.” United States v. DominguezCaicedo, 40 F.4th 938, 960 (9th Cir. 2022) (emphasis 

added). First, it must identify all “individuals for whom there 

is ‘sufficient evidence of their existence and participation in 

the overall scheme.’” Id. (citation omitted). “Second, the 

court must calculate a rough average level of culpability for 

these individuals, taking into consideration the five factors 

in comment 3(C) to the Mitigating Role Guideline.” Id. And 

third, it “must compare the defendant’s culpability to that 

average.” Id. If this calculation shows that “the defendant is 

substantially less culpable than that average and meets the 

other criteria, he should be granted a mitigating role 

adjustment.” Id. 

Here, the district court’s analysis of the minor-role 

reduction is thin. It did not question the parties about or 

discuss at the sentencing hearing the factors that govern the 

comparative-liability analysis or the facts relevant to that 

analysis. Rather, after the parties’ arguments, it simply 

pronounced: “In this particular case, Mr. Klensch was the 

one transporting the individuals. And I don’t find that there 

is sufficient evidence that his role was minor in this case.” 

We assume district courts “kn[o]w the law and 

underst[and their] obligation to consider all of the sentencing 

factors,” Diaz, 884 F.3d at 916, and they do not have to “tick 

off sentencing factors to show that [they] considered them,” 

id. at 914 (internal quotation marks and citations omitted). 

But they must explain their sentencing decisions. United 
USA V. KLENSCH 11

States v. Emmett, 749 F.3d 817, 820 (9th Cir. 2014).

Requiring an explanation for a given sentencing decision 

“permit[s] meaningful appellate review.” United States v. 

Carty, 520 F.3d 984, 992–93 (9th Cir. 2008) (en banc); see 

also Emmett, 749 F.3d at 820 (“It is a general principle of 

federal sentencing law that district courts have a duty to 

explain their sentencing decisions.”); cf. Gall v. United 

States, 552 U.S. 38, 50 (2007) (explaining district courts 

must “adequately explain the chosen sentence”). It also 

“promote[s] the perception of fair sentencing.” Emmett, 749 

F.3d at 820 (internal quotation marks and citation omitted). 

Here, the district court’s cursory explanation gives no 

indication that it considered the required factors or did any 

comparative analysis of Klensch’s conduct. While it was not 

required to mechanically analyze each factor or reference 

them verbatim on the record, Diaz, 884 F.3d at 914, 916,

providing some explanation, even in general terms, of how 

the considerations embodied in the factors apply in this case 

“is part and parcel of considering” them. Emmett, 749 F.3d 

at 820.

In Diaz, which we decided before Dominguez-Caicedo,

we had “no trouble determining from the sentencing 

memoranda and the transcript of the sentencing hearing that 

the district court was well aware of the” minor-role factors. 

Id. at 913. We therefore rejected the defendant’s argument 

that the district court erred by failing to mention the factors 

in its decision. Id. at 916. But we were troubled by the district 

court’s statement that the defendant’s role “of scouting and 

acting as a courier to smuggle a large amount of drugs across 

the border was not minor” because such reasoning could 

“reflect[] reliance on courier conduct as dispositive,” and the 

amendment to the commentary on the minor-role adjustment 

“clarified that performance of an essential role . . . is not 
12 USA V. KLENSCH

dispositive.” Id. at 917. The same is true here. The district 

court’s singular and cursory explanation for not granting a 

minor-role reduction, referencing only that Klensch drove 

the two men, indicates that the district court improperly 

relied “on courier conduct as dispositive,” despite the 

Guidelines’ clarification “that performance of an essential 

role . . . is not dispositive.”1 Id. 

The Government disputes that the district court applied 

the wrong legal standard. First, it argues that the district 

court’s statement was in reference to Klensch’s “unique 

culpability, not his indispensability.” The Government 

makes compelling points that human smugglers are more 

culpable than drug smugglers because they make choices 

that impact “life and death,” such as whether to conceal the 

passengers, gain compliance from potentially unruly 

passengers, bring water or other necessities for the 

passengers, and so forth. But the problem is none of this 

reasoning was articulated by the district court. See Emmett, 

749 F.3d at 821–22 (remanding where “the single 

explanation in the record” did not “explain why” the 

defendant’s “request should be denied under the applicable 

legal standard”). And it is just as plausible, based on what 

the district court did say, that it concluded Klensch did not 

1 The Government contends that plain-error review applies because 

Klensch did not argue to the district court that its reasoning was 

insufficient. As discussed above, it is true that a defendant must raise 

procedural errors to the district court, which includes a district court’s 

failure to provide adequate explanation for its sentencing decision. See 

United States v. Ayala-Nicanor, 659 F.3d 744, 746–47 (9th Cir. 2011). 

