Case: 17-14497 Date Filed: 05/22/2019 Page: 1 of 29
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14497 Non-Argument Calendar ________________________
D.C. Docket No. 4:16-cr-10042-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL GARCIA-SOLAR, MOISES AGUILAR-ORDONEZ, MARTIN VALECILLO-ORTIZ, JOSE CANDELARIO PEREZ-CRUZ, ALONSO BARRERA-MONTES, JOSE FERNANDO VILLEZ-PICO, JOSE MARTIN LUCAS-FRANCO,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(May 22, 2019) Case: 17-14497 Date Filed: 05/22/2019 Page: 2 of 29
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Gabriel Garcia-Solar, Moises Aguilar-Ordonez, Martin Valecillo-Ortiz, Jose
Candelario Perez-Cruz, Alonso Barrera-Montes, Jose Fernando Villez-Pico, and
Jose Martin Lucas-Franco appeal following their convictions and sentences for
conspiracy while aboard a vessel subject to the jurisdiction of the United States to
distribute five kilograms or more of a mixture and substance containing a
detectable amount of cocaine, in violation of 46 U.S.C. § 70503(a)(1) and
possession while aboard a vessel subject to the jurisdiction of the United States
with intent to distribute a mixture and substance containing a detectable amount of
cocaine, also in violation of 46 U.S.C. § 70503(a)(1).
On appeal, either independently or by adoption, the defendants have raised
the following issues: (1) whether the evidence was sufficient to support their
convictions; (2) whether the admission of testimonial hearsay violated their rights
under the Confrontation Clause of the Sixth Amendment; (3) whether the
government’s destruction of certain evidence violated their rights to due process;
(4) whether their convictions should be vacated because the court improperly
questioned a witness for the government; (5) whether their convictions should be
vacated based on prejudicial comments made by the government during closing
arguments; (6) whether the aggregate effect of various trial errors warrants reversal
2 Case: 17-14497 Date Filed: 05/22/2019 Page: 3 of 29
of their convictions; (7) whether the district court erred in determining that it had
jurisdiction over the case; (8) whether the district court erred at sentencing in
declining to apply a minor role reduction; and (9) whether the defendants’ total
sentences were reasonable.1
We address each issue in turn.
I.
Perez-Cruz, Barrera-Montes, Aguilar-Ordonez, and Villez-Pico argue that
the evidence was insufficient to support their convictions.
We review the denial of a motion for acquittal de novo. United States v.
Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). We review the sufficiency of
the evidence supporting a conviction de novo. Id. All factual and credibility
inferences are made in favor of the government. United States v. Cooper, 203 F.3d
1279, 1285 (11th Cir. 2000).
The evidence is sufficient to support a conviction if a reasonable trier of fact,
choosing among reasonable interpretations of the evidence, could find guilt beyond
a reasonable doubt. United States v. Diaz-Boyzo, 432 F.3d 1264, 1269 (11th Cir.
2005). The evidence does not have to exclude every reasonable hypothesis of
1 We note that Villez-Pico purported in his brief to adopt his codefendants’ arguments in their entirety. Because he was required to describe in detail which portions of which codefendants’ arguments he intended to adopt, we find that his statement of adoption is inadequate, and we construe his brief as addressing only those issues that he independently raised. See 11th Cir. R. 28-1(f). 3 Case: 17-14497 Date Filed: 05/22/2019 Page: 4 of 29
innocence. Hernandez, 433 F.3d at 1334-35. The jury may choose between
reasonable constructions of the evidence. Id at 1334.
To demonstrate a conspiracy, the government must prove that two or more
persons entered into an agreement to commit an offense and that the defendant
knowingly and voluntarily participated in the agreement. United States v. Tinoco,
304 F.3d 1088, 1122 (11th Cir. 2002). The defendant’s presence on a vessel is a
material factor supporting his participation in a conspiracy relating to that vessel,
especially when the vessel contains a high value of contraband. Id. at 1122-23.
When reviewing a conspiracy or possession conviction involving a vessel with
narcotics, we consider: (1) the probable length of the voyage; (2) the size of the
contraband shipment; (3) the necessarily close relationship between captain and
crew; (4) the obviousness of the contraband; and (5) other factors, including
diversionary maneuvers, attempts to flee, and inculpatory statements made after
arrest. Id. at 1123. Once the government shows that a large quantity of contraband
was on the vessel, it may meet its burden of showing the defendant’s knowledge by
proving any one of the other listed factors. Id.
