[00:00:04] Speaker 03:
Morning, counsel.

[00:00:05] Speaker 02:
Good morning, your honors.

[00:00:06] Speaker 02:
My name is Martin Molina.

[00:00:08] Speaker 02:
I was appointed by the court to handle the appeal before the Ninth Circuit on this matter, and I will kindly request that two minutes be reserved for rebuttal.

[00:00:18] Speaker 03:
All right.

[00:00:19] Speaker 03:
I'll try to help you out, but keep your eye on the clock as well, please.

[00:00:22] Speaker 02:
Thank you.

[00:00:24] Speaker 02:
Your honor, this is a case where Ms.

[00:00:26] Speaker 02:
Alizar received a sentence of 87 months.

[00:00:31] Speaker 02:
And the challenge in this appeal is as to the sentence that was imposed in this case.

[00:00:37] Speaker 02:
From the get-go at the sentencing hearing, everyone was aware and everyone agreed that this was a case that deserved a variance.

[00:00:47] Speaker 02:
Probation officer in the probation report recommended a variance sentence of 48 months.

[00:00:52] Speaker 02:
The government also recommended a variant, albeit a higher than the sentence that was actually imposed.

[00:00:58] Speaker 01:
Council, on your specific objection on the appeal on the minor role issue, can you tell me why that issue wasn't waived?

[00:01:10] Speaker 01:
Because it wasn't raised.

[00:01:13] Speaker 01:
It wasn't signaled on the PSIR.

[00:01:17] Speaker 01:
There was no argument made by Ms.

[00:01:21] Speaker 01:
Salazar.

[00:01:22] Speaker 01:
So why wasn't that issue actually waived?

[00:01:26] Speaker 01:
Not just forfeited, but actually waived?

[00:01:28] Speaker 02:
Yes, Your Honor, and the government's argument, of course, is that this issue was waived.

[00:01:34] Speaker 02:
Our argument is that this issue was forfeited.

[00:01:37] Speaker 02:
This court has taken a very

[00:01:40] Speaker 02:
significant approach to the issue of waivers, where it requires that there be a showing some sort of evidence reflected in the hearing that this was an intentional arraignment.

[00:01:52] Speaker 01:
Well, the judge brought it up.

[00:01:55] Speaker 01:
The judge himself brought it up, saying, here's how I'm going to treat this particular issue.

[00:02:02] Speaker 01:
And yet again, no, there wasn't an objection.

[00:02:07] Speaker 02:
Correct.

[00:02:09] Speaker 02:
In order for there to be a knowing and intentional relinquishment, there's got to be a showing that the counsel or the defendant was aware of the correct law in regards to that particular issue.

[00:02:27] Speaker 02:
In this case, there was no indication that counsel was aware of the comparative analysis that's required in a minor role determination.

[00:02:37] Speaker 02:
And this was something that was not too long ago articulated by this very court in terms of the three steps that need to be taken for a minor role determination, which involves

[00:02:48] Speaker 02:
the identification of all of the participants in the offense, a calculation of the average level of culpability, and then compare the defendant's conduct to that average level of culpability in order to determine whether or not the person deserves a minor role.

[00:03:06] Speaker 03:
So even if we assume that she didn't waive because there was no knowing relinquishment of that right, it's still review for plain error.

[00:03:16] Speaker 02:
That is correct.

[00:03:17] Speaker 03:
So tell me why it was plainly erroneous.

[00:03:22] Speaker 02:
It was plainly erroneous because the court, and again we understand that under the Ninth Circuit jurisprudence, the court is not required to take all of the factors in the sentencing analysis.

[00:03:36] Speaker 02:
But the court has got to provide some findings that reflect that the court considered all of the factors that are embedded under the sentencing

[00:03:46] Speaker 02:
analysis and that it also considered how to apply those.

[00:03:50] Speaker 02:
And in this case, the district court said three reasons for the denial of the minor role.

[00:03:58] Speaker 02:
Number one, it said that it was much for the same reasons stated here by the government, end of quote.

[00:04:05] Speaker 02:
And the government in its allocution did not present any arguments regarding minor role.