But here we find a substantive error—that the district court denied 

Klensch a minor-role reduction because he physically transported the 

two men who were in the U.S. illegally. And this issue was plainly

preserved. See Barnes, 993 F.2d at 684; see also Dominguez-Caicedo, 

40 F.4th at 960 (discussing standard of review for minor role analysis). 
USA V. KLENSCH 13

play a minor role because transporting the two men who 

entered the U.S. illegally away from the border was too 

integral to be minor conduct. 

Second, the Government argues that the district court 

rejected Klensch’s untruthful account about his level of 

involvement, as evidenced by the district court’s statement 

that it did not think there was “sufficient evidence that 

[Klensch’s] role was minor.” As an initial matter, the 

Government did not dispute the veracity of the facts recited 

in the PSR.

2 We treat facts as undisputed when “they are 

drawn solely from a Presentence Report whose accuracy 

neither party challenged.” Gasca-Ruiz, 852 F.3d at 1168. We 

therefore reject the Government’s argument to the extent it 

advances a new factual dispute. 

To the extent the Government is arguing that Klensch 

failed to meet his burden of showing that he performed a 

minor role in the criminal activity, it is true that the district 

court can refuse to grant a minor-role reduction if it finds 

that the evidence failed to show that there were coparticipants or that the defendant’s role was minor in 

comparison to his co-participants. See Diaz, 884 F.3d at 914 

(explaining that the defendant bears the burden of proof); see 

2 The PSR includes Klensch’s statement that he received $500.00 from 

the home inspector for whom he worked to pick up the two men. The 

Government notes that the PSR also identifies two other participants—

the person who negotiated the $8,500 smuggling fee and the person who 

guided one of the men to Jacumba over the phone. The district court did 

not explicitly find that there was insufficient evidence of these three 

participants and their involvement or otherwise indicate that it was 

rejecting the PSR’s or Klensch’s account of the events. Cf. DominguezCaicedo, 40 F.4th at 966 (explaining the district court “made clear that 

it did not believe” the defendant’s story where it explicitly stated it 

“frankly” did not “buy” or “accept it”). 
14 USA V. KLENSCH

also Dominguez-Caicedo, 40 F.4th at 960 (explaining that a 

district court must first identify individuals for whom there 

is sufficient evidence of their existence and participation in 

the scheme). But, again, the district court’s cursory 

explanation does not make clear that either of these 

rationales were the basis for its decision to deny a minor-role 

reduction. While we generally assume that the district court 

applied the correct legal standard, we cannot do so when the 

record indicates the contrary. See Diaz, 884 F.3d at 917–18.

Because we conclude that the district court did not apply 

the correct legal standard in denying a minor-role reduction, 

we must determine the proper course for remedying this 

error. Errors that impact Guideline calculations typically 

require remand unless the Government establishes the error 

was harmless. See Dominguez-Caicedo, 40 F.4th at 963; see 

also United States v. Bankston, 901 F.3d 1100, 1108 (9th 

Cir. 2018) (“[Where] we cannot say with certainty that the 

district court’s sentencing error was harmless, we must 

remand for resentencing.”). The Government has not argued 

harmless error here. Therefore, we vacate Klensch’s 

sentence and remand for resentencing with instruction that 

the district court reassess the minor-role reduction consistent

with U.S.S.G. § 3B1.2 cmt. n.3(C) and this opinion.3

B. Dangerous-Weapon Enhancement

Klensch also argues that the district court erred by 

imposing a dangerous-weapons enhancement because he did 

not possess the stun gun in his car in connection with his 

illegal smuggling activity. “[W]e review the district court’s 

3 Klensch asks us to affirmatively hold that he is entitled to the minorrole reduction. We decline to make this determination in the first 

instance. 
USA V. KLENSCH 15

identification of the correct legal standard de novo . . . the 

district court’s factual findings for clear error,” and the 

“district court’s application of the Sentencing Guidelines to 

the facts of a given case . . . for abuse of discretion.” GascaRuiz, 852 F.3d at 1170 (9th Cir. 2017). 