The government can prove possession of a controlled substance with intent
to distribute by showing actual or constructive possession. Id. The defendant
constructively possesses a controlled substance if he exercises some measure of
control over the contraband, either exclusively or in association with others. Id.
4 Case: 17-14497 Date Filed: 05/22/2019 Page: 5 of 29
His intent to distribute may be inferred if a large quantity of controlled substances
were seized by the government. Id.
Here, the district court did not err in denying the defendants’ motions for
acquittal because, viewed in the light most favorable to the government, the
evidence was more than sufficient to support their convictions. The evidence
showed that: the patrol team on the Navy aircraft spotted the occupants of a vessel
jettisoning cargo into the ocean; the patrol crew marked the location of the jettison
and followed the vessel as it left the area; the patrol crew never lost track of the
vessel, having either visual or radar contact with it at all times, and no other vessels
were within 20 miles of the target vessel; the vessel that the aircraft followed from
the jettison site was then intercepted by the Coast Guard; when the target vessel
first saw the Coast Guard coming to intercept it, the vessel changed direction and
sped away; the vessel eventually stopped, and the seven defendants were on board;
a Coast Guard boat returned to the location of the jettisoned cargo marked by the
patrol aircraft crew, where the Coast Guard team found numerous packages that
later tested positive for cocaine; the 940 kilograms of cocaine retrieved from the
water was worth at least $20 million; the recorded location data from the GPS
device found on the defendants’ boat and the GPS spot tracker found with the
5 Case: 17-14497 Date Filed: 05/22/2019 Page: 6 of 29
jettisoned packages of cocaine 2 showed that the two devices came together in the
same location 300 miles south of Mexico and then traveled in the same direction;
and the spot tracker and GPS device eventually separated at approximately the
same location as the debris field (where the cocaine was jettisoned). A reasonable
trier of fact could infer from the GPS data that the cocaine was loaded onto the
defendants’ boat (a panga) at a location 300 miles south of Mexico, and was
transported on defendants’ boat until was jettisoned after the Navy aircraft had
noticed the boat and started tracking it.
A reasonable trier of fact could find them guilty of the conspiracy count
because a reasonable interpretation of the evidence is that the boat they were
present on was the same boat that was seen jettisoning cargo into the water, which
the Coast Guard later discovered to be 940 kilograms of cocaine. That amount of
cocaine on a small fishing boat would have been obvious to anyone aboard, and it
is unlikely that someone who was not in agreement with the plan to smuggle that
much cocaine would have wanted or been allowed to participate in the voyage.
A reasonable trier of fact also could find the defendants guilty of the
possession with intent to distribute count because their presence on the boat
transporting such a large amount of cocaine established at least their constructive
2 When the Officers retrieved the jettisoned packages of cocaine, they found that a GPS spot tracker had been attached to the cocaine. The Officers were thus able to retrieve information as to the successive locations of the cocaine over time, as described in the text. 6 Case: 17-14497 Date Filed: 05/22/2019 Page: 7 of 29
possession of the cocaine. Additionally, because the 940 kilograms was worth at
least $20 million, their intent to distribute it can be inferred.
II.
All seven defendants argue that their convictions should be vacated because
the admission of testimonial hearsay violated their rights under the Confrontation
Clause of the Sixth Amendment.
Generally, the district court’s determination as to whether the Confrontation
Clause of the Sixth Amendment was violated is subject to de novo review. United
States v. Yates, 438 F.3d 1307, 1311 (11th Cir. 2006) (en banc).
The Confrontation Clause of the Sixth Amendment provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause
protects a defendant’s right to confront those individuals who make “testimonial”
statements against him. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-10
(2009) (citing Crawford v. Washington, 541 U.S. 36 (2004)). This means that the
prosecution may not introduce testimonial hearsay against a criminal defendant
unless the declarant is unavailable and the defendant had a prior opportunity for
cross-examination. Crawford, 541 U.S. at 53-54, 68.
When a law enforcement officer testifies regarding what an interpreter told
him that a defendant said, the defendant has a Sixth Amendment right to confront
7 Case: 17-14497 Date Filed: 05/22/2019 Page: 8 of 29
the interpreter. Charles, 722 F.3d at 1323. In Charles, we noted that statements to
an interpreter are testimonial when they are made during an interrogation where
the defendant is detained and suspected of a crime. Id. Next, we found that the
officer’s testimony related to the interpreter’s out-of-court statements, not the
defendant’s, because the questioning required the use of the interpreter and the
officer only knew what the interpreter told him. Id. at 1324. We stated that the
officer could not act as a “surrogate” for the interpreter, and his testimony did not
satisfy the defendant’s constitutionally protected right to cross-examine the
interpreter. Id. at 1330.
