FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SEGUNDO MARCIAL DOMINGUEZCAICEDO,

Defendant-Appellant.

No. 19-50268

D.C. No.

3:18-cr-00421-

BEN-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VICTOR GASPAR CHICHANDE,

Defendant-Appellant.

No. 19-50271

D.C. No.

3:18-cr-00421-

BEN-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDRIAN ANDRES CORTEZQUINONEZ, AKA Andrian Andres 

Quinonez-Cortez,

Defendant-Appellant.

No. 19-50274

D.C. No.

3:18-cr-00421-

BEN-1

OPINION
2 UNITED STATES V. DOMINGUEZ-CAICEDO

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted July 29, 2021

Pasadena, California

Filed July 18, 2022

Before: MILAN D. SMITH, JR. and KENNETH K. LEE, 

Circuit Judges, and EDUARDO C. ROBRENO,*

District Judge.

Opinion by Judge Milan D. Smith, Jr.

* The Honorable Eduardo C. Robreno, United States District Judge 

for the Eastern District of Pennsylvania, sitting by designation.
UNITED STATES V. DOMINGUEZ-CAICEDO 3

SUMMARY**

Criminal Law

The panel affirmed Adrian Andres Cortez-Quinonez’s, 

Segundo Marcial Domingez-Caicedo’s, and Victor Gaspar 

Chichande’s convictions for conspiring to distribute cocaine 

on board a vessel, possession of cocaine with intent to 

distribute on board a vessel, and aiding and abetting; 

affirmed Dominguez-Caicedo’s and Cortez-Quinonez’s 

sentences; vacated Chichande’s sentence; and remanded for 

Chichande’s resentencing.

Coast Guard officers boarded a suspicious panga boat 

carrying the defendants near the Galapagos Islands after the 

boat ignored warnings to stop. Officers then detained the 

defendants, and the Coast Guard transferred them to a series 

of Coast Guard cutters, eventually transferring them to DEA 

custody in Long Beach, where a DEA agent had each 

defendant sign a Rule 5 waiver that allowed them to be 

transferred to San Diego instead of going before a magistrate 

judge in Long Beach.

The defendants moved to dismiss the indictment for 

outrageous government conduct based on their treatment 

aboard the Coast Guard cutters. In order to secure dismissal 

of an indictment due to outrageous government conduct, a 

defendant must show a nexus between the conduct and either 

securing the indictment or procuring the conviction. The 

defendants claimed that the nexus between the 

Government’s conduct and securing the indictment is 

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

has been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. DOMINGUEZ-CAICEDO

satisfied because if the Coast Guard had chosen to treat the 

defendants and other detainees humanely, they couldn’t have 

conducted their Pacific operations. The panel wrote that this 

is not the type of nexus this court generally considers 

sufficient to establish outrageous government conduct 

requiring dismissal of an indictment, noting that nearly all 

police actions are broadly connected to securing indictments. 

The panel wrote that the Ninth Circuit appears to have 

assumed without deciding that outrageous government 

conduct could apply to conditions of confinement, so long as 

there is a nexus between the conduct and securing the 

indictment or conviction. Because there is no nexus here, 

the panel did not revisit that conclusion. The defendants 

argued that even if outrageous government conduct does not 

require dismissal of the indictment, the district court should 

have used its supervisory powers to provide the same 

remedy, asserting that the government should tread lightly in 

international waters, and the court should not condone 

mistreatment of foreigners with no connection to the United 

States. The panel wrote that pursuant to United States v. 

Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995), that is not a 

sufficient reason to hold that the district court abused its 

discretion by not dismissing the indictment. The panel 

therefore affirmed the district court’s denial of the 

defendants’ motions to dismiss the indictment. 

The defendants also sought to dismiss the indictment for 

violation of Fed. R. Crim. P. 5, which requires that the 

Government bring defendants before a magistrate judge 

without unnecessary delay. The panel held that a court has 

the power to dismiss an indictment for egregious violations 

of Rule 5, and that the proper inquiry is whether 

transportation to the United States as a whole was 

unnecessarily delayed, rather than whether there was some 

other district in the United States in which the defendant 
UNITED STATES V. DOMINGUEZ-CAICEDO 5

could have been brought before a magistrate judge more 

quickly. The panel held that the district court did not clearly 

err in its determination that 23 days was not an unreasonable 

delay, given that the Coast Guard needed to transport the 

defendants from near the Galapagos Islands to San Diego. 

The panel therefore concluded that the Coast Guard’s 

decision to take the defendants to California, rather than 

Florida, did not violate Rule 5. The panel also held that the 

district court did not clearly err in finding that the delays

between arrival in Long Beach and presentment before a 

magistrate judge in San Diego were reasonable. Because the 

panel held that the Government did not violate Rule 5, it did 

not need to examine whether the defendants voluntarily 

signed their Rule 5 waivers, or whether the facts of this case 

present a Rule 5 violation that warrants dismissal of the 

indictment.

Cortez-Quinonez argued that even if there was no Rule 

5 violation, his statement still should have been suppressed 

because it was involuntary. The panel held that the district 

court did not err by finding that the statement was voluntary 

under the Due Process Clause, where, at the time he gave his 

statement, Cortez-Quinonez was no longer experiencing the 

coercive government misconduct he alleged is the treatment 

he received on the Coast Guard cutter.

The panel next addressed the defendants’ prosecutorial 

misconduct claims. The panel held that the prosecutor’s use 

of a “drug trafficker’s playbook” analogy during closing 

argument did not constitute prosecutorial misconduct 

because the prosecutor’s references to a “playbook” were not 

meant to imply that there was an actual playbook in 

evidence; instead, the prosecutor used the analogy to explain 

why the defendants did what they did. Rejecting the 

contention that the prosecutor committed misconduct by 
6 UNITED STATES V. DOMINGUEZ-CAICEDO

arguing in closing that Dominguez-Caicedo was in charge 

but arguing at sentencing that Cortez-Quinonez was the 

leader, the panel wrote that the prosecutor did not argue facts 

that he knew were untrue, and that it was not inconsistent for 

him to point out all of these facts about Dominguez-Caicedo 

and Cortez-Quinonez both in closing argument and at 

sentencing. For the same reasons, the panel rejected CortezQuinonez’s argument that the prosecutor’s alleged 

misconduct resulted in depriving him of a minor role 

reduction, violating his right to due process. The panel held 

that the prosecutor’s statement that “throwing cocaine 

overboard on a vessel is knowing possession of cocaine” was 

harmless error in the context of the entire trial. 

In order to corroborate his duress defense, DominguezCaicedo attempted to call as an expert witness an attorney 

who grew up near where Dominguez-Caicedo lived in 

Colombia, and who would have testified that he is aware that 

armed criminal paramilitary groups in the area kidnap, 

intimidate, and use violence to further their criminal 

enterprises. Dominguez-Caicedo contended that, in 

excluding the testimony, the district court’s focus on the 

Daubert factors of reliable principles and methods was 

misplaced, where the subject of the testimony was to be his 

knowledge and experience, rather than his scientific 

analyses. The panel held that, given the extremely broad 

latitude the Supreme Court has said district courts have in 

conducting this inquiry, the district court did not abuse its 

discretion by looking at these particular factors and finding 

the proposed witness’s testimony wanting.

All three defendants challenged the district court’s denial 

of their requests for minor role reductions at sentencing. The 

panel clarified how district courts should conduct the minor 

role analysis. To be eligible for either a “minimal” role 
UNITED STATES V. DOMINGUEZ-CAICEDO 7

adjustment, which comes with a guidelines reduction of at 

least four levels, U.S.S.G. § 3B1.2(a), cmt. 4, or a “minor’ 

role adjustment, which provides a reduction of at least two 

levels, id. at cmt 5, the defendant must be substantially less 

culpable than the average participant in the criminal activity. 

The relevant comparison is to the other participants in the 

defendant’s crime, not to typical defendants who commit 

similar crimes. To determine whether a defendant is 

substantially less culpable than the average participant in the 

offense, a district court must (1) identify all of the 

individuals for whom there is sufficient evidence of their 

existence and participation in the overall scheme; 

(2) 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; and 

(3) compare the defendant’s culpability to that average.

The panel agreed with Chichande that the district court’s 

exclusion of his recruiter from the analysis was erroneous 

because the proper comparison is the average of all of the 

individuals who participated in Chichande’s offense, 

including those that the district court believed were leaders 

or organizers or who were otherwise highly culpable. 

Because the district court misunderstood the appropriate 

legal standard, the panel vacated Chichande’s sentence and 

remanded for the district court to conduct the minor role 

analysis applying the correct legal standard. The panel 

concluded that the Government did not meet its burden of 

establishing that any error was harmless.

The panel held that the district court did not abuse its 

discretion in denying Cortez-Quinonez a minor role 

adjustment. The panel wrote that the fact that illicit drugs 

are often traceable to larger drug trafficking organizations 

does not mean that district courts must compare the conduct
8 UNITED STATES V. DOMINGUEZ-CAICEDO

of each defendant convicted of a drug crime to that of every 

hypothetical member of a drug trafficking organization; the 

relevant comparators are the actual participants in the 

defendant’s crime, and the district court is not required to 

compare the defendant’s culpability with that of the 

unidentified person. 

The panel held that the district court likewise did not err 

in denying Dominguez-Caicedo a minor role reduction. The 

panel wrote that the district court did not determine that the 

“guys with guns” and the “man who commandeered Mr. 

Dominguez” were “likely participants,” and therefore did 

not err by excluding them from the comparison. Because 

Dominguez-Caicedo did not properly object to the 

Presentence Report at all, the district court was not required 

to address his argument raised for the first time in his 

sentencing memorandum—and never mentioned during the 

sentencing hearing—that there was sufficient evidence that 

the individuals identified were involved in the crime.
UNITED STATES V. DOMINGUEZ-CAICEDO 9

COUNSEL

Robert H. Rexrode III, Law Offices of Robert Rexrode, San 

Diego, California, for Defendant-Appellant Segundo 

Marcial Dominguez-Caicedo.

Michael Marks (argued), Federal Defenders of San Diego 

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

Andrian Andres Cortez-Quinonez.

Mark F. Adams, Law Offices of Mark F. Adams, San Diego, 

California, for Defendant-Appellant Victor Gaspar 

Chichande.

D. Benjamin Holley (argued), Assistant United States 

Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal 

Division; Robert S. Brewer, Jr., United States Attorney; 

United States Attorney’s Office, San Diego, California; for 

Plaintiff-Appellee.
10 UNITED STATES V. DOMINGUEZ-CAICEDO

OPINION

M. SMITH, Circuit Judge:

The defendants in these three consolidated cases—

Adrian Andres Cortez-Quinonez, Segundo Marcial 

Dominguez-Caicedo, and Victor Gaspar Chichande—were 

convicted of conspiring to distribute cocaine on board a 

vessel, possession of cocaine with intent to distribute on 

board a vessel, and aiding and abetting. In this appeal, they 

challenge the district court’s denial of their pre-trial motions 

to dismiss the indictment. Defendants also argue that the 

prosecutor committed misconduct in his closing argument. 

