UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TRINITY ROLANDO CABEZAS-MONTANO, ADALBERTO FRICKSON PALACIOS-SOLIS, HECTOR LEONARDO GUAGUA-ALARCON, Defendants-Appellants.
No. 17-14294
D.C. Docket No. 4:16-cr-10050-KMM-2
United States Court of Appeals for the Eleventh Circuit
January 30, 2020
Before ROSENBAUM, TJOFLAT and HULL, Circuit Judges.
HULL, Circuit Judge:
After a jury trial, defendants Trinity Rolando Cabezas-Montano, Hector Leonardo Guagua-Alarcon, and Adalberto Frickson Palacios-Solis appeal their
As to their convictions, the defendants, either together or separately, challenge: (1) the constitutionality of the MDLEA; (2) the district court‘s determination of MDLEA subject matter jurisdiction; (3) the delay in presentment for a probable cause hearing; (4) the denial of their motion in limine to exclude evidence of post-arrest, pre-Miranda1 silence; (5) the sufficiency of the evidence; and (6) the denial of their motions for a mistrial based on the government‘s alleged Brady2 violation. As to their sentences, the defendants, either together or separately, challenge: (1) the constitutionality of the denial of safety-valve relief in their MDLEA case; (2) the denial of a minor-role reduction; and (3) the denial of their motions for a downward variance. They also claim the sentencing court committed procedural error and imposed substantively unreasonable sentences.
I. FACTUAL BACKGROUND
A. Coast Guard‘s Detection of the Go-Fast Vessel
On the night of October 24, 2016, the U.S. Coast Guard cutter Hamilton was patrolling in the eastern Pacific Ocean at 10 degrees latitude and 91 degrees longitude, which was approximately 200 miles off the coast of Central America, namely Guatemala and El Salvador. During the patrol, around 9:05 p.m., a Coast Guard marine patrol aircraft notified the Hamilton cutter that it had detected a go-fast vessel (“GFV“) that was traveling northbound at a high rate of speed and was approximately six nautical miles away from the cutter.4
The target GFV was 30-to-35 feet long, had two outboard engines, and was carrying three passengers on board. GFVs, also known as a “Panga” or “Panga-style” vessels, are small vessels designed to cut through the water with less friction so that they can travel at higher speeds. GFVs are low-profile and have a very
After being notified of the GFV, the Hamilton crew met for a briefing in the cutter‘s Combat Information Center (“CIC“). The CIC was equipped with a Forward-Looking Infrared Radar (“FLIR“) system and various other radars that enabled the Coast Guard to monitor nighttime vessel activity on the high seas. The FLIR system uses heat-based infrared detection to create a video in black (the objects emitting more heat) and white (the objects emitting less heat) depicting the activities or objects being monitored. The FLIR system allowed the Coast Guard to see vessels, passengers, and any jettisoned objects at night.
Generally speaking, Coast Guard members in the CIC stay in contact with all other Hamilton units throughout interdictions and keep them updated on the course and distance of target vessels. The three Hamilton units included (1) a helicopter, (2) an over-the-horizon (“OTH“) vessel, and (3) a long-range interceptor (“LRI“) vessel. The helicopter also was equipped with a FLIR monitoring system that recorded its observations on video too. The OTH vessel was equipped with search lights, radar, and weapons. The crew on these Hamilton units were equipped with and used night-vision goggles.
After the CIC briefing, the Hamilton crew decided to dispatch all three
B. Helicopter Chase
At 9:34 p.m., the Hamilton helicopter launched. At 9:45 p.m., the helicopter located the 30-to-35-foot GFV with two outboard engines that was carrying three individuals. The GFV appeared to be “dead-in-water” but started moving again.5 The helicopter moved alongside the GFV. At this point, the GFV and the helicopter still were approximately 200 to 250 nautical miles from the coast of Central America. The CIC on the Hamilton cutter eventually picked up the GFV on its FLIR and other radar systems and continuously monitored it.
While pursuing the GFV, the Hamilton helicopter crew obtained a statement of no objection from Coast Guard headquarters, entitling it to request that the vessel stop and to fire warning and disabling shots if necessary. The helicopter crew broadcasted orders in English and Spanish for the GFV to stop, ordered the passengers to put their hands up and move to the front of the vessel, and flashed its blue law enforcement lights and Coast Guard emblem. The GFV disregarded the instructions and continued moving in an evasive, zig-zag path. This prompted the helicopter crew to continue its chase and to fire three rounds of warning shots.
As the helicopter continued to chase the GFV, its crew saw the GFV‘s passengers jettisoning packages overboard. One package remained attached to the vessel and dragged behind in the water. The helicopter crew marked the location where the packages were jettisoned with chemical lights and relayed the coordinate positions to the Hamilton cutter. The helicopter FLIR video showed that the GFV‘s left side engine was cooler than the right side engine.
The GFV slowed down and came to a stop, at which point the passengers appeared to crank the engines to restart them. The GFV began moving again. Because the GFV passengers were next to the vessel‘s engines, the helicopter crew fired two rounds of warning shots near the aft of the GFV to get them to move toward the front of the vessel. The passengers complied, but the helicopter crew was unable to fire disabling shots at the GFV‘s engines without endangering the passengers. At this point, the helicopter was running low on fuel, so it communicated to the Hamilton cutter the GFV‘s last-known coordinate position and headed back to the cutter to refuel. Around 11:00 p.m., the helicopter crew lost its visual of the GFV and landed back at the Hamilton cutter at 11:05 p.m.
C. OTH and LRI Vessel Searches and Recovery of a Cocaine Bale
Approximately 31 minutes after the helicopter crew lost its visual of the GFV, the Hamilton cutter reacquired the GFV‘s location using its CIC‘s FLIR and other radar systems. The Hamilton cutter crew observed on the CIC‘s FLIR system that the GFV was dead-in-water and that one of the passengers was flailing and frantically trying to fix the engine. The cutter crew informed the OTH crew that it had reacquired sight of the GFV and redirected the OTH vessel to that coordinate position. While en route to the specified location, the OTH crew recovered a 20-kilogram cocaine bale floating in the water along with a buoy tied to a black line. The OTH crew relayed to the Hamilton cutter the coordinate location of the recovered cocaine bale and continued its search for the GFV.
While the OTH crew was recovering the bale, the LRI vessel launched around 11:33 to 11:43 p.m. Soon thereafter, the Hamilton cutter instructed the OTH crew to resume its search for the jettisoned packages because the LRI vessel
D. LRI Crew‘s Boarding and Search of the GFV
The LRI vessel approached a dead-in-water GFV that had two outboard engines and three passengers. The GFV, which had no navigation lights, was in international waters, 200-plus miles away from the closest land mass. The LRI vessel illuminated its blue law enforcement light and announced over a loud hailer in English and Spanish, “United States Coast Guard, put your hands in the air and move towards the front of the vessel.” The GFV‘s passengers complied with these orders.
After receiving permission for right-of-visit boarding, a boarding team from the LRI vessel then boarded the GFV. While conducting an initial safety sweep, the LRI boarding team members observed that much of the GFV had been wiped down with fuel.
The LRI boarding team, which included a Spanish translator, began asking right-of-visit questions to determine the nationality of the vessel. The team noticed the vessel was not flying any flag and had no other indicia of nationality. The team
When asked about the GFV‘s last port of call, Palacios-Solis stated that it was Manta, Ecuador. According to one LRI boarding team member, without a claim of nationality for the vessel or a master to take the claim from, the Coast Guard “take[s] the last port of call as the nationality of the vessel.” The boarding team also observed an Ecuadorian maker‘s mark on the back of the GFV indicating that the vessel was manufactured in Ecuador. When asked about the date of last port of call, Palacios-Solis stated that he and the other two defendants had gone fishing but ended up lost at sea for 32 days. The team observed, however, that the defendants did not seem happy to see Coast Guard personnel and declined the Coast Guard‘s offer of food and water.
