Mere Presence of Minor Not Sufficient for §3B1.4 Use-of-a-Minor Enhancement

United States v. Molina, No. 05-51470 (5th Cir. Nov. 6, 2006) (King, Benavides, Clement)

Molina pled guilty to various counts involving drugs and guns. He raised several challenges to his conviction and sentence on appeal, all but one of which the court rejected. There's nothing groundbreaking here, but there is a good discussion of how the mere presence of a minor at a crime scene is not sufficient, without more, to support application of the §3B1.4 use-of-a-minor enhancement.

Molina first argued that his guilty pleas on all counts were involuntary because the district court incorrectly admonished him as to the punishment range on one of the counts (the district judge advised him that the maximum penalty on that count was 20 years when in fact it was only 5 years). The court held that Molina failed to carry his burden of demonstrating that he would not have pled guity to that count (or any of the other counts) but for the error, given that the district court correctly advised him that he faced up to life imprisonment on three of the other counts to which he pled guilty.

Molina also attacked the guideline calculation, which was based on actual methamphetamine rather than the weight of the entire mixture or substance containing methamphetamine. He first argued that the 10-to-1 discrepancy between actual meth and a meth mixture is irrational. The court held otherwise, reasoning that purer meth can be cut into larger quantities, thus justifying the higher sentence for trafficking in meth of a relatively high purity. Molina also argued that the application of the actual-vs.-mixture calculation is arbitrary because it depends on how the Government charges the drug quantity in the indictment. The court held that there is no arbitrariness because the guidelines control the calculation, regardless of how the indictment reads.

In the one successful challenge to his sentence, Molina argued that the district court erred in applying a use-of-a-minor enhancement under U.S.S.G. §3B1.4. The court agreed that something more than a minor's mere presence or knowledge is required for the enhancement. Such evidence was lacking here:

In this case, there is no evidence of anything more than Molina’s girlfriend’s presence while unlawful activity occurred. The PSR indicates that Molina’s minor girlfriend and her child were present at Molina’s residence when the search warrant was executed, that Molina’s girlfriend knew about the presence of drugs and certain aspects of the drug operation, that she went with Molina a couple of times to pick up marijuana, and that one of the co-conspirators drove her back and forth to Corpus Christi. But there is no evidence, for example, that Molina’s girlfriend assisted in carrying or loading drugs, that she ever drove Molina or his co-conspirators on the drug runs, that Molina or the co-conspirators needed moral support, that Molina believed that his seventeen-year-old girlfriend’s presence in the vehicle during a drug run would assist in avoiding detection, or that Molina ever asked or encouraged his girlfriend to assist or become involved in the drug operation in any way. Moreover, contrary to the government’s assertion that there is no other plausible explanation for her presence on the trips between Austin and Corpus Christi, the PSR indicates that Molina’s girlfriend lived in Corpus Christi. It is just as logical an inference, if not more so, that Molina’s girlfriend used Molina and his co-conspirators to transport her between her residence in Corpus Christi and Molina’s residence in Austin.

Slip op. at 13-14.

Finally, the court held that the district court's consideration of relevant conduct presented no Sixth Amendment problem, an issue Molina raised for preservation purposes.