United States v. Bravo

United States Court of Appeals
For the First Circuit

Nos. 05-1144, 05-1145

UNITED STATES OF AMERICA,
Appellee,

v.

ALFRE LUIS BRAVO and
JESÚS ANTONIO MARTÍNEZ-ROSADO,
Defendants, Appellants.

No. 05-1146

UNITED STATES OF AMERICA,
Appellee,

v.

LUIS ANTONIO MANCILLA-PATINO,
Defendant, Appellant.

No. 05-1147

UNITED STATES OF AMERICA,
Appellee,

v.

JOSNE SAID ISAA-MORALES,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]
 Before

Torruella, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Stahl, Senior Circuit Judge.

Luis R. Lugo-Emanuelli, with whom Jorge Maldonado-Ríos was on
brief, for appellants Alfre Luis Bravo and Jesús Antonio Martínez-
Rosado.
Marlene Aponte-Cabrera, for appellant Luis Antonio Mancilla-
Patino.
Lydia Lizarríbar-Masini, for appellant Josne Said Isaa-
Morales.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief, for appellee.

May 29, 2007

*
Of the Tenth Circuit, sitting by designation.

-2-
 TORRUELLA, Circuit Judge. On September 7, 2004, a jury

found co-defendants-appellants Alfre Luis Bravo ("Bravo"), Jesús

Antonio Martínez-Rosado ("Martínez"), Luis Antonio Mancilla-Patino

("Mancilla") and José Said Isaa-Morales ("Isaa") (collectively

"Appellants") guilty of two offenses: (1) possession with intent to

distribute more than one thousand kilograms of marijuana on board

a vessel and aiding and abetting, in violation of 46 U.S.C. app.

§ 1903(a) (repealed 2006), and 18 U.S.C. § 2, and (2) conspiracy to

possess with intent to distribute more than one thousand kilograms

of marijuana on board a vessel, in violation of 46 U.S.C. app.

§ 1903(j). Thereafter, the Appellants were sentenced to a term of

imprisonment of 120 months followed by five years supervised

release as to each count, to be served concurrently.1 The

Appellants now appeal their convictions and sentences.

I. Background

On April 18, 2004, at approximately 4:45 A.M., the United

States Coast Guard ("USCG") cutter DEPENDABLE found the M/V EL

CONQUISTADOR (the "vessel") riding low and "dead in the water" in

international waters 180 nautical miles south of Santo Domingo,

Dominican Republic. A Rigid Hulled Inflatable Boat, the ABLE 2,

was launched from the DEPENDABLE to approach the vessel.

The ABLE 2 observed that the vessel's name was written on

its stern, but the vessel did not have a visible registration

1
A special monetary assessment of $200 was also imposed.

-3-
number, port identification, or country flag. On board the ABLE 2,

Officer Brian Hennessey ("Hennessey"), a technician and federal law

enforcement officer with the USCG, requested that the vessel

indicate its nationality. The vessel master answered that the

vessel was registered in Colombia. He further claimed that the

vessel had been fishing for approximately seven to eight days, but

that the vessel's engines were broken, and that they had no fish on

board and were en route to Haiti.2 Hennessey testified that he

perceived a strong smell of marijuana coming from the vessel.

Hennessey relayed via radio the information from the vessel master

to the DEPENDABLE and waited for permission to board the vessel.

At 7:39 A.M., Sean Connett ("Connett"), an employee with

the USCG at the District Command Center in Miami, contacted the

Colombian authorities to confirm the registry of the vessel via a

written form entitled "Action Request." The Colombian authorities

shortly responded with a "Response to the Action" form, indicating

that they could neither confirm nor refute that the EL CONQUISTADOR

was a Colombian vessel. The Colombian authorities also suggested

that the USCG proceed under "international law" and requested that

the USCG inform them of the results of the inspection.