When Confrontation Clause violations occur, we review them for harmless
error. United States v. Gari, 572 F.3d 1352, 1362 (11th Cir. 2009). In reviewing
such violations for harmless error, we consider the importance of the hearsay
statements to the government’s case, whether the statements were cumulative,
whether there is evidence to corroborate the hearsay statements, the extent of
cross-examination that the court permitted, and the strength of the government’s
case. Id. at 1362-63.
Here, although the district court may have erred in allowing the U.S. Coast
Guard officer to testify regarding what the interpreter told him, such error was
harmless. Because Garcia-Solar spoke with the interpreter to communicate with
law enforcement while his boat was detained for investigation of the defendants’
8 Case: 17-14497 Date Filed: 05/22/2019 Page: 9 of 29
potential criminal activity, the statements he made were testimonial. Therefore,
the defendants had the right to confront and cross-examine the interpreter before
the officer testified.
Reversal on this basis is not warranted, however, because the testimony was
only relevant to jurisdictional issues, which had already been decided, and to show
that the defendants were not entirely truthful or forthcoming when the Coast Guard
first interdicted their boat. Moreover, although the defendants were not able to
cross-examine the interpreter, excluding the limited testimony would not have
impacted the outcome of the case because the government’s other evidence against
them was very strong, as detailed above. As such, the error in admitting the
testimony was harmless, and we will not vacate the defendants’ convictions on that
basis.
Moreover, although Garcia-Solar and the other defendants were not able to
cross-examine the interpreter, excluding the limited testimony would not have
impacted the outcome of the case because the government’s other evidence against
the defendants was very strong. Given the strength of the evidence against the
Defendants, the admission of the testimony was harmless.
III.
All defendants, except Villez-Pico, have argued that the destruction of
certain evidence, including their vessel, its contents, and portions of video and
9 Case: 17-14497 Date Filed: 05/22/2019 Page: 10 of 29
audio recordings leading up to their arrest, violated their due process rights under
Brady v. Maryland, 373 U.S. 83 (1963).
We ordinarily review an alleged Brady violation de novo. United States v.
Jones, 601 F.3d 1247, 1266 (11th Cir. 2010). Whether the government’s
destruction of evidence resulted in a due process violation is a mixed question of
law and fact. United States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir.
2006). We review the district court’s legal conclusions de novo and its factual
findings for clear error. Id.
In Brady, the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment.” 373 U.S. at 87. To establish
a Brady violation, the defendant must show that (1) the government possessed
evidence favorable to him; (2) he did not possess the evidence and could not obtain
it with reasonable diligence; (3) the government suppressed the evidence; and
(4) had the evidence been disclosed, a reasonable probability exists that the
outcome of the proceeding would have been different. United States v. Hansen,
262 F.3d 1217, 1234 (11th Cir. 2001).
To show a due process violation stemming from the government’s
destruction or loss of evidence, “the defendant must show that the evidence was
likely to significantly contribute to his defense.” Revolorio-Ramo, 468 F.3d at 774
10 Case: 17-14497 Date Filed: 05/22/2019 Page: 11 of 29
(quotation omitted). To meet that standard, the defendant must show that the
evidence possessed “an exculpatory value that was apparent before the evidence
was destroyed, and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.” United States
v. Brown, 9 F.3d 907, 910 (11th Cir. 1993) (quoting California v. Trombetta, 467
U.S. 479, 489 (1984)). If the destroyed evidence was not clearly exculpatory but
only “potentially useful,” a defendant must show that the government acted in bad
faith. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); Illinois v. Fisher,
540 U.S. 544, 547-49 (2004).
In Revolorio-Ramo, a maritime drug interdiction case, we held that the
destruction of the defendants’ vessel did not violate their due process rights.
468 F.3d at 775. We noted that although the fishing equipment aboard the ship
was potentially exculpatory, the defendants were able to present alternative
evidence by cross-examining the officers who viewed the vessel, testifying
themselves, and presenting documentation for the fishing equipment. Id. at 774-
75. The Coast Guard had also attempted to document the condition of the vessel
by taking video and photographs, and there was no suggestion that the poor quality
of that documentation was intentional. Id. at 775; see also United States v.
