Background
Nivaldo da Conceição Level piloted an airplane carrying approximately four hundred fifty kilograms of cocaine from Venezuela to Puerto Rico in November of twenty twenty-two. He was arrested after landing and pleaded guilty to six counts of drug trafficking conspiracy and importation. The district court sentenced him to one hundred thirty-five months in prison, applying a dangerous weapon enhancement and denying adjustments for mitigating role and duress.
The court’s reasoning
The court affirmed the dangerous weapon enhancement, finding the government’s expert testimony sufficient to show the knife was not clearly improbable to be connected to the offense. Regarding the mitigating role adjustment, the court held that the district court improperly limited the universe of participants to the two crew members, failing to consider other discernable participants like the recruiters and FARC soldiers as required by United States v. Guía-Sendeme. The court found clear error in this step and vacated the sentence. The court affirmed the denial of the duress departure, concluding the record did not support an objective finding that a reasonable person would perceive a threat of physical injury.
Because the district court, lacking the benefit of Guía-Sendeme’s guiding framework, erred at step one of the mitigating role analysis, we must vacate Conceição Level’s sentence on this ground and remand for resentencing.
United States v. Nivaldo da Conceição Level, 24-1235 (1st Cir. June 16, 2026)
What it means going forward
Defendants challenging mitigating role adjustments must ensure the sentencing court considers all discernable participants in the criminal scheme, not just those physically present during the offense or apprehended with the defendant.