United States v. Victor Otero-Pomares

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 7, 2020
• Docket: 18-14261
• Status: Unpublished

Opinion

Case: 18-14261 Date Filed: 02/07/2020 Page: 1 of 33

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14261 Non-Argument Calendar ________________________

D.C. Docket No. 8:14-cr-00394-SCB-AEP-9

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR OTERO-POMARES, RAFAEL ANTONIO PATINO-VILLALOBOS, EDUARDO EMILIO ORTIZ-CERVANTES, JACINTO TORRES,

Defendants-Appellants.

________________________

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

(February 7, 2020)

Before GRANT, TJOFLAT and HULL, Circuit Judges. Case: 18-14261 Date Filed: 02/07/2020 Page: 2 of 33

HULL, Circuit Judge:

After a jury trial and a prior appeal, Defendants Eduardo Emilio Ortiz-

Cervantes (“Ortiz”), Victor Otero-Pomares (“Otero-Pomares”), Rafael Antonio

Patino-Villalobos (“Patino-Villalobos”), and Jacinto Torres (“Torres”)

(collectively, “Defendants”) appeal their respective sentences, imposed based on

their convictions for: (1) conspiracy to distribute and possess with intent to

distribute five kilograms or more of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a)

and (b), and 21 U.S.C. § 960(b)(1)(B)(ii) (“Count One”); and (2) possession with

intent to distribute five kilograms or more of cocaine while aboard a vessel subject

to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a),

70506(a), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii) (“Count Two”).1

Upon review, we affirm the Defendants’ sentences regarding their

mitigating-role and drug-quantity challenges, but we remand to the district court on

a limited basis with instructions to correct Torres’s and Ortiz’s judgments to

conform to the oral pronouncement of their sentences.

1 In our previous opinion, these surnames for the Defendants were used because we adopted each crew member’s surname as used in their briefs. See United States v. Barona- Bravo, 685 F. App’x 761, 764-65, 765 n.2 (11th Cir. 2017) (unpublished). Currently, Otero- Pomares is the lead defendant, but over the course of this case and its appeals, the style of the case has changed as codefendants were acquitted or chose not to appeal. 2 Case: 18-14261 Date Filed: 02/07/2020 Page: 3 of 33

I. BACKGROUND

The Defendants were involved with other co-conspirators in a cocaine

smuggling operation on board a dilapidated cargo vessel, the Borocho, that was on

its way from Colombia to Panama to pick up cargo. United States v.

Barona-Bravo, 685 F. App’x 761, 764 (11th Cir. 2017) (unpublished). The

operation involved at least eight loads and 640.9 kilograms of cocaine. Id. at 764-

67.

Thirteen of the Borocho’s crewmen proceeded to trial and the jury convicted

seven of them, including the four Defendants in this appeal. Id. at 764, 767. At

sentencing, the district court determined that each of the seven crewmen were

accountable for the entire 640.9 kilograms of cocaine found aboard the Borocho

and denied them any mitigating-role reductions. Id. at 779. Ultimately, the district

court sentenced each of the seven crewmen to 235 months’ imprisonment, which

was at the bottom of their 235-to-293-month advisory guidelines ranges. Id.

II. FIRST APPEAL

In the first appeal, this Court affirmed the seven crew members’ convictions

but vacated their 235-month sentences and remanded for resentencing. Id. at 764.

We concluded that the district court’s factual findings regarding the drug amounts

for which each crew member was accountable were insufficient for this Court to

conduct meaningful appellate review of their sentences. Id. at 781-82. Because

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we vacated the seven crew members’ sentences, we declined to consider their other

sentencing challenges. Id. at 782.

At resentencing, the district court reassessed each crew members’ relevant

conduct, made individualized determinations and factual findings regarding their

respective roles in the conspiracy and personal circumstances, and resentenced

them. The district court resentenced Ortiz and Otero-Pomares to total sentences of

235 months’ imprisonment, Torres to 188 months, and Patino-Villalobos to 130

months. Those four Defendants now appeal their new sentences.

III. SECOND APPEAL

The four Defendants challenge, individually or collectively, their new

sentences. We review the trial evidence, the guidelines calculations, and the

Defendants’ sentencing hearings.

A. Trial Evidence

In the first appeal in this case, we provided a thorough picture of the facts

underlying all seven crew members’ convictions. Barona-Bravo, 685 F. App’x at

764-67, 774-77. We now summarize only the facts most pertinent in this second

appeal, focusing primarily on each Defendant’s relevant conduct.

The Borocho was a 208-foot cargo freighter that regularly traveled empty

from Puerto Nuevo, Colombia, to Colón, Panama, to load legitimate merchandise

on board at the free-trade zone in Colón, and then traveled back to Colombia. Id.

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at 764. From April to September 2014, the Borocho made two voyages from

Puerto Nuevo to Colón, during which various crewmen, unbeknownst to the

captain, smuggled on board and hid eight loads of cocaine, totaling over 600

kilograms of cocaine. Id. at 764-66.

In April 2014, Yensi Manuel Medrano-Blanquiceth (“Medrano”) and Andres

Ramon Fontalvo-Martinez (“Fontalvo”) began working together with drug

suppliers to smuggle cocaine onto the Borocho. Id. at 764. While the Borocho

was still docked, they first coordinated the delivery of three loads of cocaine,

including a 400-kg load (“400-kg load”). Id. Aboard the Borocho at this time

were Medrano, Fontalvo, and Defendants Ortiz and Torres, among others. Id.

Each of these crewmen knew about, and helped participate in, this first smuggling

scheme. Id. For example, Ortiz and Torres helped throw ropes down from the

Borocho to the deliverers of the cocaine and hauled the cocaine loads on board.

Medrano and another crewman hid these loads in the Borocho’s forepeak.

