United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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04-2119

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States 

v. * District Court for the Western 

* District of Missouri.

Jesus Jimenez-Gutierrez, *

*

Defendant - Appellant. *

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Submitted: January 11, 2005

 Filed: October 13, 2005 

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Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

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MELLOY, Circuit Judge.

Jesus Jimenez-Gutierrez pled guilty to conspiring to distribute fifty grams or

more of a mixture or substance containing methamphetamine. At sentencing, he

received a two-level enhancement due to his role in the offense as a manager or

supervisor. The resultant Guidelines range was 188 to 235 months. The district court

sentenced him at the bottom of this range, 188 months.
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On appeal, Mr. Jimenez-Gutierrez alleges error in the district court’s

application of the two-level enhancement. He also alleges error under Blakely v.

Washington, 124 S.Ct. 2531 (2004) and United States v. Booker, 125 S.Ct 738

(2005). “We review the district court’s decision to assess a sentencing enhancement

based upon a defendant's role in the offense for clear error.” United States v.

Johnson, 278 F.3d 749, 752 (8th Cir. 2002). Regarding the Blakely/Booker issue,

because Mr. Jimenez-Gutierrez raised this issue for the first time on appeal, we

review only for plain error. United States v. Pirani, 406 F.3d 543 (8th Cir. 2005).

For a two-level managerial role enhancement to apply, it is only necessary that

the defendant supervise or manage one other participant. See U.S.S.G. § 3B1.1 cmt.

2 (“To qualify for a [U.S.S.G. § 3B1.1(c)] adjustment . . . the defendant must have

been the . . . manager or supervisor of one or more other participants.”) The record

in this case demonstrates, at a minimum, that Mr. Jimenez-Gutierrez was a

supervisor/contact person at the destination point for a drug courier on an Arizona-toMinnesota drug shipment. When officers stopped the courier for speeding in

Missouri and discovered drugs, the courier agreed to cooperate. Her statements

implicated Mr. Jimenez as a supervisor. Also, Mr. Jimenez-Gutierrez’s own actions

showed that he played a supervisory role. The courier cooperated by calling Mr.

Jimenez-Gutierrez to ask for instructions and help. She told Mr. Jimenez-Gutierrez

that her van had broken down. Mr. Jimenez-Gutierrez then traveled from Minnesota

to Missouri, receiving numerous calls from the courier during his trip. When he

arrived at the courier’s van in Missouri, officers arrested him. At the time of his

arrest, he had a plane ticket and travel itinerary for the courier as well as the cell

phone she had called. In addition, he had wired the courier $300 prior to her trip, as

demonstrated by a receipt found in the courier’s van. This evidence is sufficient to

support the district court’s finding that Mr. Jimenez-Gutierrez supervised the courier.

Regarding the Blakely/Booker issue, the district court understandably treated

the Guidelines as mandatory at Mr. Jimenez-Gutierrez’s May 2004 sentencing. We
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now know that this was error. In Pirani, 406 F.3d at 552, we stated that a

Blakely/Booker error affects a defendant’s substantial rights and may be plain error

if the defendant can show a reasonable probability that the district court would have

granted a more favorable sentence had it treated the Guidelines as advisory. 

In this case, the district court sentenced Mr. Jimenez-Gutierrez at the bottom

of the Guidelines range. Also, the district court made repeated statements at

sentencing to explain its dissatisfaction with Mr. Jimenez-Gutierrez’s Guidelines

sentence. The district court was primarily dissatisfied with the discrepancy between

the sentence imposed upon the courier, twenty-four months, and the minimum

sentence available for Mr. Jimenez-Gutierrez, 188 months. Counsel for Mr. JimenezGutierrez raised the issue of the discrepancy, and the district court asked the

government how it justified such a discrepancy. The government stated that the

courier had not brought drugs into the United States. In response to this comment,

the district court stated, “There’s no evidence that he [Mr. Jimenez-Gutierrez] brought

drugs into the country. There’s evidence that he arranged this transportation of these

drugs.” The government then claimed that Mr. Jimenez-Gutierrez had arranged

multiple other instances involving the transportation of drugs. The district court

responded, “That is not before the court.”

The district court later stated, “And the question is, that is a large discrepancy

for people who were basically involved in exactly the same conspiracy with exactly

the same drugs with exactly the same purity with slightly different roles.” The district

court then noted that the long sentence for Mr. Jimenez-Gutierrez and the downward

departure for the courier resulted in “a very generous reward to her or an unduly

punitive award to him.” Next, the district court stated, “[i]t is hard, though, to argue

that it in any way promotes the idea of uniformity in sentencing, which is what the

[G]uidelines were intended to achieve. . . . It does not promote uniformity. There are

wildly varying levels of departures for the courts, and for every [United States

Attorney] in the country.” The discussion continued and the district court continued
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to express dissatisfaction with the lack of discretion available in sentencing. The

district court concluded:

I wonder what would happen if the judges routinely just said no

downward departures, period. You can ask for them, but the judges say

no. It would be interesting to see what would happen under those

circumstances. Given the punitiveness of the [G]uidelines, sometimes

it’s very difficult. In an attempt to, in fact, do justice, we find ourselves

in a Catch-22. Regardless of what we do, there is an element of injustice

in it, and I think this case is a good demonstration of the element of

injustice in it. Not that Mr. Jimenez didn’t get what he deserved, but

Ms. Salinas probably didn’t get what she deserved through the

generosity of the government.

. . . 