Hernandez, 864 F.3d 1292, 1305-07 (11th Cir. 2017) (holding that no due process
violation occurred in prosecution for cocaine smuggling when the Coast Guard
11 Case: 17-14497 Date Filed: 05/22/2019 Page: 12 of 29
sank the defendants’ vessel, which contained potentially useful clothing and
equipment).
a. Brady violation
Here, no Brady violation occurred, and the district court did not err in
denying the defendants’ motions for a mistrial based on the destroyed evidence.
Their Brady argument fails because they have not established that the government
possessed any evidence that was actually favorable but suppressed it when they
requested it.
b. Clearly exculpatory evidence
Turning to the destruction of evidence by the Coast Guard and Navy, the
defendants have not established that any of the lost evidence was likely to
significantly contribute to their defense. They have not established that any of the
evidence possessed an exculpatory value that was apparent at the time that it was
destroyed, or that they would be unable to obtain comparable evidence by other
reasonably available means. Although they argue that the 90-page document was
clearly exculpatory, Officer Hadley testified that he believed it contained no
relevant information. While it probably would have been better if he had
preserved the document, he had little reason to believe that the document was
relevant to the drug smuggling investigation he was engaged in. Moreover, the
defendants presented other evidence and testimony to establish that they were part
12 Case: 17-14497 Date Filed: 05/22/2019 Page: 13 of 29
of a fishing cooperative on a rescue mission. See Revolorio-Ramo, 468 F.3d at
774-75; Brown, 9 F.3d at 910. They also have not explained why they could not
have obtained additional documentation of their membership in the cooperative or
the vessel’s registration if they had sought it. See Brown, 9 F.3d at 910. It is also
worth noting that, even if the document conclusively established that the
defendants were members of a fishing cooperative, it would not preclude the
possibility that they conspired to, and were, smuggling cocaine.
As to the boat itself, the fuel canisters, the motors, the knife, and any other
items that sunk with the boat, nothing about them was clearly exculpatory at the
time the Coast Guard sunk them. See Brown, 9 F.3d at 910. Rather, the
defendants have only shown that they could have examined that evidence and
possibly used it in their defense. However, they were able to present other
evidence regarding the condition and contents of the boat by cross-examining
Officers Hadley, Higgins, and Hames, who were all present when the panga was
interdicted. See Revolorio-Ramo, 468 F.3d at 774-75. Additionally, the most
clearly exculpatory evidence from the boat—the swabs from the boat testing
negative for cocaine—was preserved and presented to the jury. Likewise, the
defendants have not shown that any of the missing audio or video recordings
possessed any apparent exculpatory value, but have only speculated that the
mission recordings might establish that the patrol crew lost track of the original
13 Case: 17-14497 Date Filed: 05/22/2019 Page: 14 of 29
target panga. See Brown, 9 F.3d at 910. Moreover, they had other evidence to
supplement the missing recordings, because they were able to cross-examine two
members of the aircraft crew, and did so at length, regarding gaps in the recordings
and whether they ever lost contact with the target vessel. See Revolorio-Ramo, 468
F.3d at 774-75.
c. Potentially useful evidence
At best, the lost or destroyed evidence was potentially useful, but the
defendants have not shown that their due process rights were violated because they
have not shown that the loss or destruction of the evidence was done in bad faith.
As to the boat and its contents, the Coast Guard officer testified that leaving the
boat in the water was a hazard to navigation, it was not feasible for the cutter to
tow it back to port, he would not feel safe driving it back to land, and it was
standard protocol for the Coast Guard to sink vessels. Likewise, although the
missing portions of the recordings may have been potentially useful, the evidence
showed that the patrol crew only recorded those portions of a mission that
appeared to be important, it was not always possible to keep the camera trained on
a target, an analyst cropped the raw footage from the mission, and the film and
digital storage space for their footage was limited.
Accordingly, we affirm the denial of the defendants’ motions for judgment
of acquittal based on the missing or destroyed evidence.
14 Case: 17-14497 Date Filed: 05/22/2019 Page: 15 of 29
IV.
Barrera-Montes and Perez-Cruz argue that the district court improperly
questioned a government witness at trial.
The district court may examine witnesses, regardless of who calls the
witness, and a party may object to the court’s questioning. Fed. R. Evid. 614(b)-
(c). When a defendant fails to object to the district court’s questioning of a
witness, the issue is waived unless it amounts to plain error. United States v. Van
De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998). For an error to be plain, it must
be resolved by the explicit language of a statute or rule or a precedent from this
Court or the Supreme Court directly on point. United States v. Lejarde-Rada, 319
F.3d 1288, 1291 (11th Cir. 2003).