Individually, Dominguez-Caicedo contends that the district 

court improperly excluded expert testimony that supported 

his duress defense. Cortez-Quinonez individually appeals 

the district court’s decision not to suppress his post-arrest 

statements. He also argues that the prosecutor committed 

misconduct by arguing at his sentencing that CortezQuinonez was the ringleader, after arguing at trial that 

Dominguez-Caicedo was in charge. Finally, all three 

defendants argue that the district court erred by not granting 

them minor role reductions at sentencing. We have 

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

defendants’ convictions and Dominguez-Caicedo’s and 

Cortez-Quinonez’s sentences. We vacate Chichande’s 

sentence and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2017, the Coast Guard cutter Stratton 

spotted a suspicious vessel—a 30- to 40-foot “panga” boat—

carrying the three defendants near the Galapagos Islands. 

The Coast Guard observed the vessel and determined that it 

had no indicia of nationality. From a Coast Guard 

helicopter, Officer Charles Arena activated the helicopter’s 
UNITED STATES V. DOMINGUEZ-CAICEDO 11

blue law-enforcement lights and broadcast a message to the 

boat via maritime radio in English and Spanish, informing 

the vessel that the United States Coast Guard was ordering 

them to halt. When the panga did not stop, Arena ordered 

the “precision marksman” onboard the helicopter to fire 

warning shots into the water in front of the panga, some of 

which contained an orange tracer that makes the shots more 

visible. After discharging the warning shots, Arena 

observed “the occupants onboard start to throw items 

overboard,” including “packages that were tied together.” 

The Coast Guard later determined that the packages were 

attached to a “GPS buoy” that was also thrown overboard. 

When the panga still did not stop, the marksman fired two 

more warning shots into the water aft of the panga’s engine, 

apparently to signal that those on board should move away 

from the engine, and then shot out the engine. DominguezCaicedo testified that by the time he saw the helicopter, it 

was shooting at the panga. He did not know that it was a 

U.S. Coast Guard helicopter. Cortez-Quinonez stated that 

he thought the shots from the helicopter were going to kill 

them.

Three officers from the Coast Guard then boarded the 

panga. Dominguez-Caicedo told the officers who boarded 

the panga that they had been out fishing. Cortez-Quinonez 

identified himself as the “master” of the vessel through an 

interpreter, to one of the Coast Guard officers. CortezQuinonez gave the officers his Ecuadorian identification 

card. The other two defendants said that they did not have 

any identification with them. The Coast Guard then detained 

the three defendants and transferred them to the Stratton. 

Several days later, on January 2, 2018, they were transferred 

to the Northland, another Coast Guard vessel, where they 

were detained until January 3.
12 UNITED STATES V. DOMINGUEZ-CAICEDO

On board the Stratton, according to Officer Welzant of 

the Coast Guard, the standard protocol dictates that each 

detainee is given an initial medical screening by the medical 

corpsman—essentially a nurse. They are not told where they 

are headed, they do not get an opportunity to contact their 

families, and they do not know how long they will be on 

board. Detainees are chained to a cable that runs the length 

of the deck inside the helicopter hangar (emptied of 

helicopters). Each detainee is chained to the cable using an 

eighteen-inch ankle shackle. The detainees remain chained 

at all times of the day and night, except for trips to the 

bathroom and approximately one hour per day of exercise 

time, during which the detainees are permitted to walk freely 

on the deck. Detainees can shower periodically. CortezQuinonez testified that he was forced to shower with the 

other two defendants while officers laughed at their “private 

parts and how [they] were naked,” though it was not clear on 

which cutter this allegedly occurred. Welzant stated that 

there were no group showers on the Stratton. Welzant 

testified that detainees are escorted to use the restroom upon 

request, unless the crew is launching a helicopter or a small 

boat, which would take approximately ten minutes. 

However, the Stratton’s detainee logbook showed that the 

three defendants were rarely taken to the restroom between 

6:30 p.m. and 7:00 a.m. the next morning. When the three 

defendants in this case were detained, there were thirtyseven total detainees on board the Stratton.

Welzant testified that Defendants were provided with 

mats approximately half an inch thick on which to sleep. 

The Coast Guard confiscated the clothes that the defendants 

were wearing and gave them disposable Tyvek painters’ 

coveralls to wear instead. These coveralls often ripped and 

exposed detainees. Each person also routinely receives a 

blanket. Detainees are fed three meals per day, primarily 
UNITED STATES V. DOMINGUEZ-CAICEDO 13

consisting of rice and beans, supplemented with fruit 

approximately every other day. A jug of water is accessible 

to detainees at all times. Welzant stated that the detainees 

are also provided with dominoes, cards, and Spanishlanguage Bibles. Officer Jordan Groff testified to the 

conditions aboard the Northland, which were substantially 

similar to those on board the Stratton, except that the 

detainees ate eggs, potatoes, toast, enchiladas, spaghetti, and 

chicken, rather than rice and beans.

On January 3, 2018, the defendants were transferred to 

another Coast Guard cutter, the Mohawk. The defendants 

were transferred to the Mohawk—which was heading for 

Florida—because the Coast Guard suspected that the 

Department of Justice would prosecute the case in Florida. 

On the Mohawk, the detainees were kept on the top deck, 

exposed to the elements. According to Coast Guard officer 

Kristopher Meyer, the crew erects a tent on that deck while 

detainees are on-board to provide some shelter from the 

elements. The Mohawk crew does not provide any sleeping 

mats, though they do give each detainee a blanket and a 

towel.

While the defendants were on the Mohawk, there were 

numerous rain squalls, which caused the deck to become 

wet. When it rained during the night, the detainees would 

either have to stand up or try to sleep while laying on the wet 

deck. On the Mohawk, detainees were served rice and beans 

for every meal. The defendants testified that the rice and 

beans were very undercooked, and that these meals resulted 

in them suffering gastrointestinal distress. The Mohawk’s 

detainee log shows that Gaspar Chichande refused five 

meals in a row, and that Cortez-Quinonez and DominguezCaicedo refused three meals in a row. Cortez-Quinonez 
14 UNITED STATES V. DOMINGUEZ-CAICEDO

testified that he was denied medical care on board the 

Mohawk, despite complaining of pain.

The defendants were aboard the Mohawk for five days. 

On January 8, 2018, they were transferred back to the 

Stratton—which was heading to California—because the 

Department of Justice had designated the Southern District 

of California as the prosecuting district. If the defendants 

had remained on the Mohawk, they would have arrived in 

Florida on January 17, 2018. However, the Coast Guard 

determined that there was no aircraft available to fly the 

defendants from Florida to California to prosecute them in 

the designated district.

On January 16, 2018, the defendants were transferred 

from the Stratton to their final cutter, the Active. The 

conditions of confinement on the Active were similar to 

those on the Stratton, except that the area where the 

defendants were shackled was protected from the elements 

only by a canvas tarp, and the sleeping mats provided were 

an inch-and-a-half thick. In addition, the temperature 

dropped as low as 50 degrees during the time the defendants 

were onboard the Active. Dominguez-Caicedo testified that 

he was extremely cold on the Active.

Dominguez-Caicedo and Cortez-Quinonez testified that 

the shackles and living conditions onboard the cutters caused 

them significant physical pain. A psychologist, Dr. Julia 

Kuck, testified as an expert witness at the defendants’ 

motion to dismiss hearing. Dr. Kuck had interviewed 

Gaspar Chichande and diagnosed him with post-traumatic 

stress disorder (PTSD) with dissociative symptoms and 

panic attacks. This diagnosis was based on antecedent 

traumatic events such as childhood neglect, abandonment, 

and trauma. Dr. Kuck testified that the “primary triggering 

event” for Gaspar Chichande’s PTSD was the Coast Guard 
UNITED STATES V. DOMINGUEZ-CAICEDO 15

helicopter firing its gun at the panga. She also referred to the 

treatment aboard the Coast Guard cutters as psychological 

torture due to “unrelenting cold,” “wet conditions on deck,” 

“feral treatment of individuals,” and “induced desperation.”

The Coast Guard had intended to land the Active in San 

Diego, but due to bad weather, it was prevented from doing 

so. Instead, the Active landed in Long Beach on January 22, 

2018, where DEA Agent Brandon Pullen met the ship and 

took custody of the defendants. Pullen testified that none of 

the three defendants appeared to be ill or under the influence 

of drugs or alcohol. Pullen had each defendant sign a Rule 

5 waiver that allowed them to be transferred to San Diego 

instead of going before a magistrate judge in Long Beach. 

The waivers also advised Defendants that they were entitled 

to remain silent and to have an attorney appointed to 

represent them.

Pullen then advised each defendant of his Miranda rights 

in Spanish through another DEA agent, who served as an 

interpreter. Each defendant signed a Miranda waiver. After 

signing the waiver, Cortez-Quinonez made incriminating 

statements that suggested he knew that he was transporting 

drugs. At a pre-trial hearing, Cortez-Quinonez testified that 

at the time he signed the Miranda form, he did not 

understand that a lawyer could be appointed for him free of 

charge; the form does not specify that the appointed attorney 

would be free of charge. The statements were nonetheless 

introduced at trial. The jury convicted the defendants on all 

charges.

STANDARDS OF REVIEW

We review de novo the district court’s decision on the 

motion to dismiss for outrageous government conduct, and 

we review for abuse of discretion the district court’s decision 
16 UNITED STATES V. DOMINGUEZ-CAICEDO

not to use its supervisory powers to dismiss the indictment. 

United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991). 

We review “a district court’s finding that a pre-arraignment 

delay was reasonable for clear error.” United States v. Liera, 

585 F.3d 1237, 1242 (9th Cir. 2009) (citation omitted). 

In reviewing alleged prosecutorial misconduct to which 

a defendant objected at trial, we review under the harmless 

error standard. United States v. Alcantara-Castillo, 788 F.3d 

1186, 1190 (9th Cir. 2015). Under the harmless error 

standard, we must view “the challenged conduct in the entire 

context of the trial, and reverse only if it appears more 

probable than not that prosecutorial misconduct materially 

affected the fairness of the trial.” Id. (citation and internal 

quotation marks omitted). If the defendant does not 

contemporaneously object, we review the alleged 

misconduct for plain error. Id. Under plain error, “[w]e may 

reverse if (1) there was error; (2) it was plain; (3) it affected 

the defendant’s substantial rights; and (4) viewed in the 

context of the entire trial, the impropriety seriously affected 

the fairness, integrity, or public reputation of judicial 

proceedings.” Id. at 1190–91 (citation and internal quotation 

marks omitted). Furthermore, where a defendant alleges 

multiple instances of misconduct, we must consider the 

combined prejudicial effect of the misconduct. Berger v. 