I have given the defendant the low end of the [G]uideline, given the very

punitive nature of the [G]uidelines. It is more than sufficient to deter the

defendant and those like him from entering the United States to engage

in drug conduct, drug conspiracy conduct.

We held in Pirani that a sentence at the bottom of the Guidelines range,

standing alone, is insufficient to demonstrate a reasonable probability that the district

court would have imposed a more favorable sentence under an advisory regime.

Pirani, 406 F.3d at 553. We also stated that a district court’s expression of a general

dissatisfaction with the Guidelines fails to demonstrate the required reasonable

probability of a lesser sentence. Id. at 553 n.6. In contrast, a district court’s

statements specific to a sentence actually imposed are relevant to the prejudice

inquiry. Id.; United States v. Rodriguez-Ceballos, 407 F.3d 937, 941 (8th Cir. 2005).

Applying these rules, we see that the record in this case is mixed. The district

court spoke generally about the Guidelines and specifically about the sentence.

Speaking generally, the district court stated that it believed a system that allowed for

such large discrepancies was unjust. Speaking about the sentence actually imposed,

the district court emphasized that the present case was an example of what it believed
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to be unjust. The district court, in fact, sentenced Mr. Jimenez-Gutierrez at the

bottom of the Guidelines range and expressly stated that it believed the Guidelines

to be “very punitive,” that the sentence imposed on Mr. Jimenez-Gutierrez might be

an “unduly punitive award to him,” and that the sentence it felt bound to impose was

“more than sufficient to deter the defendant.” On the other hand, the district court

stated, “not that Mr. Jimenez didn’t get what he deserved.” 

Taken together, we believe that the bottom-of-the-range sentence and the

district court’s statements are sufficient to show a reasonable probability that the

district court would have imposed a lesser sentence under an advisory Guidelines

regime. In this regard, we note that the plain error standard for relief expressed in

United States v. Olano, 507 U.S. 725, 731 (1993), and applied in Pirani is difficult but

not impossible for defendants to satisfy. A reasonable probability does not mean

certainty. In fact, it does not even equate to proof by a preponderance of the

evidence. See United States v. Dominguez Benitez, 124 S.Ct. 2333, 2340 n.9 (2004)

(describing the plain error standard and noting that, “The reasonable-probability

standard is not the same as, and should not be confused with, a requirement that a

defendant prove by a preponderance of the evidence that but for error things would

have been different.”); see also, Kyles v. Whitley, 514 U.S. 419, 434 (1995) (stating

that, the “touchstone . . . is a ‘reasonable probability’ of a different result, and the

adjective is important. The question is not whether the defendant would more likely

than not have received a different verdict.”). Because the reasonable probability

standard is not the same as a preponderance of the evidence standard, we need not

determine whether it was more likely that the district court wanted to impose a lesser

sentence on Mr. Jimenez Gutierrez or a greater sentence on the courier. The district

court’s language in this case leaves open the reasonable probability that either or both

outcomes were desired. The record in this case is sufficient for Mr. JimenezGutierrez to make the requisite showing under Pirani.
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Because there is a reasonable probability that Mr. Jimenez-Gutierrez would

have received a lesser sentence under an advisory regime, we must determine whether

the fourth Olano factor is satisfied, i.e., whether the error “seriously affect[ed] the

fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at

732. We believe that this final factor is satisfied by the fact that the sentence Mr.

Jimenez-Gutierrez received may be much longer than what the district court would

have imposed under an advisory Guidelines regime. Rodriguez-Ceballos, 407 F.3d

at 941.

We affirm as to the two-level enhancement but vacate the sentence and remand

for re-sentencing in light of Booker.

COLLOTON, Circuit Judge, concurring.

As the court recounts, the record in this case shows that the district court

granted a substantial sentence reduction to Linda Salinas, based on her provision of

substantial assistance in the investigation and prosecution of others, and then

expressed frustration that Jesus Jimenez-Gutierrez, who provided no such assistance,

was subject to a much lengthier term of imprisonment under the then-mandatory

sentencing guidelines. It seems to me that there is a substantial question whether a

district court may, in essence, create a “sentence disparity” by granting a reduction

under the now-advisory guidelines to one defendant based on the provision of

substantial assistance, and then “reasonably,” within the meaning of United States v.

Booker, 125 S. Ct. 738 (2005), vary from the advisory guidelines based solely on this

“disparity” when sentencing another defendant who declined an opportunity to

provide such assistance. Congress clearly thought it appropriate that defendants who

provide substantial assistance should receive lower sentences than would otherwise

be imposed, see 28 U.S.C. § 994(n); 18 U.S.C. § 3553(e), so it is difficult to conclude

that Congress at the same time believed that such reductions in sentence would cause

“unwarranted sentence disparities” that need to be avoided. See 18 U.S.C.

§ 3553(a)(6). But given the “mixed” record, I accept the court’s conclusion that there
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is a “reasonable probability” that the district court, if aware of Booker, would have

preferred to reduce Jimenez-Gutierrez’s sentence on the basis of a perceived

“sentence disparity.” And our precedent holds that the fourth prong of plain error

analysis does not entail consideration of whether the proffered reason for a more

favorable sentence would be reasonable with regard to 18 U.S.C. § 3553(a). Cf.

United States v. Betterton, 417 F.3d 826, 833-36 (8th Cir. 2005) (Hansen, J.,

concurring). Therefore, I concur in the decision to remand this case for resentencing,

although the ultimate result may be imposition of the same sentence.

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