Acting on the premise that the vessel was "stateless" or

"without nationality," the USCG sought to place the vessel within

2
The record indicates that the vessel did not contain any fish,
usable fishing nets, line gear or refrigeration.

-4-
U.S. jurisdiction. The Maritime Drug Law Enforcement Act ("MDLEA")

allows the United States to conduct drug law enforcement outside of

the United States, and more specifically, exercise jurisdiction

over stateless vessels. 46 U.S.C. app. § 1903(c). In accordance

with the MDLEA, Connett requested and received a "Statement of No

Objection" from the USCG headquarters in Washington, D.C., granting

permission to board EL CONQUISTADOR. Connett forwarded the

Statement to the USCG office in San Juan, which then forwarded it

to the DEPENDABLE.

Upon boarding the vessel, Hennessey observed what

appeared to be bales of marijuana, two of which were outside the

fish hold, forty-six of which were inside the fish hold.3 He then

conducted a field test confirming that the bales were, in fact,

marijuana. In order to access the bales, USCG officers broke the

fish hold, and transferred the bales onto the DEPENDABLE.4 The

vessel's five crew members -- the four Appellants and the captain,

Joaquín Emilio Cardona-Sandoval ("Cardona-Sandoval") -- were also

brought on board the DEPENDABLE. The Colombian authorities were

notified of the USCG's findings, and upon arrival in San Juan, the

3
The Drug Enforcement Administration ("DEA") later determined
that the bales constituted approximately 5,000 pounds of marijuana
with a street value of $7.5 million.
4
USCG Officers then destroyed the vessel, as it had been taking
on water and towing would have been difficult and time consuming.

-5-
Appellants were transferred to U.S. Immigration and Customs

Enforcement ("ICE") and detained.

At their joint trial, Appellants testified that they were

fisherman in their home country of Colombia and that in 2004 they

were recruited in Colombia to participate in a fishing expedition

by two individuals known to them as "Paco" and "Roberto."

Appellants testified that they were unacquainted with each other

when they arrived at the vessel. They further testified that when

they arrived, Paco and Roberto, along with others, were armed with

weapons, and marijuana was on the vessel. According to Appellants,

Paco threatened that Appellants' families would be killed if they

did not take the marijuana to Haiti. Appellants testified that

they feared for their families. After a few days at sea, the

vessel broke down.

On September 7, 2004, a jury found all four Appellants

guilty of both counts of the indictment. A pre-sentencing report

("PSR") was then filed on November 18, 2004, recommending that

Appellants be granted a two-point reduction in their base offense

level of 32 due to their minor roles in the offense. Martínez and

Bravo were sentenced individually, and Isaa and Mancilla were

sentenced jointly. At Appellants' various sentencing hearings, the

government opposed the minor role reduction. The court denied the

minor role adjustments, indicating that the evidence was such that

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it could not state who was a major and who was a minor participant

in the case.

At his sentencing hearing, Appellant Martínez raised no

objections to the PSR, and accordingly, was not granted any

adjustments, and was sentenced to 120 months imprisonment. In the

other sentencing hearings, Appellants Bravo, Isaa and Mancilla

objected to the PSR and requested a safety-valve benefit, as well

as a downward departure for duress. Appellants participated in a

government debriefing in order to qualify for the safety-valve

benefit, but they each received a sealed motion from the government

stating that the safety-valve would not be recommended because the

government did not believe that Appellants had provided all

available information in a truthful manner.5

Isaa's and Mancilla's joint hearing was held on

December 8, 2004. The court granted them an immediate hearing to

determine their entitlement to the safety-valve benefit. A DEA

special agent testified that, although Appellants' stories

coincided in certain aspects, it was abnormal that Appellants did

not know the details of how the drug transfer was going to take

place. He explained that the scenario was "too risky" to be

believable; he had never investigated a case in which a drug

5
See 18 U.S.C. § 3553(f)(5) (requiring that "the defendant has
truthfully provided to the Government all information and evidence
the defendant has concerning the offense"); U.S.S.G. § 5C1.2(a)(5)
(same).

-7-
trafficker had placed unknown individuals against their wills on a

vessel loaded with contraband of such value without providing

information about the transfer, or without agreeing to any payment.

