UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-50041

Plaintiff-Appellee, D.C. No. 3:18-cr-00421- v. BEN-3 VICTOR GASPAR CHICHANDE, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Submitted May 10, 2024 * Pasadena, California

Filed August 15, 2024

Before: Kim McLane Wardlaw, Morgan Christen, and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 USA V. CHICHANDE

SUMMARY **

Criminal Law

The panel affirmed Victor Gaspar Chichande’s 180- month sentence following his jury conviction for conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting. In a prior appeal, this court affirmed Chichande’s conviction but vacated his sentence and remanded for resentencing because the district court had erred in analyzing whether he was entitled to a minor role reduction under U.S.S.G. § 3B1.2(b). In analyzing a request for a minor role reduction, the sentencing court must (1) identify all participants in the defendant’s crime; (2) calculate a rough average level of culpability for all the participants, considering the five factors in comment 3(C) of the Mitigating Role Guideline; and (3) compare the defendant’s culpability to that rough average. If the defendant is substantially less culpable that that average and meets the other criteria, he should be granted a minor role adjustment. The district court had erred by attempting to identify a single average participant with whom to compare Chichande, rather than comparing him against the average of all of the individuals who participated in his offense. On remand, the district court again declined to grant a minor role reduction. Affirming, the panel clarified that the court’s precedent does not require a sentencing court to ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. CHICHANDE 3

calculate an average level of culpability with mathematical certitude. The panel held that the district court did not err in denying the minor role reduction because the court properly identified all the individuals for which there was sufficient evidence of their existence and participation in Chichande’s crimes, then calculated a rough average level of culpability for all those individuals using the five factors, and finally compared Chichande’s culpability to that rough average and determined that he represented the average participant and, at the very least, was not substantially less culpable that the average participant. The panel declined to vacate and remand for resentencing based on a retroactive amendment adopted by the Sentencing Commission, which provides for an offense level reduction for certain defendants with zero criminal history points. The panel agreed with the government that a remand is unnecessary because the Southern District of California has established a protocol for implementing the retroactive zero-point offender reduction, and Chichande does not dispute that he could seek relief by following the protocol.

COUNSEL D. Benjamin Holley and P. Kevin Mokhtari, Assistant United States Attorneys; Daniel E. Zipp, Assistant United Sta