The LRI boarding team conveyed to the Hamilton cutter that the GFV bore
The LRI boarding team swabbed the GFV‘s surfaces that were not saturated with fuel and the defendants’ hands for trace quantities of drugs. The defendants appeared visibly concerned when the swabbing began. Ultimately, the Coast Guard found trace amounts of drugs: (1) one defendant tested positive for trace amounts of cocaine and PCP; and (2) trace amounts of cocaine were detected on the GFV‘s bow and tiller.
The LRI boarding team also conducted a full search of the GFV. The team found: (1) a buoy and black line similar in appearance to the buoy and black line that were recovered where the jettisoned cocaine bale was found; (2) the same brown packing tape that was wrapped around the recovered bale; (3) eleven 25-gallon fuel drums, most of which were full; (4) a phone charger; (5) a satellite
As to the defendants’ fishing trip story, the LRI boarding team found fishing hooks and knives but did not find any bait, fish, or remnants of fish. The team found lines, but they appeared to be unserviceable and not usable for fishing. The team also found large quantities of water and sports drinks, as well as fresh fruit and food items that did not appear to be 32 days old. The bottom of the GFV appeared extremely clean and free from growth, which was an unusual state for a vessel that was allegedly adrift at sea for 32 days.
After being onboard for 12 hours, the LRI crew left the GFV and sank the vessel because it was a navigation hazard. The LRI vessel headed back to the Hamilton cutter, where the defendants were taken for processing.
E. Coast Guard‘s Recovery of 24 More Cocaine Bales
After conducting a drift analysis based on factors such as current and wind movement to determine where to search for the jettisoned packages, the OTH vessel dispatched in the daytime, responded to the designated area, and recovered
The Coast Guard also found GPS trackers attached to some of the cocaine bales themselves, which charted their movement as follows. Three trackers launched between October 15 and 16, 2016, some from the coast of Esmeraldas, Ecuador and others from the coast of the Ecuadorian and Colombian border. All three trackers converged when they traveled within the coastal region of Ecuador. Next, the trackers moved away from the coast of Ecuador, northwest towards the Galapagos Islands. The trackers then changed course and moved northeast towards the coast of the Guatemalan and El Salvadorian border. However, the GPS trackers suddenly stopped moving and then started drifting slowly in a south or southeast direction—indicating that the trackers were no longer on a vessel—in the area where the Coast Guard found them on October 24 and 25. The GPS trackers’ trajectories were consistent with the Hamilton cutter‘s and helicopter‘s coordinate range data for the target GFV and the document containing coordinates found on the defendants’ vessel. Four Coast Guard personnel testified that they
F. Defendants’ Version of Events
The defendants told a different story. According to Palacios-Solis‘s testimony at trial, he and his codefendants departed from the Esmeraldas, Ecuador, port for a short, four-day fishing trip on the boat. Palacios-Solis testified that the boat, of which he was the captain, was a typical Ecuadorian fishing boat. Palacios-Solis claimed that, while he initially lied to the Coast Guard about not being the captain, he admitted to his role once he arrived in Florida. The defendants quickly returned to the Esmeraldas port because the boat‘s engines were not working well. They had a mechanic fix the engine, but Palacios-Solis forgot to change the oil after the engine was fixed.
They again set out for their fishing trip. On the second day of their fishing trip, once they were approximately 150 to 200 miles from the Esmeraldas, the engines failed and Palacios-Solis was not able to repair them. They assumed that another fishing boat would come along and help them, but none did and they were left adrift for 27 to 30 days.
According to Palacios-Solis‘s testimony, he intentionally covered the engines to protect them from pirates. The documents discovered during the search of the GFV were left by previous users and Palacios-Solis denied any knowledge
Throughout trial, the government‘s witnesses testified as to the coordinate locations of the critical points during the interdiction of the GFV and of the recovered cocaine bales. In their case, however, the defendants called a maritime expert who created a model pointing out discrepancies in the government‘s plotted coordinates. Nonetheless, on cross-examination, the maritime expert conceded that at least some portions of his method and model were erroneous, incomplete, and/or misleading.
Notably too, a Coast Guard maritime expert, who conducted a drift analysis, testified that the defendants’ story about being adrift for about 30 days was physically impossible given the claimed starting point of the fishing trip, the
A Coast Guard health services technician also testified that she observed and examined the defendants once they were detained and brought aboard the Hamilton cutter on October 25. The health services technician testified the defendants did not require any medical intervention and exhibited no signs of malnourishment, dehydration, malnutrition, lethargy, or extended exposure to the elements.
II. FIRST JURY TRIAL
On December 12, 2016, Palacios-Solis, Cabezas-Montano, and Guagua-Alarcon made their first entry into the United States, when they were brought to Key West, Florida, in the Southern District of Florida.
On December 13, a criminal complaint issued against the defendants and their initial appearances were held before a magistrate judge. The complaint charged all defendants with conspiracy to possess with intent to distribute five kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States. In an attached probable-cause affidavit, a Drug Enforcement Agency (“DEA“) Special Agent stated how: (1) on October 25, the Coast Guard
On December 16, the defendants were indicted on charges of: (1) conspiracy to possess with intent to distribute five or more kilograms of cocaine on board a vessel subject to the jurisdiction of the United States, in violation of
On February 4, 2017, the government filed a motion for the district court to make a pretrial determination of jurisdiction regarding whether the defendants’ vessel was subject to the jurisdiction of the United States. The government submitted that: (1) the stateless GFV was interdicted in international waters and upon high seas by the Coast Guard on October 24, 2016; (2) at the time of the interdiction, there were three passengers on board, who were the defendants; (3) when asked by the Coast Guard, none of the defendants claimed to be the master of the vessel and none made a claim of nationality for it; and (4) thus, the
The first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict. As outlined below, the district court explicitly addressed its jurisdiction before the second trial.
III. SECOND JURY TRIAL
A. Defendants’ Motion to Dismiss the Indictment
Prior to the second jury trial, all defendants moved to dismiss the indictment for lack of subject-matter jurisdiction on three enumerated grounds containing multiple sub-issues.6 The defendants argued that: (1) there was no evidence that their vessel was outside the territorial waters of a foreign nation, precluding jurisdiction based on the vessel‘s status as one without nationality; (2) there was no evidence that the cocaine allegedly being transported by the vessel was destined for the United States, such that there was no U.S. “nexus” permitting the exercise of extraterritorial jurisdiction; (3) without a requirement that the trafficking crime have a “nexus” to the United States, the MDLEA‘s jurisdictional element violates due process; (4) the MDLEA‘s requirement that the district court determine the
In response, the government argued, inter alia, that: (1) the defendants were interdicted in international waters and upon the high seas when their GFV was stopped approximately 215 nautical miles southwest of the coast of Guatemala in the Pacific Ocean; (2) their GFV was without nationality and was subject to the jurisdiction of the United States; and (3) the defendants’ remaining arguments were foreclosed by this Court‘s precedent.
At a pre-trial hearing before a magistrate judge, defendants’ counsel made their jurisdictional arguments. The magistrate judge‘s report (“R&R“) recommended the denial of the defendants’ motion to dismiss the indictment. The magistrate judge found that: (1) the vessel was in international waters at the time it was intercepted by the Coast Guard; (2) jurisdiction existed under
B. Defendants’ Post-Arrest, Pre-Miranda Silence
Next, Palacios-Solis filed a motion in limine to exclude evidence of the defendants’ post-arrest, pre-Miranda silence in response to the Coast Guard‘s interrogation. Palacios-Solis conceded that this Court‘s precedent foreclosed his argument but sought to preserve the issue. Guagua-Alarcon adopted the motion.
