United States Court of Appeals

For the Eighth Circuit

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No. 17-2386

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Elio Cruz Rodriguez

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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Submitted: September 25, 2018

Filed: December 11, 2018

[Unpublished]

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Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Elio Rodriguez pled guilty to aiding and abetting the possession of more than

500 grams of methamphetamine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(viii), and 18 U.S.C. § 2. Rodriguez objected to the presentence investigation report, seeking a three-level reduction in his base offense level

for a mitigating role. See United States Sentencing Commission, Guidelines Manual,
§ 3B1.2. The district court overruled his objection and imposed a sentence of 168

1

months imprisonment followed by five years ofsupervised release. Rodriguez argues

the district court committed procedural error in denying him a mitigating-role

reduction; failing to adequately explain why it denied his requestfor a mitigating-role

reduction; and failing to evaluate all of the factors outlined in § 3B1.2 of the

Sentencing Guidelines. We affirm.

I.

“In reviewing the district court’s sentence, ‘[w]e must first ensure that the

district court committed no significant procedural error.’” United States v.

Salazar-Aleman, 741 F.3d 878, 880 (8th Cir. 2013) (alteration in original) (quoting

United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal

quotation marks omitted)). “A district court must ‘adequately explain the chosen 2

sentence to allow for meaningful appellate review and to promote the perception of

fair sentencing.’” United States v. Durham, 836 F.3d 903, 910 (8th Cir. 2016)

(quoting Feemster, 572 F.3d at 461). “The district court’s . . . denial of a mitigating

role reduction is a factual finding reviewed for clear error.” Salazar-Aleman, 741

F.3d at 880 (citing United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir. 1989) (per

curiam)). Although we review the district court’s factual findings for clear error, we

review “its application of the guidelines to those facts de novo.” United States v.

Castillo, 713 F.3d 407, 411 (8th Cir. 2013) (citing United States v. Aleman, 548 F.3d

1158, 1163 (8th Cir. 2008)).

A reduction under § 3B1.2 is available “where the defendant’s role ‘makes him

substantially less culpable than the average participant in the criminal activity.’” 

The Honorable D.P. Marshall Jr., United States District Judge for the Eastern 1

District of Arkansas.

Rodriguez does not argue his sentence is substantively unreasonable.

2

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United States v. Sharkey, 895 F.3d 1077, 1081 (8th Cir. 2018) (per curiam) (quoting

USSG § 3B1.2, comment. (n.3(A))). The reduction “is intended to cover defendants

who are plainly among the least culpable of those involved in the conduct of a

group.” United States v. Cartagena, 856 F.3d 1193, 1196 (8th Cir. 2017) (quoting

USSG § 3B1.2, comment. (n.4)). In determining whether to grant a mitigating-role

reduction, a district court should consider:

(i) the degree to which the defendant understood the scope and structure

of the criminal activity; (ii) the degree to which the defendant

participated in planning or organizing the criminal activity; (iii) the

degree to which the defendant exercised decision-making authority or

influenced the exercise of decision-making authority; (iv) the nature and

extent of the defendant’s participation in the commission of the criminal

activity, including the acts the defendant performed and the

responsibility and discretion the defendant had in performing those

acts; and (v) the degree to which the defendant stood to benefit from the

criminal activity.

USSG § 3B1.2, comment. (n.3(C)). This inquiry is “heavily dependent upon the facts

of the particular case.” Id. To be sure, “[a] defendant who is concededly less culpable

than his codefendants is not entitled to the minor participant reduction if that

defendant was ‘deeply involved’ in the criminal acts.” United States v. Thompson,

60 F.3d 514, 518 (8th Cir. 1995) (quoting United States v. West, 942 F.2d 528, 531

(8th Cir. 1991)); see also Cartagena, 856 F.3d at 1197. 

II.

Rodriguez “bears the burden of proving that he is entitled to th[e] reduction.” 

Salazar-Aleman, 741 F.3d at 880 (citing United States v. Chatman, 119 F.3d 1335,

1341 (8th Cir. 1997)). Rodriguez argues he should have been given the reduction

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because he was only involved in the offense to satisfy a drug debt, he was acting on

behalf of others, he had no decision-making authority, and he was not paid to commit

the offense.

In response toRodriguez’s initial request for a three-level reduction to the base

offense level, the probation officer explained that a reduction would be inappropriate

given that Rodriguez “was the primary actor in arranging the sale, mailing, and

transport[ation] of [the] methamphetamine . . . .” Add. to Pre-Sent. Investig. Report. 