In June 2014, the Borocho set sail on its first voyage from Puerto Nuevo,

Colombia to Colón, Panama. Id. Once in Panama, the entire crew—including

Ortiz and Torres—unloaded the three cocaine loads and delivered them to their

intended recipients on land. During the crew’s stay in Panama, Fontalvo and

Medrano met with drug suppliers to discuss another drug smuggling operation

aboard the Borocho. Id. On the Borocho’s return to Colombia, a small boat

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approached and delivered a 100-kg load of cocaine (“100-kg load”), which was

then hidden in the Borocho’s forepeak. Id.

Once the Borocho was docked in Colombia, the crew unloaded the

legitimate merchandise but left the 100-kg cocaine load hidden on board. Id. At

this point, there were changes to the Borocho’s crew: some crewmen left, some

remained, and some new crewmen were hired. Id. Among the new crewmen were

Defendants Otero-Pomares and Patino-Villalobos. Id. at 764-65.

Subsequently, Fontalvo coordinated a 200-kg delivery of cocaine and

notified Medrano, Defendant Torres, and another crewman. Id. at 765. In the

middle of the night, a small boat delivered the load, which consisted of

approximately 214 kilograms of cocaine (“214-kg load”). Id. Medrano and

Defendant Otero-Pomares hauled the 214-kg load on board the Borocho as

Fontalvo, Defendant Torres, and another crewman watched. Id. Then, the crew—

including Medrano and Defendants Ortiz, Otero-Pomares, and Torres—helped

move the 214-kg load, as well as the prior 100-kg load, to a ballast tank underneath

the cargo hold. 2 Id. Defendant Ortiz opened the ballast tank, Medrano and

Defendant Otero-Pomares hid the loads inside of the tank, and Ortiz closed the

2 The Borocho’s ballast tanks were large spaces, built with walls containing large holes spaced every six to ten feet. Id. at 765 n.3.

6 Case: 18-14261 Date Filed: 02/07/2020 Page: 7 of 33

hatch on the tanks.3

Thereafter, Defendant Patino-Villalobos and three other men approached the

Borocho via a small speedboat and delivered three barrels containing 86 total

kilograms of cocaine (“86-kg load”). Id. Medrano, another crewman, and

Defendants Ortiz, Otero-Pomares, and Torres threw down ropes and the men in the

speedboat tied the drugs onto the ropes. Id. at 765, 777. The five Borocho

crewmen hauled the drugs on board, moved them towards the cargo hold, and hid

them in the ballast tank, in the same manner as the 214-kg and 100-kg loads. Id.

Defendant Patino-Villalobos boarded the Borocho and later asked crewmen about

moving the 86-kg load to better conceal it. Id. at 777.

Once those three barrels were hidden on board, crewman Willington Barona-

Bravo (“Barona-Bravo”) gathered the entire crew—including each of the four

Defendants—and told them about another 200-kg delivery. Id. at 765, 777. The

crew agreed to take this load on board and share in the profits. Id. at 777. The

delivery, containing approximately 195 kilograms of cocaine (“195-kg load”),

came to the Borocho via speedboat later that night. 4 Id. at 765. Present for the

3 After the 214-kg-load delivery, Medrano and Fontalvo participated in a separate delivery of a 13-kg cocaine load, which they also hid in the ballast tank. Id. at 765. 4 The trial evidence indicates that this cocaine load was approximately 200 kilograms. See id. at 765. However, at the resentencing stage, both the probation officer and the district court referred to this load as a 195-kg load, and none of the parties objected to the discrepancy. To avoid confusion—and given that the Defendants have not objected to the lower figure—we refer to this load as the “195-kg load” throughout. 7 Case: 18-14261 Date Filed: 02/07/2020 Page: 8 of 33

delivery were Medrano, Defendants Ortiz, Otero-Pomares, and Torres, and another

crewman. Id. Medrano and Defendant Otero-Pomares threw down ropes, hauled

the 195-kg load on board, moved the load to the cargo hold, and hid it in the ballast

tank. Id. at 765-66. Defendant Ortiz again assisted by closing the hatch on the

tank. Although not physically assisting, Defendant Patino-Villalobos was aware of

the 195-kg load and wished to partake in the proceeds. Id. at 777.

Each Borocho crew member was paid only for the particular cocaine loads

he knew about, regardless of whether he physically assisted with the load. Id. at

765. Problems would arise if a crew member found out about a cocaine load, but

did not get paid, such that it was in each crew member’s best interest to stay quiet

about what loads each knew about. Each crew member was paid an advance for

his particular loads while still aboard the Borocho, either directly in cash or

through money deposited into his chosen third-party account. Id.

Importantly, Defendants Ortiz and Torres were paid for their involvement in

the 400-kg load from the first voyage. Each crew member involved with the 214-

kg and 100-kg loads received an advance payment of between two and ten million

Colombian pesos for their assistance and silence. Defendants Otero-Pomares and

Torres were paid approximately eight million Colombian pesos for those loads and

both had their payments sent to their relatives. And, some who were involved with

the 86-kg load received an advance payment of approximately four million

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Colombian pesos—which was the equivalent of $2,000 in U.S. currency.

In September 2014, the Borocho left Puerto Nuevo for its second voyage to

Colón, carrying more than 600 kilograms of cocaine hidden on board. Id. at 766.

After setting sail, Barona-Bravo directed another crew member to pay Medrano for

the 195-kg load: $2,000 in U.S. currency (in the form of 20 $100 bills) and

350,000 Colombian pesos (approximately $170). Id. All of the crewmen received

the same payment for that load—Defendant Otero-Pomares had his payment sent

directly to his mother and the remaining crew men received their cash payments on

board. Id.

Two days after the Borocho launched, a U.S. Coast Guard cutter spotted the

vessel in international waters 70 miles off the coast of Panama and conducted a

right-of-visit boarding. Id. After determining that the Borocho was stateless, the

Coast Guard boarding team searched the vessel, discovered drugs, detained the

captain and 12 crewmen, and continued the search. Id.