In response, the government submitted that it did not intend to elicit, in its case-in-chief, the defendants’ silence or statements other than their silence or answers to the Coast Guard‘s questions regarding: (1) the master or captain of the GFV; (2) the nationality of the GFV; (3) the last port of call; and (4) the next port of call. The government reserved the right to elicit any silence or statements during the defense‘s case and in rebuttal.7
The district court denied Palacios-Solis‘s and Guagua-Alarcon‘s motion in limine as moot. The district court highlighted: (1) the defendants’ concession that this Court‘s precedent foreclosed their challenge; (2) the admissibility of their silence or answers to the questions identified by the government; (3) the government‘s indication that it otherwise would not elicit any other silence or statements by the defendants; and (4) the government‘s rights pertaining to cross-
C. Pretrial Hearing
Before trial, the district court held a pretrial hearing during which it granted the defendants’ motion to deem any objection made by one defendant as adopted by all defendants, unless a defendant opted out. The government clarified that it intended to elicit during their case-in-chief: (1) the defendants’ silence when asked about the GFV‘s nationality; (2) their actions of pointing to Cabezas-Montano and Palacios-Solis when asked about the vessel‘s master; (3) any statements or silence about the last and next ports of call; and (4) the defendants’ statement that they were adrift at sea for about 30 days. Palacios-Solis reiterated that this Court‘s precedent permitted the admission of such evidence, but that he preserved his challenge to it.
D. Government‘s Case-In-Chief
The second jury trial began on July 17, 2017. The government called seven witnesses: (1) six Coast Guard members who carried out the October 24-through-25 interdiction operation and testified about the above events; and (2) the DEA forensic chemist who tested the seized evidence for cocaine.
When Petty Officer Robert Tetzlaff testified as to his observations from the CIC‘s FLIR system—namely, that he observed one of the GFV passengers flailing and frantically trying to fix the engine—Palacios-Solis moved for a mistrial on
The district court agreed that the evidence was inculpatory, not exculpatory, but directed the government to investigate whether the FLIR video actually was recorded and/or recorded over. The next day, the government notified the district court that, while the Coast Guard records its FLIR videos, it records over them if no preservation request is made, and that it no longer had the October 24/25, 2016 FLIR video. Palacios-Solis renewed his mistrial motion, which Cabezas-Montano and Guagua-Alarcon joined. The district court denied the motion and the trial continued.8
E. Defendants’ Evidence, Government‘s Rebuttal, and Rule 29 Motions
The government rested on the third day of trial. The defendants moved for a
The defense then called a maritime expert who prepared a coordinate model for this case. Palacios-Solis also testified. The defense rested. In rebuttal, the government called the Coast Guard health services technician and its own maritime expert who conducted a drift analysis of the defendants’ vessel. The defendants renewed their
F. Jury Verdict and Post-Trial Motions
After deliberations, the jury found all three defendants guilty on both counts. Palacios-Solis filed a post-trial
IV. MDLEA
Before addressing the defendants’ appellate claims, we give some background about the MDLEA.
The Constitution empowers Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”
Congress enacted the MDLEA to prohibit any person from “knowingly or intentionally ... possess[ing] with intent to manufacture or distribute, a controlled substance” on board “a vessel subject to the jurisdiction of the United States,”
In 1996, Congress amended the MDLEA to provide that “[j]urisdiction of the United States with respect to a vessel subject to this chapter is not an element of an offense.”
V. DEFENDANTS’ CONSTITUTIONAL CLAIMS
As a threshold matter, all defendants argue that the MDLEA is unconstitutional because: (1) Congress‘s power to define and punish felonies on the high seas is limited to felonies bearing a “nexus” to the United States; (2) due process prohibits the prosecution of foreign nationals for offenses bearing no “nexus” to the United States; and (3) the MDLEA violates the Fifth and Sixth
As the defendants concede, each of these constitutional arguments is foreclosed by our binding precedent. First, this Court has held that the MDLEA is a valid exercise of Congress‘s power under the Felonies Clause as applied to drug trafficking crimes without a “nexus” to the United States. See Campbell, 743 F.3d at 809-10; see also United States v. Valois, 915 F.3d 717, 722 (11th Cir.) (following Campbell and reaching the same holding), cert. denied, 140 S. Ct. 263 (2019); United States v. Cruickshank, 837 F.3d 1182, 1187-88 (11th Cir. 2016) (following Campbell and reaching the same holding); United States v. Estupinan, 453 F.3d 1336, 1338-39 (11th Cir. 2006).
Second, this Court has held that the Fifth Amendment‘s Due Process Clause does not prohibit the trial and conviction of aliens captured on the high seas while drug trafficking because the MDLEA provides clear notice that all nations prohibit and condemn drug trafficking aboard stateless vessels on the high seas. See United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003); see also Valois, 915 F.3d at 722 (following Rendon and reaching the same holding). The defendants’ MDLEA convictions thus do not violate their due process rights even if their offenses lack a “nexus” to the United States. See, e.g., United States v. Wilchcombe, 838 F.3d 1179, 1186 (11th Cir. 2016); Campbell, 743 F.3d at 812.
Third, this Court has held that, because the MDLEA‘s jurisdictional requirement goes to the subject-matter jurisdiction of the courts and is not an essential element of the MDLEA substantive offense, it does not have to be submitted to the jury for proof beyond a reasonable doubt. See United States v. Tinoco, 304 F.3d 1088, 1109-12 (11th Cir. 2002); see also Valois, 915 F.3d at 722 (following Tinoco and reaching the same holding); Cruickshank, 837 F.3d at 1192 (following Tinoco and reaching the same holding); Campbell, 743 F.3d at 809 (following Tinoco and Rendon and reaching the same holding); Rendon, 354 F.3d at 1326-28 (following Tinoco and reaching the same holding).
The defendants also claim that: (1) the admission of a certification of the U.S. Secretary of State to establish extraterritorial jurisdiction, especially where a vessel is declared “stateless,” violates the Confrontation Clause and constitutes inadmissible hearsay; and (2) the certification procedure as to the jurisdictional element violates the Due Process Clause of the Fifth Amendment by allowing an act of foreign omission to substitute for the government‘s burden of proof on a “material element.” See
In any event, as the government points out, this Court has already held that the introduction of a Secretary of State certification to establish extraterritorial jurisdiction under the MDLEA does not violate the Confrontation Clause and does not constitute inadmissible hearsay. See Campbell, 743 F.3d at 806-08 (“The Confrontation Clause does not bar the admission of hearsay to make a pretrial determination of jurisdiction when that hearsay does not pertain to an element of the offense.“); Cruickshank, 837 F.3d at 1192 (“A United States Department of State certification of jurisdiction under the MDLEA does not implicate the Confrontation Clause because it does not affect the guilt or innocence of a defendant.“); see also Valois, 915 F.3d at 722-23 (following Campbell and Cruickshank and reaching the same holding). In Campbell, we determined that because the stateless nature of the defendant‘s vessel was not an element of his MDLEA offense to be proved at trial, the admission of the Secretary of State certification did not violate a defendant‘s right to confront the witnesses against him. 743 F.3d at 806.11
Based on our binding precedent, we conclude that the defendants have not
VI. MDLEA SUBJECT-MATTER JURISDICTION
Guagua-Alarcon and Palacios-Solis contend that, even if the MDLEA is constitutional, the district court erred in concluding that its statutory requirements for subject-matter jurisdiction were met.13 The government bears the burden of establishing that the statutory requirements of MDLEA subject-matter jurisdiction are met. Tinoco, 304 F.3d at 1114.
(A) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed;
(B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and
(C) a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.
Based on the record evidence, we conclude that the government established that the defendants’ vessel was a “vessel without nationality” under the
The LRI boarding team then also asked the defendants individually if anyone wished to make a claim of nationality for the vessel, but no one responded.14 Despite being given two opportunities, the defendants did not produce any nationality documents, did not fly any nation‘s flags, and did not make any verbal claim of nationality or registry.
