                                                                FILED
                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS         Tenth Circuit

                                                                               July 10, 2020
                             FOR THE TENTH CIRCUIT
                         _________________________________                 Christopher M. Wolpert
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                                No. 19-2060
 v.                                                    (D.C. No. 1:18-CR-00836-JB-2)
                                                                  (D.N.M.)
 YVONNE MADRID,

       Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, SEYMOUR and MORITZ, Circuit Judges.
                 _________________________________

       Yvonne Madrid appeals her 63-month sentence for conspiring to distribute a

controlled substance and attempting to provide contraband to a prison. For the reasons

explained below, we affirm.

                                        Background

       In December 2017, Madrid’s ex-husband, Christopher Chavez, was in jail

awaiting trial for crimes related to his membership in a violent gang. Madrid asked

Chavez’s then-defense attorney to deliver an envelope of letters and Christmas cards to

Chavez. Unbeknown to the attorney, the cards contained Suboxone, a brand-name opioid


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
and controlled substance. The attorney brought the envelope to the jail and gave it to the

guards for inspection. During the inspection the guards discovered the Suboxone.

Madrid’s failed attempt to the deliver the drugs to Chavez resulted in her arrest. It also

disrupted Chavez’s trial because the attorney was removed from Chavez’s case.

       Madrid admitted that she obtained the Suboxone, concealed it within the cards,

and gave the cards to the attorney for delivery. She also admitted that she expected

compensation for delivering the Suboxone, which was at least one reason why she

participated in the scheme. But Madrid said that she also participated because Chavez

directed her involvement and that she felt pressured to follow Chavez’s directions given

his gang membership.

       The government charged Madrid and Chavez each with one count of conspiracy to

distribute Suboxone. See 21 U.S.C. § 846 (conspiracy); id. at § 841(a)(1) and (b)(1)(E)

(intent to distribute). In the same indictment, the government charged Madrid with one

count of attempting to provide Suboxone in prison and Chavez with one count of

attempting to possess Suboxone in prison. See 18 U.S.C. § 1791(a)(1) (providing); id. at

§ 1791(a)(2) (possessing). Madrid pleaded guilty to both counts against her.

       Even though Madrid and Chavez were indicted for their roles in the same

conspiracy, the Presentence Investigation Report (PSR) recommended that Madrid

receive a higher base offense level under the United States Sentencing Guidelines

(“U.S.S.G” or “the Guidelines”) because she attempted to provide the Suboxone whereas

Chavez attempted to possess it. See U.S.S.G. § 2P1.2(c). And the PSR declined to reduce

her offense level based on her role in the conspiracy. Madrid objected to the PSR’s

                                              2
determination that her role in the conspiracy did not merit an adjusted offense level, and

she asked the district court to apply the minor-participant reduction. See U.S.S.G.

§ 3B1.2(b) (instructing courts to reduce offense level “[i]f the defendant was a minor

participant in any criminal activity”). She also asked the district court to vary her

sentence downward to reduce any disparity between her sentence and Chavez’s sentence.

See 18 U.S.C. § 3553(a)(6) (instructing courts to consider “the need to avoid unwarranted

sentence disparities”).

       At her sentencing hearing, the district court concluded that Madrid played an

essential role in the conspiracy. It emphasized that Madrid secured the Suboxone and

provided it to the attorney for delivery, and that her interactions with Chavez suggested

that she had previously distributed Suboxone to inmates in prison. The district court’s

subsequent written order further explained that Madrid knew and understood the drug

scheme and that she expected compensation for her participation. Based on these

findings, the district court denied Madrid’s request for a minor-participant reduction.

       The district court also concluded that some disparity between Madrid’s and

Chavez’s sentences was appropriate. Largely based on the same facts it found when

denying Madrid’s request for the minor-participant reduction, it determined that Madrid

was more culpable than Chavez. Nevertheless, it did vary her sentence downward by one

level to account for the pressure Chavez exerted over Madrid and her acceptance of

responsibility. The one-level variance lessened the disparity between their advisory

sentencing ranges but did not eliminate it. Ultimately, the district court sentenced Madrid

to 63 months in prison followed by three years of supervised release. Madrid appeals.

