A man convicted of a federal charge that he transported drug money will be sentenced a third time after the 7th Circuit Court of Appeals ruled Tuesday in a nonprecedential opinion that a resentencing the court ordered in 2010 did not sufficiently consider his minor role compared with conspirators.

Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana sentenced Cruz Saenz to 252 months in prison on remand from the 7th Circuit, which in 2010 vacated his sentence of 293 months and remanded  because there was no evidence to support denial of a minor role reduction under U.S. Sentencing Guidelines Section 3B1.2

The panel ruled in U.S. v. Cruz Saenz, 07-CR-125,  that Saenz was entitled to another resentencing. “The district court did not compare Saenz’s culpability to that of the average member of the conspiracy, which was error,” the court ruled.

“Because of the error, and because it is not clear that Saenz would have received the same 252-month sentence had the minor role reduction been applied, we vacate his sentence and remand.”

Saenz was involved with other co-defendants in a cocaine smuggling network based in Mexico, whose Texas operators arranged to ship the drugs to Indianapolis. Saenz was arrested after he transported $500,000 in drug money to Texas, and a jury convicted him of conspiring to distribute more than 5 kilograms of cocaine.

In his second sentence appeal, the 7th Circuit emphasized that there was no evidence Saenz touched drugs or participated in deals, and that it was incumbent on the District Court in sentencing to measure his culpability against others who, with one exception, received far lesser sentences. Saenz, however, is required to have a minimum sentence of 240 months in prison due to a prior felony drug offense.

“However the district court wishes to determine whether the minor role reduction applies, it must make some explicit or implicit finding concerning the culpability of the average member of the conspiracy,” the court ruled. “Next the district court should determine what might represent the culpability of the average member of the conspiracy and then compare it to Saenz’s culpability.”