[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12719 ELEVENTH CIRCUIT
APR 8, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 4:09-cr-10010-JEM-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADELIO TORRES-COBAS,
Defendant-Appellant.
________________________
No. 10-13526
Non-Argument Calendar
________________________
D.C. Docket No. 4:09-cr-10010-JEM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO LUIS HERNANDEZ-SANCHEZ,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(April 8, 2011)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Adelio Torres Cobas and Pedro Luis Hernandez-Sanchez appeal their
convictions and sentences for one count of conspiracy to encourage and induce
aliens to enter the United States illegally, 8 U.S.C. § 1324(a)(1)(A)(v)(I), and three
counts of bringing aliens to a place other than a designated port of entry, 8 U.S.C.
§ 1324(a)(2)(B)(iii). On appeal, Torres Cobas and Hernandez-Sanchez argue that
the district court plainly erred by accepting their guilty pleas for violating
§ 1324(a)(2)(B)(iii) because their pleas were not supported by a sufficient factual
basis.1 Specifically, they contend that the government failed to establish that they
knew that the Cuban aliens that they smuggled did not have prior authorization to
reside in the United States. They explain that the federal government’s “wet-foot,
1
Hernandez-Sanchez and Torres Cobas do not challenge their conspiracy convictions
under 8 U.S.C. § 1324(a)(1)(A)(v)(I).
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dry-foot” policy permits Cuban aliens who reach the United States to reside here.
In light of that policy, they assert, they did not have fair notice that the smuggled
aliens could not reside in the United States. Torres Cobas and Hernandez-Sanchez
also argue that their five-year mandatory minimum sentences under § 1324(a)(2)
are unconstitutional. For the reasons stated below, we affirm.
I.
A grand jury returned a superseding indictment charging
Hernandez-Sanchez and Torres Cobas with: (1) 1 count of conspiracy to induce
aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I)
(Count 1); (2) 25 counts of knowingly encouraging an inducing an alien to
illegally enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and
18 U.S.C. § 2 (Counts 2 through 26); and (3) 24 counts of bringing aliens to a
place other than a designated port of entry, in violation of 8 U.S.C.
§ 1324(a)(2)(B)(iii) and 18 U.S.C. § 2 (Counts 27 through 50).
Hernandez-Sanchez and Torres Cobas agreed to plead guilty to Count 1 and
Counts 27 through 29.
At the change-of-plea hearing, the government asserted that it would be able
to prove the following facts if the case were to proceed to trial. In late August
2008, Torres Cobas and Hernandez-Sanchez approached Seidel Guzman about a
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potential alien smuggling trip to Cuba to pick up certain members of their family.
Guzman agreed, and eventually Yamil Moreno and Osvaldo Rodriguez also joined
in the planning of the trip. On the evening of September 13, 2008, the
conspirators went to Dinner Key Marina in Miami to launch a 32-foot Concept
vessel owned by Rodriguez. Guzman used the Concept vessel to travel to Cuba
while the other defendants waited in Florida. On September 14, Guzman arrived
in Cuba and picked up 25 migrants, including several family members of Torres
Cobas and Hernandez-Sanchez. The following day, Guzman landed the migrants
at mile marker 88 in the Florida Keys.
As Guzman was returning to Miami, he ran out of gasoline.
Hernandez-Sanchez, Torres Cobas, and Moreno proceeded to Guzman’s location
in a back-up vessel and refueled the Concept vessel. Guzman got into the backup
vessel, and Hernandez-Sanchez and Torres Cobas boarded the Concept vessel and
piloted it back to Miami. All of the conspirators were apprehended by the Coast
Guard upon their arrival in Miami. According to the government, none of the
smuggled migrants had permission to come to, enter, or reside in the United
States.
Torres Cobas and Hernandez-Sanchez acknowledged that the government
would be able to establish all of those facts in a trial. The district court concluded
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that Torres Cobas and Hernandez-Sanchez were pleading guilty knowingly and
voluntarily, and that their pleas were supported by a sufficient factual basis.