                                              3
                                          Analysis

       Madrid challenges her sentence as both procedurally and substantively

unreasonable. She contends that her sentence is procedurally unreasonable because the

district court erroneously rejected the minor-participant reduction by fixating on her

essential role in the conspiracy at the sentencing hearing. She also contends that her

sentence is substantively unreasonable given the disparity between her sentence and

Chavez’s sentence. We address each argument in turn.

I.     Procedural Reasonableness

       Minor participants in an offense are eligible for reduced advisory sentencing

ranges under § 3B1.2, which provides a nonexhaustive list of factors to consider when

determining whether to apply the reduction. See § 3B1.2 cmt. n.3(C). It also advises that

“[t]he fact that a defendant performs an essential or indispensable role in the criminal

activity is not determinative.” § 3B1.2 cmt. n.3(C)(v). Instead, the court should determine

whether the defendant “is substantially less culpable than the average participant in the

criminal activity.” Id. When reviewing a district court’s order denying a minor-role

reduction, we review the district court’s factual conclusions for clear error and its legal

rulings de novo.1 See United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).



       1
         The government argues that plain error is the appropriate standard of review
because Madrid failed to preserve her objection to the district court’s denial of a minor-
participant reduction. But the sentencing hearing began with the court noting that Madrid
objected to the “lack of a minor[-]role adjustment.” R. vol. 3, 9. And then Madrid’s
attorney argued that Madrid should not be denied a minor-role reduction simply because
she played an essential role. This is the same argument she makes on appeal. Thus, we
apply the clearly erroneous standard.
                                              4
       Madrid argues that the district court incorrectly considered her essential role in the

conspiracy to be determinative when it denied her request for the minor-participant

reduction.2 True, at the hearing, the court examined whether Madrid played an essential

role; but it did so only after Madrid’s counsel framed her participation in terms of an

essential role. Madrid’s counsel began by stating: “Now, part of the controversy is

whether or not [Madrid] played an essential role.” R. vol. 3, 10. Madrid’s counsel then

argued that Madrid did not play an essential role because she was acting at the direction

of Chavez and under his threats. Further, her counsel argued that even if Madrid played

an essential role by, for example, obtaining the Suboxone, acting under the direction of

Chavez made her more like a mere courier than a major participant. As a result, when the

district court addressed Madrid’s objection, it discussed whether Madrid played an

essential role.

       Moreover, the district court contextualized Madrid’s essential role in terms of “the

average person”: “If I try to look at who the average person is and try to figure out who is

below it and who is above it, she seems to me to be an essential person, and is neither

below the average or maybe even the average.” Id. at 20. Framing Madrid’s participation

in terms of the average person is precisely what § 3B1.2 requires: a defendant may



       2
         Madrid’s argument relies on the court’s statements during the sentencing
hearing, where the court discussed whether she played an essential role. She argues that
we should give more weight to these oral statements than to the later statements in the
court’s written order, which did not discuss her essential role. But because we conclude
that the court’s statements during the sentencing hearing were proper, we need not
consider whether statements made during a hearing receive greater weight than
statements made in a written order.
                                             5
receive the reduction only “if he or she is substantially less culpable than the average

participant in the criminal activity.” § 3B1.2 cmt. n.3(C)(v). And although the

defendant’s essential role is not determinative, the Guidelines do not prohibit a district

court from taking it into consideration. See id. Thus, the district court did not improperly

consider Madrid’s essential role in the conspiracy when declining to apply the minor-

participant reduction.

