United States v. Santos Gonzales-Cahvec

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 20, 2018
• Docket: 17-15193
• Status: Unpublished

Opinion

Case: 17-15193 Date Filed: 09/20/2018 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15193 Non-Argument Calendar ________________________

D.C. Docket No. 0:17-cr-60050-RNS-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTOS GONZALES-CAHVEC,

Defendant-Appellant.

________________________

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

(September 20, 2018)

Before WILSON, NEWSOM, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 17-15193 Date Filed: 09/20/2018 Page: 2 of 13

Santos Gonzales-Cahvec appeals his convictions and 240-month concurrent

sentences for (1) possession with intent to distribute five kilograms or more of a

substance containing cocaine on board a vessel subject to the jurisdiction of the

United States in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) and 18 U.S.C. § 2

and (2) conspiracy to possess with intent to distribute five kilograms or more of a

substance containing cocaine on board a vessel subject to the jurisdiction of the

United States in violation of 46 U.S.C. § 70506(b).

On appeal, Gonzales-Cahvec argues (1) that his Sixth Amendment rights

were violated because he was convicted by a jury of individuals from the Southern

District of Florida, rather than the countries in which his offenses took place; (2)

that 46 U.S.C. § 70502(c)(1)(C)—the Maritime Drug Law Enforcement Act’s

jurisdictional provision—is unconstitutionally vague; (3) that the district court

abused its discretion by precluding him from reading into evidence two

Department of State travel warnings for Colombia; and (4) that his sentence is

substantively unreasonable. After careful review, we affirm.

I

A United States Coast Guard helicopter crew spotted what appeared to be a

drug-trafficking vessel traveling north in the Eastern Pacific Ocean. Once the

Coast Guard approached the ship—later identified as the Dios es Todo—it

discovered that the vessel was of Colombian nationality. Coast Guard officers

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contacted the Government of Colombia to verify the Dios es Todo’s registration,

and the Government of Colombia granted the United States permission to exercise

jurisdiction over the vessel.

Coast Guard officers then boarded the Dios es Todo and, after conducting a

safety search, discovered 1,114 kilograms of cocaine stored in the fish hold. The

officers seized the cocaine, and transported Gonzales-Cahvec and the other crew

members to Fort Lauderdale, Florida, transferring them to the custody of

Homeland Security Investigations officers.

Once on land, Gonzales-Cahvec waived his Miranda1 rights and claimed

that he had been kidnapped while on vacation in Colombia and forced onto the

Dios es Todo against his will. Gonzales-Cahvec was subsequently indicted under

the Maritime Drug Law Enforcement Act (hereinafter “Maritime Act”).

Gonzales-Cahvec pleaded not guilty and proceeded to trial. At trial, he

maintained that he had been kidnapped and forced to participate in the drug run.

Homeland Security Special Agent Marco Suarez testified for the Government,

opining that, although not impossible, it was highly unlikely that a drug-trafficking

organization would kidnap someone and force him to participate in a drug-

trafficking operation because it would be “counterproductive to the team effort.”

Gonzales-Cahvec’s trial counsel then attempted to read into evidence two

1 Miranda v. Arizona, 384 U.S. 436 (1966). 3 Case: 17-15193 Date Filed: 09/20/2018 Page: 4 of 13

Department of State travel warnings, declaring that “narco-trafficking”—including

drug trade, extortion, kidnapping, and robbery—affected many areas of Columbia.

The district court sustained the Government’s objection to the warnings, however,

because the warnings did not state that drug organizations kidnapped individuals

and forced them to participate in trafficking.

After a five-day trial, the jury convicted Gonzales-Cahvec as charged in the

indictment. Before sentencing, a probation officer prepared a presentence

investigation report, which included an advisory guidelines range of 235 to 293

months’ imprisonment. The district court imposed concurrent 240-month

sentences, noting that the offense involved more than 1,000 kilograms of cocaine,

and that Gonzales-Cahvec had “concoct[ed] a very[]detailed fantasy to avoid [his]

responsibility in this case.”