The searches revealed 55 kilograms of cocaine hidden in a lube oil tank

and three blue barrels and 23 burlap sacks filled with cocaine hidden in one of the

vessel’s ballast tanks located underneath the cargo hold. Id. Coast Guard

personnel searched the first 20 feet from the ballast tank cover toward the back of

the tank but deemed it unsafe to search any farther. Id. at 767 n.5. In total, the

Coast Guard boarding team found 640.9 kilograms of cocaine on the Borocho. Id.

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at 767.

When the Coast Guard searched the crewmen, nearly all of them had

thousands of dollars’ worth of U.S. and Colombian currency in their possession.

Id. Specifically, Defendant Ortiz had over $2,300 in U.S. currency and 513,000

Colombian pesos on his person. Defendant Torres had $2,000 in U.S. currency

and 2,900,000 Colombian pesos on his person. Because Defendant Otero-Pomares

had his advances sent directly to his relatives, he had no currency on him upon

arrest.

As to Defendant Patino-Villalobos, there was some ambiguity regarding

how much he had on his person upon arrest. Id. at 777 n.13. A Coast Guard

inventory sheet filled out upon arrest showed that Patino-Villalobos had only

30,000 Colombian pesos in his possession. Id. However, when the Federal Bureau

of Investigations (“FBI”) photographed and examined the items seized from the

crewmen, there was now approximately 850,000 Colombian pesos and $2,000 in

U.S. currency among the items purportedly belonging to Patino-Villalobos. Id.

The FBI agent in charge of this evidence conceded that the money figures did not

match up and testified that he did not know how the additional money got into the

evidence bag. 5 Id.

5 In determining in the first appeal whether there was sufficient evidence supporting Defendant Patino-Villalobos’s convictions on the conspiracy and possession counts, we declined to rely on the ambiguous trial evidence regarding how much money Patino-Villalobos had on his 10 Case: 18-14261 Date Filed: 02/07/2020 Page: 11 of 33

The captain and 12 crewmen were transported to Tampa, Florida, where they

were processed into the United States. Id. at 767. While housed in jail with other

crewmen, Defendant Patino-Villalobos devised and communicated a plan for the

crewmen to blame the 195-kg cocaine load on another co-conspirator and claim

that the load was already on the Borocho when they boarded. Id. at 777.

B. Resentencing Hearings, Guidelines Calculations, and Sentences Imposed

Upon remand, six of the crew members were resentenced. 6 Because only

the four Defendants have appealed, we discuss solely their resentencing.

The Defendants’ amended presentence investigation reports (“PSRs”)

included the drug amounts that each was individually responsible for and the role

that each played in the offense. Namely, the PSRs recommended that the

Defendants be held accountable for the following conduct:

• Ortiz and Torres knew about and participated in smuggling the 400-kg load during the first voyage in June 2014, and they either were directly involved in loading and hiding, or had knowledge of and were paid to keep quiet about, the four loads from the second voyage—the 100-kg, 214-kg, 86-kg, and 195-kg loads—making them responsible for approximately 995 kilograms of cocaine.

• Otero-Pomares either was directly involved in loading and hiding, or had knowledge of and was paid to keep quiet about, the four loads from the

person upon arrest. Id. at 777 & n.13. However, as discussed later, at resentencing, the government put on additional evidence showing that Patino-Villalobos upon arrest was found in possession of $2,000 in U.S. currency and over 800,000 Colombian pesos. 6 One of the crewmen, Juan Carrasquilla-Lombada, died in September 2018 before resentencing. The district court dismissed the indictment against him. 11 Case: 18-14261 Date Filed: 02/07/2020 Page: 12 of 33

second voyage—the 100-kg, 214-kg, 86-kg, and 195-kg loads—making him responsible for approximately 595 kilograms of cocaine.

• Patino-Villalobos either was directly involved in loading and hiding, or had knowledge of and was paid to keep quiet about, two of the loads from the second voyage—the 86-kg and 195-kg loads—making him responsible for approximately 281 kilograms of cocaine.

Consequently, the PSRs assigned base offense levels of: (1) 38 for Ortiz

(995 kilograms), Otero-Pomares (595 kilograms), and Torres (995 kilograms)

because they were involved with 450 kilograms or more of cocaine pursuant to

U.S.S.G. § 2D1.1(c)(1); and (2) 36 for Patino-Villalobos (281 kilograms) because

he was involved with 150 to 450 kilograms of cocaine pursuant to § 2D1.1(c)(2). 7

The PSR did not assign the four Defendants any mitigating-role reduction.

Ortiz’s, Otero-Pomares’s, and Torres’s total offense levels of 38 and

criminal history categories of I yielded, again, advisory guidelines ranges of 235 to

293 months’ imprisonment. Patino-Villalobos’s total offense level of 36 and

criminal history category of I yielded an advisory guidelines range of 188 to 235

months’ imprisonment. Both Counts One and Two carried a statutory mandatory

7 In determining the Defendants’ offense levels, the probation officer used the 2014 Sentencing Guidelines Manual—which was the manual in effect at the time of their original resentencing in 2015—incorporating all guideline amendments. See 18 U.S.C. § 3742(g)(1) (providing that, upon a remand to the district court for resentencing, the district court shall apply the Sentencing Guidelines that were in effect on the date of the defendants’ pre-appeal sentencing, along with any guideline amendments in effect on such date); U.S.S.G. § 1B1.11(a), (b)(2) (providing that the district court generally should use the Guidelines Manual that is in effect on the date of sentencing, but, if applying an earlier edition, the district court should consider subsequent clarifying amendments). 12 Case: 18-14261 Date Filed: 02/07/2020 Page: 13 of 33

minimum sentence of ten years and a statutory maximum penalty of life

imprisonment. See 46 U.S.C. § 70506(a), (b); 21 U.S.C. § 960(b)(1)(B)(ii).