United States, 295 U.S. 78, 89 (1935). In considering the 

cumulative effect of alleged misconduct, where the 

defendant objected to some—but not all—of the alleged 

misconduct, we review for plain error. Alcantara-Castillo, 

788 F.3d at 1191.
UNITED STATES V. DOMINGUEZ-CAICEDO 17

ANALYSIS

A

Prior to trial, the defendants moved to dismiss the 

indictment for outrageous government conduct based on 

their treatment aboard the Coast Guard cutters. They also 

sought to dismiss the indictment for violation of Federal 

Rule of Criminal Procedure 5, which requires that the 

Government bring defendants before a magistrate judge 

without unnecessary delay.

“The argument that an indictment must be dismissed 

because of outrageous government conduct is derived from 

a comment by the Supreme Court in United States v. Russell, 

411 U.S. 423 (1973),” in which the Court distinguished a 

claim of outrageous government conduct from a claim of 

entrapment. Restrepo, 930 F.2d at 712. While entrapment 

depends on the defendant’s criminal predisposition, “[a]n 

indictment may be set aside because of outrageous 

government conduct whether or not the defendant was 

predisposed to engage in criminal activity.” Id. (citation 

omitted).

“In order to show outrageous government conduct, 

defendants must show conduct that violates due process in 

such a way that it is ‘so grossly shocking and so outrageous 

as to violate the universal sense of justice.’” United States 

v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011) (quoting 

Restrepo, 930 F.2d at 712). A claim of outrageous 

government conduct is “a claim that government conduct in 

securing an indictment was so shocking to due process 

values that the indictment must be dismissed.” United States 

v. Nickerson, 731 F.3d 1009, 1015 (9th Cir. 2013) (citation 

omitted). Therefore, in order to secure dismissal of an 

indictment due to outrageous government conduct, a 
18 UNITED STATES V. DOMINGUEZ-CAICEDO

defendant must show a nexus between the conduct and either 

“securing the indictment or [ ] procuring the conviction.” Id.

Defendants claim that the nexus between the 

Government’s conduct and securing the indictment is 

satisfied because “if the Coast Guard had chosen to treat 

Appellants and other detainees humanely, they simply 

couldn’t have conducted their Pacific operations.” 

Specifically,

[o]ne officer testified that feeding rice and 

beans [to the detainees] was the only 

affordable way for the Coast Guard to 

accomplish its mission. Another testified that 

the excessive restraint of defendants resulted 

from too few watchmen and too many 

detainees. Coast Guard testified that it 

couldn’t get detainees to shore because its 

helicopters were old and didn’t have long 

range. They claimed they couldn’t wait for 

diplomatic clearance to get people off the 

cutters because it would upset the ability to 

patrol the ocean.

This is not the type of nexus that we generally consider 

sufficient to establish outrageous government conduct 

requiring dismissal of an indictment. For example, in 

Nickerson, the defendant argued that her indictment should 

have been dismissed based on “outrageous government 

conduct of videotaping her while she was using the toilet in 

a holding cell at the police station.” 731 F.3d at 1014. The 

video camera that captured the defendant in Nickerson

served a variety of purposes, including “medical and security 

concerns, such as if a detainee attempts suicide, if a physical 

altercation occurs between detainees, or if a detainee 
UNITED STATES V. DOMINGUEZ-CAICEDO 19

becomes progressively more intoxicated or sick in the 

holding cell and needs medical attention.” Id. at 1011. 

Furthermore, the cameras “deter abusive police conduct[.]” 

Id. We held that “there was no nexus between that conduct 

and the criminal proceeding at issue.” Id. at 1015. 

Accepting Dominguez-Caicedo’s logic would have 

compelled the opposite conclusion. After all, if a medical or 

security concern resulted in the death of an arrested person, 

that would preclude the prosecutor from securing an 

indictment against that person. In other words, nearly all 

police actions are broadly connected to securing indictments. 

That cannot mean that all police actions have a nexus within 

the meaning of the outrageous government conduct doctrine.

We have dismissed an indictment due to outrageous 

government conduct in a published opinion only once, in 

Greene v. United States, 454 F.2d 783 (9th Cir. 1971). In 

Greene, “the government supplied the equipment and raw 

material for a bootlegging operation and was the defendant’s 

sole customer.” United States v. Mayer, 503 F.3d 740, 754 

(9th Cir. 2007). We held that the government could not 

“involve itself so directly and continuously over such a long 

period of time in the creation and maintenance of criminal 

operations, and yet prosecute its collaborators.” Greene, 

454 F.2d at 787. The type of nexus in Greene between the 

allegedly outrageous conduct and securing an indictment or 

conviction is not present in this case.

Indeed, the development of the outrageous government 

conduct concept suggests that it does not even apply to 

conditions of pre-trial detention. For that reason, the 

Eleventh Circuit has rejected claims similar to those 

Defendants raise here. See United States v. Jayyousi, 

657 F.3d 1085, 1112 (11th Cir. 2011) (holding that the 

outrageous government conduct doctrine “does not apply” to 
20 UNITED STATES V. DOMINGUEZ-CAICEDO

alleged mistreatment between arrest and indictment). Unlike 

the Eleventh Circuit, our circuit appears to have assumed 

without deciding that outrageous government conduct could

apply to conditions of confinement, so long as there is a 

nexus between the conduct and securing the indictment or 

conviction. E.g., Nickerson, 731 F.3d at 1015. Because 

there is no nexus here, it is unnecessary to revisit that 

conclusion.

Separate from the outrageous government conduct 

claim, federal courts also “have inherent supervisory powers 

to order dismissal of prosecutions” for three reasons: (1) to 

remedy “the violation of a recognized statutory or 

constitutional right”; (2) to ensure “that a conviction rests on 

appropriate considerations validly before a jury”; and (3) “to 

deter future illegal conduct.” United States v. MattaBallesteros, 71 F.3d 754, 763 (9th Cir. 1995) (citation 

omitted). Defendants argue that even if outrageous 

government conduct does not require dismissal of the 

indictment, the district court should have used its 

supervisory powers to provide the same remedy. Their 

reasoning rests on the assertion that the “government should 

tread lightly in international waters, and the court should not 

condone mistreatment of foreigners with no connection to 

the United States.” Pursuant to Matta-Ballesteros, that is not 

a sufficient reason to hold that the district court abused its 

discretion by not dismissing the indictment. Therefore, we 

affirm the district court’s denial of Defendants’ motions to 

dismiss for outrageous government conduct.

B

Defendants’ joint Rule 5 claim requires us to determine 

(1) whether dismissal of an indictment is a remedy available 

for violation of Rule 5; and (2) if so, whether Defendants 

have shown that they are entitled to this remedy. We hold 
UNITED STATES V. DOMINGUEZ-CAICEDO 21

that a court has the power to dismiss an indictment for 

egregious violations of Rule 5, but that the Government did 

not violate Rule 5 in this case.

1

“A person making an arrest outside the United States 

must take the defendant without unnecessary delay before a 

magistrate judge[.]” Fed. R. Crim. P. 5(a)(1)(B). This is 

termed the “‘presentment’ requirement,” and it is meant “to 

prevent secret detention” and “inform a suspect of the 

charges against him[.]” Corley v. United States, 556 U.S. 

303, 306 (2009). The predecessor to Rule 5(a) was McNabb 

v. United States, 318 U.S. 332 (1943), in which the Supreme 

Court held that “unwarranted detention” between arrest and 

presentment “led to tempting utilization of intensive 

interrogation.” Mallory v. United States, 354 U.S. 449, 453 

(1957). “[I]t was deemed necessary to render inadmissible 

incriminating statements elicited from defendants during a 

period of unlawful detention.” Id. Thus, the normal remedy 

for violation of Rule 5 is suppression of statements made 

during the unnecessary delay. Id. When an individual does 

not make any incriminating statements during the delay in 

presentment, we have previously suggested that vacating the 

conviction and dismissing the indictment is a “drastic 

remedy” that the court can “invoke.” United States v. 

Jernigan, 582 F.2d 1211, 1214 (9th Cir. 1978). However, 

we appear never to have granted that remedy in any prior 

case.

In Bayless v. United States, 381 F.2d 67, 70–71 (9th Cir. 

1967), we affirmed the district court’s denial of a motion to 

dismiss based on violation of Rule 5(a). We held that 

because the Government did not obtain any incriminating 

evidence between arrest and presentment, the defendant was 

not prejudiced by the Government’s violation of Rule 5(a). 
22 UNITED STATES V. DOMINGUEZ-CAICEDO

Id. at 71. Consequently, the motion to dismiss the 

indictment “was correctly denied.” Id.; see United States v. 

Mejia, 39 F. App’x 568, 569–70 (9th Cir. Apr. 29, 2002) 

(finding that a thirteen-day delay in presentment, while 

“reprehensible,” did not warrant dismissal of the 

indictment). Conversely, in United States v. Osunde, 638 F. 

Supp. 171, 176 (N.D. Cal. 1986), the Northern District of 

California reasoned that a 106-day delay between arrest and 

presentment was a “flagrant” violation of Rule 5(a). And 

“[a]lthough the Court [could not] point to case law 

supporting dismissal, rather than suppression of evidence, 

for flagrant violations of Rule 5(a),” it held that Osunde’s 

lengthy delay—with no incriminating evidence to

suppress—made dismissal of the indictment appropriate. Id.

at 176–77.

The Second and Eighth Circuits have outright rejected 

dismissal of the indictment as a remedy for violation of Rule 

5, with holdings that appear to foreclose dismissal even in 

egregious circumstances. United States v. Peeples, 962 F.3d 

677, 687–88 (2d Cir. 2020); United States v. Cooke, 

853 F.3d 464, 471 (8th Cir. 2017) (holding that because the 

purpose of Rule 5 is to deter purposeful delay in presentment 

in order to extract a confession, “the appropriate remedy for 

a violation of Rule 5(a)(1)(A) is not dismissal of an 

indictment, but suppression of evidence illegally obtained as 

a result of the violation.”). However, we are bound by 

Bayless and Jernigan, both of which determined that

dismissal could be a remedy for particularly egregious 

violations of Rule 5 where no other relief is available. Thus, 

we examine whether the Government violated Rule 5. 

Because we conclude that it did not, we need not reach the 

question of whether the district court should have dismissed 

the indictment on that basis.
UNITED STATES V. DOMINGUEZ-CAICEDO 23

2

Defendants argue that the Government violated Rule 

5(a) by (1) having Defendants travel to California instead of 

Florida; and (2) having Defendants sign Rule 5 waivers that 

then allowed the Government to interrogate them before 

presentment, which took place the day after they arrived in 

the United States.