II

Gonzales-Cahvec first argues that his Sixth Amendment rights were violated

because, under the Maritime Act, he was tried and convicted by a jury of

individuals from the Southern District of Florida rather than from the countries in

which his offenses took place. We review constitutional challenges to statutes de

novo. United States v. Campbell, 743 F.3d 802, 805 (11th Cir. 2014).

The Sixth Amendment provides that a criminal defendant has the right to a

trial by “an impartial jury of the State and district wherein the crime shall have

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been committed.” U.S. Const. amend. VI. But Article III, Section 2 of the

Constitution provides that when a crime is “not committed within any State, the

Trial shall be at such Place or Places as the Congress may by Law have directed.”

U.S. Const. art. III, § 2, cl. 3 (emphasis added); Cook v. United States, 138 U.S.

157, 181–83 (1891).

The Maritime Act makes clear that “if the offense was begun or committed

upon the high seas, or elsewhere outside the jurisdiction of any particular State or

district,” the accused “may be tried in any district.” 46 U.S.C. § 70504(b)(2). This

provision works in tandem with the Jury Selection and Service Act, which states

that defendants entitled to a trial by jury have the right to a jury “selected at

random from a fair cross section of the community in the district or division

wherein the court convenes.” 28 U.S.C. § 1861.

In United States v. Rendon, we held that a defendant’s prosecution in the

Middle District of Florida for offenses committed on the high seas complied with

both Article III, Section 2 of the Constitution and the Maritime Act’s venue

provision because the defendant first entered the United States in the Middle

District of Florida after having been apprehended. 354 F.3d 1320, 1325–26 (11th

Cir. 2003).

This case is quite similar: Gonzales-Cahvec’s offense occurred outside of

the United States, on the high seas, so under Article III, Section 2 of the

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Constitution, the Maritime Act controls his trial venue. 46 U.S.C. § 70504(b)(2).

Because Gonzales-Cahvec first entered the United States in the Southern District

of Florida, his prosecution in that venue was proper under both Article III, Section

2 of the Constitution and the Maritime Act. See Rendon, 354 F.3d at 1325–26.

And because Gonzales-Cahvec’s prosecution in the Southern District of Florida

complied with both the Constitution and the Maritime Act, his trial by a jury

consisting of individuals from the Southern District of Florida did not violate his

Sixth Amendment rights. 28 U.S.C. § 1861; Rendon, 354 F.3d at 1325–36.

III

Gonzales-Cahvec next argues―without citing any precedent―that the

Maritime Act’s jurisdictional provision, 46 U.S.C. § 70502(c)(1)(C), is

unconstitutionally vague. Gonzales-Cahvec contends that § 70502(c)(1)(C) is

unconstitutional because it arbitrarily provides for United States jurisdiction on the

“whim” of foreign countries and does not provide any standards by which foreign

countries can determine whether or not they should grant the United States

jurisdiction. We review vagueness challenges to statutes de novo. United States v.

Awan, 966 F.2d 1415, 1424 (11th Cir. 1992).

Under the Fifth Amendment’s Due Process Clause, a statute cannot be

enforced if it is so vague that it fails to provide fair warning such that people of

“common intelligence” must “guess at its meaning” or reach differing opinions as

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to its application. United States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008). Due

process in the context of extraterritorial jurisdiction requires only that the exercise

of jurisdiction not be arbitrary or fundamentally unfair. United States v. Baston,

818 F.3d 651, 669 (11th Cir. 2016).

The Maritime Act makes it a crime for any person to “knowingly or

intentionally manufacture or distribute, or possess with intent to manufacture or

distribute, a controlled substance” on board “a vessel subject to the jurisdiction of

the United States,” or to conspire to do so. 46 U.S.C. §§ 70503(a)(1), (e)(1) and

70506(b). Section 70502 of the Maritime Act—the provision that Gonzales-

Cahvec challenges—defines a vessel subject to the jurisdiction of the United States

to include “a vessel registered in a foreign nation if that nation has consented or

waived objection to the enforcement of United States law by the United States.”