A court’s questioning of a witness may deny the defendant the right to a fair
trial if the questioning “strays from neutrality” or acts as an advocate. United
States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004). In Wright, we held that the
district court did not abuse its discretion when, during a sidebar conference, it
directed the government witness elicit certain testimony that would allow the court
to better understand important evidence. Id. at 1275.
Here, the district court did not plainly err by questioning the government
witness. The Federal Rules of Evidence permit the court to question witnesses,
and nothing about the court’s questioning indicates that it strayed from neutrality
15 Case: 17-14497 Date Filed: 05/22/2019 Page: 16 of 29
or acted as an advocate. Rather, the court asked for information that would help it
better understand the value of the cocaine involved in the case, which was a proper
exercise of its questioning authority.
V.
Garcia-Solar, Perez-Cruz, and Lucas-Franco argue that the government
made improper and highly prejudicial statements during its rebuttal closing
arguments.
Ordinarily, we review the denial of a motion for a mistrial for abuse of
discretion. United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir. 2012).
However, when a defendant failed to object at trial to improper statements by the
government, we review the statements for plain error. United States v. Mueller, 74
F.3d 1152, 1157 (11th Cir. 1996). To show plain error, the defendant must show
that the remarks were improper and prejudiced a substantial right. Id. We will
reverse due to prosecutorial misconduct only when the misconduct was “so
pronounced and persistent that it permeated the entire atmosphere of the trial.” Id.
We have held that plain error affecting the substantial rights of the defendant
occurred when, in front of the jury, counsel for the government “continuously
made critical remarks about” defense counsel’s character and repeatedly accused
him of intentionally misleading the jury, witnesses, and the court. United States v.
McLain, 823 F.2d 1457, 1462 (11th Cir. 1987), overruled on other grounds by
16 Case: 17-14497 Date Filed: 05/22/2019 Page: 17 of 29
United States v. Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989); see also Zebouni
v. United States, 226 F.2d 826, 827 (5th Cir. 1955) 3 (noting that where the court
had made disparaging remarks about an attorney, the defendant’s counsel was
entitled to the courtesy and respect of the court). Similarly, the government may
not express its personal beliefs about the defendant’s credibility during closing
arguments. Mueller, 74 F.3d at 1157. In Mueller, the government called into
question the credibility of the defendant’s testimony, and we stated that a “sharp
curative instruction” would have been warranted if the defendant had objected
when the comments were made. Id. However, we found that the comments did
not reach the level of plain error because they did not undermine the fundamental
fairness of the trial. Id. We have also found that where the government stated that
the defendant had fabricated his defense theory after being arrested, there was no
plain error affecting his substantial rights because the trial testimony supported the
assertion. United States v. Abraham, 386 F.3d 1033, 1036 (11th Cir. 2004).
Here, as an initial matter, we will review the government’s statements for
plain error, because the defendants did not object to them at trial. Under that
standard, the argument fails. Although the government’s comments may have
been improper, they did not undermine the fundamental fairness of the trial. There
3 Under Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we are bound by cases decided by the former Fifth Circuit before October 1, 1981. 17 Case: 17-14497 Date Filed: 05/22/2019 Page: 18 of 29
was overwhelming evidence to show that the defendants were engaged in cocaine
smuggling. Moreover, the evidence at trial supported the government’s assertions
that the defense was attempting to mislead the jury with its theory that the
defendants’ boat was not the same one that the Navy patrol crew initially targeted.
Thus, the government’s remarks do not warrant reversal because they were not so
pronounced or persistent that they permeated the entire atmosphere of the trial.
VI.
Garcia-Solar, Barrera-Montes, Perez-Cruz, and Lucas-Franco argue that the
cumulative effect of the above purported trial errors warrants reversal of their
convictions.
When multiple nonreversible errors occur, their cumulative effect may
amount to a denial of a defendant’s constitutional right to a fair trial. United States
v. Margarita Garcia, 906 F.3d 1255, 1280 (11th Cir. 2018). When considering a
claim of cumulative error, we first address each individual claim and then examine
the alleged errors in the aggregate. Id. In considering the total effect of the errors,
relevant factors include: (1) the nature, number, and interrelationship of the errors;
(2) how the district court dealt with the errors; and (3) the strength of the
government’s case and length of the trial. Id. at 1281.