“Whether or not undue delay occurred . . . must be 

determined upon the individual facts of each case.” Gray v. 

United States, 394 F.2d 96, 100 (9th Cir. 1967). The district 

court found that “the 23-day delay [between interdiction and 

arraignment] was reasonable” because “[o]n average, it takes 

20 days to transport a detained individual from the Eastern 

Pacific to the U.S.” Further, the district court stated, “the 

coast guard needed to determine which district in the United 

States would be responsible for the prosecution of the case 

and, therefore[,] where the defendants would be 

transported.” According to the district court, the officer in 

charge of “figuring out how to transport the defendants to 

this district as quickly as possible” considered several 

options, including taking the defendants by ship to Florida, 

with a connecting flight to San Diego. However, because 

“[e]ach of these options had drawbacks,” the officer 

“determined that transporting via coast guard cutter [to San 

Diego] was the most expeditious way of transporting [the 

defendants].” Finally, the district court stated that the 

timeline of transportation to San Diego and presentment the 

next morning constituted “bringing the defendants before a 

magistrate judge without unnecessary delay.”

i

First, Defendants contend that the district court engaged 

in the wrong inquiry when examining their transportation to 
24 UNITED STATES V. DOMINGUEZ-CAICEDO

California. Instead of asking whether the Government 

transported Defendants to the prosecuting district without 

unnecessary delay, Defendants claim that the district court 

should have asked whether the Government transported 

Defendants to a magistrate judge without unnecessary 

delay.1 It is undisputed that Defendants could have arrived 

in Florida five days earlier than they arrived in California. 

The issue is whether delay caused by the choice to transport 

Defendants directly to the prosecuting district (California, in 

this case) is an “unnecessary” delay for Rule 5 purposes. 

The district court implicitly held that it was not, and we 

agree.

Until now, we have not addressed whether a delay in 

arraignment caused by the Government’s choice to send a 

defendant interdicted on the high seas directly to the 

prosecuting district (rather than the closest magistrate judge) 

is “unnecessary delay.” In the Fourth Amendment 

unreasonable seizure context, the Supreme Court has stated 

that “[e]xamples of unreasonable delay [in presentment] are 

delays for the purpose of gathering additional evidence to 

justify the arrest, a delay motivated by ill will against the 

arrested individual, or delay for delay’s sake.” Cnty. of 

Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). In 

McLaughlin, the Court specifically cited the “often 

unavoidable delays in transporting arrested persons from one 

facility to another” as a “practical realit[y]” that would not 

qualify as unreasonable. Id. at 57.

1 Defendants’ joint brief incorrectly states that Rule 5(a) requires 

transportation to “the nearest available magistrate.” This was the 

language in an outdated version of Rule 5. The current language does 

not require that Defendants be transported to the nearest magistrate, only 

that they are transported to one without unnecessary delay.
UNITED STATES V. DOMINGUEZ-CAICEDO 25

Other courts that have addressed delays in presentment 

of defendants arrested on the high seas have uniformly held 

that such delays are reasonable. See, e.g., United States v. 

Savchenko, 201 F.R.D. 503, 506 (S.D. Cal. 2001) (holding 

that sixteen days to transport defendants apprehended 

500 nautical miles from Mexico to the Southern District of 

California was reasonable); United States v. BarahonaEstupinan, 2004 WL 7333779, at *5 (S.D. Cal. Mar. 19. 

2004) (six days to transport Defendants from near the 

Mexico-Guatemala border to San Diego was not 

unreasonable); United States v. Torres-Iturre, 2016 WL 

2757283, at *3–4 (S.D. Cal. May 12, 2016) (twenty-one days 

to transport Defendants 2439 nautical miles to San Diego 

was reasonable); United States v. Aragon, 2017 WL 

2889499, at *14 (S.D.N.Y. Jul. 5, 2017) (sixteen-day delay 

caused by transporting Defendants from the Pacific Ocean 

to New York for prosecution was not unreasonable).

Importantly, none of these cases compare the time it took 

the Government to bring the defendants to the prosecuting 

district to the time it would have taken to bring the 

defendants to the closest district. The Eleventh Circuit 

addressed this distinction, writing that “the MDLEA does 

not prohibit the government from taking offenders to Florida 

rather than California” because “[a] person violating the 

MDLEA may be tried in any district, if the offense was 

begun or committed upon the high seas.” United States v. 

Cabezas-Montano, 949 F.3d 567, 591 (11th Cir. 2020) 

(citation and internal quotation marks omitted). Therefore, 

the Eleventh Circuit said, “the issue here is not where the 

defendant was taken, but why it took the government 49 days 

to present the defendant arrested outside the United States 

before a magistrate judge in the United States for a probable 

cause hearing.” Id. The court then applied the Eleventh 

Circuit’s test for determining whether a particular delay was 
26 UNITED STATES V. DOMINGUEZ-CAICEDO

unnecessary. Id. at 591–92. Like the Eleventh Circuit, we 

hold that the proper inquiry is whether transportation to the 

United States as a whole was unnecessarily delayed, rather 

than whether there was some other district in the United 

States in which the defendant could have been brought 

before a magistrate judge more quickly.

The district court did not clearly err in its determination 

that twenty-three days was not an unnecessary delay, given 

that the Coast Guard needed to transport Defendants from 

near the Galapagos Islands to San Diego. In fact, Defendants 

do not contend that twenty-three days was an unreasonable 

amount of time to reach California. We therefore conclude 

that the Coast Guard’s decision to take Defendants to 

California, rather than Florida, did not violate Rule 5.

ii

There was a second period of delay between Defendants 

arriving in Long Beach and their presentment in San Diego. 

Defendants argue that this period of delay also violated Rule 

5. Although they signed Rule 5 waivers in Long Beach, 

Defendants say that this was involuntary. Defendants also 

contend that the waiver only excused the Government from 

presenting them to a magistrate judge in Long Beach; it did 

not allow delay of presentment once Defendants arrived in 

San Diego.

Defendants arrived in Long Beach on January 22 at 

approximately 11:30 a.m., and cleared customs at 11:50 a.m. 

Agent Pullen took Defendants to the San Diego DEA office, 

arriving about 3:00 p.m. (with a stop for food at In-N-Out). 

That morning or the day before, Pullen had made an 

appointment for the 5:30 p.m. booking window for the 

defendants at the prison in San Diego. After Mirandizing 

Defendants, Pullen conducted brief interviews with each (ten 
UNITED STATES V. DOMINGUEZ-CAICEDO 27

to twenty minutes), and then took them to the prison for 

booking. They went before a magistrate judge the next 

morning, January 23.

We have never addressed whether the standard 

procedures for booking arrestees in the Southern District of 

California violate Rule 5. However, numerous district courts 

have concluded that they do not. In United States v. Lauina, 

2016 WL 1573195, at *1 (S.D. Cal. Apr. 18, 2016), the 

district court found “it necessary to revisit the current 

presentment procedures” because “certain detainees are still 

not presented on either the day of their arrest or the day 

following their arrest.” The court explained, “In this district, 

rather than transporting detainees directly to a Magistrate 

Judge, arresting agents take detainees to the Metropolitan 

Correctional Center (“MCC”) for initial processing.” Id. 

This is because “the MCC provides the necessary function 

of organizing detainees prior to their initial appearance.” Id. 

The court wrote that “bringing detainees directly to the Court 

would likely be disorganized, cause unsafe conditions, and 

be an inefficient use of the Court’s time.” Id. At the time of 

Lauina, “[t]he MCC maintain[ed] three booking windows 

each day at approximately 9:00 a.m., 12:30 p.m., and 

5:00 p.m.” Id. at *2.

Following Lauina, in United States v. PortocarreroAngulo, 2017 WL 3283856, at *8 (S.D. Cal. Aug. 1, 2017), 

the district court rejected an international-waters defendant’s 

argument that a Friday-to-Monday delay between arrival in 

San Diego and presentment was unnecessary. The court 

wrote, “General Order No. 605 of this Court requires the 

Department of Justice, through the Bureau of Prisons and the 

U.S. Marshal Service, to ensure that every detainee being 

brought before the Court has been screened for and 

determined not to have transmittable tuberculosis.” Id. The 
28 UNITED STATES V. DOMINGUEZ-CAICEDO

court went on to state that “[t]he need to complete this 

screening makes the delay between Defendant’s arrival in 

San Diego on Friday afternoon and his presentment the next 

Monday reasonable.” Id.

Defendants arrived in Long Beach around 11:50 a.m., so

the 5:30 p.m. booking window was the earliest available. 

Although Cortez-Quinonez states that the Magistrate Judge 

was arraigning defendants until “at least 5 p.m.,” that does 

not support the contention that Defendants could have been 

arraigned after their tuberculosis screening at 5:30 p.m. 

Furthermore, there is no evidence that Pullen purposely 

delayed the booking and presentment to interrogate the 

defendants. Under these circumstances, the district court’s 

finding that the delays in presentment were reasonable was 

not clearly erroneous. Because we hold that the Government 

did not violate Rule 5, we need not examine whether 

Defendants voluntarily signed their Rule 5 waivers, or 

whether the facts of this case present a Rule 5 violation that 

warrants dismissal of the indictment.

C

Cortez-Quinonez also argues that in the event we find 

that there was no Rule 5 violation, his statement still should 

have been suppressed because it was involuntary.

Upon arrival at the DEA office in San Diego, CortezQuinonez and the Spanish-language interpreter had the 

following exchange in Spanish, which has been translated 

into English. Per the court translator, “Non-standard 

spelling, word choice and grammar in English reflect the 

manner of the Spanish spoken, and have been underlined. 

Ambiguous utterances have been rendered with different 
UNITED STATES V. DOMINGUEZ-CAICEDO 29

possibilities (or inferred meaning) in brackets.”2 

Additionally, words the agent spoke in English are italicized.

Agent: Okay. Before doing it any questions, 

you have to understand your rights. You 

have... right to... remeintz silent. Anything 

that you say can be useds against you. Before 

of a kert. Before doing it any questions, you 

have the right to consult an attorney. You 

have the right to have an attorney present 

during the... inter-egation. In the event of 

not being able to pay for the services of a

attorney, and if you so wish, an [would/were 

to] be... appointed... before doing it any 

questions. Have you understood 

[his/her/its/your] rights?

Cortez-Quinonez: Yes.

Agent: Okay. Are you availab-, wel-, willing 

to answer somes questions, or do you want an 

attorney?

Cortez-Quinonez: Yes, I am willing to... to 

the questions, because... now, being here—

you do understand me?—one, one’s family 

members—you understand me?—things, 

how they are in [one’s] country... when one 

suffers from hardship...