Under U.S.S.G. § 2L1.1(b)(5)(C), a sentence for 

transporting an illegal alien is increased to the greater of two

levels or an overall increase to offense level 18 “[i]f a 

dangerous weapon (including a firearm) was possessed.”4

Klensch does not dispute that he possessed a stun gun during 

his offense or that a stun gun qualifies as a dangerous 

weapon under the Guideline. Klensch argues only that the 

district court had to find a nexus between his possession of 

the stun gun and “the criminal act” and that it erred in 

applying a some-evidence standard in making this finding, 

rather than a clear-and-convincing-evidence standard. 

The plain text of § 2L1.1(b)(5)(C) does not require a 

nexus between possession of a weapon and commission of 

the crime. But § 1B1.3 addresses enhancements based on 

“specific offense characteristics”—such as

§ 2L1.1(b)(5)(C)—and requires courts to consider acts “that 

occurred during the commission of the offense of 

conviction.” U.S.S.G. § 1B1.3(a)(1). Thus, read together, 

§ 1B1.3 and § 2L.1.1(b) require at least that the court find 

that the defendant possessed a dangerous weapon during the 

commission of the offense. 

Klensch relies on cases interpreting § 2D1.1 (a provision 

addressing weapons possession in connection with certain 

4 The Guideline provides greater enhancements where a dangerous 

weapon is discharged or brandished, not merely possessed. Id. 

§ 2L1.1(b)(5)(A)-(B).
16 USA V. KLENSCH

drug-related offenses) to argue that a nexus between his 

possession of the stun gun and his crime must be proven by 

clear and convincing evidence. Section 2D1.1 has a similar 

dangerous-weapon enhancement as § 2L1.1, but the 

commentary to the § 2D1.1 enhancement states that it should 

not be applied if “it is clearly improbable that the weapon 

was connected with the offense.” Id. § 2D1.1 cmt. n.11(A). 

The commentary to § 2L1.1 contains no such language, and 

the Government argues that as a matter of plain text no nexus 

is required under § 2L1.1. We need not resolve today 

whether a nexus standard like that in § 2D1.1 is required 

under § 2L1.1(b)(5)(C), because even assuming that it is, the 

district court could still have applied the dangerous-weapon 

enhancement.

The enhancement for possession of a weapon under

§ 2D1.1 applies where “the weapon was present, unless it is 

clearly improbable that the weapon was connected with the 

offense.” United States v. Gomez, 6 F.4th 992, 1008 (9th Cir. 

2021) (internal quotation marks and citation omitted). The 

government need only prove “that the weapon was possessed 

at the time of the offense.” United States v. Alaniz, 69 F.4th 

1124, 1126–27 (9th Cir. 2023). And if it meets this burden, 

the enhancement “applies unless the defendant shows it was 

‘clearly improbable’ that the weapon was possessed in 

connection with the offense.” Id. at 1127 (citation omitted)

(emphasis added). 

Klensch does not dispute that he had the stun gun in his 

car when he transported the two men. By extension he does 

not dispute that the Government met its initial burden. Thus, 

under the § 2D1.1 standard, the burden would fall on 

Klensch to prove by clear and convincing evidence that it 

was “improbable that the weapon was connected to the 

offense.” Id. at 1126. This he cannot do. Klensch 
USA V. KLENSCH 17

acknowledged the stun gun was within his reach when he 

was transporting the two men, and he told the district court

at his sentencing hearing that he had the stun gun “for . . . 

my own protection, just if I need to deter anybody away from 

me.” Even if Klensch was concerned about protecting 

himself from risks related to homelessness, that does not 

prevent the stun gun from also serving to protect him in the 

course of his criminal activity. Klensch agreed to pick up 

strangers at an unfamiliar location and drive them in his car

(which apparently contained most of his possessions). It is 

understandable for someone in this situation to want some 

means of self-protection. And it was not an abuse of 

discretion for the district court to conclude that the stun gun

located within Klensch’s reach in his car had a nexus to his 

criminal conduct that occurred in the car. We therefore 

conclude that even if the district court applied an incorrect 

standard of proof by not requiring the Government to prove 

a nexus to the stun gun, such error was harmless because the 

district court “would have imposed the same sentence” even 

if it had required the Government to make this showing. 