We recognize that, on appeal, Guagua-Alarcon alleges that the defendants verbally claimed Ecuadorian nationality for the vessel, that the Ecuadorian government was unable to confirm the claim, and that, without a Secretary of State certification, the Coast Guard improperly assumed that the vessel was stateless, seized the defendants, and destroyed the vessel. The record evidence, however, does not show that any defendant claimed a nationality in response to the LRI boarding team‘s questions. Rather, the record shows that the LRI boarding team asked the defendants individually if anyone wished to make a claim of nationality for the vessel and the defendants did not respond. Because the defendants made no
We do acknowledge that the Coast Guard learned that the vessel‘s last port of call was Ecuador, found the vessel‘s Ecuadorian maker‘s mark, and took an additional step beyond its statutory obligation when it contacted Ecuador to receive its statement of no objection. This courtesy call, however, did not create a nationality claim on behalf of the defendants and their vessel where no master presented himself or actively made a claim of nationality. See United States v. Obando, 891 F.3d 929, 933, 938 (11th Cir. 2018) (explaining that, because no crew member made a claim of nationality for their vessel, their vessel was “without nationality” under
It also is of no matter that the Coast Guard takes the last port of call as the nationality of the vessel and contacts that corresponding government when no claim is made. Whatever the foreign government‘s response (or non-response), the Coast Guard‘s taking of that additional step does not void a statelessness finding under
Consequently, the defendants’ vessel was a “vessel without nationality,”
VII. DELAY IN GUAGUA-ALARCON‘S PRESENTMENT
For the first time on appeal, Guagua-Alarcon argues that his convictions should be vacated because the government deliberately and tactically took seven weeks in order to transport him to Florida—rather than bringing him promptly before a magistrate judge in California, the closest U.S. state—for a probable cause
Nonetheless, Guagua-Alarcon concedes that we should review his delay challenge for plain error since he raises it for the first time on appeal. Under the plain-error standard, we will vacate a judgment only if there is (1) an error, (2) that is plain, and the error both (3) affected the defendant‘s substantial rights, and (4) seriously affected the fairness of the judicial proceedings. United States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014); United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018). A defendant cannot prevail on plain-error review “where there is no precedent from the Supreme Court or this Court directly resolving” the issue in favor of the defendant. United States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017) (quotation marks omitted).
As a preliminary matter, we note that the MDLEA does not prohibit the government from taking offenders to Florida rather than California. A person violating the MDLEA “may be tried in any district,” “if the offense was begun or committed upon the high seas,” as was the case here.
In this regard,
In United States v. Purvis, this Court expressly addressed “unnecessary delay” under
Here, the timeline and location of defendant Guagua-Alarcon‘s arrest are not disputed. Guagua-Alarcon was brought onboard the Hamilton cutter on October 25, and the cutter was located 200-plus miles off the coast of Guatemala/El Salvador. On December 12, Guagua-Alarcon made his first entry into the Key West port. On December 13, he was presented for his initial appearance before a magistrate judge. There was a 49-day delay between Guagua-Alarcon‘s arrest and his presentment.
As to the fourth Purvis factor, the problem for Guagua-Alarcon is that he did not raise this delay issue below, much less claim the delay was “unnecessary,” and thus he has presented no evidence (at trial or a pre-trial hearing) indicating the reasons or circumstances behind the delay. Guagua-Alarcon‘s allegation that the government deliberately and tactically delayed in order to forum shop is pure speculation and unsupported by any record evidence.19 By failing to develop the factual predicates for his claim in the district court, Guagua-Alarcon has failed to carry his burden to show the particular delay here was “unnecessary” and thus a Rule 5(a) violation.20
In any event, Guagua-Alarcon points to no controlling precedent from the Supreme Court or the Eleventh Circuit establishing that a 49-day delay, no matter the circumstances of this interdiction on the high seas 200 miles off the coast of Guatemala/El Salvador, presumptively constitutes “unnecessary delay” under Rule 5(a). In other MDLEA cases, this Court has concluded that delays, albeit shorter ones, were reasonable. See Purvis, 768 F.2d at 1239 (holding that a five-day delay was reasonable for defendants arrested on the high seas approximately 350 miles from Key West); United States v. Odom, 526 F.2d 339, 342-43 (5th Cir. 1976) (holding that a five-day delay was reasonable for a defendant arrested on the high
Despite Rule 5(a), Guagua-Alarcon asserts that his case is controlled by the constitutional, 48-hour rule established by the Supreme Court in County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661 (1991). Prior to McLaughlin, the Supreme Court held that “the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention.” Gerstein v. Pugh, 420 U.S. 103, 126, 95 S. Ct. 854, 869 (1975). Then, in McLaughlin, the Supreme Court ruled that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter,
Guagua-Alarcon contends McLaughlin established a per se 48-hour outer-limit rule and thus his detention violated the Fourth Amendment. However, McLaughlin did not establish 48 hours as a per se outer limit. See id. at 56, 111 S. Ct. at 1670 (“[W]e hesitate to announce that the Constitution compels a specific time limit.“). Rather, in McLaughlin, the Supreme Court held that, generally, when a probable cause determination does not happen within 48 hours, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id. at 47, 56, 111 S. Ct. at 1665, 1670; Powell v. Nevada, 511 U.S. 79, 83-84, 114 S. Ct. 1280, 1283 (1994). Again, because Guagua-Alarcon did not raise his McLaughlin claim in the district court, we must review his McLaughlin claim too for plain error.
Here, Guagua-Alarcon has not shown error, much less plain error, because the Fourth Amendment does not apply to searches and seizures (arrests) by the United States of a non-citizen/non-resident alien arrested in international waters or a foreign country. See United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 1066 (1990) (holding that the Fourth Amendment protects only “the people” of the United States and has no application to search-and-seizure challenges where the challenger is a non-citizen/non-resident alien with no
While not in a drug trafficking case under the MDLEA, this Court similarly has applied the Verdugo-Urquidez rule in drug trafficking cases brought against non-resident aliens. See, e.g., United States v. Valencia-Trujillo, 573 F.3d 1171, 1173, 1182-83 (11th Cir. 2009) (holding that, under Verdugo-Urquidez, “[t]he Fourth Amendment . . . does not apply to actions against foreign citizens on foreign soil” and thus a non-resident alien charged with drug smuggling crimes could not challenge on Fourth Amendment grounds the district court‘s denial of an evidentiary hearing in which he sought to invalidate his arrest and involuntary extradition in Colombia);23 United States v. Emmanuel, 565 F.3d 1324, 1332 (11th Cir. 2009) (holding, in a drug trafficking case, that “[t]he Fourth Amendment exclusionary rule does not apply to the interception of wire communications in the Bahamas of a Bahamian resident“).
In this drug trafficking case under the MDLEA, we too must follow Verdugo-Urquidez and conclude that defendant Guagua-Alarcon, who is a non-U.S. citizen and non-U.S. resident, and who has no significant connection to the
Rather, the correct analytical framework for Guagua-Alarcon‘s delay-in-presentment challenge is under
VIII. DEFENDANTS’ POST-ARREST, PRE-MIRANDA SILENCE
Palacios-Solis argues that the district court erred in denying his motion in limine to preclude the government from presenting evidence of the defendants’ post-arrest, pre-Miranda silence as “consciousness of guilt.”26
As Palacios-Solis concedes, this Court‘s binding precedent forecloses his
Palacios-Solis points out a circuit split on this issue. This Court has already noted this circuit split in Wilchcombe and again upheld our precedent in Rivera. Wilchcombe, 838 F.3d at 1190-91 (“Whatever the state of the law in other circuits, in our circuit it was permissible for the government to comment on [the defendant‘s] silence.“). Given our precedent, the district court did not abuse its discretion in denying Palacios-Solis‘s motion in limine on this basis.
