UNITED STATES OF AMERICA, Plaintiff - Appellee v. ROGER ALFREDO ANCHUNDIA-ESPINOZA, Defendant - Appellant
No. 17-40584
United States Court of Appeals for the Fifth Circuit
July 27, 2018
Appeal from the United States District Court for the Eastern District of Texas
Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
Roger Alfredo Anchundia-Espinoza pleaded guilty to conspiracy to possess, with the intent to distribute, cocaine while aboard a vessel subject to thе jurisdiction of the United States, in violation of
I.
Roger Alfredo Anchundia-Espinoza, a сitizen of Ecuador, and three others were contracted by an unknown individual to transport cocaine. They were each paid $1,000 up front for the service. They were also promised an additional $9,000 and a plane ticket once they reached their destination. On December 10, 2015, the group left the Esmeraldas area of Ecuador on a small boat. After traveling a number of miles in open waters and being provided additional fuel by two other boats, they met a larger boat, which contained the shipment of cocaine and twо occupants. Anchundia-Espinoza and the three other men boarded the larger boat, and the two men on the larger boat took their smaller one (presumably back to Ecuador, although it is unclear). The four men traveled for five days, and each drove the boat at different times.
In January 2016, Anchundia-Espinoza and the six other men were indicted for conspiring to possess, with intent to distribute, five or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of
The punishment guidelines for
Using the 2016 Sentencing Guidelines, the Pre-sentence Report (PSR) determined that Anchundia-Espinoza had a base offense level of 38 because he was responsible for 681.6 kilograms of cocaine—well above the 450 kilogram minimum in
Anchundia-Espinoza filed two objections to the PSR. First, he objected to the denial of the safety valve reduction. Second, he objected to the denial of the minor participant reduction under
The district court denied Anchundia-Espinoza’s first objection because the safеty valve provision applies only to the five offenses specified in
The district court ultimately varied downward from the 210-month advisory minimum and sentenced Anchundia-Espinoza to 175 months in prison.1
On appeal, Anchundia-Espinoza challenges the district court’s denial of two sentencing reductions by erring in its application of two relevant statutes. The district court’s legal interpretation of a statutory provision is rеviewed de novo. United States v. Flanagan, 80 F.3d 143, 145 (5th Cir. 1996). Factual findings made during sentencing, however, are reviewed for clear error. United States v. Kiekow, 872 F.3d 236, 247 (5th Cir. 2017). Whether a defendant was a minor or minimal participant is a factual determination that we review for clear error. United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016) (quoting United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016)). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, this court may not reverse, even if, had we been sitting as trier of fact, we might have weighed the evidence differently. Kiekow, 872 F.3d at 247 (quoting United States v. Harris, 740 F.3d 956, 967 (5th Cir. 2014)).
III.
Anchundia-Espinoza first appeals the district court’s denial of safety valve relief. The safety valve provision of
The safety valve provision set forth in
Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (
21 U.S.C. 841 ,844 ,846 ) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960 ,963 ), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has beеn afforded the opportunity to make a recommendation, that —(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course
of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to рrovide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
(Emphasis added).
This issue presents a case of first impression for this circuit. As a general matter, however, this court has striсtly limited the safety valve’s application to the statutes listed in
The Supreme Court has instructed that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992). Our court, and other circuits, hаve confirmed that there is no ambiguity concerning the ambit of’
The Ninth Circuit, relying in part on this court’s Phillips decision, addressed whether a conviction under
Likewise, the Eleventh Circuit held that, because the defendant was not convicted under a statute appearing in
We decline to accept Anchundia-Espinoza’s invitatiоn to steer away from this court’s strict interpretation of the statute—and the lead of circuits that have addressed this issue. Instead, we follow this court’s precedent in strictly construing the safety valve provision. To hold otherwise would run afoul of this court’s decision that
IV.
Anchundia-Espinoza also contends that he should have received a two-level reduction in his offense level for playing a minor role in the conspiracy. He argues, as he did in the distriсt court, that the district court erred by comparing him only to the co-defendants who played the same role he did, rather than comparing him to all of the other participants in the conspiracy. He asserts that the district court committed, “at the very least, a legal error in the interpretation” of the Guidelines such that remand is required. Generally, the factual determination of whether a defendant played a minor role in the offense is reviewed for clear error. See Torres-Hernandez, 843 F.3d at 207.
The defendant bears “the burden of proving by a prepоnderance of the evidence that the adjustment [was] warranted.” United States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016) (quoting United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001)). “A minor participant adjustment is not appropriate simply because a defendant does less than other participants; in order to qualify as a minor participant, a defendant must have been peripheral to the advancement of the illicit activity.” Miranda, 248 F.3d at 446–47.
Determining minor participation is a “sophisticated factual determination[]” to be made by the sentencing judge. United States v. Gallegos, 868 F.2d 711, 713 (5th Cir. 1989). Here, the district court meticulously compared Anchundia-Espinoza’s participation to that of his co-defendants—the only members of the conspiracy about whom the district court had concrete knowledge. Indeed, the only reference to unindicted co-conspirators was defense counsel’s statement and the government’s
Accordingly, the judgment of the district court is AFFIRMED.