The agent also noticed that, based on his experience and training,

Appellants appeared to easily answer "non-stressful" questions

about their families and Colombia, but that a level of stress or

deception was perceptible in Appellants' answers to questions

regarding the smuggling venture, the drugs, and payments.

The court denied Isaa and Mancilla the safety-valve

benefit, indicating that the consistency of Appellants' statements

did not overcome the gaps in the logic of their story. The court

also denied their requests for a downward departure for duress.

Again, the court indicated that it did not find Appellants' stories

to be totally truthful. Both Appellants were then sentenced to the

statutory mandatory minimum term of 120 months of imprisonment.

Bravo was sentenced a week later, on December 15, 2004.

The district court denied Bravo's request for a safety-valve

hearing, and subsequently denied him the safety-valve benefit.

Neither denial was explained by the court. The court also denied

Bravo's request for a downward departure for duress, and sentenced

him to the statutory mandatory minimum term of 120 months of

imprisonment.

Appellants now appeal a variety of issues regarding their

convictions and sentences.

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 II. Issues on Appeal

A. The United States' Jurisdiction over the Vessel

Appellants are neither citizens nor resident aliens of

the United States and the vessel involved was not a vessel of the

United States. Thus, for Appellants to be prosecuted under the

MDLEA, the vessel must be "subject to the jurisdiction of the

United States." 46 U.S.C. app. § 1903(a). Whether the district

court erred in determining that it had jurisdiction over the

vessel, and therefore over Appellants, is a question of law subject

to de novo review. See id. § 1903(f) ("All jurisdictional issues

arising under this chapter are preliminary questions of law . . .

."); see also United States v. Gonzáles, 311 F.3d 440, 443 (1st

Cir. 2002)("The term 'jurisdiction' . . . evidently refers to the

substantive reach of the statute--applying to some vessels but not

others--and not to subject matter jurisdiction of the court.").

Under the MDLEA, "a 'vessel subject to the jurisdiction

of the United States' includes . . . a vessel without nationality."

46 U.S.C. app. § 1903(c)(1)(A). Additionally, "a 'vessel without

nationality' includes . . . a vessel aboard which the master or

person in charge makes a claim of registry and the claimed nation

of registry does not affirmatively and unequivocally assert that

the vessel is of its nationality." Id. § 1903(c)(2)(C). Here, the

vessel master claimed registry in Colombia, and after contacting

the appropriate Colombian authorities, the USCG received a

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"Response to the Action" form from Colombia neither confirming nor

refuting the vessel's registration in Colombia. Since Colombia, as

the nation of alleged registry, could not confirm the vessel's

registration, the vessel qualifies as a "vessel without

nationality" under the MDLEA, and is within the jurisdiction of the

federal courts of the United States.

Under the plain language of the MDLEA, Appellants'

argument that jurisdiction includes a nexus requirement -- i.e., a

requirement that the government show that the marijuana transported

in the vessel would affect the United States, fails. The

Appellants' reliance on United States v. Hayes, 653 F.2d 8 (1st

Cir. 1981) (finding a jurisdictional nexus requirement for the

application of the Comprehensive Drug Abuse and Control Act of

1970, § 1013, 21 U.S.C. § 963, to a vessel apprehended in

international waters) and United States v. Cafiero, 242 F. Supp. 2d

49 (D. Mass. 2003) (finding a jurisdictional nexus requirement for

the application of the Comprehensive Drug Abuse and Control Act of

1970, §§ 401, 404, 21 U.S.C. §§ 841, 844, to an Italian citizen

aboard a flight that made an unplanned diversion into United States

territory), is misplaced. Those cases find a jurisdictional nexus

requirement in the Comprehensive Drug Abuse and Control Act of

1970. We do not read the MDLEA to require a jurisdictional nexus.

See, e.g., United States v. Cardales, 168 F.3d 548, 553 (1st Cir.

1999) ("[D]ue process does not require the government to prove a

-10-
nexus between a defendant's criminal conduct and the United States

in a prosecution under the MDLEA . . . ."); United States v.

Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003)("[T]his circuit . . .

ha[s] not embellished the MDLEA with a nexus requirement."); United

States v. Moreno-Morillo, 334 F.3d 819 (9th Cir. 2003) (holding

that Congress did not act under its Commerce Clause authority in

enacting the MDLEA and, thus, "no nexus between the activities

proscribed by the MDLEA and interstate or foreign commerce" is

required); United States v. Suerte, 291 F.3d 366, 375 (5th Cir.

2002) ("[T]o the extent the Due Process Clause may constrain the

MDLEA's extraterritorial reach, that clause does not impose a nexus

requirement."); United States v. Martínez-Hidalgo, 993 F.2d 1052,

1056 (3d Cir. 1993) (finding no nexus requirement in the MDLEA to

search stateless vessel in international waters).

Equally misplaced is Appellants' contention that the

United States disregarded the recommendation of the Colombian

authorities to follow "international law" when apprehending the

vessel. The USCG acted within both international treaty law and

customary international law. The Agreement to Suppress Illicit

Traffic by Sea, ratified and brought into force by the United

States and Colombia in 1997, is the treaty governing the

apprehension of the vessel and its crew. See Agreement Between the

Government of the United States of America and the Government of

the Republic of Colombia to Suppress Illicit Traffic by Sea,

-11-
Feb. 20, 1997, T.I.A.S. No. 12835. The treaty authorizes the

country requesting verification of a registry to "proceed in

accordance with international law" in the event that neither party

can confirm or refute a flag claim of a vessel in international

waters, id. art. 8, and the MDLEA is in compliance with

international law. The extra-territorial jurisdiction authorized

in the MDLEA is consistent with the "protective principle" of

international law, see Cardales, 168 F.3d at 553 (explaining that

the protective principle permits a nation "'to assert jurisdiction

over a person whose conduct outside the nation's territory

threatens the nation's security'") (quoting United States v.

Robinson, 843 F.2d 1, 3 (1st Cir. 1988)), and is supported by

numerous international treaties and agreements, including the

Single Convention on Narcotic Drugs, Mar. 30 1961, 18 U.S.T. 1407,

and its 1972 Protocol, Amendment of the Single Convention on

Narcotic Drugs, Mar. 25, 1972, 26 U.S.T. 1439; the Convention on

Narcotic Drugs: Psychotropic Substances, Feb. 21, 1971, 32 U.S.T.

543; the United Nations Convention on the Law of the Sea, Dec. 10,

1982, S. Treaty Doc. No. 103-39, 1833 U.N.T.S. 3; and the United

Nations Convention Against Illicit Traffic in Narcotic Drugs and

Psychotropic Substances, Dec. 20, 1988, 28 I.L.M. 493.6

6
We render no opinion as to whether or to what extent these
agreements or any analogous agreements are binding on the United
States.

-12-
 Our conclusion is without doubt or reservation: the

United States had jurisdiction over the vessel, and was correct to

apply the MDLEA to Appellants.

B. Lack of Pre-trial Determination of Jurisdiction

The Appellants assert that the district court erroneously

allowed the jury to hear testimony regarding jurisdiction. We

agree. "All jurisdictional issues arising under [the MDLEA] are

preliminary questions of law to be determined solely by the trial

judge." 46 U.S.C. app. § 1903(f). The exposure of the jury to the

jurisdictional testimony nonetheless was harmless. Non-

constitutional evidentiary error is harmless "so long as it is

highly probable that the error did not influence the verdict."

United States v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005) (internal

quotation marks omitted). Here, that standard is met because the

jury was presented with ample evidence that the Appellants

possessed marijuana, and that they did so with the intent to

distribute it. Moreover, the jury was instructed on the issues

that it had to determine, and instructed that jurisdiction over the

vessel was not an issue in the case, making it even more unlikely

that the error affected the jury's verdict. See id. (finding that

a non-constitutional evidentiary error was harmless because the

jury was presented with ample evidence of the defendant's guilt,

and the judge correctly instructed the jury).