Here, the defendants have not shown that the cumulative effect of the
asserted errors warrant reversal. The only errors they have arguably shown are the
18 Case: 17-14497 Date Filed: 05/22/2019 Page: 19 of 29
admission of testimonial hearsay, the Coast Guard’s destruction of the document,
and the statement that defense counsel intended to mislead the jury. These errors
are only interrelated to the extent that are relevant to the defendants’ assertion that
they were at sea for a rescue mission. However, none of those errors prevented the
defendants from presenting evidence in support of that story, nor did those errors
have any direct relevance to any element of the offenses. The government
presented ample evidence to support all of the defendants’ convictions, and the
aggregate effect of the errors that may have occurred did not deny them of their
right to a fair trial.
VII.
All seven defendants argue that the district court erred in determining that it
had jurisdiction because the State Department Certification on which the
determination was based contained false information and the Maritime Drug Law
Enforcement Act (“MDLEA”) is unconstitutional.
We review a district court’s interpretation and application of a statute
concerning its subject-matter jurisdiction de novo. United States v. Cruickshank,
837 F.3d 1182, 1187 (11th Cir. 2016), cert. denied, 137 S. Ct. 1435 (2017). We
review whether a statute is constitutional de novo. Id. Under the prior precedent
rule, we are “bound to follow a prior binding precedent unless and until it is
19 Case: 17-14497 Date Filed: 05/22/2019 Page: 20 of 29
overruled by this Court en banc or by the Supreme Court.” United States v. Vega-
Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).
Under the MDLEA, a “vessel subject to the jurisdiction of the United States”
includes “a vessel without nationality.” 46 U.S.C. § 70502(c)(1)(A). A “vessel
without nationality” includes “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)(C). The foreign nation’s response to a claim of registry “is proved
conclusively by certification of the Secretary of State or the Secretary’s designee.”
Id. § 70502(d)(2). Jurisdiction over a vessel covered by the MDLEA “is not an
element of an offense,” but instead is a “question[] of law to be determined solely
by the trial judge.” Id. § 70504(a).
We have held that “the conduct proscribed by the [MDLEA] need not have a
nexus to the United States because universal and protective principles support its
extraterritorial reach.” United States v. Campbell, 743 F.3d 802, 810 (11th Cir.
2014); see also Cruickshank, 837 F.3d at 1188 (holding that the lack of a nexus
requirement does not render the MDLEA unconstitutional). We have also rejected
the argument that a jury must determine jurisdiction under the MDLEA.
Campbell, 743 F.3d at 810; see also Cruickshank, 837 F.3d at 1191-92. We held
that the admission of a State Department Certification to establish jurisdiction
20 Case: 17-14497 Date Filed: 05/22/2019 Page: 21 of 29
under the MDLEA does not implicate the Confrontation Clause, because a
jurisdictional determination does not implicate the guilt or innocence of a
defendant. Campbell, 743 F.3d at 806–07. Likewise, we held in Cruickshank that
the pre-trial use of a State Department Certification to determine jurisdiction does
not violate due process or the Sixth Amendment. Cruickshank, 837 F.3d at 1192.
We have held that, because the MDLEA states that a State Department
Certification is conclusive proof of a foreign nation’s response regarding a vessel’s
nationality, the Certification cannot be overcome by challenges regarding the
information provided to the foreign government or the vessel’s actual registration.
Hernandez, 864 F.3d at 1299. We found in Hernandez that the MDLEA does not
require that any particular information be conveyed to the foreign government or
that a vessel’s actual registry overrides Certification. Id.
The district court did not err in determining that it had subject matter
jurisdiction. We reject the defendants’ challenges to the information in the
Certification because they have not explained how those statements would
undermine the finding of jurisdiction. To the extent they contend that those
discrepancies undermine the statement that the Mexican government could not
confirm or deny the vessel’s registration, the argument is misplaced because actual
Mexican registration cannot overcome the conclusive proof of the State
21 Case: 17-14497 Date Filed: 05/22/2019 Page: 22 of 29
Department Certification that the Mexican Government responded that it could not
confirm or deny the vessel’s nationality.
Because the State Department Certification indicated that the government of
Mexico could not confirm or deny the vessel’s nationality, the government
established that the defendants’ vessel was without nationality. Moreover, binding
precedent forecloses the defendants’ constitutional challenges to the MDLEA
based on the use of the State Department Certification, the jurisdictional
determination being made pre-trial, and not requiring a nexus between the alleged
offense and the United States.
VIII.
Garcia-Solar and Barrera-Montes argue that the district court should have
reduced their offense levels at sentencing due to their minor roles in the offense.