Williams v. United States, 503 U.S. 193, 203 (1992); see also 

United States v. Halamek, 5 F.4th 1081, 1091 (9th Cir. 2021) 

(applying Williams’s harmless-error standard). We affirm 

the district court’s imposition of the dangerous-weapons 

enhancement under § 2L1.1(b). 

CONCLUSION

We affirm the district court’s application of the six-level

dangerous-weapons enhancement. However, because the 

district court erred in its analysis of the two-level minor-role 

reduction, we vacate Klensch’s sentence and remand for 

resentencing. At resentencing, the district court is directed to 

determine whether Klensch played a minor role in the
18 USA V. KLENSCH

transportation of illegal aliens consistent with the factors 

listed in U.S.S.G. § 3B1.2 cmt. n.3(C) and this opinion. 

AFFIRMED in part, VACATED, and REMANDED. 

CARDONE, District Judge, dissenting in part: 

I agree with the majority’s analysis affirming the district 

court’s imposition of the dangerous-weapons enhancement 

and join that portion of the opinion in full. However, I 

respectfully dissent from the majority’s decision to vacate 

and remand for resentencing on the minor-role adjustment.

The district court justified its decision to deny Klensch a 

minor-role adjustment as follows: “In this particular case, 

Mr. Klensch was the one transporting the individuals. And 

I don’t find that there is sufficient evidence that his role was 

minor in this case.” There are at least two plausible readings 

of this admittedly terse explanation. Either one requires us 

to do some reading between the lines. On the first reading, 

the district court would have found that “[because] Mr. 

Klensch was the one transporting the individuals, [he played 

an essential role, and therefore,] I don’t find that there is 

sufficient evidence that his role was minor in this case.” On 

the second reading, the district court would have found that 

“Mr. Klench was the one transporting the individuals[, and 

there is very little in the record about the other known 

participants, so] I don’t find that there is sufficient evidence 

that his role was minor in this case.”

I agree with the majority that “it is just as plausible” to 

gather from the district court’s two-sentence explanation an 

invalid rationale for denying minor role as it is to infer a 

valid one. Maj. at 12. At least, so long as that explanation 
USA V. KLENSCH 19

is read in isolation. But more is required to warrant reversal 

under this Court’s precedents. “We assume district courts 

know the law and understand their obligation to consider all 

of the sentencing factors, and they do not have to tick off 

sentencing factors to show that they considered them.” Maj. 

at 10 (cleaned up) (quoting Diaz, 884 F.3d at 914, 916). To 

be sure, criminal sentences must be explained “sufficiently 

to permit meaningful appellate review,” and “[i]t is most 

helpful for this to come from the bench.” United States v. 

Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). “[B]ut 

adequate explanation in some cases may also be inferred 

from the PSR or the record as a whole.” Id.

Here, when viewed in light of the PSR and the record as 

a whole, the best reading of the district court’s explanation 

is that Klensch failed to carry his burden of showing he 

played a minor role. See United States v. Diaz, 884 F.3d 911, 

914 (9th Cir. 2018) (“The defendant bears the burden of 

proving that he or she is entitled to a downward adjustment 

based on his or her role in the offense.” (cleaned up) (quoting 

United States v. Cantrell, 433 F.3d 1269, 1282 (9th Cir. 

2006))). This was Probation’s conclusion in the PSR: 

“Based on the available information regarding his role, there 

is not enough to support that he was substantially less 

culpable than other participants to support a reduction under 

USSG § 3B1.2.” And although Klensch objected to 

Probation’s legal conclusion that he should be denied minor 

role, he made no objection to its factual basis. Instead of 

proffering additional facts about the home inspector or other 

known participants—about whom the record contains little 

information—Klensch argued that the facts recounted in the 

PSR, applied to the minor-role factors, warranted a 
20 USA V. KLENSCH

downward departure.1 The crux of his argument was that he 

was “substantially less culpable than the average participant 

in the criminal activity of migrant smuggling,” a 

“worldwide,” “clandestine enterprise.” He offered 

information about the roles “typically” filled in human 

smuggling operations and argued his own role was minor “in 

the big scheme of migrant smuggling.” 

