United States of America v. Henri Salvado-Gutierrez

Boston, Masschusetts criminal defense lawyers represented the Defendant charged with engaging in a conspiracy.



Section 3B1.4 of the United States Sentencing Guidelines ("Guidelines")1 provides that "[i]f the

defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by 2 levels" the

defendant's offense level. U.S.S.G. § 3B1.4. A panel of this Court held in United States v. Patrick, 248 F.3d 11 (1st Cir.

2001), that the application of § 3B1.4's two-level upward adjustment is not limited to when the defendant, by an affirmative act, personally used or attempted to use a minor to commit the offense or assist in avoiding detection of, or apprehension for, the offense. The panel held that, in the case of a conspiracy

offense, the adjustment also applies when it was merely reasonably foreseeable that other members of the conspiracy would use a minor within the scope of, and in furtherance of, that conspiracy. Id.

at 27-28.

The Court held the Patrick case should be overruled after considering that precedent anew in the wake of developments in the Guidelines and the case law since that ruling. Thus, we hold that, contrary to Patrick, even in the case of a conspiracy or other offense that involves jointly undertaken criminal

activity, § 3B1.4's upward adjustment applies only when the defendant, by an affirmative act, personally used or attempted to use a minor to commit the offense or assist in avoiding detection of, or apprehension for, the offense. We therefore conclude that, although the District Court properly applied existing precedent,

Patrick does not provide a basis for applying § 3B1.4's upward adjustment to Salvador.



Affirmed