Unted States v. Diaz-Rio, No. 11-3130 (7th Cir. 2013)
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Diaz-Rios, a 21-year-old Mexican national with no criminal history and a valid tourist visa, was staying with in-laws until he was kicked out. He spoke no English. He accepted a friend’s offer of the use of a car and agreed to pay for and pick up some “luggage” in return. Diaz-Rios suspected that “luggage” meant illegal drugs, but agreed because he felt obliged. Caught picking up 45 kilograms of cocaine, he pleaded guilty to possession with intent to distribute, 21 U.S.C. 841(a)(1) and faced a statutory minimum term of 10 years. The government stipulated to downward adjustment for acceptance of responsibility and anticipated that he would qualify for the “safety valve,” 18 U.S.C. 3553(f) and U.S.S.G. 5C1.2, 2D1.1(b)(16). While the presentence investigation, Diaz-Rios declined to speak with the probation officer. He had debriefed government agents about the others involved in the crime, but that information was not shared with the probation officer, who concluded that Diaz-Rios did not qualify for a mitigating role reduction under U.S.S.G. 3B1.2 At sentencing the prosecutor agreed that reduction was warranted. The district court found that Diaz-Rios was not a minor participant, without discussion or acknowledging any factor relevant to 3B1.2 apart from drug quantity. The Seventh Circuit vacated.
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