The Defendants lodged numerous objections to the PSR, either in writing or

at their respective sentencing hearings. Defendants Ortiz, Otero-Pomares, and

Patino-Villalobos objected: (1) to not receiving any mitigating-role reduction

pursuant to U.S.S.G. § 3B1.2(b); and (2) to the drug amounts for which they were

held accountable. 8

The Defendants were resentenced separately. At Defendant Torres’s

resentencing, the district court found that he was accountable for 995 kilograms of

cocaine and that he was not entitled to a minor-role reduction.9 The district court

granted Torres a two-level reduction under the “safety valve” provision of

§ 2D1.1(b)(17), reducing his total offense level from 38 to 36. The district court

concluded Torres’s revised advisory guidelines range was 188 to 235 months’

imprisonment and sentenced him to 188 months’ imprisonment on each count, to

run concurrently. As a condition of his supervised release, the district court

ordered Torres to “submit to random drug testing, not to exceed 104 tests per year

if requested.”

8 Otero-Pomares and Torres raised additional objections which are not at issue in this appeal. 9 On appeal, Torres does not challenge this drug quantity or the lack of a minor-role reduction. 13 Case: 18-14261 Date Filed: 02/07/2020 Page: 14 of 33

At Defendant Otero-Pomares’s resentencing, the district court found that he

was accountable for 595 kilograms of cocaine and overruled his mitigating-role

objection. The district court explained that Otero-Pomares’s role was not

substantially less than that of the average participant because he had knowledge of

all the drugs he was held responsible for, he was directly involved in physically

bringing the drugs on board and/or moving the drugs to another location, and he

was paid for his participation. The district court implicitly adopted the PSR’s

guidelines calculations and advisory guidelines range of 235 to 293 months’

imprisonment, and resentenced Otero-Pomares to 235 months’ imprisonment on

each count, to run concurrently. Otero-Pomares was not ordered to submit to

random drug tests.

At Defendant Ortiz’s resentencing hearing, the district court found him

accountable for 995 kilograms of cocaine. As to the 195-kg load, the district court

found that Ortiz physically assisted in hiding this load by opening and closing the

ballast tank so that other crewmen could hide the load inside the tank, and was paid

for his involvement. The district court overruled Ortiz’s minor-role objection for

the same reasons it denied Otero-Pomares’s objection. The district court adopted

the PSR’s guidelines calculations and advisory guidelines range of 235 to 293

months’ imprisonment, and resentenced Ortiz to 235 months’ imprisonment on

each count, to run concurrently. As a condition of his supervised release, the

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district court also ordered Ortiz to “submit to 104 . . . urine tests a year for drug

testing, no more than that.”

At Defendant Patino-Villalobos’s resentencing, he raised both his drug-

quantity and minor-role objections. He primarily argued that there was insufficient

evidence that he knew of or was involved in the 195-kg load. Patino-Villalobos,

however, agreed with the district court that he would be better off, and that his

sentence would be lower, if the court held him accountable for both the 86-kg and

195-kg loads but granted him a minor-role reduction, rather than if the court held

him accountable solely for the 86-kg load but denied him a minor-role reduction.

The government called Drug Enforcement Administration Special Agent

Carlos Galloza, who had interviewed Medrano as part of the investigation. Special

Agent Galloza testified that Medrano identified Patino-Villalobos as a participant

in both the 86-kg and 195-kg loads. As to the 195-kg load, Medrano told Special

Agent Galloza that Patino-Villalobos was present for Barona-Bravo’s meeting

about smuggling that load onto the Borocho, that no one at the meeting objected to

the plan, that Patino-Villalobos was present for the hauling of the load onto the

Borocho, that the crew members were supposed to receive $2,000 in U.S. currency

for their involvement with the load, that Barona-Bravo provided the payments to

another crew member to pay those involved in the load, and that Medrano heard

that each involved crew member was paid, although he did not know the exact

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payment amounts.

Additionally, Special Agent Galloza testified that—according to the FBI’s

report on the personal property in each crew member’s evidence bag—the Coast

Guard recovered $2,000 in U.S. currency and 880,000 in Colombian pesos from

Patino-Villalobos’s personal effects. Special Agent Galloza clarified that the

$2,000 in U.S. currency reflected Patino-Villalobos’s full payment for the 195-kg

load, and that the 880,000 in Colombian pesos reflected his partial payment for the

86-kg load.

On cross- and recross-examination, Special Agent Galloza conceded:

(1) that Fontalvo never implicated Patino-Villalobos in any of the cocaine loads;

(2) that there were discrepancies between Medrano’s trial testimony and Special

Agent Galloza’s interview notes; (3) that the crewmen were paid equivalent

amounts for the 86-kg and 195-kg loads, but that the 86-kg load was paid in

Colombian pesos and the 195-kg load in U.S. currency; and (4) that the Coast

Guard’s inventory sheet reflecting the money found in Patino-Villalobos’s

possession upon arrest did not show the $2,000 in U.S. currency.10 As to the

discrepancies, Agent Galloza’s interview notes said that Medrano identified

10 Defense counsel for Patino-Villalobos very briefly questioned Special Agent Galloza on recross-examination about the Coast Guard’s inventory sheet that did not list the $2,000 in U.S. currency. Defense counsel’s primary questioning and argument, however, assumed that $2,000 in U.S. currency was found in Patino-Villalobos belongings, but that the $2,000 was just as likely to be payment for the 86-kg load as it was for the 195-kg load. 16 Case: 18-14261 Date Filed: 02/07/2020 Page: 17 of 33

Defendant Patino-Villalobos as a participant in the 195-kg load, but, at trial,

Medrano made no specific mention of Patino-Villalobos’s presence for the hauling

or moving of the 195-kg load.

After hearing arguments, the district court found that Patino-Villalobos’s

relevant conduct included both the 86-kg and 195-kg loads. As to the 195-kg load,

the district court explained that, while there was some conflict, there was enough

evidence that Patino-Villalobos was paid $2,000 in U.S. currency for his

participation in the 195-kg load and that $2,000 in U.S. currency was found in his

possession upon arrest.