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C. Motion to Suppress

Appellants challenge the denial of their pre-trial motion

to suppress the bales of marijuana seized from the vessel on the

grounds that the USCG lacked reasonable suspicion to stop and

search the vessel, in violation of the Fourth Amendment. We apply

a mixed standard of review to the district court's denial of the

suppression motion, reviewing the court's findings of fact for

clear error and the application of the law to those facts de novo.

Tinoco, 304 F.3d at 1116.

The Fourth Amendment prohibits "unreasonable searches and

seizures" whether or not the evidence is sought to be used in a

criminal trial, and a violation of the Amendment is "fully

accomplished" at the time of an unreasonable government intrusion.

United States v. Calandra, 414 U.S. 338, 354 (1974); see also

United States v. Leon, 468 U.S. 897, 906 (1984). For purposes of

this case, therefore, if there was a constitutional violation of

the Fourth Amendment, it occurred solely in international waters,

where the search and seizure took place. But the Fourth Amendment

does not apply to activities of the United States against aliens in

international waters. See United States v. Verdugo-Urquidez, 494

U.S. 259, 267 (1990). The Supreme Court's holding in Verdugo-

Urquidez is clear that the actions of the United States directed

against aliens in foreign territory or in international waters are

not constrained by the Fourth Amendment. 494 U.S. at 267 ("There is

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. . . no indication that the Fourth Amendment was understood by

contemporaries of the Framers to apply to activities of the United

States directed against aliens in foreign territory or in

international waters."); see also United States v. Vilches-

Navarrete, 413 F. Supp. 2d 60, 69 (D. P.R. 2006) ("In light of the

Supreme Court's holding in Verdugo-Urquidez, it is pellucid that

the Fourth Amendment does not apply to the search of non-resident

aliens on a ship in international waters."). Accordingly, the

district court was correct in denying Appellants' motion to

suppress because the Fourth Amendment was inapplicable to the

USCG's search of the vessel.

D. Sufficiency of the Evidence to Convict

Appellants moved for judgment of acquittal, pursuant to

Fed. R. Crim. P. 29, after the conclusion of the Government's case

in chief and again after the close of all the evidence. The

district court denied both motions. Here, Appellants claim that

the evidence is insufficient to establish beyond a reasonable doubt

that they had the required intent to violate the laws of the United

States. Specifically, Appellants allege that the evidence is

insufficient to establish that they intended to distribute the

marijuana, as required by 46 U.S.C. app. § 1903(a), see United

States v. Guerrero, 114 F.3d 332, 339 (1st Cir. 1997), or that they

sought by their actions to make the trafficking venture succeed, as

required by 18 U.S.C. § 2, see id. at 341-42. "We review Rule 29

-15-
determinations de novo, resolving any evidentiary conflicts or

credibility issues in the government's favor." Id. at 339. "If the

evidence, viewed under this lens, permits a rational jury to find

. . . the crime charged beyond a reasonable doubt, then the

evidence is legally sufficient." Id. (internal quotation marks

omitted).

In circumstantial cases such as this one, the evidence is

sufficient to convict if it adequately supports the "the requisite

two-step inference": (1) that the vessel was engaged in obviously

illegal activity, and (2) that each Appellant was ready to assist

in the criminal enterprise. United States v. Jiménez-Pérez, 869

F.2d 9, 11 (1st Cir. 1989) (internal quotation marks omitted). The

government argues that the jury could have reasonably drawn this

two-step inference from the evidence (i) that the Appellants

admitted to knowing that marijuana was on the vessel before or

shortly after the vessel departed, (ii) that the Appellants did not

seek to return to Colombia nor destroy the marijuana, and (iii)

that although the Appellants claimed that they thought they were

going on a fishing expedition, the vessel lacked fish, usable

fishing nets, line gear or refrigeration. See United States v.

Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991) (holding that the

evidence "may be entirely circumstantial"). Appellants respond

that their presence on the vessel or even their knowledge that they

were transporting marijuana is insufficient to establish their

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intent, see Guerrero, 114 F.3d at 342 ("Mere presence at the scene

or even knowledge that the crime is being committed is generally

insufficient . . . .") (internal quotation marks omitted),

particularly since they claim to have only participated under

duress.