2 We have reproduced the translation of the transcript exactly as it 

appears in the record. The translation appears to be a literal word-forword substitution of English for Spanish.
30 UNITED STATES V. DOMINGUEZ-CAICEDO

Agent: Yes, but, are you sure, or, or... do you 

want an attorney?

Cortez-Quinonez: [Okay.../What?] There, 

there isn’t, there isn’t any money to pay an...

Agent: That’s fine. The, uh, here, in this 

country, they give you an... attorney. You 

don’t have to pay.

[pause]

Agent: So, so, do you want to talk, or [does 

he/does she/do you] want to wait? Until 

speaking with your attorney.

Cortez-Quinonez: But, the attorney, [until 

when/for how long]? This morning?

Agent: Yes, but... [that’s that/nothing can be 

done]. You can’t... leave. You do 

understand me?

[pause]

Agent: So, do you want to wai’ for, for... an 

attorney?

Cortez-Quinonez: No, well, my buddy 

doesn’t have [enough] for... an attorney 

neither, just the... the questions—you do 

understand me?

Agent: Okay, so, you want to talk?
UNITED STATES V. DOMINGUEZ-CAICEDO 31

[pause]

Agent: Okay. so put yours... initials here, at 

each point. And then, “have you... uh, 

understood [his/her/its/their/your] rights?” 

put “yes.” And then “are you are willid to 

asnwer somes questions”, “yes.” Okay? So,

initials, at each point...

Cortez-Quinonez: [UI] the, of my first name, 

or—

Agent: —Mm-hmm—

Cortez-Quinonez: —of my last name?

Agent: Yes. Your, uh, first name.

Cortez-Quinonez: My first name. Like that, 

like it is here, written down?

Agent: Yes. Mm-hmm.

. . . .

Agent: And then, here, uh... that “yes,” you 

have understood.

[pause]

Agent: And then, here, that “yes,” you want 

to talk.

[pause]
32 UNITED STATES V. DOMINGUEZ-CAICEDO

Agent: Initials, at each point.

Cortez-Quinonez: Just of my name?—

Agent: —Yes.

[pause]

Agent: Okay, and the [Ø] goes; put your 

signature, here.

[pause]

Agent: Thank you.

Cortez-Quinonez then gave an incriminating statement that 

was used against him at trial.

Pursuant to the Due Process Clause, a statement is 

voluntary only if it is “the product of a rational intellect and 

a free will.” Blackburn v. Alabama, 361 U.S. 199, 208 

(1960). “[T]he characteristics of the accused and the details 

of the interrogation” are relevant considerations. United 

States v. Kelley, 953 F.2d 562, 564–65 (9th Cir. 1992). 

However, introduction of a statement at trial that was given 

without “coercive government misconduct” does not violate 

the Due Process Clause. Colorado v. Connelly, 479 U.S. 

157, 163 (1986). It appears that the only coercive 

government misconduct Cortez-Quinonez has alleged is his 

treatment on board the Coast Guard cutter. However, at the 

time Cortez-Quinonez gave his statement, he was no longer 

experiencing this treatment. Cortez-Quinonez was advised 

of his rights, indicated he understood them, asked a 

clarifying question about his right to counsel, and then gave 

an inculpatory statement. The district court did not err by 
UNITED STATES V. DOMINGUEZ-CAICEDO 33

finding that the statement was voluntary under the Due 

Process Clause.

D

1

We turn next to Defendants’ prosecutorial misconduct 

claims. In closing argument, the prosecutor stated, “when 

the coast guard showed up, [Defendants] had to pull from the 

drug trafficker’s playbook. Play number one. You saw it on 

the video. Don’t move. They might not spot you.” After 

defense counsel objected, and the court overruled the 

objection, the prosecutor clarified, “I’m not talking about a 

playbook somewhere. I’m talking about what they did and 

what the facts in evidence show. Okay? Just so we’re clear.” 

The prosecutor went on to discuss “Plan B. Act normal. 

Nothing to see here,” “Plan C, speed away,” and “Plan D,” 

which “was throw the drugs overboard.” After Plan D, 

“there’s more in the playbook,” because “Plan E” is to 

“deceive.” Finally, “Plan F” was “[t]hings that they have 

said” at trial—namely, that they were forced to transport the 

narcotics. The prosecutor returned to the playbook analogy 

several times.

Defense counsel objected to the prosecutor’s use of the 

playbook analogy, so we review under the harmless error 

standard. First, we must determine whether the reference to 

a playbook was error. Alcantara-Castillo, 788 F.3d at 1190. 

Defendants characterize the prosecutor’s alleged misconduct 

as stating facts that were not in evidence—namely, that there 

was a drug trafficker’s playbook that Defendants were 

following.

The prosecutor’s reference to the playbook analogy is 

distinct from statements of facts not in evidence that this 
34 UNITED STATES V. DOMINGUEZ-CAICEDO

court has held to be misconduct requiring reversal. See, e.g., 

United States v. Toomey, 764 F.2d 678, 681 (9th Cir. 1985) 

(holding that a prosecutor’s statement that “[w]e know that 

the delivery of heroin base . . . occurred on April 28” when 

there was no evidence that the package contained heroin 

base was harmless); United States v. Wilkes, 662 F.3d 524, 

540 (9th Cir. 2011) (holding that a prosecutor’s statement 

that a defense witness lied because he “has an ax to grind” 

was not improper reference to facts not in evidence).

In this case, the prosecutor’s references to a “playbook” 

clearly were not meant to imply that there was an actual 

playbook in evidence that listed Plans A–F.3 Instead, the 

prosecutor was using the playbook analogy to provide a 

framework to consider Defendants’ different actions during 

the Coast Guard’s interdiction.

Defendants also argue that the prosecutor’s use of the 

playbook analogy constituted improper vouching and 

implied extra-record knowledge not available to the jury. 

The transcript of the prosecutor’s closing argument simply 

does not bear this out. As stated above, the playbook 

analogy was used to explain why the defendants did what 

they did, creating an overarching narrative for the video 

showing the interdiction. The prosecutor’s argument was 

based on the facts in evidence. We hold that this argument 

did not constitute prosecutorial misconduct, and so we do 

not address whether the referenced misconduct was harmless 

error.

3 This contrasts with the case Defendants cite, United States v. 

McGill, 815 F.3d 846 (D.C. Cir. 2016), in which the court held that a 

prosecutor committed misconduct by arguing that the defendant’s letters 

from jail constituted a “playbook” that the defense attorney and 

witnesses all consulted in order to put on a false defense.
UNITED STATES V. DOMINGUEZ-CAICEDO 35

2

Defendants also contend that the prosecutor committed 

misconduct by arguing in closing that Dominguez-Caicedo 

was in charge but arguing at sentencing that CortezQuinonez was the leader.

In closing, the prosecutor said:

Here is [Gaspar Chichande’s] testimony from 

this trial. “In fact, you indicated Mr. Cortez 

was the captain, he was in charge, didn’t 

you?” And he said, “Well, because he had a 

device with him, and that’s why I said he was 

the captain.” “But he had a device, and he 

would tell you to drive such and such route?” 

“Yes, sir.” “And in fact, you specifically 

called him the captain?” “Yes, sir.” 

“Because he was in charge?” And he says, “I 

think so.” Right? He thinks he’s in charge 

because he’s manning the engines, but you 

know from watching the video that 

Mr. Dominguez is the one calling the shots. 

You see it. He’s this one that turns around 

and gives the order.

The prosecutor also stated “Mr. Dominguez [is] the man 

giving the order for the boat to take off[.]” In other words, 

Gaspar Chichande testified that he believed CortezQuinonez was the captain of the boat, but the video of the 

interdiction showed that Dominguez-Caicedo gave the order 

for the boat to take off.

At Cortez-Quinonez’s sentencing, the district court 

began by giving counsel his tentative on the sentence—

240 months. Cortez-Quinonez’s attorney “strongly urge[d]” 
36 UNITED STATES V. DOMINGUEZ-CAICEDO

the court to “come off [its] tentative” based on the argument 

that Cortez-Quinonez was more similar to Gaspar Chichande 

(who got 180 months) in terms of relative culpability than he 

was to Dominguez-Caicedo (who got 216 months). The 

court stated, “I haven’t disregarded your arguments yet, but 

so far, it kind of has struck me that it’s Mr. Cortez that really 

was the one that was most culpable and most in charge.” The 

prosecutor then argued:

In terms of the suggestion that [CortezQuinonez] wasn’t in charge, our trial strategy 

is not what is necessarily 100 percent what 

actually is—who’s in charge, right?

The fact that we may highlight a particular 

person in closing argument is a trial strategy 

in light of how the trial played out and the 

evidence, but what we do know—so I 

wouldn’t take too much from that.

But what we do know is that Mr. Gaspar 

Chichande testified, and he said that it was 

Mr. Cortez who had the GPS communication 

device. . . . Mr. Cortez says in his post-arrest 

statement that, in fact, [the bosses] were 

telling him—giving instructions, that sort of 

stuff [through the device].

He’s also the one who instructs Mr. Gaspar 

Chichande to activate the GPS device. That’s 

testimony that’s uncontroverted in the 

trial. . . . When the coast guard comes 

onboard, who is it that says he’s the captain? 

It’s Mr. Cortez.
UNITED STATES V. DOMINGUEZ-CAICEDO 37

In context, it is clear that the prosecutor did not argue 

facts in closing that he knew were untrue. The trial evidence 

showed both that Dominguez-Caicedo gave the order for the 

boat to take off, attempting to outrun the Coast Guard, and

that Cortez-Quinonez was driving the boat, communicating 

with the bosses back in South America, and gave the order 

for Gaspar Chichande to activate the GPS buoy before 

throwing the narcotics overboard. It was not inconsistent for 

the prosecutor to point out all of these facts, both in closing 

argument and at sentencing. We hold that this alleged 

misconduct also does not constitute error.

3

Cortez-Quinonez argues that the prosecutor’s alleged 

misconduct resulted in depriving him of a minor role 

reduction, violating his right to due process. However, for 

the same reasons that the prosecutorial misconduct claim 

fails, Cortez-Quinonez’s due process claim also fails—the 

prosecutor highlighted different facts that were not 

inconsistent with each other at different stages of the 

proceeding.

4

In closing argument, the prosecutor said, “Ladies and 

gentlemen, throwing cocaine overboard on a vessel is 

knowing possession of cocaine. All right? Just watch this 

[video] clip. That’s the element in a heartbeat.” Defense 

counsel objected, and the district court overruled the 

objection. The prosecutor then immediately clarified:

The evidence shows that what they’re doing 

is knowing possession of the cocaine. They 

know that it’s there, they have control of it, 

and they’re throwing it overboard, and you 
38 UNITED STATES V. DOMINGUEZ-CAICEDO

infer from their actions that they know it’s 

cocaine or some other drug . . . and clearly 

when the coast guard comes, they don’t 

throw the fuel barrels and all that overboard. 