We review a district court’s determination of a defendant’s role in his
offenses as a finding of fact that will be reviewed only for clear error. United
States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
A court may decrease a defendant’s offense level by two if it finds that the
defendant was a “minor participant” in the criminal activity, meaning that he was
“less culpable than most other participants, but [his] role could not be described as
minimal.” U.S.S.G. § 3B1.2(b) & comment. (n.5). The defendant bears the
22 Case: 17-14497 Date Filed: 05/22/2019 Page: 23 of 29
burden of establishing by a preponderance of the evidence that his role in the
offense was minor. See Cruickshank, 837 F.3d at 1192.
In determining whether a role adjustment is warranted, a district court must
evaluate the defendant’s role in the relevant conduct for which he has been held
accountable at sentencing and his role compared to that of other participants in his
relevant conduct. De Varon, 175 F.3d at 940. The district court should only grant
a downward adjustment for a minor role in the offense if the defendant can
establish that he played a minor role in the conduct for which he was held
responsible, rather than a minor role in any larger criminal conspiracy. Id. at 944.
In the drug courier context, “the amount of drugs imported is a material
consideration in assessing a defendant’s role in [his] relevant conduct” and, in
some cases, may be dispositive. Id. at 943.
Here, the district court did not clearly err when it found that Garcia-Solar
and Barrera-Montes were not minor participants in the crimes of conviction.
Neither of them presented any evidence to show that they were less culpable than
the average participant in the charged offenses, and it was not relevant that they
may have played smaller roles than the uncharged leaders of the overall drug
conspiracy. The large amount of drugs involved in the present case further
supports the district court’s determination.
23 Case: 17-14497 Date Filed: 05/22/2019 Page: 24 of 29
IX.
Garcia-Solar and Perez-Cruz argue that the district court abused its
discretion by imposing an unreasonable total sentence.4
We review the reasonableness of a sentence under a deferential abuse of
discretion standard of review. Gall v. United States, 552 U.S. 38, 41 (2007). We
first ensure that the district court made no significant procedural error, then
examine whether the sentence was substantively reasonable in light of the totality
of the circumstances. Id. at 51. Abuse of discretion can be shown when the
district court: “(1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper or irrelevant factor,
or (3) commits a clear error of judgment in considering the proper facts.” United
States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir. 2016). We review a
district court’s determination of a defendant’s role in his offenses as a finding of
fact that will be reviewed only for clear error. United States v. De Varon, 175 F.3d
930, 937 (11th Cir. 1999) (en banc).
a. Procedural reasonableness
4 Lucas-Franco has also purported to adopt Perez-Cruz’s arguments in this regard. However, Perez-Cruz was sentenced at a separate proceeding from Lucas-Franco, so his arguments are inapplicable in Lucas-Franco’s case. Therefore, we find that Lucas-Franco has abandoned any challenge to his total sentence by failing to adequately raise one. See United States v. Bernal-Benitez, 594 F.3d 1303, 1317 n.20 (11th Cir. 2010); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). 24 Case: 17-14497 Date Filed: 05/22/2019 Page: 25 of 29
A sentence is procedurally unreasonable if the district court erred in
calculating the guideline range, treated the Sentencing Guidelines as mandatory,
failed to consider the § 3553(a) factors, selected a sentence based on clearly
erroneous facts, or failed to adequately explain the sentence. United States v.
Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010).
The factors that the court must consider include the nature and
circumstances of the offense, the history and characteristics of the defendant, the
defendant’s guideline range, and the need to avoid unwarranted sentencing
disparities among defendants with similar records who have been found guilty of
similar conduct. See 18 U.S.C. § 3553(a)(1), (a)(4), (a)(6). The district court
sufficiently addresses the § 3553(a) factors when it acknowledges that it has
considered the factors and the defendant’s arguments. United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). A challenge to the sufficiency of the district
court’s explanations is a “classic procedural issue, not a substantive one.” United
States v. Irey, 612 F.3d 1160, 1194 (11th Cir. 2010) (en banc). When imposing a
sentence, the court need not “articulate [its] findings and reasoning with great
detail.” Id. at 1195.
Here, Garcia-Solar’s and Perez-Cruz’s sentences were procedurally
reasonable. The district court did not procedurally err by failing to sufficiently
address the factor of Garcia-Solar’s history and circumstances, or by failing to
25 Case: 17-14497 Date Filed: 05/22/2019 Page: 26 of 29
consider Perez-Cruz’s role in the offense. The court discussed the societal costs of
drug trafficking, basing the guidelines on drug amounts, the defendants’ choice to
go to trial, and the need to deter other potential smugglers, all of which was
relevant to both defendants. As to Perez-Cruz specifically, the court addressed his
arguments when it denied his request for a minor role adjustment.