But none of this is material to a minor-role analysis. “We 

have repeatedly held that the relevant comparators are the 

actual participants in the defendant’s crime.” United States 

v. Dominguez-Caicedo, 40 F.4th 938, 965 (9th Cir. 2022) 

(collecting cases). And “by ‘actual participants,’ we mean 

only participants for whom there is ‘sufficient evidence of 

their existence and participation.’” Id. (quoting United 

States v. Rojas-Millan, 234 F.3d 464, 474 (9th Cir. 2000)). 

In Dominguez-Caicedo, we affirmed the denial of minor role 

for one of the three defendants who made similar arguments 

appealing to “unknown members of ‘a giant, complex drugtrafficking organization’ that may have been involved in the 

manufacture and distribution of the drugs [the defendant] 

was transporting.” Id. at 965. And we affirmed the denial 

for a second defendant who, like Klensch, failed to object to 

the omission of factual information about other known 

participants when challenging the PSR’s recommendation to 

deny minor role for lack of evidence. Id. at 966–67. These 

decisions would provide firm footing for the district court 

here to deny Klensch a minor-role adjustment on the ground 

that he did not carry his burden to show himself substantially 

less culpable than the average of the other actual participants 

1 In response to Klensch’s objections, Probation reiterated its conclusion 

that “the limited available information” was “not enough” to support a 

minor-role reduction. 
USA V. KLENSCH 21

in the crime. Rather than adopt this reasonable view of the 

impetus for the district court’s decision, the Majority sends 

the case back for a more meticulous explanation.

This marks the first time that this Court has remanded for 

minor-role resentencing on a record that contains no 

affirmative misstatement of the law by either the district 

court or the party whose argument the district court 

adopted.2 In Dominguez-Caicedo, we reversed the denial of 

minor role for only one of the three defendants, and we did 

so because the district court had explicitly excluded at least 

one identified, known participant from consideration. Id. at 

963. Here, the district court made no such unambiguous 

misapprehension of law. Instead, as in Diaz, we are 

confronted with a terse, vague explanation for the minor-role 

denial. But in Diaz, “[t]he difficulty [was] that the district 

court adopted the government’s argument with little 

elaboration, and the government’s argument included an 

incorrect interpretation” of the sentencing guidelines. 884 

F.3d at 918.

In this case, unlike Diaz, the Government did not 

misstate the law to the district court. Certainly, the 

2 The Majority relies on United States v. Emmett, as an example of a case 

in which this Court remanded on the basis of a terse explanation from 

the district court that made no affirmative misstatement of the law. Maj. 

at 11; see 749 F.3d at 821– 22. In Emmett, the district court denied the 

defendant’s motion for early termination of supervised release. Id. at 

820. It did so in a brief order, “without a hearing or any response from 

the government or probation office.” Id. at 821. Here, by contrast, a 

hearing was held, the issues were argued by Klensch and the 

Government, and Probation submitted its position in a PSR. Therefore, 

unlike in Emmett, a permissible explanation for Klensch’s sentence 

“may . . . be inferred from . . . the record as a whole.” See id. (quoting 

Carty, 520 F.3d at 992).
22 USA V. KLENSCH

Government did not encourage the district court to commit 

the supposed error that forms the basis for the Majority’s 

reversal—that Klensch may have been denied minor role 

because of his indispensable role as transporter. Indeed, the 

only mention of an indispensable role in the record below 

comes from Klensch himself, who correctly informed the 

court that “[e]ven though his role as a transporter in this 

offense was necessary and indispensable, that alone is not a 

determinative role factor.” In these circumstances, “our 

caselaw requires that we assume the district judge knew the 

law.” See Diaz, 884 F.3d at 916.

In sum, today’s decision goes beyond DominguezCaicedo and Diaz by vacating and remanding for 

resentencing in the absence of any affirmative misstatement 

of the law by either the court or the Government. And it does 

so on a record that would easily sustain the denial of minor 

role for Klensch’s failure to meet his burden to submit 

sufficient evidence of other known participants. Therefore, I 

respectfully dissent in part.