United States v. Elmer Misael Garcia Ramirez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 5, 2019
• Docket: 18-13035
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13035 Non-Argument Calendar ________________________

D.C. Docket No. 4:17-cr-10018-KMM-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELMER MISAEL GARCIA RAMIREZ, Defendant-Appellee.

__________________________

Appeal from the United States District Court for the Southern District of Florida _________________________

(September 5, 2019)

Before WILSON, NEWSOM and BRANCH, Circuit Judges.

PER CURIAM:

Elmer Misael Garcia Ramirez appeals his conviction and sentence for

conspiracy to possess with intent to distribute five or more kilograms of cocaine

while on board a vessel subject to the jurisdiction of the United States, in violation Case: 18-13035 Date Filed: 09/05/2019 Page: 2 of 11

of 46 U.S.C. § 70506(b). Ramirez argues, first, that the district court erred in

determining that it had jurisdiction over the case, because the government did not

present sufficient evidence that the captain of the vessel claimed Colombian

nationality. Second, Ramirez argues that the district court clearly erred in denying

him a two-level “safety-valve” reduction in his sentence based on his purported

lack of truthfulness. The government responds that Ramirez’s challenge to his

sentence is barred by his valid appeal waiver. Finding that the government

presented sufficient evidence of jurisdiction and that Ramirez waived his right to

appeal, we affirm.

I

A

Ramirez, a Guatemalan national, was a crewmember on a go-fast boat

interdicted by the United States Coast Guard in international waters, approximately

560 nautical miles south of the Mexico-Guatemala border. Ramirez was joined on

the vessel by Robinson Banguera, a Colombian national, and Gustavo Cedeno and

Pedro Quintero, Ecuadorian nationals. The vessel jettisoned 29 bales, which were

retrieved and determined to contain 760 kilograms of cocaine. Banguera was

identified as the person in charge, and he claimed Colombian nationality for the

vessel. The USCG contacted the Colombian government, which could neither

confirm nor deny the vessel’s registry.

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B

Ramirez and his fellow crewmembers were charged with one count of

conspiracy to possess with intent to distribute five or more kilograms of cocaine on

board a vessel subject to the jurisdiction of the United States, in violation of 46

U.S.C. §§ 70503(a)(1), 70506(b), and one substantive count of possession with

intent to distribute five or more kilograms of cocaine on board a vessel subject to

the jurisdiction of the United States, in violation of § 70503(a)(1). The government

moved for a determination of jurisdiction under the Maritime Drug Law

Enforcement Act (MDLEA). The government submitted a signed certificate from

USCG Commander Francis DelRosso in support of jurisdiction. Pursuant to his

authority as the Secretary of State’s designee, DelRosso certified that the

individual in charge of the go-fast boat made a verbal claim of Colombian

nationality for the vessel and that, pursuant to the bilateral agreement between the

United States and Colombia, the Columbian government was contacted but could

not confirm the boat’s nationality or registry.

At a hearing to determine jurisdiction, Ramirez disagreed with the assertion

that Colombian registry was claimed for the vessel, and he argued that at trial the

evidence would have shown that the crewmembers consisted of one Colombian

national, one Guatemalan national, and two Ecuadorian nationals. Ramirez argued

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that the USCG had failed to contact Ecuador or Guatemala, so allowing

DelRosso’s certification to serve as conclusive proof of jurisdiction violated his

due process rights and the separation of powers. The district court nonetheless

held that the vessel was “without nationality” and thus subject to United States

jurisdiction under 46 U.S.C. § 70502(c)(1)(A) and (d)(1)(C), as DelRosso’s

certification constituted conclusive proof of jurisdiction.

Ramirez entered a plea agreement with the government—he pleaded guilty

to the conspiracy charge, and the government agreed to dismiss the substantive

possession charge. As relevant to this appeal, Ramirez’s plea agreement contained

a sentence-appeal waiver. The waiver provided that Ramirez could appeal his

sentence—or challenge the manner of its imposition—only if it either exceeded the

statutory maximum or was the result of an upward variance from the established

Sentencing Guidelines range. The government’s factual proffer in support of the

plea agreement detailed the above-described facts—that Colombian nationality

was claimed for the vessel and that the vessel was classified as one without

nationality, subject to United States jurisdiction. Ramirez was represented by

counsel and had a Spanish-language translator at his change-of-plea hearing,

during which he testified that he had a second-grade education. He affirmed that

his guilty plea was knowing and voluntary, that the factual proffer was accurate,

and that he understood that he was waiving his right to appeal.