IX. SUFFICIENCY OF THE EVIDENCE
As to both counts, Cabezas-Montano and Palacio-Solis argue that there was insufficient evidence to convict them of violating the MDLEA because the government offered no evidence that they were the ones responsible for the drugs
To prove the existence of a conspiracy, “the government must establish that an agreement existed between two or more persons and that the defendant knowingly and voluntarily participated in it.” Tinoco, 304 F.3d at 1122 (quotation marks omitted) (reviewing the sufficiency of the evidence supporting conspiracy and substantive MDLEA convictions). The government may meet its burden using circumstantial evidence. Id. While a defendant‘s presence is not determinative, it is a material factor when weighing evidence of a conspiracy. Id.
The government also may use circumstantial evidence to meet its burden of proving possession of a controlled substance with intent to distribute. Id. A defendant‘s possession may be either actual or constructive. Id. A defendant constructively possesses contraband when he exercises some measure of dominion or control over it, either exclusively or in association with others. Id. Moreover, we may infer a defendant‘s intent to distribute from the large quantity of narcotics seized. Id.
(1) 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, such as suspicious behavior or diversionary maneuvers before apprehension, attempts to flee, inculpatory statements made after apprehension, witnessed participation of the crew, and the absence of supplies or equipment necessary to the vessel‘s intended use.
Id. Once the government shows that a large quantity of contraband was present on a vessel, its “remaining burden of showing that the crew knowingly participated in the drug trafficking operation is ‘relatively light,‘” and can be met by proving any one of the other Tinoco factors. Id.
In this case, the jury had ample evidence demonstrating that the defendants were guilty of the MDLEA conspiracy and possession crimes. First, the evidence showed that the defendants’ vessel was the same GFV the Coast Guard was targeting on the night of October 24. Multiple units of the Hamilton cutter monitored and chased the target GFV for almost three hours, stayed in contact with each other and shared coordinate locations throughout this time period, and only lost its visual of the GFV for 31 minutes. The target GFV was a 30-to-35-foot
Additionally, the results of the Coast Guard‘s searches of the defendants’ vessel and the GPS trackers matched their observations during the chase of the GFV. The FLIR video showed that the GFV‘s left side engine was emitting less heat than the right side engine, which was consistent with the LRI boarding team‘s discovery of a wet shirt covering the left engine. The buoys and black line recovered from the water matched those discovered on the defendants’ vessel and claimed by Palacios-Solis. And the trajectories of the GPS trackers on the recovered bales were consistent with the Hamilton cutter‘s and helicopter‘s coordinate range data for the target GFV as well as the coordinate document found on the defendants’ vessel.
Moreover, the defendants’ story that they had gone on a four-day fishing trip but had been lost or adrift at sea for about 30 days was contradicted by substantial evidence: (1) the defendants’ vessel was a GFV and not a fishing boat; (2) the GFV‘s bottom side was clean and had no growth; (3) the defendants had no bait, fish, or useable fishing lines onboard; (4) they had a substantial amount of fuel for
In short, while the Hamilton crew lost a visual of the GFV for 31 minutes, there was a wealth of other evidence establishing that the defendants’ later-captured vessel was the observed target GFV which was jettisoning the bales of cocaine.
Second, the evidence also showed that the recovered bales of cocaine were the same ones that were jettisoned by the target GFV, which was the defendants’ vessel. While aboard the target GFV, the defendants jettisoned numerous packages overboard during the chase and then the helicopter crew communicated the location of the jettisoned packages by using chemical lights and relaying the coordinate position. Although the OTH crew did not find the jettisoned packages at the specified location, the OTH crew recovered one package of cocaine and a buoy with a black line floating in the water while en route to the location where the defendants’ vessel had been visually reacquired. Then, the OTH crew recovered
Once again, the results of the vessel and GPS-tracker searches matched the Hamilton crew‘s observations during the chase of the GFV. The buoys, black line, and brown packing tape wrapped around the cocaine bales matched those discovered on the defendants’ vessel. The GPS trackers’ trajectories on the recovered bales were consistent with the coordinate range data for the GFV, the coordinate document found on the defendants’ vessel, and Palacios-Solis‘s statement to the LRI boarding team that the defendants’ last port of call was in Ecuador. The GPS trackers also showed the sudden stopping and slow drifting of the bales, which is consistent with the defendants jettisoning the bales off the GFV and the bales drifting in the water into the area where the Coast Guard eventually found them.
Still yet, other evidence established the link between the defendants and the recovered bales of drugs. By the time the LRI boarding team boarded the defendants’ vessel, it had been wiped down almost entirely with fuel, so as to hide
Although the Hamilton crew discovered the bales of cocaine in areas outside of the immediate location where they reacquired sight of the GFV and where they dropped chemical lights, there was plenty of other evidence establishing that these were the packages that the defendants jettisoned off their vessel. In sum, sufficient evidence established that the defendants’ vessel was the target GFV and that the recovered cocaine bales were the ones that had been jettisoned from the GFV.
With that established, we now turn to the Tinoco factors and why a jury could reasonably find the defendants were involved in a conspiracy to traffic and possess the drugs on their vessel. The size of the contraband shipment is relevant to show: (1) the passengers’ knowledge of the contraband‘s presence on the vessel; (2) the passengers’ intent to use the contraband for large-scale distribution, rather than for personal use; and (3) participation in the drug trafficking conspiracy by all the vessel‘s passengers. See Tinoco, 304 F.3d at 1121, 1123 (“The value of the cocaine also was relevant to showing that the cocaine most likely was not for personal consumption, but for large-scale distribution, which went to whether the
Indeed, the packages jettisoned from the defendants’ vessel contained a large amount of cocaine—25 total bales of cocaine collectively weighing 614 kilograms and worth $10 million wholesale. See United States v. Hernandez, 864 F.3d 1292, 1304-05 (11th Cir. 2017) (stating that 290 kilograms of cocaine within ten previously jettisoned bales indicated cocaine smuggling). Although the defendants’ vessel was carrying a large cocaine shipment, only three crew members were aboard. See Tinoco, 304 F.3d at 1123 (“The presence of a large amount of contraband on a small vessel with a small crew evidenced the defendants’ knowing participation in the drug smuggling operation.“). And, at trial, Palacios-Solis testified and eventually admitted that he was the captain aboard a small 30-to-35-foot vessel for possibly up to ten days, given the GPS tracker evidence. Given the small size of the boat, the few number of crew members, and the large amount of cocaine, that evidence made it reasonable for the jury to find beyond a reasonable doubt that the defendants knew of and agreed to participate in the charged drug conspiracy and possession crimes.
Ultimately, a jury reasonably could conclude that the defendants were guilty of the drug conspiracy and possession charges given their presence and close proximity on the small GFV for several days, the large amount and high monetary value of the cocaine, their diversionary maneuvers and attempts to flee, and the absence of necessary fishing supplies on their vessel. Id. at 1122-23. We thus conclude sufficient evidence supported the defendants’ convictions.28
X. PALACIOS-SOLIS‘S MOTION FOR A MISTRIAL
Palacios-Solis argues that the district court abused its discretion in denying
Palacios-Solis has not shown that the prosecution‘s failure to disclose this evidence violated his rights under Brady. The Supreme Court in Brady held that “the 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, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97 (emphasis added). Here, Palacios-Solis has not shown that the subject evidence was “favorable” or exculpatory, but concedes that Officer Tetzlaff‘s testimony about the contents of the CIC‘s FLIR video was “highly-incriminating” and “contradicted” the defendants’ innocent version of events. Palacios-Solis made the same concession when arguing his motion for a mistrial before the district court. Because the purportedly suppressed evidence is neither favorable nor material, Palacios-Solis failed to show a Brady violation and
XI. SENTENCING
A. Defendants’ Presentence Investigation Reports (“PSR“)
Cabezas-Montano‘s and Guagua-Alarcon‘s PSRs assigned them a base offense level of 38 for Counts 1 and 2, under
Palacios-Solis‘s PSR assigned him a base offense level of 38 for Counts 1 and 2, under
B. Defendants’ Objections and Motions for Downward Variance
All defendants filed written objections to their PSRs and then made or expanded upon their objections at the sentencing hearing. All defendants objected to not receiving a two-level minor-role reduction under
All defendants also moved for downward variances pursuant to
In response, the government argued that none of the defendants should receive a minor-role reduction because: (1) they were held accountable only for the quantity of cocaine they jettisoned from their vessel; (2) they jettisoned a huge quantity of cocaine; (3) they each played a vital role in the drug trafficking conspiracy and in attempting to destroy the evidence of their crimes; and (4) their transportation of such a large cocaine shipment was an essential component of their drug trafficking. The government emphasized that Palacios-Solis‘s role increase applied given his admission that he was the captain. The government stressed that Palacios-Solis was not eligible for the safety-valve relief because he had not provided the government with any information about his offenses and there was no precedent supporting his Fifth Amendment challenge to that requirement for safety-valve relief. And his false trial testimony warranted his obstruction-of-justice increase.