Next, while the district court found Patino-Villalobos accountable for both

the 86-kg and 195-kg loads, it found that his participation in the conspiracy was

“very limited.” For example, the district court explained that, while there was

testimony that Patino-Villalobos received payment for the 195-kg load, there was

no evidence that he helped haul or move the cocaine. Thus, the district court

sustained his minor-role objection, applied the two-level reduction to his base

offense level, and applied an extra three-level reduction under U.S.S.G.

§ 2D1.1(a)(5) (2014) (providing that, if “the defendant receives an adjustment

under § 3B1.2 (Mitigating Role),” his base offense level of 34 is decreased by 3

levels).

The district court lowered Patino-Villalobos’s base offense level to 31,

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which yielded an advisory guidelines range of 120 to 135 months’ imprisonment.11

The district court sentenced Patino-Villalobos to 130 months’ imprisonment on

each count, to run concurrently. As a condition of his supervised release, the

district court ordered that he “submit to random drug testing, not to exceed 104

tests per year.”

The Defendants’ written judgments correctly reflected their imprisonment

terms, but Ortiz’s, Patino-Villalobos’s, and Torres’s judgments did not limit the

number of drug tests per year. Instead, they stated, “You must refrain from any

unlawful use of a controlled substance. You must submit to one drug test within

15 days of release from imprisonment and at least two periodic drug tests

thereafter, as determined by the court.”

The four Defendants appeal their sentences. 12

11 Ordinarily, with a total offense level of 31 and a criminal history category of I, Patino- Villalobos’s advisory guidelines range would be 108 to 135 months’ imprisonment. See U.S.S.G. § 5A. However, because he was subject to statutory mandatory minimum sentences of ten years’ (120 months’) imprisonment, those statutory mandatory minimum sentences became part of his guideline range. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). 12 We note that Torres’s appeal was untimely by 18 days. See Fed. R. App. P. 4(b)(1)(A)(i) (providing that, to be timely, an appellant in a criminal case must file a notice of appeal in the district court within 14 days after the judgment or challenged order is entered on the docket). Nevertheless, because the government does not object to the timeliness of Torres’s appeal, we reach the merits. See United States v. Lopez, 562 F.3d 1309, 1311-13 (11th Cir. 2009) (explaining that the timeliness of a notice of appeal under Rule 4(b) for criminal defendants is a claims-processing rule, not a jurisdictional bar, such that the government can forfeit an objection to an untimely notice of appeal). 18 Case: 18-14261 Date Filed: 02/07/2020 Page: 19 of 33

IV. MITIGATING-ROLE REDUCTION

Defendants Ortiz and Otero-Pomares argue that the district court clearly

erred in declining to apply mitigating-role reductions.

A. Standard of Review

“We review a district court’s denial of a role reduction for clear error.”

United States v. Valois, 915 F.3d 717, 730 n.8 (11th Cir.), cert. denied, 140 S. Ct.

263 (2019). This Court will not disturb a district court’s mitigating-role findings

“unless we are left with a definite and firm conviction that a mistake has been

made.” Id. at 731. “The court’s choice between two permissible views of the

evidence will rarely constitute clear error, so long as the basis of the trial court’s

decision is supported by the record and the court did not misapply a rule of law.”

Id. Ortiz and Otero-Pomares bear the burden of establishing, by a preponderance

of the evidence, their mitigating roles in the offense. See id.

B. Section 3B1.2 and Amendment 794 to the Commentary

Under § 3B1.2 of the Sentencing Guidelines, a defendant is entitled to a

mitigating-role reduction by (a) four levels if he was a “minimal participant in any

criminal activity,” or (b) two levels if he was a “minor participant in any criminal

activity.” U.S.S.G. § 3B1.2(a), (b) (2014). 13 A defendant is a “minimal

13 On appeal neither Ortiz nor Otero-Pomares contest that they were culpable for the cocaine loads for which they were held accountable. 19 Case: 18-14261 Date Filed: 02/07/2020 Page: 20 of 33

participant” if he was “plainly among the least culpable of those involved in the

conduct of a group.” Id. § 3B1.2, cmt. n.4 (explaining that “the defendant’s lack of

knowledge or understanding of the scope and structure of the enterprise and of the

activities of others is indicative of a role as minimal participant”). A defendant is a

“minor participant” if he was “less culpable than most other participants” in the

criminal activity, but his role “could not be described as minimal.” Id. § 3B1.2,

cmt. n.5. In determining whether a defendant is entitled to a mitigating-role

reduction under § 3B1.2(a) or (b), or an intermediate adjustment, the district court

must consider the totality of the circumstances and the facts of the particular case.

Id. § 3B1.2, cmt. n.3(C).

In United States v. De Varon, this Court established two principles to “guide

the determination of whether a defendant played a minor role in the criminal

scheme: (1) ‘the defendant’s role in the relevant conduct for which [he] has been

held accountable at sentencing,’ and (2) ‘[his] role as compared to that of other

participants in [his] relevant conduct.’” United States v. Presendieu, 880 F.3d

1228, 1249 (11th Cir. 2018) (quoting United States v. De Varon, 175 F.3d 930,

940 (11th Cir. 1999) (en banc)). “In making the ultimate finding as to role in the

offense, the district court should look to each of these principles and measure the

discernable facts against them.” De Varon, 175 F.3d at 945. In the drug courier

context, district courts should consider the “amount of drugs, fair market value of

20 Case: 18-14261 Date Filed: 02/07/2020 Page: 21 of 33

drugs, amount of money to be paid to the courier, equity interest in the drugs, role

in planning the criminal scheme, and role in the distribution.” Id. (stressing that

this is a non-exhaustive list and that no single factor is more important than

another). This is a highly fact-intensive determination that “falls within the sound

discretion of the trial court.” Id.

Similarly, Amendment 794 (the amended commentary to § 3B1.2) offers a

non-exhaustive list of relevant factors to be considered in this “fact-intensive,

multi-faceted approach.” Presendieu, 880 F.3d at 1249; see also United States v.