At sentencing, Rodriguez’s counsel argued that Rodriguez should receive a role

reduction because he did not “exercise any decision-making authority, nor did he

financially profit from the crime itself.” Sent. Tr. 7, ECF No. 51. Rodriguez also

testified. The district court denied Rodriguez’s request for a reduction and adopted

the probation officer’s reasoning. The district court stated it would “take the role

issue into account as mitigation [towards the sentence].” Sent. Tr. 6. The district

court understood Rodriguez had been acting at the direction of others but concluded

that this fact was “properly and better taken into account as a matter of mitigation

given that [he] was not just a courier . . . .” Sent. Tr. 10. The district court concluded

that Rodriguez was “just doing too much under the factors that [it was] supposed to

consider in 3B1.[2].” Sent. Tr. 10-11. 

Based on the record before us, Rodriguez failed to meet his burden, and the

district court’s denial of a mitigating-role reduction was not clear error. See Durham,

836 F.3d at 910 (affirming the district court’s denial of a mitigating-role reduction

because “[t]he court’s adoption of and clear references to the Probation Office’s

reasoning in the PSI Addendum provided adequate explanation for its denial of [the

defendant]’s objection”). It is clear from the sentencing transcript that the district

court considered the § 3B1.2 factors, even if it did not expressly address each one on

the record. See United States v. Torres-Hernandez, 843 F.3d 203, 209 (5th Cir. 2016)

(noting that a district court is “not required to expressly weigh each factor in § 3B1.2

on the record”). 

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Further, an application of the factors weighs against granting Rodriguez the

reduction. First, a confidential source reported knowing Rodriguez for several years

and thatRodriguez had been involved in drug trafficking for the duration of that time. 

Pre-Sent. Investig. Report 3. Indeed, Rodriguez admitted that on one occasion he

dealt 100 pounds of marijuana. Pre-Sent. Investig. Report 4. Second, during

recorded phone conversations where he organized the transactions, Rodriguez told

the confidential source that he could get a kilogram of methamphetamine from two

locations in Texas. Pre-Sent. Investig. Report 3. The confidential source reported

that Rodriguez was connected to major suppliers of methamphetamine. Pre-Sent.

Investig. Report 3. Third, Rodriguez brokered the transactions, mailed a package

containing methamphetamine, and transported the drugs by bus to Arkansas. PreSent. Investig. Report 3-4. Finally, although he was not paid to commit the offense,

successful delivery of the drugs would have satisfied a drug debt. Pre-Sent. Investig.

Report 4. Rodriguez did not object to any of these facts. Sent. Tr. 7.

Rodriguez further argues that it is unclear whether the district court compared

his role in the offense to that of other participants, which warrants remand. He cites

United States v. Diaz-Rios, 706 F.3d 795 (7th Cir. 2013), in support thereof. DiazRios is readily distinguishable for at least three reasons. First, there the government

conceded that the district court did not adequately explain its ruling, and the court’s

independent review confirmed as much. Id. at 795. Second, there it was “unclear

from the record whether the probation officer addressed [the defendant’s objection

to the absence of a reduction] before sentencing.” Id. at 797. Finally, there, pursuant

to circuit-specific case law, the court recognized that “[w]here the reasons for a ruling

under § 3B1.2 are ambiguous, [it has] no choice but to remand for a more complete

explanation.” Id. at 799. None of these characteristics in Diaz-Rios are present here. 

Rodriguez also argues that, to the extent the district court compared his level

of culpability to that of his co-defendant, it did so erroneously because the

government dismissed his co-defendantfromthe case after sentencing and, therefore,

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the co-defendant was not a “participant” as defined in the Sentencing Guidelines. See

USSG § 3B1.2, comment. (n.1). But a participant “is a person who is criminally

responsible for the commission of the offense, [and] need not have been convicted.”

Id. § 3B1.1, comment. (n.1). The government asserts that Rodriguez’s former codefendant was present during the transportation of drugs fromone location to another,

and a cooler containing the methamphetamine wastagged in his name; thus, the mere

fact that the government dismissed the indictment against the co-defendant is of no

consequence. 

III.

We find no error in the district court’s application of the Sentencing

Guidelines, and we conclude that the district court did not clearly err in denying a

mitigating-role reduction in this case. Accordingly, we affirm.

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