They’re throwing the cocaine overboard.

Defendants argue that although “the prosecutor softened the 

categorical nature of this incorrect statement of the law,” 

“that softening came too late,” resulting in the jury being 

“most likely left with the incorrect view of the law that 

simply possessing something that turned out to be cocaine is 

sufficient to prove knowing possession under the law.”

The jury was instructed that “an act is done knowingly if 

the defendant is aware of the act and does not act through 

ignorance, mistake, or accident. . . . You may consider 

evidence of the defendant’s words, acts, or omissions along 

with all the other evidence in deciding whether the defendant 

acted knowingly.” Although it is true that throwing wrapped 

bales overboard without knowing that there is cocaine inside 

is not in itself enough to establish knowing possession, the 

prosecutor immediately clarified that he meant the jury could 

infer knowledge of the contents of the packages based on 

their throwing them overboard. This error was harmless in 

the context of the entire trial.

E

Dominguez-Caicedo attempted to call an expert witness, 

Diego Alexander Marinez, an attorney in Colombia. 

Mr. Marinez grew up approximately 40 miles from the area 

where Dominguez-Caicedo lived (Barbacoas). He travels to 

Barbacoas at least once per month for work. According to 

the offer of proof submitted to the district court, Mr. Marinez 

was prepared to testify that he is familiar with armed 

criminal paramilitary groups in that area. He also would 
UNITED STATES V. DOMINGUEZ-CAICEDO 39

have testified that he “is aware” that these groups kidnap, 

intimidate, and use violence to further their criminal 

enterprises, including drug trafficking. Mr. Marinez also 

stated that he “is aware” that these groups dress in military 

garb and carry assault rifles in broad daylight in the area.

Mr. Marinez’s testimony would have been offered to 

corroborate Dominguez-Caicedo’s duress defense. At trial, 

Dominguez-Caicedo testified that five paramilitary 

members carrying machine guns kidnapped him and forced 

him to transport narcotics. However, the district court 

excluded Mr. Marinez’s expert testimony on the grounds 

that it was not “based on sufficient facts or data which is the 

product of reliable principles and methods” and that the 

witness had not “applied the principles and methods reliably 

to the facts in the case.” The district court continued:

I can’t find what principles and methods the 

supposed expert would use. I don’t even 

know what he’s an expert in. There’s no 

indicia that any other experts would accept 

the principles or the opinions or conclusions 

that this so-called expert would proffer. I 

don’t know what his educational background 

is on the subject. I don’t know of any 

publications or other certifications or 

professional memberships that he belongs to 

that would allow him to express an opinion 

on any of the things that he has proffered. I 

don’t know what materials he may have 

received or reviewed. I don’t know his prior 

experience as an expert in the area. I don’t 

know what records he may have reviewed, 

what procedures, and what methodology did 

he use once in arriving at this so-called 
40 UNITED STATES V. DOMINGUEZ-CAICEDO

opinion, what examinations, what research, 

what testing, what surveys, or what 

verifications were used. I don’t know what, 

if anything, he did to, for example, try to 

disprove any hypothetical or ultimate 

conclusion that he has reached. I don’t know, 

in fact, looking at this, any of this, whether he 

really has any knowledge whatsoever of any 

of the things that [he] has testified or 

proposes to testify to.

In all, the district court found “absolutely no indicia 

whatsoever of reliability,” and that the testimony would not 

be helpful.

Dominguez-Caicedo contends that the district court’s 

focus on the Daubert factors of reliable principles and 

methods was misplaced. Instead, Dominguez-Caicedo 

argues that the district court’s focus should have been on the 

“knowledge and experience” of the expert, since the subject 

of the expert’s testimony was to be his knowledge and 

experience, rather than his scientific analyses.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579 (1993), the Supreme Court listed several 

relevant factors for assessing the reliability of scientific 

expert testimony under Federal Rule of Evidence 702. 

Among these were whether the expert’s theory or technique 

has been tested; whether it “has been subjected to peer 

review and publication”; the “error rate” of “a particular 

scientific technique”; and the general acceptance of a theory 

or technique within the scientific community. 509 U.S. 

at 593–94. Then, in Kumho Tire, the Supreme Court 

discussed how to apply Daubert to expert testimony that was 

not scientific in nature:
UNITED STATES V. DOMINGUEZ-CAICEDO 41

We conclude that Daubert’s general 

holding—setting forth the trial judge’s 

general “gatekeeping” obligation—applies 

not only to testimony based on “scientific” 

knowledge, but also to testimony based on 

“technical” and “other specialized” 

knowledge. We also conclude that a trial 

court may consider one or more of the more 

specific factors that Daubert mentioned when 

doing so will help determine that testimony’s 

reliability. But, as the Court stated in 

Daubert, the test of reliability is “flexible,” 

and Daubert’s list of specific factors neither 

necessarily nor exclusively applies to all 

experts or in every case. Rather, the law 

grants a district court the same broad latitude 

when it decides how to determine reliability 

as it enjoys in respect to its ultimate reliability 

determination.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141–42 

(1999) (internal citations omitted).

Although some of the factors the district court listed are 

not obviously relevant to Mr. Marinez, some are. For 

example, Mr. Marinez’s offer of proof omits how

Mr. Marinez “is aware” of the activities of FARC. As the 

district court stated, then, there is no indicia that other 

experts on FARC would agree with Mr. Marinez’s opinion 

that FARC uses “intimidation and violence in the town of 

Barabaoas [sic] and its surrounding area to further their 

criminal enterprises” and that “these armed groups do little 

to hide their existence in the town of Barbacoas.” It was also 

unclear “what, if anything,” Mr. Marinez did to try to 

disprove his opinion that these individuals are part of FARC. 
42 UNITED STATES V. DOMINGUEZ-CAICEDO

In short, the offer of proof fell short of showing the basis for 

Mr. Marinez’s expert opinion that Dominguez-Caicedo’s 

testimony about FARC kidnapping him was plausible.

Dominguez-Caicedo is correct in that the factors the 

district court listed apply more directly to testimony of a 

scientific nature, which Mr. Marinez’s was not. However, 

given the extremely broad latitude the Supreme Court has 

said district courts have in conducting this inquiry, we hold 

the district court did not abuse its discretion by looking at 

these particular factors and finding Mr. Marinez’s testimony 

wanting. See Kumho Tire, 526 U.S. at 142.

F

All three defendants challenge the district court’s denial 

of their requests for minor role reductions at sentencing. 

When reviewing sentencing decisions, we review the district 

court’s identification of the relevant legal standard de novo, 

its factual findings for clear error, and its application of the 

legal standard to the facts for abuse of discretion. United 

States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) 

(en banc). We begin by clarifying how district courts should 

conduct the minor role analysis before turning to each 

defendant’s specific arguments.

1

A defendant who is “plainly among the least culpable of 

those involved in the conduct of a group” may receive a 

“minimal” role adjustment, which comes with a Sentencing 

Guidelines reduction of at least four levels.4 U.S.S.G. 

4 We say “at least” because a mitigating role adjustment can interact 

with other provisions of the Sentencing Guidelines to trigger additional 

adjustments. See, e.g., U.S.S.G. § 2D1.1(a)(5).
UNITED STATES V. DOMINGUEZ-CAICEDO 43

§ 3B1.2(a), cmt. 4. A defendant “who is less culpable than 

most other participants in the criminal activity, but whose 

role could not be described as minimal” may receive a 

“minor” role adjustment, which provides a reduction of at 

least two levels. Id. at cmt. 5. To be eligible for either 

adjustment, the defendant must also be “substantially less 

culpable than the average participant in the criminal 

activity.” Id. at cmt. 3(A).

The relevant comparison is to the other participants in 

the defendant’s crime, not to typical defendants who commit 

similar crimes.5 See United States v. Diaz, 884 F.3d 911, 

916 (9th Cir. 2018). Thus, in this case, the district court was 

required to compare the defendants to the other participants 

in their crimes, not to typical defendants occupying their 

roles, such as typical drug transporters. Further, when the 

mitigating role commentary instructs courts to compare the 

defendant’s culpability to that of “the average participant in 

the criminal activity,” it is not referring to the actual level of 

culpability of any single participant. It is instead referring to 

the mathematical average, i.e., a “single value that represents 

the midpoint of a broad sample of subjects.” Average, 

Black’s Law Dictionary (11th ed. 2019). Thus, “all likely 

participants in the criminal scheme” must be included in 

calculating the average. Diaz, 884 F.3d at 916–17 (emphasis 

added); United States v. Rojas-Millan, 234 F.3d 464, 472 

(9th Cir. 2000).

To determine whether a defendant is substantially less 

culpable than the average participant in the offense, a district 

5 In the past we have referred to these typical defendants as 

“hypothetical average participants,” but we use the term “typical 

defendant” here because it is more precise, and it avoids confusion with 

our discussion of the “average participant” referred to in comment 3(A).
44 UNITED STATES V. DOMINGUEZ-CAICEDO

court must proceed in three steps. First, the court must 

identify all of the individuals for whom there is “sufficient 

evidence of their existence and participation in the overall 

scheme.” Rojas-Millan, 234 F.3d at 474. 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. See Diaz, 

884 F.3d at 916. Third, the court must compare the 

defendant’s culpability to that average. If the defendant is 

substantially less culpable than that average and meets the 

other criteria, he should be granted a mitigating role 

adjustment. If the defendant is not substantially less 

culpable than that average, he is not eligible for the 

adjustment.

The Government and some district courts appear to have 

interpreted United States v. Hurtado, 760 F.3d 1065, 1069 

(9th Cir. 2014), overruled on other grounds by Gasca-Ruiz, 

852 F.3d at 1174, to suggest that a court must first identify 

all participants in the crime and then disregard participants 

of above-average culpability (and, presumably, those of 

below-average culpability) and compare the defendant’s 

culpability only to the remaining individuals whom the 

district court deems to be of average culpability. A court 

following this approach compares the defendant’s 

culpability to only the median participants’ actual level of 

culpability instead of comparing the defendant’s culpability 

to the average level of culpability of all the participants in 

the offense.

This understanding of Hurtado is incorrect. At the 

outset, we note that much of Hurtado has been overruled or 
UNITED STATES V. DOMINGUEZ-CAICEDO 45

abrogated.6 But to the extent anything remains of Hurtado, 

it simply stands for the proposition that comparing a 

defendant to only the most culpable subset of the participants 

in the offense does not demonstrate that the defendant is 

entitled to a minor role reduction. Instead, the district court 

must compare the defendant’s culpability with the average 

level of culpability of all of the participants in the crime. 

Hurtado did not set forth an entirely different method of 

performing the minor role analysis.

Nor could it have. Fourteen years earlier, we held that 

courts should compare a defendant’s culpability to “all 

participants in the criminal scheme for which he was 

charged” even if those co-participants are not charged. 