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Ramirez objected to his presentence-investigation report on several

grounds—relevant to this appeal is his objection that he should have received a

two-point safety-valve reduction, as contemplated by his plea agreement. The

government argued that Ramirez failed to meet the fifth qualification of safety-

valve relief, as he had not provided truthful information. The government asserted

that Ramirez had provided untruthful information inconsistent with that of his

codefendants and falsely claimed at his debriefing that he had been threatened into

participating in the offense. Ramirez did not mention that his presence on the

vessel was a result of threats against his family until he was in United States

custody and attempting to cooperate with the government. The district court stated

that it essentially had to make “a credibility determination as to whether to accept

[Ramirez’s] version” of the events, holding that it was “not satisfied that [Ramirez]

ha[d] met [his] burden, and that his statements [we]re otherwise just eleventh-hour

attempt[s] to make self-serving statements that [would] allow him to manipulate

the guidelines in his favor for a two-level reduction.” The district court therefore

denied Ramirez’s request for a two-point safety-valve reduction and sentenced him

to 168 months of incarceration and five years of supervised release, a sentence at

the low-end of the recommended Guidelines range.

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II

“We review a district court’s interpretation and application of a statute

concerning its subject-matter jurisdiction de novo, but we review factual findings

with respect to jurisdiction for clear error.” United States v. Cruickshank, 837 F.3d

1182, 1187 (11th Cir. 2016) (citation omitted). “A defendant’s plea of guilty,

made knowingly, voluntarily, and with the benefit of competent counsel, waives all

nonjurisdictional defects in that defendant’s court proceedings.” United States v.

Yunis, 723 F.2d 795, 796 (11th Cir. 1984) (citation omitted). Parties cannot

stipulate to federal jurisdiction; however, parties may “stipulate to facts that bear

on [a] jurisdictional inquiry.” United States v. Iguaran, 821 F.3d 1335, 1337 (11th

Cir. 2016) (per curiam) (quoting citations omitted). It is the court’s job, therefore,

“to determine whether ‘the stipulated facts give rise to jurisdiction.’” Id. (quoting

another source).

The MDLEA makes it a crime for any person to possess with intent to

distribute a controlled substance on board a vessel subject to United States

jurisdiction. 46 U.S.C. § 70503(a)(1), (e)(1). Section 70502’s definition of a

vessel subject to United States jurisdiction includes “a vessel without nationality.”

Id. § 70502(c)(1)(A). A vessel without nationality, in turn, is defined as follows:

(A) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed; (B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to

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enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and (C) a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.

Id. § 70502(d)(1)(A)–(C). “The response of a foreign nation to a claim of registry .

. . is proved conclusively by certification of the Secretary of State or the

Secretary’s designee.” Id. § 70502(d)(2); see also United States v. Hernandez, 864

F.3d 1292, 1299 (11th Cir. 2017). “The very concept of a conclusive proof entails

not only that no detail or corroboration is needed, but also that any contrary

evidence is futile.” Hernandez, 864 F.3d at 1300.

The MDLEA provides three exclusive methods to make a claim of

nationality or registry:

(1) possession on board the vessel and production of documents evidencing the vessel’s nationality as provided in article 5 of the 1958 Convention on the High Seas; (2) flying its nation’s ensign or flag; or (3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.

46 U.S.C. § 70502(e); see also United States v. Obando, 891 F.3d 929, 933 (11th

Cir. 2018).