46 U.S.C. § 70502(c)(1)(C).

In United States v. Mena, we rejected a vagueness challenge to the nearly-

identical jurisdictional provision of the Maritime Act’s predecessor statute, 46

U.S.C. app. § 1903, which provided that a vessel subject to the jurisdiction of the

United States includes “a vessel registered in a foreign nation where the flag nation

has consented or waived objection to the enforcement of United States law by the

United States.” 863 F.2d 1522, 1527 (11th Cir. 1989); 46 U.S.C. app.

§ 1903(c)(1)(C) (2002). We held that § 1903 was not unconstitutionally vague,

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because “[t]hose embarking on voyages with holds laden with illicit narcotics,

conduct which is contrary to laws of all reasonably developed legal systems, do so

with the awareness of the risk that their government may consent to enforcement of

the United States’ laws against the vessel.” Mena, 863 F.2d at 1527–28 (quoting

United States v. Gonzalez, 776 F.2d 931, 940–41 (11th Cir. 1985)). Because the

language in § 70502(c)(1)(C) does not differ in any meaningful way from § 1903,

the same conclusion follows here―§ 70502(c)(1)(C) is not unconstitutionally

vague.

Additionally, this Court has consistently rejected constitutional challenges to

the exercise of jurisdiction under the Maritime Act. See, e.g., United States v.

Wilchcombe, 838 F.3d 1179, 1186 (11th Cir. 2016) (holding that the Constitution

and principles of international law supported the rejection of the defendant’s due

process challenge to the Maritime Act’s prohibitions on drug trafficking committed

outside of the United States, even where the conduct lacks a United States nexus),

cert. denied, 137 S. Ct. 2265 (2017); United States v. Tinoco, 304 F.3d 1088,

1107–12, 1110 n.21 (11th Cir. 2002) (holding that due process does not require a

nexus between the offense and the United States, and Congress properly defined

jurisdiction as an issue to be decided by the court, rather than as an element of the

offense, in the Maritime Act); United States v. Estupinan, 453 F.3d 1336, 1338

(11th Cir. 2006) (same); United States v. Cruickshank, 837 F.3d 1182, 1187–88

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(11th Cir. 2016) (same), cert. denied, 137 S. Ct. 1435 (2017). This case is no

different. Put simply, Gonzales-Cahvec’s prosecution under the Maritime Act did

not violate the Fifth Amendment’s Due Process Clause. 2

IV

Gonzales-Cahvec also asserts that the district court abused its discretion by

sustaining the Government’s objection to the introduction of two travel warnings

for Colombia without explanation, particularly because he needed the warnings to

rebut Agent Suarez’s testimony. Evidentiary rulings are reviewed for an abuse of

discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). To

show that the district court abused its discretion in its application of the Federal

Rules of Evidence, a defendant must show that the district court made a “clear

error of judgment or applied an incorrect legal standard.” United States v. Jones,

601 F.3d 1247, 1263 (11th Cir. 2010).

“The Constitution guarantees criminal defendants a meaningful opportunity

to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)

(internal quotations omitted). Yet Federal Rule of Evidence 401 provides that

irrelevant evidence is not admissible. Fed. R. Evid. 401. Rule 401 defines relevant

2 Cahvec-Gonzales also argues briefly that, because his offense conduct ended when he was detained, his “criminal acts terminated hours before Colombia conferred jurisdiction, [and] he is actually innocent of these offenses.” This argument, however, is squarely foreclosed by our precedent in United States v. Hernandez, 864 F.3d 1292, 1303 (11th Cir. 2017) (explaining that whether the statutory requirements for jurisdiction under the Maritime Act have been met is not an element of the crime, and thus its jurisdiction can be based on events occurring after the crime is committed). 9 Case: 17-15193 Date Filed: 09/20/2018 Page: 10 of 13

evidence as evidence “having any tendency to make a fact more or less probable

than it would be without the evidence.” Fed. R. Evid. 401. This definition

imposes two requirements: (1) that the evidence be probative of the proposition

that it is offered to prove, and (2) that the proposition to be proved is one that is of

consequence to the determination of the action. United States v. Glasser, 773 F.2d

1553, 1559 n.4 (11th Cir. 1985).