Resolving all credibility issues in favor of the

government, we find the record sufficiently complete to support a

finding beyond a reasonable doubt that Appellants committed the

crime charged. The circumstantial evidence supports the inference

of drug trafficking, and there is no evidence opposing the jury's

determination that Appellants' testimony in support of their duress

defense was incredible. United States v. Spinney, 65 F.3d 231, 234

(1st Cir. 1995) (affirming where a jury's "inferences derive

support from a plausible rendition of the record" and their

"conclusions flow rationally from those inferences"); see also

United States v. Cuevas-Esquivel, 905 F.2d 510, 514-15 (1st Cir.),

cert. denied, 498 U.S. 877 (1990)(quoting United States v. Smith,

680 F.2d 255, 260 (1st Cir. 1982), cert. denied, 459 U.S. 1110

(1983))(concluding that it is the province of the jury, not the

court, to determine credibility of the witnesses, and noting that

"'[n]either juries nor judges are required to divorce themselves of

common sense,' where, as here, the appellant[s'] portrayal of

himself as an innocent bystander[s] is 'inherently

unbelievable.'").

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E. Pre-trial Ruling on the Defense of Duress

Prior to trial, Appellants sought to present a defense of

duress. The district court stated that it would not rule on a

duress instruction to the jury until after Appellants had

testified, if they were willing to do so, and only if the court

determined that Appellants met the standard for the submission of

the charge to the jury.

The burden of proof to demonstrate duress is on

Appellants. United States v. Amparo, 961 F.2d 288, 291 (1st Cir.

1992). In order to establish a claim of duress, the defendant must

show that: (1) he acted under an immediate threat of serious bodily

injury; (2) he had a well-grounded belief that the threat would be

carried out; and (3) he had no reasonable opportunity to escape or

otherwise frustrate the threat. United States v. Arthurs, 73 F.3d

444, 448 (1st Cir. 1996). A trial court may refuse a duress

instruction if insufficient evidence is presented. Id.

After Appellants presented their case for duress, the

court found that the Appellants met the requisite burden of proof

and instructed the jury as to a defense of duress. The jury,

however, did not find that Appellants were acting under duress.

Appellants Bravo and Martínez now claim that, because the court did

not rule on the applicability of a duress offense until after the

close of all evidence, they were denied the opportunity to choose

a defense strategy in advance and participate in a fair trial.

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 The district court clearly has the discretion to either

employ a pre-trial hearing or to wait until after all evidence has

been heard at trial, to determine whether the evidence of duress is

sufficient as a matter of law to warrant an instruction. See, e.g.,

United States v. Bailey, 444 U.S. 394, 399-401 (1980) (upholding

the convictions of four defendants, three of whom, at their joint

trial, were denied a duress instruction after the close of

evidence, and the fourth defendant who, at a separate trial, was

denied a duress instruction prior to trial). Indeed, we are

unaware of any case mandating a pre-trial determination of the

sufficiency of the evidence for a duress defense. Moreover, the

record indicates that Appellants were not prevented from arguing at

trial that Appellants were acting under duress, or from presenting

evidence to the jury, including the testimony of each Appellant,

allegedly demonstrating that they acted under duress. Thus, the

district court did not err by denying Appellants a pre-trial

determination on their duress defense.

F. Sentencing

1. Adjustment for Minor Participation

Appellants claim that the district court erred in failing

to grant them a two-level downward adjustment in their base offense

level due to their alleged minor participation in the offense, as

compared to Cardona-Sandoval, the captain of the vessel. We will

only reverse the district court's finding that Appellants were not

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minor participants if that finding is clearly erroneous. United

States v. Villarman-Oviedo, 325 F.3d 1, 16-17 (1st Cir. 2003).