D. Sentencing Hearing
The defendants were sentenced together at a combined hearing. The district court addressed the defendants’ arguments as to their alleged minor roles, which largely overlapped with their arguments for downward variances. Cabezas-Montano and his counsel led these arguments, which were adopted and briefly
The defendants argued that they were the “little guys” in the drug trafficking operation, as they did not own the drugs, package the drugs, make arrangements for the drugs’ transportation or receipt, or make “millions and millions” of dollars off of the drugs’ distribution. For example, Cabezas-Montano, as a “little guy,” lived in poverty in his home country, only made up to a hundred dollars a week as a career fisherman, and stood to make more money in one week than he‘d make in 20 years if he succeeded in this drug trafficking trip. While the defendants were not minor participants with respect to the transported drugs in this case, they were “very small fish in a very large [drug trafficking] pond” with respect to “the real world.” While the “little fish” risked long sentences if they got caught, the “big guys” would continue to run the operation and make millions. The defendants also had no decision-making authority within the conspiracy. The defendants did not plan or organize the drug operation but only transported the drugs. They pointed out that the Guidelines reference transporting drugs as an example of conduct that could be eligible for a minor-role reduction.32
The government reiterated that the defendants were not entitled to a minor-role reduction because they were entrusted with a large quantity of cocaine, they
The district court then engaged in a lengthy colloquy with Cabezas-Montano‘s counsel regarding his argument that the defendants were just the “little guys” in a larger operation. The district court asked how it would know whether a defendant aboard a vessel was a “little guy” or was a “big guy” representing the owners of the cocaine. Cabezas-Montano stated that those facts would be based on the government‘s intelligence on particular trafficking organizations or networks, investigation into the particular case, or cooperation of the defendants. Cabezas-Montano argued that the government presented no evidence indicating he was anything other than what he said: a low-income fisherman.
The district court also inquired about deterrence and asked about how much couriers typically make for successfully transporting cocaine. Cabezas-Montano stated that a typical courier could make $20,000 for transporting a load of cocaine, which was a lot more than he made per week back at home. The district court was concerned that an individual like Cabezas-Montano would not be deterred from attempting a successful run given the possible reward. Cabezas-Montano responded that he already was deterred by the remorse of being separated from his family and the guilt of no longer being able to provide for them. He argued that
Ultimately, the district court was unpersuaded by the defendants’ deterrence argument given the number of individuals who make similar trips, some of which are successful and report their successes to their villages. The district court indicated that MDLEA penalties were significant partly because of the harm these drug offenses wreak on our society. The district court concluded: (1) that transportation was a critical role in the drug trafficking industry; (2) that defendants are accountable for their role in the conspiracy that was charged, not in a larger conspiracy that involved drug manufacturers or distributors somewhere else; and (3) that each of the defendants was an essential member of this conspiracy. The district court overruled the defendants’ minor-role objections. After hearing from Cabezas-Montano‘s counsel, the district court denied Cabezas-Montano‘s downward-variance request.
Palacios-Solis and his counsel went next. The district court overruled Palacios-Solis‘s objections to the PSR‘s factual basis, noting that it had heard the trial evidence and found that the evidence supported that factual basis. Palacios-Solis again raised his mitigating-role objection, which the district court overruled
Palacios-Solis also challenged his obstruction-of-justice increase and argued he did not lie at trial. Overruling the objection, the district court found that Palacios-Solis testified about being adrift for about 30 days, that the Coast Guard expert testified that this story was physically impossible, and that there was plenty of evidence that the defendants attempted to conceal and destroy evidence during the chase.
Palacios-Solis also raised his request for a downward variance to the 120-month statutory mandatory minimum sentence. The district court denied his request. After ruling on each of Palacios-Solis‘s PSR objections, the district court found that his total offense level was 42, his criminal history category was I, and his advisory guidelines range was 360 months to life.
E. Counsel‘s Final Sentencing Arguments
After the defendants’ personal allocutions,34 their counsel presented arguments for sentences well below the guidelines range. For example, the defendants argued that a shorter term of U.S. imprisonment would better promote general deterrence because they could go home and relay what happened. They also argued that: (1) they came from poverty and had a poor education; (2) the large drug quantity was irrelevant because they had no control over the amount transported; (3) they would not do well in a U.S. prison as non-English speakers with no family or support system here; and (4) a within-guidelines-range sentence would be extreme and unwarranted. Cabeza-Montano‘s counsel also stressed that,
In opposing 120-month sentences, the government argued that sentences must have meaning and that if a defendant goes to trial, loses, and then receives a downward variance to the bare statutory mandatory minimum sentence of 120 months, there would be no incentive for defendants to take responsibility for their criminal actions. The government noted that only one district court judge had granted the downward variances Cabezas-Montano‘s counsel referred to and that none of the judges in the district who presided over MDLEA cases had ever given a minor-role reduction, whether the defendants pled guilty or went to trial. The government emphasized that the defendants’ advisory guidelines ranges were reasonable and requested 240-month sentences for Cabezas-Montano and Guagua-Alarcon and at least a 360-month sentence for Palacios-Solis.
F. District Court‘s Sentences
The district court then addressed the
The district court sentenced: (1) Cabezas-Montano and Guagua-Alarcon to 240 months’ imprisonment, concurrently on both counts; and (2) Palacios-Solis to 360 months’ imprisonment, concurrently on both counts. The defendants renewed all prior objections, but made no new objections.
XII. SAFETY-VALVE RELIEF
Turning back to the arguments on appeal, Palacios-Solis and Cabezas-Montano challenge the constitutionality of the “safety-valve” provisions of
Further, this Court has held that the safety valve‘s prior exclusion of
Palacio-Solis and Cabezas-Montano also contend that the safety-valve‘s fifth requirement—that defendants provide information to the government about their offenses—violates their Fifth Amendment right against self-incrimination. “[T]his Court has not addressed in a published opinion this Fifth Amendment issue as to the safety valve.” See Valois, 915 F.3d at 730. In Valois, we briefly discussed the issue but ultimately did not decide it. Id. Namely, we pointed out that, in United States v. Henry, 883 F.2d 1010, 1011 (11th Cir. 1989), this Court concluded that ”
Nevertheless, in Valois, we declined to decide the issue given our conclusions that safety-valve relief was unavailable to the
XIII. PROCEDURAL AND SUBSTANTIVE REASONABLENESS
All defendants raise various procedural and substantive reasonableness arguments related to their sentences. Generally, we review the reasonableness of a sentence under a deferential abuse-of-discretion standard using a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we look at whether the district court committed any significant procedural error, such as miscalculating the advisory guidelines range, treating the guidelines as mandatory, failing to consider the
A. Minor-Role Reduction
All three defendants argue that the district court erred in denying them a two-level minor-role reduction under
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 De Varon, this Court pointed to these examples of relevant factors for the district court to consider in the drug courier context: “amount of drugs, fair market value of 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, wherein no one factor is more important than another). This determination is highly fact-intensive and “falls within the sound discretion of the trial court.” Id.