Rojas-Millan, 234 F.3d at 472. There, the Nevada Highway 

Patrol stopped Rojas-Millan as he was couriering drugs east 

from Los Angeles to Nevada. Id. at 467–68. In the car with 

6 For instance, Hurtado states that the district court “did not clearly 

err when it found that Hurtado was a typical commercial drug 

smuggler—no better, no worse,—and not entitled to a minor role 

reduction” and that “[t]he district court was not clearly erroneous in 

finding that although Hurtado may have been a cog in some larger wheel, 

he was an essential cog who . . . knowingly smuggled a large quantity of 

narcotics into the United States . . . .” 760 F.3d at 1067. But the 2015 

amendments to the mitigating role commentary made clear that the 

relevant comparison is to other participants in the defendant’s crime, not 

to “typical” defendants committing similar crimes, and 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). 

Similarly, Hurtado suggested that various factors “alone” could “justify 

denial of minor role” but we have since held that “the assessment of a 

defendant’s eligibility for a minor-role adjustment must include 

consideration of the factors identified by the Amendment, not merely the 

benchmarks established by our caselaw that pre-dates Amendment 794’s 

effective date.” Diaz, 884 F.3d at 916. We have also since held that 

Hurtado applied the wrong standard of review. See Gasca-Ruiz, 

852 F.3d at 1174.
46 UNITED STATES V. DOMINGUEZ-CAICEDO

him was Jorge Adame-Farias. Id. After being convicted of 

various drug crimes, Rojas-Millan sought a minor role 

reduction, which the district court denied. Id. at 472. The 

district court concluded that Rojas-Millan was not 

substantially less culpable than Adame-Farias, who was 

charged alongside Rojas-Millan, and that it could not 

compare Rojas-Millan’s conduct against the drug supplier in 

Los Angeles and the recipient in Nevada because they were 

not charged. Id.

We vacated the sentence and remanded, holding that “the 

district court should have evaluated [Rojas-Millan’s] role 

relative to all participants in the criminal scheme for which 

he was charged.” Id. We explained that “ignoring the 

actions of other participants . . . subjects less culpable 

defendants to longer sentences simply because their more 

involved co-conspirators managed to escape arrest or were 

tried separately. We see no reason why the Guidelines 

would sanction such a regime, and we find confirmation in 

the language of § 3B1.2 that the intent was not to do so.” Id.

at 473. We thus vacated Rojas-Millan’s sentence and 

remanded for the district court to compare Rojas-Millan’s 

culpability “relative to the involvement of other likely 

actors, such as the alleged Los Angeles supplier and the 

Reno distributor . . . if the district court found sufficient 

evidence of their existence and participation.” Id. at 473–

74. The only limit on the comparison group we recognized 

in Rojas-Millan was that the district court was required to 

find “sufficient evidence of [the comparators’] existence and 

participation” in the crime. Id. at 474. If the district court 

found on remand that the Los Angeles supplier and Reno 

distributor participated, it was required to compare RojasMillan’s culpability to theirs. Id. at 473–74. We did not hold 

that the district court could decline to consider the Los 

Angeles and Reno participants’ culpability if it determined 
UNITED STATES V. DOMINGUEZ-CAICEDO 47

that they were leaders or organizers or were otherwise of 

“above-average” culpability. Indeed, to do so would be 

inconsistent with our observation that “ignoring the actions 

of other participants” undermines the purpose of the minor 

role reduction because doing so “subjects less culpable 

defendants to longer sentences simply because their more 

involved co-conspirators managed to escape arrest or were 

tried separately.” Id. at 473.

Since we already held in Rojas-Millan that “all 

participants in the criminal scheme” must be included in the 

comparison, we could not have departed from that rule in 

Hurtado to require district courts to exclude the most highly 

culpable participants. See Miller v. Gammie, 335 F.3d 889, 

900 (9th Cir. 2003) (en banc). Further, while the “median” 

approach does not turn on who is charged, it is even less 

consistent with the purposes of the minor role reduction than 

the approach we disapproved of in Rojas-Millan because it

would exclude the most culpable participants in every case, 

even if they were charged, simply because they are highly 

culpable. This approach grossly distorts the court’s 

assessment of the defendant’s relative role. Finally, in the 

eight years since it was decided, we have never cited 

Hurtado in a published opinion for the proposition that 

district courts may exclude highly culpable participants from 

the comparison.

In sum, Hurtado did not change our longstanding 

approach to the mitigating role analysis, which requires 

district courts to include “all participants in the criminal 

scheme” in the comparison. Rojas-Millan, 234 F.3d at 472; 

see also Diaz, 884 F.3d at 916–17. With these clarifications 

in mind, we turn to each defendant’s arguments.
48 UNITED STATES V. DOMINGUEZ-CAICEDO

2

Chichande argues that the district court erred by 

excluding his recruiter from the comparison. We agree. The 

district court concluded that Chichande’s recruiter existed 

and participated, yet it excluded him from the comparison 

group. The court stated at sentencing:

So the defendant has to show me well, who’s 

the average participant so that I can then 

make a determination as to whether or not the 

defendant is, in fact, substantially less 

culpable than the average participant . . . . So 

what do we know? Well, we know this 

gentleman was recruited by someone who, in 

my opinion, if that individual were before 

me, would receive an aggravated role for 

being a leader/organizer. We have the people 

with the guns . . . . So taking a look at the 

people that are involved, there are three 

people on the boat. I believe, frankly, that 

probably one of them is somewhat more 

culpable than the other two. And I do believe 

that this defendant, given the fact that he was 

more candid and forthright, probably 

deserves a break in that regard. It doesn’t 

really affect my assessment of minor role 

. . . . So what do I know? I know that there 

were men with guns. I know that there was a 

recruiter or someone that got this fellow into 

this venture. But I don’t know who the 

average participant would be. And I don’t 

know that this defendant would be 

substantially less culpable than whoever that 

average participant is.
UNITED STATES V. DOMINGUEZ-CAICEDO 49

This discussion shows that the district court attempted to 

identify a single “average participant” with whom to 

compare Chichande. When the district court could not 

identify such an individual, it denied the minor role 

adjustment, apparently without comparing Chichande’s 

culpability with anyone’s. At a minimum, the court 

excluded the recruiter. This analysis was erroneous. As we 

have explained, the proper comparison is to the average of 

all of the individuals who participated in Chichande’s 

offense, including those that the district court believed were 

leaders or organizers or who were otherwise highly culpable. 

Because the district court misunderstood the appropriate 

legal standard, we vacate Chichande’s sentence and remand 

for the district court to conduct the minor role analysis 

applying the correct legal standard.

The Government argues that any error in the district 

court’s minor role analysis was harmless because the district 

court made an alternative Guidelines calculation assuming it 

granted Chichande a minor role reduction and stated that it 

would impose the same “sentence regardless of whether [it] 

gave him minor role.” We disagree.

“A mistake in calculating the recommended Guidelines 

sentencing range is a significant procedural error that 

requires us to remand for resentencing.” United States v. 

Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011). 

“When a defendant is sentenced under an incorrect 

Guidelines range—whether or not the defendant’s ultimate 

sentence falls within the correct range—the error itself can, 

and most often will, be sufficient to show a reasonable 

probability of a different outcome absent the error.” MolinaMartinez v. United States, 136 S. Ct. 1338, 1345 (2016). 

Accordingly, we have vacated sentences and remanded for 

resentencing when district courts have misunderstood the 
50 UNITED STATES V. DOMINGUEZ-CAICEDO

law governing the minor role reduction. See, e.g., Diaz, 

884 F.3d at 918; Rojas-Millan, 234 F.3d at 475. At the same 

time, a sentencing error can be harmless. See MunozCamarena, 631 F.3d at 1030 n.5. To establish harmlessness, 

the Government must show that “it is more probable than 

not” that the error did not affect the sentence. United States 

v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc); 

see also United States v. Olano, 507 U.S. 725, 734 (1993).

A “district court’s mere statement that it would impose

the same . . . sentence no matter what the correct calculation 

cannot, without more, insulate the sentence from remand.” 

Munoz-Camarena, 631 F.3d at 1031; see also United States 

v. Williams, 5 F.4th 973, 978 (9th Cir. 2021). This is because 

a district court’s analysis must “flow from an initial 

determination of the correct Guidelines range,” id. at 1031, 

and the district court must keep that range “in mind 

throughout the process,” id. at 1030 (quoting United States 

v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)). At the same 

time, a sentencing error may be harmless if the district court 

“acknowledges that the correct Guidelines range is in dispute 

and performs [its] sentencing analysis twice, beginning with 

both the correct and incorrect range.” Id. at 1030 n.5.

The Government argues that that is what the district 

court did here. We disagree. When it came time to impose 

the sentence, the district court started by determining that 

Chichande’s criminal history category was I, his base 

offense level was 38, and a two-level upward adjustment was 

warranted because he co-piloted the boat, for a total offense 

level of 40. This yielded a Guidelines range of 292 to 

365 months. See U.S.S.G. Manual Ch. 5 Pt. A (U.S. Sent’g 

Comm’n 2018). The district court then concluded that a 

292-month sentence “would be excessive” because 

Chichande was a first-time offender, discussed the 18 U.S.C. 
UNITED STATES V. DOMINGUEZ-CAICEDO 51

§ 3553(a) factors, and ultimately imposed a sentence of 

180 months. After imposing the sentence, the district court 

provided Chichande with a copy of the supervised release 

conditions and informed him that he could appeal. 

Immediately afterward the following exchange occurred:

Counsel for Chichande: Yes, I’ve told him 

that I will file that Notice of Appeal this 

morning.

The Court: All right. Is there anything else I 

need to address? Is there anything – well, I 

guess for purposes of making sure we all 

understand – by the way, I did do a guideline 

calculation assuming that I gave him minor 

role. I think that would have resulted in, if 

I’m not mistaken, a range of 121 to 

151 months. I think I did a calculation giving 

him acceptance. That would result in 97 to 

121 months.

But as I said, my sentence was based on [the] 

3553(a) factors. Given the seriousness of the 

offense and the nature of the offense, the 

circumstances of the offense, the amount of 

the drugs, the fact that a shooting was 

required, I think 180 months is a reasonable 

sentence, and I would impose that sentence 

regardless of whether I gave him minor role. 

In that case, I would be varying up. In this 

case, I’m varying down. Anything else I’ve 

missed?

The district court’s discussion of the alternative ranges 

at the very end of the sentencing hearing does not 
52 UNITED STATES V. DOMINGUEZ-CAICEDO

demonstrate that the district court conducted the sentencing 

a second time starting with the correct range and keeping it 

in mind throughout the process. The conclusory nature of 

this discussion, and the fact that it occurred after the district 

court had already imposed Chichande’s sentence and only in 

response to Chichande’s declaration that he would appeal 

suggest that the district court did not meaningfully consider 

this range in arriving at its sentence. Since the Government 

has not met its burden of establishing that any error was 

harmless, we vacate Chichande’s sentence and remand for 

resentencing so that the district court may apply the correct 

legal standard.