Appellants bear the burden of proving that they are entitled to

downward adjustments for their roles in the offense. United States

v. Tom, 330 F.3d 83, 95 (1st Cir. 2003). If the record supports at

least two permissible inferences, the factfinder's choice between

or among them cannot be clearly erroneous. Villarman-Oviedo, 325

F.3d at 16. Accordingly, we rarely reverse a district court's

decision regarding whether to apply a minor role adjustment. Tom,

330 F.3d at 95.

A downward adjustment for a defendant's minor role in an

offense is permitted for a defendant "who is less culpable than

most other participants, but whose role could not be described as

minimal." U.S.S.G. § 3B1.2(b), cmt., n.5. Here, although the PSR

recommended that a two-level adjustment be granted, the government

objected to the recommendation, arguing that Appellants were

culpable to the same degree because they were all members of the

vessel's crew, equally advancing the same venture. Appellants

argued that because none of them were the captain of the vessel,

but rather crew members, with less significant functions than the

captain, they held minor roles. In denying the adjustment, the

sentencing court ruled that it could not differentiate the major

from the minor participants in the case.

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 While we acknowledge that the record indicates that

Cardona-Sandoval was the captain of the vessel, and that Appellants

were the crew, it is not clear that the sentencing judge erred in

denying the adjustment. Appellants failed to demonstrate that any

of them were less culpable than the others, United States v.

Brandon, 17 F.3d 409, 460 (1st Cir. 1994) (affirming denial of

minor participant adjustment where defendant was less culpable than

the major participants, but not less culpable than most of the

other defendants), or that their participation was less than the

average participation in the venture, United States v. Osorio, 929

F.2d 753, 764 (1st Cir. 1991). Accordingly, we cannot find that

the district court's denial of the adjustment was in error.

2. The Safety Valve Benefit

Bravo, Isaa and Mancilla each appeal the district court's

denial of their safety-valve petitions. A defendant bears the

burden of demonstrating his entitlement for the safety-valve

reduction. United States v. Rodríguez-Ortiz, 455 F.3d 18, 25 (1st

Cir. 2006). To qualify for this benefit, the defendant must

demonstrate, among other things,7 that he truthfully provided the

7
To qualify for the safety valve, defendants must satisfy the
following five criteria, the first four of which are not in dispute
in the instant appeal: (1) not have more than one criminal history
point; (2) not have used violence or possessed a firearm during
commission of the offense; (3) not have killed or seriously injured
another person; (4) not have been a leader or manager in the
offense or was involved in a continuing criminal enterprise; and
(5) have truthfully provided the government with all information
and evidence he possesses concerning the offense. 18 U.S.C. § 3553

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government with all the information and evidence he possesses

concerning the offense. 18 U.S.C. § 3553 (f)(5).8 Indeed,

"nothing short of truthful and complete disclosure shall suffice."

United States v. Bermúdez, 407 F.3d 536, 542 (1st Cir. 2005)

(quoting United States v. Matos, 328 F.3d 34, 38 (1st Cir. 2003));

United States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000) (not

clearly erroneous to deny safety valve benefit where the defendant

failed to divulge information he possessed concerning the crime at

the proffer session).

The district court's finding on eligibility must be "an

independent determination," United States v. White, 119 F.3d 70, 73

(1st Cir. 1997), resting on more than "bare conclusions," United

States v. Miranda-Santiago, 96 F.3d 517, 528 (1st Cir. 1996).

Although it is preferable that the court support its decision with

"specific factual findings," a district court may rest its decision

on conclusory statements if those conclusions have "easily

recognizable support in the record." See id. at 529.

Unfortunately, the district court failed to make even

conclusory statements as to why Bravo did not merit safety-valve

relief. The record shows that Bravo's repeated attempts to discuss

his safety-valve eligibility were rebuffed by summary denials of

(f).
8
It is not disputed that the three Appellants seeking the safety
valve in the instant appeal meet the first four criteria.

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his eligibility by the district court. The district court's

failure to provide any explanation of its reasoning for denial

falls well below the standard set in Miranda-Santiago, 96 F.3d at

528-29. Accordingly, we remand Bravo's safety-valve determination

for reconsideration by the court.