Therefore, the court accepted the defendants’ pleas.
Hernandez-Sanchez’s presentence investigation report (PSI) determined
that he had a base offense level of 12 under U.S.S.G. § 2L1.1(a)(3). The PSI
increased Hernandez-Sanchez’s offense level by 6 under § 2L1.1(b)(2)(B)
because the offense involved the smuggling or transporting of 25 unlawful aliens.
The PSI also imposed a two-level enhancement under § 2L1.1(b)(6) because
Hernandez-Sanchez had intentionally or recklessly created a substantial risk of
death or serious bodily injury to another person. Hernandez-Sanchez received a
three-level reduction for acceptance of responsibility. These calculations
produced a total offense level of 17, which, when combined with
Hernandez-Sanchez’s criminal history category of I, resulted in a guideline range
of 24 to 30 months’ imprisonment. Because Hernandez-Sanchez faced a
mandatory minimum sentence of 5 years’ imprisonment with respect to Count 29,
his guideline sentence became 60 months. Torres Cobas’s sentencing calculations
were identical to those of Hernandez-Sanchez.
Hernandez-Sanchez filed a series of objections to the PSI. First, he argued
that he should not have received a 6-level enhancement for smuggling 25 aliens
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because he only sought to bring his wife and child to the United States.
Hernandez-Sanchez further argued that he should have been given a three-level
reduction under U.S.S.G. § 2L1.1(b)(1) because he participated in the conspiracy
“other than for profit.” He asserted that imposing a five-year sentence in his case
would produce an unwarranted sentencing disparity, in violation of 18 U.S.C.
§ 3553.
Hernandez-Sanchez also raised a series of constitutional challenges to the
five-year mandatory minimum sentence in § 1324(a)(2). First, he argued that the
penalty provisions of the statute were unconstitutionally vague or ambiguous.
Second, he contended that imposing a five-year sentence in his case would result
in cruel and unusual punishment, in violation of the Eighth Amendment. Third,
Hernandez-Sanchez asserted that a 60-month sentence would violate his right to
substantive due process because he was a first-time offender and the mandatory
minimum was much greater than the sentence called for by the Guidelines.
Finally, he argued that the sentencing scheme under § 1324(a)(2) violated
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)
because it created an enhanced penalty based on the number of counts charged,
rather than the elements of the offense. Torres Cobas offered the same objections
to his PSI.
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At the defendants’ respective sentencing hearings, the district court
overruled all of their objections. The district court sentenced Torres Cobas to
concurrent terms of 60 months’ imprisonment with respect to all 4 counts. The
district court sentenced Hernandez-Sanchez to 24 months’ imprisonment with
respect to Counts 1, 27, and 28, and 60 months’ imprisonment with respect to
Count 29, with all 4 sentences to run concurrently.
II.
Torres Cobas and Hernandez-Sanchez did not move to withdraw their guilty
pleas for Counts 27, 28, and 29 before the district court, nor did they argue that
their pleas to those counts were not supported by a sufficient factual basis.
Therefore, we are reviewing for plain error. See United States v. Moriarty, 429
F.3d 1012, 1019 (11th Cir. 2005) (noting that, when a defendant fails to object to a
Fed.R.Crim.P. 11 violation, this Court reviews for plain error). Under the
plain-error standard, the defendant must show: “(1) error, (2) that is plain, and (3)
that affects substantial rights.” Id. If the defendant is able to establish all three
elements, we then have discretion to correct an error that “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)
(quotation omitted) (alteration in original). An error is “plain” for purposes of
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plain-error review if it is “‘clear under current law.’” United States v. Chau, 426
F.3d 1318, 1322 (11th Cir. 2005) (quoting Olano, 507 U.S. at 734, 113 S.Ct. at
1777). If neither this Court nor the Supreme Court has ruled on an issue, and the
statutory language does not clearly resolve the question, there cannot be plain
error with respect to that issue. Id.