3

Cortez-Quinonez argues that the district court erred 

because it “expressly acknowledged the existence of a 

Pablo-Escobar-type drug lord” and “a giant, complex drugtrafficking organization” but nevertheless refused to include 

members of that organization in the comparison. In the 

district court, Cortez-Quinonez cited a report that the 

Sentencing Commission sent to Congress listing roles of 

individuals often involved in drug trafficking organizations 

in order of their typical culpability and argued that the court 

was required to compare his conduct to individuals 

occupying those roles who “likely” were involved in his 

crime.

The fact that illicit drugs are often traceable to larger 

drug trafficking organizations does not mean that district 

courts must compare the conduct of each defendant 

convicted of a drug crime to that of every hypothetical 

member of a typical drug trafficking organization. See 

United States v. Rosas, 615 F.3d 1058, 1068 (9th Cir. 2010) 

(“Every drug trafficking defendant could point to an 

unknown network preceding them in the drug trade. Such an 
UNITED STATES V. DOMINGUEZ-CAICEDO 53

argument will normally be ineffective when considering 

whether the defendant is entitled to a mitigating role 

reduction.”). We have repeatedly held that the relevant 

comparators are the actual participants in the defendant’s 

crime. See, e.g., Diaz, 884 F.3d at 916–18; United States v. 

Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); United States v. 

Petti, 973 F.2d 1441, 1447 (9th Cir. 1992). The 2015 

Amendments to the mitigating role commentary confirmed 

that interpretation. See United States v. Quintero-Leyva, 

823 F.3d 519, 522–23 (9th Cir. 2016). By “actual 

participants,” we mean only participants for whom there is 

“sufficient evidence of their existence and participation.” 

Rojas-Millan, 234 F.3d at 474. Even if one can assume

based on how drug trafficking organizations typically 

operate that it is likely that another unidentified person 

participated in the crime, the district court is not required to 

compare the defendant’s culpability with that of the 

unidentified person. Indeed, without evidence of the 

proposed comparator’s existence or participation the district 

court has nothing against which to compare the defendant’s 

conduct. In this case, for example, Cortez-Quinonez invited 

the district court to speculate about what roles hypothetical 

participants in drug trafficking organizations typically 

occupy and to compare those hypothetical participants’ 

imagined conduct to his own. We have repeatedly rejected 

these kinds of comparisons in the past, and we do so again 

today. See Diaz, 884 F.3d at 913–18 (holding that district 

court properly limited the comparison group to Diaz’s 

recruiter and co-participant and properly declined to 

compare Diaz’s culpability to that of “‘unknown’ 

individuals who ‘have to exist in order for a drug trafficking 

organization to function’”); Rosas, 615 F.3d at 1068 

(holding that district court properly limited the comparison 

group to Rosas’ two co-participants and properly declined 

to compare him to “unknown participants in the drug chain, 
54 UNITED STATES V. DOMINGUEZ-CAICEDO

including ‘the source of the marijuana, distributors, 

packagers, sellers, etc.’”).

In arguing to the contrary, Cortez-Quinonez relies 

heavily on our statements in Diaz and Rojas-Millan 

instructing district courts to consider “likely” participants. 

But Cortez-Quinonez takes the word “likely” out of context. 

We have referred to likely participants to make clear that the 

defendant does not necessarily need to know the 

participant’s name or see the participant for there to be 

sufficient evidence of that person’s participation in the 

offense. See Diaz, 884 F.3d at 917; Rojas-Millan, 234 F.3d 

at 473–74. But we have never required a comparison to 

unknown persons one might assume participated but about 

whom there is no evidence of their actual participation. 

Therefore, the district court did not err by declining to 

compare Cortez-Quinonez’s culpability to the unknown 

“Pablo-Escobar-type drug lord” and unknown members of 

“a giant, complex drug-trafficking organization” that may 

have been involved in the manufacture and distribution of 

the drugs Cortez-Quinonez was transporting.

Cortez-Quinonez next argues that the district court erred 

by “ignor[ing] [his] lack of ownership in the drugs and his 

relatively low compensation.” But the district court heard 

argument regarding this factor, stated that it considered all 

“five nonexhaustive factors,” and ultimately adopted the 

Government’s analysis of them. And even if the district 

court erroneously weighed that factor against CortezQuinonez, that one of the five factors in comment 3(C) 

weighed in favor of Cortez-Quinonez does not mean that the 

district court abused its discretion in denying the minor role 

adjustment. See Quintero-Leyva, 823 F.3d at 523.
UNITED STATES V. DOMINGUEZ-CAICEDO 55

4

Dominguez-Caicedo’s arguments are similar. He claims 

that the district court identified “the man who 

commandeered Mr. Dominguez into participating in this 

offense” and “the ‘guys with the guns’ who approached 

Dominguez” as “potential likely participants” but 

nevertheless improperly refused to compare his culpability 

to theirs. He also argues that the district court improperly 

“overlooked” “all the persons” the Government identified in 

its pre-trial expert disclosure, “those who actually own the 

cocaine at the heart of this case,” and “those who recruited 

and tricked Mr. Dominguez’s co-defendants.” Once again, 

we disagree.

With respect to the “guys with guns” and “man who 

commandeered Mr. Dominguez into participating in this 

offense” Dominguez-Caicedo’s characterization is not 

consistent with the record. Dominguez-Caicedo testified at 

trial that while he was harvesting bananas in rural Colombia, 

he was kidnapped by five armed men wearing hoodies and 

masks who told him they needed him for a mission. He 

testified that these men eventually placed him on the boat

carrying the drugs at issue here. At sentencing, the district 

court made clear that it did not believe DominguezCaicedo’s account and did not find these individuals to be 

likely participants in the offense. The court explained: “I 

mean, Mr. Dominguez-Caicedo was hoping that by telling 

his story, he was going to [be] able to convince the jury that 

he was acting under duress. The jury didn’t believe it. It’s 

a self-serving statement that I frankly – I don’t buy, either. I 

don’t accept it.” Therefore, contrary to DominguezCaicedo’s argument, the district court did not determine that 

the “guys with guns” and the “man who commandeered 
56 UNITED STATES V. DOMINGUEZ-CAICEDO

Mr. Dominguez” were “likely participants,” and therefore 

did not err by excluding them from the comparison.

Next, the district court was not required to address the 

people the Government identified in its pre-trial expert 

disclosure, the people who allegedly owned the cocaine, and 

the people who allegedly recruited Dominguez-Caicedo’s 

co-defendants because Dominguez-Caicedo failed to object 

to the Presentence Report’s (PSR) conclusion that he did not 

provide evidence of their existence and participation in the 

offense.

The PSR concludes that “the defendant has presented no 

information supporting the fact that he was substantially less 

culpable than the other identified participants in this offense 

as he appears to have held the same role as CORTEZ and 

GASPAR.” It also says that “Defense counsel . . . believes 

a minor role adjustment is appropriate, but did not provide 

any basis for it.” Federal Rule of Criminal Procedure 

32(f)(1) requires parties to “state in writing any objections, 

including objections to material information . . . contained in 

or omitted from the [PSR].” If a party objects to a material 

factual assertion in or omission from the PSR, the district 

court must rule on the objection. Fed. R. Crim. P. 

32(i)(3)(B); see also United States v. Petri, 731 F.3d 833, 

837–39 (9th Cir. 2013). But if a party does not object, the 

district court is not required to address factual assertions 

raised for the first time in a sentencing memorandum or at 

the sentencing hearing. Petri, 731 F.3d at 841.

Petri is illustrative. There, Petri objected to the PSR’s 

recommendation that the district court deny Petri’s request 

for a minor role reduction because, among other things, he 

alleged that he was “used by the more sophisticated 

individuals in the scheme, including a man named ‘Sorin,’ 

whom Petri identified as the ringleader.” Id. at 836. But 
UNITED STATES V. DOMINGUEZ-CAICEDO 57

while Petri cited Sorin’s alleged involvement in support of 

his objection to the PSR’s recommendation to deny him a 

minor role reduction, he did not specifically object to the 

omission of factual information about Sorin in the PSR. Id. 

at 836, 841. In other words, Petri objected to the probation 

officer’s ultimate recommendation that the court deny the 

minor role reduction but did not specifically object to the 

probation officer’s decision not to include “any factual 

assertion regarding whether ‘Sorin’ manipulated or coerced 

Petri into complicity.” Id. at 841. In his sentencing 

memorandum and during the sentencing hearing, Petri’s 

attorney attempted to supplement the record with details 

about Sorin’s alleged coercion and argued that recently 

discovered documents showed Sorin was involved. Id. 

at 836–37. The district court ultimately denied the minor 

role reduction without addressing whether Sorin coerced 

Petri. Id. at 837. On appeal, we held that the district court 

“had no responsibility to rule on . . . if ‘Sorin’ coerced” Petri 

because Petri’s objection to the PSR was not specifically 

directed at the alleged factual omissions in the PSR. Id.

at 841.

Dominguez-Caicedo did not properly object to his 

presentence report at all.7 Therefore, the district court was 

7 Dominguez-Caicedo included a footnote in his sentencing 

memorandum citing to Cortez-Quinonez’s objections to his PSR and 

stated that “Mr. Dominguez joins in his co-defendant’s analysis 

regarding the applicability of a mitigating role adjustment in this case.” 

Dominguez-Caicedo’s footnote is not a proper objection to the PSR. 

First, it does not dispute any of the factual assertions or alleged omissions 

in his own PSR. Second, we held in Petri that an argument in a 

sentencing memorandum does not constitute an objection to a PSR. 

Third, Dominguez-Caicedo filed his sentencing memorandum after the 

deadline for objecting to the PSR. The deadline for objecting to the PSR 

is “14 days after receiving” it, Fed. R. Crim. P. 32(f)(1), and Dominguez-
58 UNITED STATES V. DOMINGUEZ-CAICEDO

not required to address his argument raised for the first time 

in his sentencing memorandum—and never mentioned 

during the sentencing hearing—that there was sufficient 

evidence that the individuals he identified were involved in 

the crime.

CONCLUSION

We affirm all three defendants’ convictions, and 

Dominguez-Caicedo’s and Cortez-Quinonez’s sentences. 

We vacate Chichande’s sentence and remand for 

resentencing consistent with this opinion.

AFFIRMED in part, and VACATED and

REMANDED in part.

Caicedo filed his sentencing memorandum 28 days after the PSR was 

filed. For each of these reasons, Dominguez-Caicedo’s footnote was not 

a proper objection to the PSR, and it did not require the district court to 

address whether these individuals participated in the crime.