Cruickshank, 837 F.3d 1182, 1193 (11th Cir. 2016) (providing that Amendment 794 to

the commentary to § 3B1.2 was meant to “further clarify the factors for a court to

consider for a minor-role adjustment” in a way that “still continue[s] to embrace

the approach we took in De Varon”). These relevant factors include: (1) “the

degree to which the defendant understood the scope and structure of the criminal

activity”; (2) “the degree to which the defendant participated in planning or

organizing the criminal activity”; (3) “the degree to which the defendant exercised

decision-making authority or influenced the exercise of decision-making

authority”; (4) “the nature and extent of the defendant’s participation in the

commission of the criminal activity”; and (5) “the degree to which the defendant

stood to benefit from the criminal activity.” U.S.S.G. Supp. to App. C, Amend.

794; U.S.S.G. § 3B1.2, cmt. n.3(C) (2015).

21 Case: 18-14261 Date Filed: 02/07/2020 Page: 22 of 33

“The court must consider all of [the § 3B1.2] factors to the extent applicable,

and it commits legal error in making a [mitigating] role decision based solely on

one factor.” Valois, 915 F.3d at 732 (quotation marks omitted); see, e.g.,

Cruickshank, 837 F.3d at 1194-95 (concluding that, “although nothing in De Varon

or Amendment 794 [to § 3B1.2’s commentary] precludes a district court from

considering the drug quantity with which the defendant was involved as an

indicator of his role, we think it was legal error for the district court to say that this

is the only factor to be considered in a case like this one”).

C. Ortiz’s and Otero-Pomares’s Arguments as to the Minor-Role Reduction

Defendant Ortiz contends that he was entitled to a four-level minimal-role

reduction because his role essentially was to stay quiet, not turn in his

co-conspirators, and assist in moving the cocaine around. Alternatively, he argues

that, at the very least, he was entitled to a two-level minor-role reduction. Otero-

Pomares argues that he was entitled to a two-level minor-role reduction because he

was a low-level physical laborer who moved or hid the drugs and was already held

accountable for the drug quantity in each cocaine load that he physically handled.

The district court did not clearly err by finding that Defendants Ortiz and

Otero-Pomares were not entitled to minor-role reductions, let alone any minimal-

role reduction. The inquiry under De Varon’s first principle is whether the

defendant “played a relatively minor role in the conduct for which [he] has already 22 Case: 18-14261 Date Filed: 02/07/2020 Page: 23 of 33

been held accountable—not a minor role in any larger criminal conspiracy.” De

Varon, 175 F.3d at 944; United States v. Martin, 803 F.3d 581, 591 (11th Cir.

2015). Ortiz and Otero-Pomares do not contest that the record shows that they

knowingly participated in the illegal transportation of a large quantity of cocaine—

five cocaine loads totaling 995 kilograms for Ortiz and four cocaine loads totaling

595 kilograms for Otero-Pomares. See Barona-Bravo, 685 F. App’x at 764-66,

777.

Further, their specific roles in transporting the cocaine loads encompassed

important duties. Namely, Otero-Pomares knew and stayed quiet about each of his

four cocaine loads and helped haul them on board, move them to the cargo hold,

and/or hide them in the ballast tank.14 Id. at 765-66, 777. While Ortiz had varying

levels of participation in each of the five cocaine loads he knew and stayed quiet

about, his participation encompassed being present for deliveries, throwing down

ropes, hauling the loads on board, moving the loads towards the cargo hold,

opening and closing the ballast tank while others hid the loads inside, and, in one

case, unloading and delivering a load to the intended recipient. Id. at 764-65, 777.

Although Ortiz and Otero-Pomares characterize their roles as merely

providing manual labor and staying quiet about the cocaine loads, their roles were

14 While Otero-Pomares did not haul the 100-kg load on board, he later helped move and hide that load. See id. at 765. 23 Case: 18-14261 Date Filed: 02/07/2020 Page: 24 of 33

much more important to the overall drug trafficking scheme. Through their efforts,

they helped secure: (1) the onloading of large amounts of cocaine to be transported

between Colombia and Panama; (2) the concealment of the cocaine to avoid

detection by the Borocho’s captain as well as by outside parties; and (3) the

secrecy of the individualized agreements for each load to prevent discord amongst

crew members and/or the sharing of profits between the crew members who found

out about the load. Therefore, these Defendants’ roles ensured the conspiracy’s

continuation and success.

Moreover, both Ortiz and Otero-Pomares were held accountable only for the

cocaine loads in which they participated. While these circumstances do not render

them ineligible for the minor-role reduction, they preponderate against any

mitigating role. See U.S.S.G. § 3B1.2, cmt. n.3(C); De Varon, 175 F.3d at 941-43;

see also United States v. Monzo, 852 F.3d 1343, 1347 (11th Cir. 2017)

(considering, as part of the totality of the circumstances, that the defendant

participated in drug distribution, “was responsible only for his direct role in the

conspiracy, and that he was important to the scheme”).