The amended commentary to
“The court must consider all of [the
Here, based on the totality of the circumstances, the district court did not clearly err in denying the defendants’ request for a minor-role reduction. Under De Varon‘s first principle, the inquiry is whether the defendant “played a relatively minor role in the conduct for which [he] has already 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). The record shows that all three defendants knowingly participated in the illegal transportation of a large quantity of high-purity and high-value cocaine, that they and their transportation roles were important to that scheme, and that they were held accountable for that conduct only. See
While these facts do not render the defendants ineligible for the minor-role reduction, they support the district court‘s denial of the reduction. Further, the fact
In addition, under De Varon‘s second principle, the record indicates that none of the defendants were “less culpable than most other participants in the criminal activity.”
The defendants do principally argue that they were less culpable than other participants in the larger conspiracy, such as those who recruited and trained the defendants, those who planned the scheme, and those with a financial interest in the drugs. In this vein, the defendants argue that the district court denied them minor-role adjustments solely because the other participants were not charged and the defendants were held accountable only for the drug amounts charged against them.
Subsequent amendments to the Sentencing Guidelines clarify that, “[i]n considering a
Nevertheless, the district court is not required to consider the culpability of any unknown conspirators or a hypothetical conspiracy. See De Varon, 175 F.3d at 944. This Court has explained that the district court should consider “other
To the extent that the defendants argue that the district court denied them minor-role reductions on the sole ground that they were being held accountable for only their conduct and the drug amount on their vessel, the record shows that the district court considered not one but several grounds in denying the reduction. See
Based on the totality of the circumstances and the record in this case, the district court did not clearly err in denying the defendants minor-role reductions under
B. 18 U.S.C. § 3553(c)(1)
Cabezas-Montano and Palacios-Solis argue that the district court procedurally erred under
That said, the district court is not required to incant specific language or articulate its consideration of each individual
Here, the record shows that the district court provided a sufficient explanation of its imposed sentences under
In fact, the district court provided a sufficiently in-depth explanation of its sentences, explicitly highlighting several
Therefore, the district court complied with
C. Denial of Downward Variances
All defendants argue that, in denying their motions for a downward variance, the district court erroneously considered that they exercised their right to trial, thereby unconstitutionally penalizing them for exercising this right and violating
Generally, when a district court recognizes its authority to grant a variance, we review for abuse of discretion its decision not to grant a downward variance. United States v. Cubero, 754 F.3d 888, 897-98 & 897 n.8 (11th Cir. 2014). However, while the defendants moved for downward variances below, none raised any argument regarding the district court‘s alleged reliance on their exercise of their right to trial in denying the motions. Thus, their new challenge on appeal is reviewed for plain error. See Ramirez-Flores, 743 F.3d at 822.
“[T]he district court has considerable discretion in deciding whether the
Here, the record shows no error regarding the district court‘s denial of the defendants’ downward-variance motions, let alone any plain error affecting their substantial rights. Cabezas-Montano and Guagua-Alarcon have not shown any error because, in denying their specific downward-variance motions, the district court never mentioned that they exercised their right to trial. Rather, in denying their motions, the district court: (1) rejected the defendants’ argument that they were just the “little guys” in a larger operation; (2) rejected their argument that they and/or other couriers would be deterred from making future trafficking trips when the possible reward for a successful trip was so high; (3) noted that MDLEA penalties were significant because of the harm drug offenses wreak on society; and (4) found that each defendant was an essential member of the conspiracy.
It was not until Palacios-Solis raised his downward-variance argument—several pages of transcript after Cabeza-Montano‘s and Guagua-Alarcon‘s motions already were denied—that the district court made the complained-of comments. In denying Palacios-Solis‘s downward-variance motion, the district court commented:
Also, the motion for a downward variance, I think we‘re treading on some difficult waters if we come in and say—I mean, I think every defendant has an absolute right to go to trial and exercise it and understand what the consequences are.
But what I‘m hearing from you and others in these types of cases is that the guideline amount of time is just a lot of time; so why not just give us the mandatory-minimum every time. So let us have two bites at the apple: Let us go to trial and maybe we‘ll be acquitted, we can all go home. And sometimes we have acquittals in these cases and sometimes we have mistrials.
But if we don‘t get acquitted, then at least give us the minimum-mandatory with a downward departure so that we can kind of hedge our bets. We want our cake and eat it. We don‘t want to have to face the guideline sentence. We want to go to trial and hopefully get acquitted. But if we do go to trial and we get convicted, then we want the mandatory-minimum. You know, if we start setting up that precedent, then everybody is going to want to roll the dice with one hand tied behind their back.
Anyway, I don‘t think a downward departure or variance is justified.
In making the comments, the district court made no reference to Cabeza-Montano or Guagua-Alarcon, or their motions.
Even if the district court‘s comments were made in reference to each of the defendants’ downward-variance motions, the defendants still have not shown error. The defendants describe the district court‘s comments as denying their downward-variance motions solely in an effort to punish them for going to trial. The record does not support such a portrayal. Rather, the district court actually acknowledged the defendants’ “absolute right to go to trial,” and then the remainder of the district
D. Substantive Reasonableness
Cabezas-Montano, and Palacios-Solis by adoption, argue that their sentences are substantively unreasonable.40 Yet, when a district court imposes a sentence within the advisory guidelines range, we ordinarily will expect the sentence to be a reasonable one. Carpenter, 803 F.3d at 1234; United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). Further, a district court may attach great weight to one factor over others, and the weight it attaches to any one factor is committed to
Under the abuse-of-discretion standard, we will vacate a sentence on substantive reasonableness grounds only if “we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the
Here, Cabezas-Montano‘s 240-month sentence falls near the bottom of the 235-to-293-month advisory guidelines range, a strong indication of reasonableness. See Carpenter, 803 F.3d at 1234; Docampo, 573 F.3d at 1101. Similarly, Palacios-Solis‘s 360-month sentence falls at the very bottom of the 360-months-to-life advisory guidelines range, also suggesting reasonableness. See id. Nevertheless, they argue that their within-guidelines-range sentences are still substantively unreasonable because the district court considered only the seriousness of the defendants’ offenses and the need to promote general deterrence and failed to consider (1) their individual histories and circumstances, and (2) the sentences imposed by different judges on similarly situated defendants in Cabezas-
While the district court did not expressly discuss these defendants’ individual histories and circumstances, the record belies their assertion that it did not consider them. As outlined above, the district court explicitly considered the defendants’ PSRs and downward-variance arguments, and it also heard their allocutions, all of which reflected their individual histories and characteristics. Namely, Cabezas-Montano and Palacios-Solis highlighted their familial relationships in Colombia and Ecuador, guilt and remorse from being separated from their family members, poverty, efforts to support their families as low-income fishermen, lack of prior crimes, and alleged minor roles in the offense. Similarly, the district court heard Cabezas-Montano‘s counsel‘s arguments regarding the large downward variances received by purported similarly situated
Cabezas-Montano and Palacios-Solis also contend that the district court imposed a within-guidelines-range sentence based on the highest drug quantity and did not meaningfully distinguish their individual conduct from that of a “drug
While Cabezas-Montano and Palacios-Solis focus on their individual histories and circumstances and the sentences received by purported similarly situated defendants in other
All in all, Cabezas-Montano and Palacios-Solis have failed to show that “the district court committed a clear error of judgment in weighing the
For the reasons discussed above, we affirm the defendants’ convictions and sentences.
AFFIRMED.