[00:04:11] Speaker 03:
Number two, having independently... Because it wasn't really argued, but can we look at the sentence and the substantial variance that the court did impose to reach the conclusion that there's no reasonable probability she would have gotten a better result?

[00:04:27] Speaker 02:
Well, that would be the analysis in order for me to present to the court that her substantial rights were

[00:04:39] Speaker 03:
Prejudice I mean that the error affected her substantial right right so that's what that's what I'm going to write assuming we get past the issue of waiver and we review the the Minor role adjustment for plain air she would have to show that it affected her substantial right correct so my question to you is is

[00:05:00] Speaker 03:
If she already received a substantial variance, favorable variance, is that an indication that her substantial rights are not affected, were not affected?

[00:05:12] Speaker 03:
Then we can skip past, okay, the district court didn't articulate any analysis.

[00:05:16] Speaker 03:
Is there something wrong with that analysis or with that approach in looking at this issue?

[00:05:20] Speaker 02:
Yes, because if we look at the ultimate analysis, at the ultimate variance analysis that was presented by the court, if the court determined the guidelines without the minor role,

[00:05:31] Speaker 02:
And that put a sentence of 151 to 188 months.

[00:05:38] Speaker 02:
Then the court proceeded to the variance analysis.

[00:05:41] Speaker 02:
And when the court proceeded to the variance analysis, it said that it would use as a benchmark

[00:05:46] Speaker 02:
The guidelines that would have applied had minor role being given in the case.

[00:05:54] Speaker 02:
The guideline range for minor role was 87 months.

[00:05:58] Speaker 02:
And then the court said that definitely this was the case where a variance should apply.

[00:06:05] Speaker 02:
And the court ended up giving the 87 months.

[00:06:09] Speaker 02:
Now, had the court

[00:06:12] Speaker 02:
begun with the minor role analysis in the step one of the guideline calculation, then there's a reasonable probability that then the court would have varied from the 87 months.

[00:06:25] Speaker 02:
Because when the court used the benchmark for minor role in determining the variance,

[00:06:35] Speaker 02:
That was, in essence, the court absorbed and took in and considered all of the mitigating factors in her case, ended up giving her the low end of the guidelines for minor role.

[00:06:49] Speaker 02:
Had the court began in step one its analysis by granting minor role, there's a reasonable probability that then the sentence here would have been lower than 87 months.

[00:07:01] Speaker 04:
Another way to look at this same question Judge Nguyen asked is, you know, for a plain error, given what the judge went through, even though you think it's erroneous, the method to get where he did, I mean, is there, can you say there's any likelihood, if we send it back down, that you can get a different result?

[00:07:28] Speaker 02:
Well, that's why in my brief I included the three-step analysis on the comparative analysis reflecting that the level of culpability of Ms.

[00:07:44] Speaker 02:
Salazar in this case was less than the average level of culpability of the main participants in this case, which was Guarito, the person who was communicating with them,

[00:07:58] Speaker 02:
from Tijuana who was providing them instructions as to when to go to Tijuana, providing them instructions what to do there, what to say at the port of entry.

[00:08:09] Speaker 02:
Every time they cross into the United States, they communicate to him reflecting that they had crossed into the United States and where to take the drugs to, particularly the number of people that would receive the drugs from them.

[00:08:23] Speaker 02:
And there's no indication that they had any proprietary interest

[00:08:27] Speaker 02:
other than the fact that there were transporters in this case.

[00:08:30] Speaker 02:
So that in and of itself shows that Ms.

[00:08:34] Speaker 02:
Salazar had a plausible argument for receiving a minor role adjustment in this matter.

[00:08:40] Speaker 03:
You want it to save a little time?

[00:08:42] Speaker 02:
Yes, Your Honor, please.

[00:08:43] Speaker 02:
Thank you.

[00:08:55] Speaker 00:
Morning, Your Honors.

[00:08:56] Speaker 00:
May it please the court, Amy Wong, on behalf of the United States.

[00:09:00] Speaker 00:
This court has repeatedly, time and again, held a defendant to her burden of establishing that she is eligible for minor role.

[00:09:08] Speaker 00:
And this court has affirmed the denial when the defendant has not met that burden.

