                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 17-3652
                                 ________________

                          UNITED STATES OF AMERICA

                                          v.

                      ALFREDO CARBAJAL-VALENZUELA,
                                           Appellant

                                 ________________

                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                    (D.C. Criminal Action No. 2-17-cr-00122-001)
                     District Judge: Honorable C. Darnell Jones, II
                                  ________________

                              Argued November 8, 2018

             Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges

                         (Opinion filed: December 12, 2018)

Robert Epstein              (Argued)
  Assistant Federal Defender
Brett G. Sweitzer
  Assistant Federal Defender, Chief of Appeals
Leigh M. Kipper
  Chief Federal Defender
Federal Community Defender Office for the
   Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

      Counsel for Appellant
William M. McSwain
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney, Chief of Appeals
David E. Troyer
  Assistant United States Attorney
Emily McKillip, Esquire (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

       Counsel for Appellee

                                    ________________

                                        OPINION*
                                    ________________

AMBRO, Circuit Judge

       Defendant-appellant Alfredo Carbajal–Valenzuela pled guilty to one count of

possession with intent to distribute heroin and was sentenced to a prison term

of 57 months, three years of supervised release, and a special assessment of $100.

Carbajal claims the District Court misapplied the Sentencing Guidelines when it denied

his request for a mitigating role adjustment under U.S.S.G. § 3B1.2. Because the record

is unclear whether the District Court used the correct legal inquiry for the mitigating role

decision, we remand for resentencing.

    I. Background

       While living in Tucson, Arizona, Carbajal borrowed $300 from his cousin for an

emergency trip to Mexico to be present for his daughter’s open heart surgery. When it



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
came time for repayment, the cousin demanded Carbajal repay the $300 by traveling to

Los Angeles and transporting $15,000 in cash on the cousin’s behalf. To Carbajal’s

surprise, when he reached Los Angeles he was given a bag containing more than

8 kilograms of heroin, not the cash he expected. Carbajal protested the bait-and-switch

but ultimately relented, agreeing to transport the drugs to Philadelphia on a cross-country

bus. He was arrested on his way to Philadelphia and pled guilty in the District Court to

one count of possession with intent to distribute.

       In the presentence report (“PSR”), the Probation Office proposed an adjusted

offense level of 29 and a Guidelines range of 87 to 108 months. In his sentencing

memorandum, Carbajal lodged two objections to the PSR Guidelines range, arguing he

was entitled to (1) a two-level reduction under the “safety valve” provisions of

U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), and (2) a two- to four-level mitigating role

reduction under U.S.S.G. § 3B1.2. With respect to the latter, Carbajal emphasized the

District Court must compare his conduct with the conduct of other participants in the

overall drug trafficking scheme.

       At sentencing the District Court endorsed the Probation Office’s proposed offense

level and then proceeded to address Carbajal’s two objections. It granted his safety-valve

request but denied the request for a mitigating role reduction. The denial’s reasoning was

as follows:

              As to the defendant’s objection regarding the defendant not
              qualifying as a minimal participant or even a minor participant, that
              objection is overruled, the totality of the facts in this case and
              circumstances in this case and the Court considers everything that
              was present[ed] to it, nevertheless, the Court cannot find that based
              upon the monies involved, the quantity involved, the distance
                                              3
              traveled and the other surrounding circumstances, that this defendant
              was a minimal participant or even a minor participant. Therefore,
              that objection is overruled.
(Appellant’s Br. at 8.)

       The District Court then weighed the sentencing factors under 18 U.S.C. § 3553(a)

and entered a sentence of 57 months’ imprisonment, three years of supervised release,

and a special assessment of $100. It asked counsel whether they had any final objections.

The Government’s lawyer said no, but Carbajal’s counsel reiterated his objections “that

have previously been argued,” in response to which the Court “noted [the objections] for

the record,” and stated, “you have an exception.”

    II. Discussion1

       We review for clear error a district court’s decision to deny a mitigating role

adjustment. See United States v. Self, 681 F.3d 190, 200 (3d Cir. 2012). But we review

de novo the legal inquiry it used to reach that decision. See United States v. Isaza–

Zapata, 148 F.3d 236, 237–38 (3d Cir. 1998).

       The Government contends we should review the mitigating role determination for

plain error under United States v. Flores–Mejia, 759 F.3d 253 (3d Cir. 2014) (en banc),

because Carbajal did not make a post-sentencing objection to the District Court’s

mitigating role decision. We disagree here. For even assuming the Flores–Mejia

objection requirement applies to a defendant’s request for a mitigating role adjustment,

that requirement was satisfied in this case. Carbajal lodged an objection based on the

mitigating role Guideline in his sentencing memorandum, restated that objection during

1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                            4
the sentencing, and did so again by reference to his prior objections when the District

Court asked for final objections. It even noted an “exception,” acknowledging that

Carbajal made a post-sentencing objection to the sentence. In these circumstances,

Flores–Mejia does not trigger plain error review.

       To determine whether a defendant qualifies for a mitigating role adjustment under

U.S.S.G. § 3B1.2, the sentencing court must assess the relative culpability of the

defendant compared to participants in the overall criminal activity in which the defendant

was involved. See Isaza–Zapata, 148 F.3d at 237–38. We have identified several factors

that should guide the sentencing court’s mitigating role determination, see United States

v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991), and the Sentencing Commission has

issued comments that provide further guidance on the mitigating role inquiry, see

U.S.S.G. § 3B1.2 cmt. n.3. Where a district court does not perform the required

comparative analysis, we generally remand for resentencing. See Isaza–Zapata, 148 F.3d

at 237–38; United States v. Cushard, 454 F. App’x 87, 90 (3d Cir. 2011).

       Based on the sentencing record, we are unable to determine whether the Court

here engaged in the comparative analysis the mitigating role reduction inquiry requires.

In explaining its denial, the Court highlighted the quantity of drugs involved and the

distance Carbajal traveled with them. Although these features of Carbajal’s criminal

activity are relevant to the analysis, see U.S.S.G. § 3B1.2 cmt. nn.3(C) & (C)(iv)

(providing for a “fact-based determination,” which includes consideration of “the nature

and extent of the defendant’s participation in the commission of the criminal activity”),

the record does not confirm the District Court compared Carbajal’s culpability to that of

                                             5
other participants using the Headley factors. The reference to “other surrounding

circumstances” is too general a statement to save its analysis. We therefore remand for

resentencing. See Isaza–Zapata, 148 F.3d at 238 (remanding for resentencing where

record was unclear on “whether the court denied the downward adjustment based on a

proper legal interpretation of the mitigating role provision”).




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