I concur in the panel‘s opinion but write separately to address two points. First, I am deeply troubled that the government took seven weeks between arresting the defendants and bringing them before a magistrate judge for a probable-cause determination. And second, I am concerned that one of our holdings in United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991), on which the panel opinion relies, is incorrect. While I urge the Court to reconsider that holding en banc in an appropriate case, I do not think our error in Riviera affects the ultimate outcome here.
I.
The government is fortunate that the defendants did not raise the Coast Guard‘s apparent seven-week odyssey in the district court.1 Had the defendants done so, the government would have had to establish under
But seven weeks! That‘s a long time. Christopher Columbus‘s first voyage across the entire Atlantic Ocean, from the Canary Islands to the Bahamas, took only roughly five weeks. How Long Did It Take Columbus and His Crew to Cross the Atlantic, Reference, https://www.reference.com/history/long-did-columbus-his-crew-cross-atlantic-ocean-81eb6768c230a21c (last visited Jan. 27, 2020). And in 1873, Jules Verne contemplated a voyage around the whole world (by sea and rail) would take only 80 days. In fact, Nellie Bly2 beat his estimate in 1890 by completing the journey in 72 days, six hours, eleven minutes, and fourteen seconds.3 It‘s hard
Surely at some point a delay becomes presumptively “unnecessary,” even by plain-error standards. Perhaps we cannot say definitively that seven weeks for this trip is presumptively “unnecessary,” but what if the Coast Guard had taken an extra month? What about an entire year? The government might be able to explain such delays—and again, we have no record in this case—but a lengthy trip like this raises more than a few questions.
Plus, if the government could have delivered the defendants to a closer jurisdiction in less time, it seems to me that
In addition to violating Rule 5, “unnecessary” delay in presentment may also be unconstitutional. True, the Supreme Court has suggested that the Fourth
Depending on the necessity for the length of the detention during the delay in presentment, one of those limitations may include the Suspension Clause. The Supreme Court has explained that the writ of habeas corpus is “an essential mechanism in the separation-of-powers scheme.” Id. at 743. That is so since habeas “preserves limited government” by allowing a detainee to challenge his detention when a branch of the government has exceeded its constitutional powers in imprisoning him. See id. at 744. And since “the Constitution‘s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-power principles” such as the Suspension Clause. Id. at 743 (citations omitted); cf. Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) (“An alien immigrant, prevented from landing by any such officer claiming authority to do so under an act of congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.“).
The Supreme Court has concluded that we must consider at least three factors in evaluating the reach of the Suspension Clause: “(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner‘s entitlement to the writ.” Boumediene, 553 U.S. at 766. When we do so, it seems likely that the Suspension Clause applies to foreign-national criminal detainees in sole United States custody before they have been charged—even if the United States is holding them outside this country.
To understand why, we must review Boumediene. In Boumediene, the petitioners were aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. Id. at 732. They denied they were enemy combatants and sought the issuance of writs of habeas corpus for their release. Id. at 734. Applying the three factors listed above, the Supreme Court concluded that the Boumediene petitioners could seek habeas in United States courts, since Congress had not acted in conformance with the requirements of the Suspension Clause when it enacted a statute stripping the courts of jurisdiction to issue the writ. Id. at 766-771, 792.
Turning to the second consideration—the nature of the sites where apprehension and then detention occurred—the Court observed that the detainees had been taken into custody outside the United States and detained in a place that is “technically outside the sovereign territory of the United States.” Id. at 768. Though these facts weighed against a finding that the detainees had rights under the Suspension Clause, the Court chose to instead stress that the United States enjoyed absolute and indefinite control over the facility at Guantanamo Bay. Id. at 768-69. As a result, the Court reasoned that “[i]n every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.” Id. at 769.
The case of
Second, while Coast Guard vessels on the high seas are not within the jurisdiction of the United States, as with Guantanamo, the United States enjoys absolute and indefinite control over its own ships while they are in international waters.
And finally, like the detainees at Guantanamo,
In any case, at a minimum, the United States should give some serious consideration to its procedures for presenting an
II.
As I read Miranda, its purpose was to avoid precisely this result. In fact, Miranda described its own holding as follows: “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of [Miranda rights] effective to secure the privilege against self-incrimination.” 384 U.S. at 444 (emphasis added). The Supreme Court noted, “[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way . . . .” Id. at 467. Miranda further explained that the reading of Miranda rights must occur “[p]rior to any questioning” because the rights are designed “to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it[.]” Id. at 444 (emphasis added).
If an in-custody person‘s silence before the administration of Miranda rights may be used against that person, then, in violation of Miranda, that person is not “assured a continuous opportunity to exercise” his right of silence while subject to
Not only is our Rivera holding contrary to Miranda, but Fletcher v. Weir, 455 U.S. 603 (1982), the sole authority on which we relied in reaching our Rivera holding, cannot bear the weight we have thrust upon its shoulders. In Fletcher, the Supreme Court held only that using in-custody, pre-Miranda silence to impeach a defendant who has taken the stand does not violate due process. Id. at 607. The Court never endorsed or even suggested that due process condones relying on a defendant‘s in-custody, pre-Miranda silence in the government‘s case in chief.
In particular, to justify the rule in Fletcher, the Court invoked common law, noting that it “traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Fletcher, 455 U.S. at 606 (citation and internal quotation marks omitted) (emphasis added). Our Rivera analysis cites no common-law authority for the
And the Supreme Court‘s more recent caselaw—Salinas, 570 U.S. 178 (plurality opinion)—undermines our holding in Rivera. In Salinas, the Supreme Court held that in non-custodial settings (before Miranda warnings are issued), a person who wishes to rely on his right to remain silent must expressly invoke that right. Id. at 190 (plurality opinion). But significantly, the Court noted that “a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary.” Id. at 184 (plurality opinion). Citing to Miranda, 384 U.S. at 467-68 & n.37, the Court then went on to explain that “a suspect who is subjected to the inherently compelling pressures of an unwarned custodial interrogation need not invoke the privilege.” Id. (internal quotation marks omitted). In other words, as recently as 2013, the Court reaffirmed Miranda‘s principle that an in-custody person‘s silence, pre-Miranda rights, may not be used against him, even if he does not expressly invoke his right to remain silent.
Nevertheless, I think that use of the defendant‘s in-custody, pre-Miranda-rights silence does not affect the outcome here.
First, to the extent that the government relied on the defendants’ silence here to establish subject-matter jurisdiction under the
And second, as it relates to the government‘s use of the defendants’ silence as evidence of their guilt on the substantive charges of drug-trafficking, on this record, application of Rivera—even if, as I believe, it was wrongly decided—was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). We have explained that “[o]verwhelming evidence of guilt” is relevant to assessing whether an error of constitutional dimension is harmless beyond a reasonable doubt. United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir. 1999).
Here, the record is rife with such evidence. For starters, Palacios-Solis testified that the defendants were adrift at sea for 27 to 30 days. Yet when the Coast Guard encountered them, it found large amounts of water and sports drinks, as well as fresh fruit and food items that did not appear to be that old. Nor did the defendants show any signs of having been adrift at sea for four weeks. Plus, the bottom of the vessel was clean and free from growth, also belying the defendants’ story. Besides that, while Palacios-Solis said the defendants had been on a fishing trip, the Coast Guard discovered no bait, fish, or fish remnants onboard. And the lines the Coast Guard did recover appeared to be unserviceable and not usable for fishing. Then there were the 25 bales of cocaine, located in a place consistent with the currents from where the defendants allegedly ditched them. Not only that, but the Coast
In short, the defendants’ silence in response to the Coast Guards’ questions about the boat‘s captain and nationality pales in comparison to the torrent of other evidence the government presented of the defendants’ guilt. As a result, even if Rivera wrongly authorizes admission of defendants’ in-custody, pre-Miranda-rights statements—which, for the reasons I have explained, I think it does—allowing the government to rely in its case in chief on the defendants’ silence here would not require reversal.
Notes
The prior version of
Similarly,