In the case of Isaa and Mancilla, the district court's

safety-valve determinations were based on analysis of the facts of

the case. We therefore review those determinations for clear

error. United States v. Márquez, 280 F.3d 19, 22 (1st Cir. 2002)

("To the extent that [a safety valve] ruling depends on

differential factfinding, we review it for clear error."). If we

find that the record, taken as a whole, will not support a finding

that the defendants failed to provide a truthful and complete

proffer, the government must demonstrate more than a simple lack of

confidence that the proffer is complete to justify the denial of

the safety valve. Id. at 24.

At Isaa's and Mancilla's joint hearing, the district

court credited the testimony of Special Agent Gonzáles that

Appellants had not disclosed everything they knew about the drug

smuggling conspiracy -- that while the story proferred by

Appellants was consistent, it was "illogical" and "incredible" that

an international drug smuggler would place $7.5 million of

narcotics on a vessel traveling in international waters without

having some type of voluntary control over the vessel's crew. This

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testimony is more than a statement of no confidence. The testimony

of Special Agent Gonzáles, based on his years of experience in the

field of drug interdiction, provides a sound grounding for the

district court's denial of the safety valve. If there is any error

here by the district court, it certainly is not clear.

3. Downward Departure for Duress

Even though the jury rejected Appellants' duress defense,

the district court still had the authority to grant a downward

departure under the guidelines at sentencing. U.S.S.G. § 5K2.12;

United States v. Sachdev, 279 F.3d 25, 28 (1st Cir. 2002). "[T]he

type and kind of evidence necessary to support a downward departure

premised on duress is somewhat less than that necessary to support

a defense of duress at trial." United States v. Amparo, 961 F.2d

288, 292 (1st Cir. 1992). However, on appeal, we only have

jurisdiction to review if "the sentencing court's failure to depart

did not represent an exercise of factfinding or discretion, but was

instead the product of the court's miscalculation about whether it

possessed the authority to depart." Id.; see also United States v.

Teeter, 257 F.3d 14, 30 (1st Cir. 2001) (holding that this Court

would not entertain an appeal of a denial of a departure for duress

unless it had a reason to believe that the trial court did not

understand its options).

This case does not fall within the exception: Appellants

do not theorize that the sentencing judge was unaware of his power

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to depart or misconceived the legal standard. Instead, Appellants

challenge the district court's discretionary decision not to

depart. It follows inexorably that we lack jurisdiction to review

the assigned error.

4. Booker Claim

While the instant appeal was pending, the Supreme Court

decided United States v. Booker, striking down the provision of the

Sentencing Reform Act that made the sentencing guidelines

mandatory, and holding that district courts are not bound by the

guidelines but must consult them and take them into account when

sentencing. 543 U.S. 220, 258, 264 (2005). One of the Appellants,

Isaa, now claims that he is entitled to a remand for resentencing

pursuant to Booker because he was sentenced under the mandatory

guidelines and the court did not consider, as required, all the

sentencing factors enumerated in 18 U.S.C. § 3553(a).

If Isaa was sentenced under a mandatory guidelines

system, we will "remand for resentencing where 'either in the

existing record or by plausible proffer, there is a reasonable

indication that the district judge might well have reached a

different result under advisory guidelines.'" United States v.

Lewis, 406 F.3d 11, 21 (1st Cir. 2005) (quoting United States v.

Heldeman, 402 F.3d 220, 224 (1st Cir. 2005)). Isaa, however, was

not sentenced under a mandatory guidelines system. Rather, he was

sentenced to a statutory mandatory minimum of 120 months of

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imprisonment for intending to distribute more than 1000 kilograms

of marijuana, pursuant to 21 U.S.C. § 960(b)(1)(G). Accordingly,

Isaa does not have a cognizable Booker claim. "A mandatory minimum

sentence imposed as required by a statute based on facts found by

a jury or admitted by a defendant is not a candidate for Booker

error." United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.

2005); United States v. Bermúdez, 407 F.3d 536, 545 (1st Cir. 2005)

("Since Bermúdez was sentenced to a statutory mandatory minimum,

rather than an erroneously mandatory guideline amount, no Booker

error occurred.").

III. Conclusion

For the reasons stated above, we affirm in part and

reverse in part, remanding in accordance with this opinion.

Affirmed in part, Reversed in part and Remanded.

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