Here, the district court did not abuse its discretion by sustaining the

Government’s objection to the introduction of the travel warnings. The travel

warnings that Gonzales-Cahvec sought to introduce stated that drug organizations

kidnapped individuals for ransom, not that drug organizations kidnapped

individuals to force them to participate in drug trafficking. Consequently, the

warnings were not probative of the propositions that they were offered to prove––

that individuals, like Gonzales-Cahvec, were kidnapped and forced to participate in

drug operations against their will. Glasser, 773 F.2d at 1559 n.4. For the same

reason, the travel warnings also would not have contradicted Agent Suarez’s

testimony that he had never heard of someone being kidnapped and forced into

drug trafficking. Therefore, the district court did not abuse its discretion in

sustaining the Government’s objection to this evidence.

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V

Finally, Gonzales-Cahvec contests the reasonableness of his within-

Guidelines sentence. In reviewing a sentence for reasonableness, this Court

“merely asks whether the trial court abused its discretion.” Rita v. United States,

551 U.S. 338, 351 (2007). A district court abuses its discretion and imposes a

substantively unreasonable sentence if it (1) fails to afford consideration to relevant

18 U.S.C. § 3553(a) 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 factors.” United States v. Rosales-Bruno, 789

F.3d 1249, 1256 (11th Cir. 2015) (internal citations omitted).

For a sentence to be substantively reasonable, the district court must impose

a sentence “sufficient, but not greater than necessary to comply with the purposes”

listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense, deter

criminal conduct, and protect the public from the defendant’s future criminal

conduct. Id. § 3553(a)(2). The district court must also consider, among other

things, the nature and circumstances of the offense, the history and characteristics

of the defendant, the kinds of sentences available, and the applicable guidelines

range. Id. §§ 3553(a)(1),(3)–(5).

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Although we do not automatically presume so, we ordinarily expect a

within-Guidelines sentence to be reasonable. Hunt, 526 F.3d at 746. A sentence

imposed well below the statutory maximum is another indicator of reasonableness.

See Gonzalez, 550 F.3d at 1324 (concluding that the sentence imposed was not

substantively unreasonable because, among other things, the sentence was “well

below” the maximum sentence available).

Gonzales-Cahvec’s 240-month sentence is not substantively unreasonable.

As a starting point, it reflects the seriousness of trafficking more than 1,000

kilograms of cocaine—a “significant amount . . . even by South Florida standards,”

according to the district court. The evidence at trial showed that Gonzales-Cahvec

played a major role in the offense, acting as the communications liaison for

delivery of the cocaine and as the navigator in charge of the route the Dios es Todo

was to take to Mexico. The evidence also showed that Gonzales-Cahvec had

engaged in drug trafficking on at least one other occasion. Finally, Gonzales-

Cahvec did not accept responsibility for his actions, but rather maintained his

innocence through sentencing. 18 U.S.C. § 3553(a)(2).

Accordingly, Gonzales-Cahvec’s sentence—squarely within the advisory

guidelines range and well below the statutory maximum—is not substantively

unreasonable because it does not reflect a clear error of judgment in weighing the

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18 U.S.C. § 3553(a) factors. 18 U.S.C. §§ 3553(a)(1)–(7); Rosales-Bruno, 789

F.3d at 1256; Gonzalez, 550 F.3d at 1324.

VI

For the foregoing reasons, we hold (1) that Gonzales-Cahvec’s Sixth

Amendment rights were not violated because he was tried in accordance with

Article III, Section 2 of the Constitution and with the Maritime Act; (2) that 46

U.S.C. § 70502(c)(1)(C) is not unconstitutionally vague under our precedent;

(3) that the district court did not abuse its discretion by denying Gonzales-Cahvec

the opportunity to read irrelevant travel warnings into evidence; and (4) that

Gonzales-Cahvec’s within-Guidelines sentence is substantively reasonable.

Accordingly, we affirm the district court’s judgment.

AFFIRMED.