[00:09:13] Speaker 00:
And that's what this court should do in this case.

[00:09:16] Speaker 00:
Ms.

[00:09:16] Speaker 00:
Zalazar had every opportunity to argue for minor role, supplement the record with additional information,

[00:09:24] Speaker 00:
object to the court's suesponte independent assessment of her role in this case, but she didn't.

[00:09:32] Speaker 00:
As such, she has not met her burden.

[00:09:35] Speaker 00:
She's arguably waived the argument for minor role, but at the very least, the district court was justified in denying the minor role adjustment, and that's why this court should affirm the decision on that basis as well.

[00:09:47] Speaker 03:
So getting past the waiver issue, what is the government's best argument?

[00:09:51] Speaker 00:
The best argument is that the court

[00:09:53] Speaker 00:
did go through, sat through, presided a three-day trial, had extensive evidence on the record about the known participants in the offense on the record at ER, I believe, 18 to 20.

[00:10:08] Speaker 00:
made the independent assessment, said Ms.

[00:10:11] Speaker 00:
Salazar didn't carry her burden to show that she was eligible.

[00:10:15] Speaker 00:
Independent of that, I've looked at the facts.

[00:10:17] Speaker 01:
I have reviewed the amendment 794 factors and determined... Was it a problem that council argues, the problem that they use this benchmark in determining the guidelines?

[00:10:34] Speaker 01:
Was that a problem in the court's analysis?

[00:10:38] Speaker 00:
I don't believe so, Your Honor.

[00:10:39] Speaker 00:
I believe that the court first independently correctly calculated the guidelines without a minor role adjustment, and then kept in mind that had she been eligible, it would be a lower benchmark.

[00:10:52] Speaker 00:
The minor role factors substantially overlap with the 3553A factors in the nature and characteristics of the offense, as well as the defendant's history and characteristics.

[00:11:02] Speaker 00:
So I believe that it ultimately benefited Ms.

[00:11:05] Speaker 00:
Salazar that the district court

[00:11:07] Speaker 00:
kept the lower guideline in mind in determining the extent of the variance under 3553A that the court ultimately granted her.

[00:11:17] Speaker 00:
And it was a significant variance.

[00:11:19] Speaker 00:
It was 64 months from the low end of the correct guideline range without minor role.

[00:11:26] Speaker 00:
So here, there was no error because Ms.

[00:11:30] Speaker 00:
Salazar never met her burden.

[00:11:32] Speaker 00:
It was certainly not plain because this court has repeatedly affirmed

[00:11:35] Speaker 00:
that the denial of minor role is appropriate when the defendant doesn't meet her burden.

[00:11:38] Speaker 00:
That's in Fitzhugh, that's in Marquez, and US v. Fowler.

[00:11:42] Speaker 00:
And ultimately, it didn't prejudice her.

[00:11:44] Speaker 00:
It didn't affect her substantial rights or the fairness of the proceedings because she benefited from a significant downward variance at the end of the day.

[00:11:55] Speaker 00:
And unless this court has any further questions, I would ask that the court affirm.

[00:12:00] Speaker 03:
It doesn't appear that we do.

[00:12:01] Speaker 03:
Thank you.

[00:12:11] Speaker 02:
Your Honor, briefly, she received a variance.

[00:12:16] Speaker 02:
But the one thing that I'd like to make clear is that the equities in her case and the 3553A equities in her case essentially bought her a guideline range based on minor role and the court gave her the lower end of that sentence.

[00:12:40] Speaker 02:
Had the court

[00:12:41] Speaker 02:
applied from the beginning, the minor role analysis, then those equities would have bottomed a lower sentence than the low end of that benchmark with a minor role analysis.

[00:12:55] Speaker 02:
So yes, she got a variance in the case, but with the proper calculation of the minor role guidelines, her variance would have been lower.

[00:13:06] Speaker 03:
We've got the gist of the argument.

[00:13:08] Speaker 03:
Thank you very much, council, to both sides.

[00:13:11] Speaker 02:
Thank you for your time.

[00:13:12] Speaker 03:
The matter is submitted.