Ortiz and Otero-Pomares emphasize that, under § 3B1.2 commentary’s list

of factors, they did not plan or organize the conspiracy, had no decision-making

authority, and had no ownership interest in the cocaine. See U.S.S.G. § 3B1.2,

cmt. n.3(C). Even so, the record shows that, under the third factor in § 3B1.2’s

24 Case: 18-14261 Date Filed: 02/07/2020 Page: 25 of 33

commentary, Ortiz and Otero-Pomares were present at Barona-Bravo’s meeting

about the 195-kg load and agreed to take the load on board and share in the profits,

showing at least some level of influence over Barona-Bravo’s exercise of decision-

making authority. See id.; Barona-Bravo, 685 F. App’x at 765, 777. Additionally,

the fact that their roles were important to the drug trafficking scheme was relevant

to the fourth factor in § 3B1.2’s commentary about the nature of the defendants’

participation in the criminal activity. See U.S.S.G. § 3B1.2, cmt. n.3(C). And, that

Ortiz and Otero-Pomares received advance payments for the cocaine loads they

participated in showed that they stood to benefit financially from the completion of

the drug trafficking conspiracy, which is the fifth factor. See id.; Barona-Bravo,

685 F. App’x at 765.

In addition, under De Varon’s second principle, the record indicates that

neither Ortiz nor Otero-Pomares were “less culpable than most other participants in

the criminal activity,” let alone “plainly among the least culpable of those involved

in the conduct.” See U.S.S.G. § 3B1.2, cmt. n.4, n.5. The record shows that

several of the crewmen on board the Borocho were similarly tasked—with being

present for the delivery of the loads; physically hauling, moving, and/or hiding the

loads; and staying quiet about their involvement—including Medrano and Torres,

neither of whom received a minor-role reduction. Barona-Bravo, 685 F. App’x at

764-66, 777.

25 Case: 18-14261 Date Filed: 02/07/2020 Page: 26 of 33

To the extent that Ortiz and/or Otero-Pomares had any lesser physical role in

their various cocaine loads in comparison to the other crew members, that fact

alone would not make them minor or minimal participants. “The fact that a

defendant’s role may be less than that of other participants engaged in the relevant

conduct may not be dispositive of role in the offense, since it is possible that none

are minor or minimal participants.” De Varon, 175 F.3d at 944. Rather, each of

the manual laborers appeared to be average participants and Ortiz and Otero-

Pomares presented no evidence at trial or at sentencing to show that they were less

culpable.

In sum, Ortiz and Otero-Pomares did not carry their burden to show how

they were “plainly among the least culpable” or less culpable than “most other

participants” in the criminal activity. See U.S.S.G. § 3B1.2, cmt. n.5; Valois, 915

F.3d at 731. Based on the totality of the circumstances and the record in this case,

the district court did not clearly err in denying Ortiz and Otero-Pomares minor-or-

minimal-role reductions under § 3B1.2(a) or (b).

V. DRUG QUANTITY AS TO 195-KG COCAINE LOAD

Defendants Ortiz and Patino-Villalobos argue that the district court clearly

erred in including the 195-kg cocaine load in its calculation because the

government did not prove by a preponderance of the evidence that this load was

26 Case: 18-14261 Date Filed: 02/07/2020 Page: 27 of 33

reasonably foreseeable to them. 15 Their arguments fail because the district court

found they were paid for and were involved in that 195-kg load and held them

accountable for their own conduct.

Generally, a defendant’s advisory guidelines range is determined based on

all “relevant conduct.” United States v. Valarezo-Orobio, 635 F.3d 1261, 1264

(11th Cir. 2011) (quotation marks omitted); see U.S.S.G. § 1B1.3(a) & cmt. n.2

(2014). “We review only for clear error the application of the relevant conduct

guideline in § 1B1.3 to the facts of the case.” United States v. Valladares, 544

F.3d 1257, 1267 (11th Cir. 2008).

B. Relevant Conduct under § 1B1.3

Relevant conduct includes the defendant’s own acts in perpetration of the

offense and, “in the case of a jointly undertaken criminal activity,” “all reasonably

foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity.” U.S.S.G. § 1B1.3(a)(1) (2014). More specifically, in

controlled-substance cases, a defendant is accountable under subsection (a)(1)(A)

15 While Patino-Villalobos explicitly raises this issue, Ortiz purports to adopt by reference any non-adverse issues raised in his co-appellants’ initial briefs, which ostensibly includes this issue. This issue is arguably too fact-intensive and individualized to be generally adopted. United States v. Cooper, 203 F.3d 1279, 1285 n.4 (11th Cir. 2000). Namely, while both Ortiz and Patino-Villalobos were held responsible for the 195-kg load, their involvement in that load differed and Ortiz’s involvement was proven at trial, whereas Patino-Villalobos’s involvement was proven more at sentencing. Although Ortiz’s general adoption is probably inadequate, we need not resolve that issue because his claim so readily fails in any event. 27 Case: 18-14261 Date Filed: 02/07/2020 Page: 28 of 33

for all drug quantities with which he was directly involved, and, under subsection

(a)(1)(B) for all drug quantities involved in transactions carried out by other co-

conspirators so long as “those transactions were within the scope of, and in

furtherance of, the jointly undertaken criminal activity and were reasonably

foreseeable in connection with that criminal activity.” Id. § 1B1.3, cmt. n.3(D)

(2015).

C. Ortiz’s Drug-Quantity Arguments

As to Defendant Ortiz, the district court found that he was directly involved

in the 195-kg load because he physically assisted in hiding the load by opening and

closing the ballast tank while other crewmen hid the load inside the tank, and Ortiz

was paid for his involvement. The district court did not clearly err in making this

finding under § 1B1.3(a)(1)(A) because, as previously discussed, the evidence

supports Ortiz’s direct involvement in this load. See infra Section IV.

D. Patino-Villalobos’s Drug-Quantity Arguments

As to Defendant Patino-Villalobos, the district court found that, while there

was no evidence that he helped haul or move the 195-kg load on board, the

evidence showed that he received a payment of $2,000 in U.S. currency for his

involvement in the 195-kg load and that $2,000 in U.S. currency was found in his

possession upon arrest. Taken together, the trial and sentencing evidence also

showed that: (1) all crew members other than the captain, which includes Patino-

28 Case: 18-14261 Date Filed: 02/07/2020 Page: 29 of 33

Villalobos, were present at Barona-Bravo’s meeting about the 195-kg load;

(2) each attendee at the meeting agreed to receive the load and share in the

proceeds; (3) Patino-Villalobos was present when the 195-kg load was hauled on

board; and (4) while housed in jail awaiting trial, Patino-Villalobos came up with a

plan to falsely blame another co-conspirator for the 195-kg load and claim that it

was hauled onto the Borocho before he came aboard, and communicated that plan

to other crewmen. See Barona-Bravo, 685 F. App’x at 765-66, 777.