Here, the district court did not err in determining that it had jurisdiction over

Ramirez’s case, as there was sufficient evidence to determine that his vessel was

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“without nationality.” 1 See 46 U.S.C. § 70502(c)(1)(A), (d)(1)(C). The

Colombian government’s response to the crewmembers’ claim of registry was

proved conclusively by DelRosso’s certification. See id. § 70502(d)(1)(C), (d)(2);

Hernandez, 864 F.3d at 1299. Thus, the only remaining issue is whether there was

sufficient evidence to establish that a claim of Colombian registry was made in the

first place.

DelRosso attested that the individual in charge of the go-fast vessel claimed

Colombian nationality for the vessel, and Ramirez presented no evidence that this

was not the case—rather, he argued that the USCG should have contacted the

countries of origin of the other crewmembers before determining that the vessel

was without nationality. At Ramirez’s change of plea hearing, he was given an

opportunity to object to the facts proffered by the government stating that

Banguera had claimed Colombian nationality for the vessel—when asked if there

was “[a]nything [he] want[ed] to add or anything [that was] left out” of the

government’s proffer, Ramirez responded, “No.” The MDLEA explicitly provides

that it is the claim of nationality or registry by the master of the vessel that matters

when establishing a vessel’s nationality—the personal nationalities of the

1 Ramirez also argues that the United States does not have jurisdiction over this case because there was not a sufficient nexus between his conduct and the United States. Ramirez correctly acknowledges that this Court has rejected any nexus requirement, see e.g., United States v. Campbell, 743 F.3d 802, 809–10 (11th Cir. 2014), so his argument is foreclosed by our binding precedent.

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crewmembers are irrelevant. See 46 U.S.C. § 70502(e)(3). Since there is no

evidence that Colombian nationality was not claimed by Banguera, and DelRosso’s

attestation conclusively proved Colombia’s response to the claim of registry, the

vessel was properly deemed without nationality and subject to United States

jurisdiction under the MDLEA.

III

We review the validity of a sentence-appeal waiver de novo. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence-appeal waiver will

be enforced if it was “made knowingly and voluntarily.” United States v. Bushert,

997 F.2d 1343, 1350 (11th Cir. 1993).

To establish that a sentence-appeal waiver was made knowingly and

voluntarily, “[t]he government must show that either (1) the district court

specifically questioned the defendant concerning the sentence appeal waiver during

the [plea] colloquy, or (2) it is manifestly clear from the record that the defendant

otherwise understood the full significance of the waiver.” Id. at 1351.

“Accordingly, where it is clear from the plea agreement and . . . colloquy, or from

some other part of the record, that the defendant knowingly and voluntarily entered

into a sentence appeal waiver, that waiver should be enforced without requiring the

government to brief the merits of the appeal.” United States v. Buchanan, 131

F.3d 1005, 1008 (11th Cir. 1997) (per curiam). “A defendant ‘bears a heavy

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burden to show’ statements he made under oath at a plea colloquy were false.”

United States v. Davila, 749 F.3d 982, 996 (11th Cir. 2014) (per curiam) (quoting

Here, Ramirez knowingly and voluntarily waived his appellate rights. The

district court explicitly asked Ramirez if he “underst[oo]d that the terms of the plea

agreement [we]re merely recommendations to the Court, that [it] can reject the

recommendations without permitting [Ramirez] to withdraw [his] plea of guilty,

and impose a sentence that is more severe than [he] anticipate[s,]” to which

Ramirez replied “Yes.” The district court also confirmed with Ramirez that he

knew “that the sentence imposed may be different from any estimate [his]

attorney” provided, and that “by entering into th[e] plea agreement and entering a

plea of guilty,” he was giving up his “right to appeal or collaterally attack all or

part of [the] sentence.” Ramirez confirmed that he had effective representation and

that he had discussed the agreement in its entirety with his counsel. Thus, the

“court specifically questioned [Ramirez] concerning the sentence appeal waiver

during [his plea] colloquy,” and “it is manifestly clear” that he “otherwise

understood the full significance of the waiver.” Bushert, 997 F.2d at 1351.

Ramirez therefore waived his right to challenge his sentence on appeal, including

the district court’s decision not to apply a two-level safety-valve reduction at

sentencing.

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Accordingly, we dismiss Ramirez’s challenge to his sentence and affirm his

sentence and conviction.

AFFIRMED.