Additionally, the court specifically stated that it had considered the parties’
statements and the § 3553(a) factors. Thus, the court sufficiently addressed the
§ 3553(a) factors, and it was not required to provide any more detail for choosing
the specific point in the guideline range that it chose.
b. Substantive reasonableness
The substantive reasonableness of a sentence is determined in light of the
totality of the circumstances, and we will not vacate a sentence as substantively
unreasonable unless we are left with the definite and firm conviction that the
district court clearly erred in weighing the § 3553(a) factors and imposed a
sentence outside the range of reasonable sentences. United States v. Turner, 626
F.3d 566, 573 (11th Cir. 2010). Although we have not adopted a presumption that
a sentence within the guideline range is reasonable, we have stated that we would
ordinarily expect a sentence within the guideline range to be reasonable. United
States v. Joseph, 709 F.3d 1082, 1105 (11th Cir. 2013).
26 Case: 17-14497 Date Filed: 05/22/2019 Page: 27 of 29
In the context of an offense level reduction under the Guidelines, we have
held that courts may deny the reduction for acceptance of responsibility even when
that denial is based on the exercise of a constitutional right. See United States v.
Wright, 133 F.3d 1412, 1414 (11th Cir. 1998) (affirming the denial of an
acceptance of responsibility reduction due to the defendant’s challenges to the
constitutionality of his convictions). We have also affirmed the denial of
downward variances when the denial was based at least in part on the defendant’s
decision to go to trial. See United States v. Cavallo, 790 F.3d 1202, 1237 (11th
Cir. 2015) (rejecting the argument that unwarranted sentencing disparities were
created by imposing higher sentences for defendants who proceeded to trial instead
of pleading guilty, and noting that a defendant who cooperates with the
government and pleads guilty is not similarly situated to a defendant that proceeds
to trial).
The district court must evaluate all of the § 3553(a) factors, but it may attach
greater weight to one factor over the others. United States v. Dougherty, 754 F.3d
1353, 1361 (11th Cir. 2014). Ultimately, the sentence imposed must be sufficient
but not greater than necessary to satisfy the purposes for sentencing set out in
§ 3553(a)(2). 18 U.S.C. § 3553(a). These purposes include the need for the
sentence to: (1) reflect the seriousness of the offense, promote respect for the law,
and provide just punishment for the offense; (2) afford adequate deterrence to
27 Case: 17-14497 Date Filed: 05/22/2019 Page: 28 of 29
criminal conduct; and (3) protect the public from further crimes of the defendant.
18 U.S.C. § 3553(a)(2)(A)-(C).
Here, the district court’s consideration of Garcia-Solar’s decision to go to
trial did not render his total sentence substantively unreasonable because that was
not an improper factor. Moreover, it is clear that the court referenced the
defendants’ exercise of their right to trial in the context of the need to deter other
would-be drug smugglers, which is also an appropriate factor to consider.
Finally, the court did not abuse its discretion by putting greater emphasis on
the guideline range—which was driven largely by the amount of cocaine involved
in the offense—than on Garcia-Solar’s personal reasons for engaging in the
conduct. The court was entitled to attach great weight to the guideline range and
less weight on other factors. Moreover, the court did not base its decision solely
on the guideline range, but considered numerous other appropriate factors such as
the seriousness of the offense and the impact of drugs on the communities they
reach, the need to deter potential smugglers, and the need to protect the public
from such crimes. Although Garcia-Solar’s total sentence was substantial, the
district court relied on appropriate factors in imposing that sentence, and he has not
shown that the court committed a clear error of judgment by imposing a total
sentence outside the range of reasonable sentences.
28 Case: 17-14497 Date Filed: 05/22/2019 Page: 29 of 29
As to Perez-Cruz, his sentence was also substantively reasonable. Although
he argues that his role in the offense justified a lower total sentence, the court was
entitled to give significant weight to other factors. Specifically, the court focused
on the guideline range, as determined by the amount of cocaine recovered, the
harmful impact of drug smuggling, and the need to deter future drug smuggling.
Additionally, his sentence was within his guideline range, further supporting the
conclusion that it was substantively reasonable.
For all of the foregoing reasons, the defendants’ convictions and sentences
are affirmed.
AFFIRMED.