Patino-Villalobos’s quarrels with the strength of the sentencing evidence are

unconvincing. Although Medrano did not mention Patino-Villalobos when

testifying at trial about who was present for the delivery of the 195-kg load,

Medrano did not state that Patino-Villalobos was not present, and the district court

was entitled to credit Special Agent Galloza’s sentencing testimony that in his

interview Medrano did mention Patino-Villalobos’s name. See id. at 765.

And, while Special Agent Galloza conceded some discrepancies in the

evidence regarding Patino-Villalobos’s payment for the 195-kg load, the district

court was entitled to choose between two permissible views of the evidence and

find that the $2,000 in U.S. currency found by the FBI among Patino-Villalobos’s

personal property belonged to him and was payment for the 195-kg load, rather

29 Case: 18-14261 Date Filed: 02/07/2020 Page: 30 of 33

than the 86-kg load. See Valois, 915 F.3d at 731. 16 Importantly, despite the Coast

Guard’s inventory sheet’s omission of the $2,000 in U.S. currency, the trial and

sentencing evidence, taken together, showed that: (1) Barona-Bravo directed

another crew member to pay those involved in the 195-kg load $2,000 in U.S.

currency plus 350,000 Colombian pesos; (2) the crewmen received the payment for

the 195-kg load; (3) the FBI found among Patino-Villalobos’s personal property

$2,000 in U.S. currency and over 800,000 Colombian pesos; and (4) the 86-kg load

was paid completely in Colombian pesos, not U.S. currency. See Barona-Bravo,

685 F. App’x at 766, 777 n.13.

In sum, the district court did not clearly err in finding that the trial and

sentencing evidence, taken together, was sufficient to show, by a preponderance of

the evidence, that Patino-Villalobos was directly involved in the 195-kg load under

§ 1B1.3(a)(1)(A). See U.S.S.G. § 1B1.3, cmt. n.3(D); Valois, 915 F.3d at 731.

E. Invited Error

Alternatively, and as an independent basis for affirmance, we conclude that

16 In raising his arguments, Patino-Villalobos contends that each cocaine smuggling transaction involved here was a separate criminal activity rather than one jointly undertaken activity. To the extent that Patino-Villalobos intends to argue that each cocaine load was a separate conspiracy, this Court already rejected such a notion in the first appeal and concluded that this was a single overarching conspiracy. See Barona-Bravo, 685 F. App’x at 782 n.18 (“By rendering their verdicts, the jury implicitly found that only a single conspiracy existed for criminal liability purposes. On appeal, to the extent the defendants argue the district court was required to find multiple conspiracies at sentencing, the defendants have shown no error in that regard.”). 30 Case: 18-14261 Date Filed: 02/07/2020 Page: 31 of 33

Defendant Patino-Villalobos invited any error that he now wishes to cure. When a

defendant either affirmatively seeks or expressly consents to a particular decision

by the district court, the doctrine of invited error precludes him from complaining

on appeal that any resulting error from the decision is reversible. See United States

v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).

At resentencing, the district court clearly indicated that it would either:

(1) hold Patino-Villalobos accountable for solely the 86-kg load and deny a minor-

role reduction; or (2) hold him accountable for both the 86-kg and 195-kg loads

and grant a minor-role reduction, noting that the latter situation would result in a

lower advisory guidelines range. Patino-Villalobos explicitly agreed that he would

be better off, and would receive a lower sentence, in the latter scenario, thereby

providing his explicit consent to such an approach. As a result, the district court

found him responsible for both the 86-kg and 195-kg loads and granted him a two-

level minor-role reduction. Accordingly, Patino-Villalobos has invited any error

he now claims. See id.

VI. CONFLICT BETWEEN ORAL PRONOUNCEMENT AND WRITTEN JUDGMENT

Defendants Ortiz and Torres argue that their amended written judgments

improperly vary from the district court’s oral pronouncements of their sentences by

failing to limit the number of random drug tests to which they must submit. They

request that we reverse their sentences and remand to the district court with 31 Case: 18-14261 Date Filed: 02/07/2020 Page: 32 of 33

directions to enter amended judgments conforming to its oral pronouncements that

they were required to submit to a maximum of 104 drug tests per year. The

government agrees.

“When a sentence pronounced orally and unambiguously conflicts with the

written order of judgment, the oral pronouncement governs.” United States v.

Bates, 213 F.3d 1336, 1340 (11th Cir. 2000) (remanding to the district court with

instructions to correct the written judgment (which stated the defendant’s term of

supervised release as three years) to accord with the oral pronouncement of

sentence (which announced the term as five years)).

At their respective resentencing hearings, the district court unambiguously

stated that Ortiz and Torres were required to submit to random drug testing but that

the tests would not exceed 104 per year. However, their amended written

judgments provide that they “must submit to one drug test within 15 days of

release from imprisonment and at least two periodic drug tests thereafter, as

determined by the court,” without any mention of the 104-drug-tests-per-year

restriction. Given this clear conflict, we remand to the district court on a limited

basis with instructions to correct Ortiz’s and Torres’s judgments to conform to the

oral pronouncement of its sentences. See Fed. R. Crim. P. 36 (“After giving any

notice it considers appropriate, the court may at any time correct a clerical error in

a judgment, order, or other part of the record, or correct an error in the record

32 Case: 18-14261 Date Filed: 02/07/2020 Page: 33 of 33

arising from oversight or omission”); Bates, 213 F.3d at 1340. 17

AFFIRMED IN PART, VACATED IN PART AND REMANDED WITH INSTRUCTIONS.

17 Patino-Villalobos has not raised this drug-testing issue or sought to adopt his codefendants’ challenges to their drug testing. The district court did not impose the drug-testing condition on Otero-Pomares, let alone the restriction on the number of drug tests per year. Thus, their sentences are affirmed in this regard. 33