       Next, Madrid argues that the facts support a minor-participant reduction because

she acted at Chavez’s direction. But after framing Madrid’s role in terms of the average

participant, the district court found that she was not a minor participant because,

notwithstanding Chavez’s threats, Madrid knowingly secured Suboxone and provided it

to Chavez’s attorney for delivery. And Madrid is not entitled to a minor-participant

reduction merely because she asserts that Chavez was the leader of the conspiracy. See

United States v. Llantada, 815 F.3d 679, 685 (10th Cir. 2016) (rejecting argument that

middleman status alone warrants minor-participant reduction). Accordingly, the district

court did not clearly err when it denied Madrid’s request for a minor-participant

reduction.3 See Gantt, 679 F.3d at 1246.



       3
          Madrid also points out that amendments to the Guidelines in 2016 encourage
more frequent application of the minor-role reduction. And she suggests that the district
court may have misapprehended the current version of § 3B1.2(b) because it cited pre-
2016 cases. But Madrid does not contend that the pre-2016 cases are no longer good law.
And the district court’s analysis did not turn on any understanding of the frequency with
which § 3B1.2(b) should be applied. Moreover, Madrid fails to explain the relevance of
amendments that generally encourage the more frequent application of § 3B1.2(b) to the
district court’s reasons for rejecting the reduction in this case. Accordingly, we reject this
argument.
                                              6
II.    Substantive Reasonableness

       A sentence must be substantively reasonable. United States v. Walker, 844 F.3d

1253, 1255 (10th Cir. 2017). “Substantive reasonableness focuses on the length of the

sentence and requires that sentences be neither too long nor too short. The reasonableness

of a sentence is reviewable under the abuse-of-discretion standard.” Id. (citation omitted).

Under this deferential standard, we uphold a district court’s decision unless it is

“arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Munoz-

Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quoting United States v. Byrne, 171 F.3d

1231, 1235–36 (10th Cir. 1999)). And we consider the factors outlined in § 3553(a) when

determining the reasonableness of a sentence. Id. at 1256. But because the parties focus

on only one of those factors—“the need to avoid unwarranted sentence disparities”—we

limit our analysis accordingly. § 3553(a)(6).

       Madrid argues that even with the district court’s one-level reduction, her sentence

is substantively unreasonable given the disparity between her sentence and Chavez’s

sentence. And while she acknowledges that disparities among the sentences of

coconspirators are not per se impermissible, she contends that the facts of her case do not

support the disparity because Chavez’s pressure rendered her participation involuntary.

See United States v. Rojas, 531 F.3d 1203, 1210 (10th Cir. 2008) (“Although it is not

improper to consider co-defendant disparity, neither is it mandated.”).

       But the district court accounted for Chavez’s pressure by varying Madrid’s

sentence down by one level. And it then justified the remaining disparity. Specifically, it

explained that Chavez’s offense conduct—intending to possess the Suboxone—was less

                                                7
culpable than Madrid’s offense conduct, which included securing the Suboxone,

attempting to use an attorney as an “unwitting” drug courier, and expecting compensation

for the delivery. R. vol. 1, 32. The district court also determined that there is a “legitimate

penological interest in punishing those who facilitate the introduction of drugs into prison

more harshly than those who receive contraband” because without the provider the

contraband would not enter the prison. Id. at 75. And it further found that “Madrid’s

crime of smuggling drugs into prison is particularly a problem in [this] context” because

(1) the gang “generates income” by trafficking drugs, and (2) Madrid disrupted Chavez’s

then-pending criminal trial and caused the disqualification of his attorney. Id. (second

quoting United States v. DeLeon, 326 F. Supp. 3d 1257, 1264 (D.N.M. 2018)). Given

these findings, the district court’s order was not “arbitrary, capricious, whimsical, or

manifestly unreasonable.” Munoz-Nava, 524 F.3d at 1146 (quoting Byrne, 171 F.3d at

1235–36). Accordingly, the district court did not abuse its discretion by determining that

Madrid was more culpable than Chavez.

                                         Conclusion

       Madrid has failed to demonstrate that her sentence is either procedurally or

substantively unreasonable. Accordingly, we affirm her sentence.


                                               Entered for the Court


                                               Nancy L. Moritz
                                               Circuit Judge




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