In relevant part, 8 U.S.C. § 1324(a)(2) provides:
Any person who, knowing or in reckless disregard of the fact that an
alien has not received prior official authorization to come to, enter, or
reside in the United States, brings to or attempts to bring to the
United States in any manner whatsoever, such alien, regardless of any
official action which may later be taken with respect to such alien
shall, for each alien [smuggled] . . . be fined under Title 18 and shall
be imprisoned, in the case of a first or second violation . . . not more
than 10 years . . . and for any other violation, not less than 5 nor more
than 15 years.
In this case, Hernandez-Sanchez and Torres Cobas cannot establish that the
district court plainly erred by accepting their pleas to Counts 27, 28, and 29.
Neither this Court nor the Supreme Court has considered the relationship between
the wet-foot, dry-foot policy and 8 U.S.C. § 1324(a)(2), and both sides offer
facially plausible interpretations of the statute. Therefore, the district court did not
commit plain error in finding that the smuggled aliens in this case did not have
permission to remain in the United States. See Chau, 426 F.3d at 1322.
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In addition, on this record, the district court did not commit plain error by
finding that the defendants acted with the necessary scienter. At the
change-of-plea hearing, both defendants agreed that the government could prove
that the Cuban aliens did not have official authorization to reside in the United
States. This admission contradicts the defendants’ assertion that they were
confused by the wet-foot, dry-foot policy and were not aware that the aliens did
not have permission to reside in the United States. Given the defendants’
acknowledgment of their guilt, any error that the district court made in finding that
they acted with the necessary scienter was not plain. Accordingly,
Hernandez-Sanchez and Torres Cobas have not established that the district court
plainly erred by accepting their guilty pleas on Counts 27, 28, and 29.
III.
We review constitutional issues concerning sentencing de novo. United
States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008). We review a sentence
imposed by a district court for reasonableness, using an abuse-of-discretion
standard. United States v. Livesay, 587 F.3d 1274, 1278 (11th Cir. 2009). We
review a district court’s factual findings at sentencing for clear error, and its
application of the Sentencing Guidelines to those facts de novo. United States v.
Caraballo, 595 F.3d 1214, 1230 (11th Cir. 2010).
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In this case, Torres Cobas and Hernandez-Sanchez raise a number of
separate arguments with respect to their sentences. In United States v.
Ortega-Torres, 174 F.3d 1199, 1201-02 (11th Cir. 1999), we rejected the
defendants’ first argument, that the penalty provisions of 8 U.S.C. § 1324(a)(2) is
unconstitutionally vague. The defendants’ second contention, that their five-year
sentences constitute cruel and unusual punishment under the Eighth Amendment,
is foreclosed by our decision in United States v. Raad, 406 F.3d 1322 (11th Cir.
2005). In Raad, we held that a five-year mandatory minimum sentence under
§ 1324(a)(2) was not disproportionate to a defendant’s convictions for smuggling
three aliens. Id. at 1324.
We also reject the defendants’ third argument, that their mandatory
minimum sentences deprive them of substantive due process. Congress could
reasonably have decided to impose an enhanced penalty on defendants who
smuggle three or more aliens because such an enhanced penalty will deter
individuals from attempting to smuggle large groups of aliens. Thus, § 1324(a)(2)
does not violate substantive due process. See United States v. Osburn, 955 F.2d
1500, 1505 (11th Cir. 1992) (explaining that a statute that does not discriminate
against a suspect class does not violate substantive due process unless Congress
had no reasonable basis for enacting it).
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Torres Cobas and Hernandez-Sanchez also contend that their enhanced
mandatory minimum sentences are contrary to the Supreme Court’s decision in
Apprendi. In Apprendi, the Supreme Court interpreted the jury-trial requirement
of the Sixth Amendment to mean that any fact, other than a prior conviction, used
to enhance a defendant’s sentence beyond a prescribed statutory maximum penalty
must be found by a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490,
120 S.Ct. at 2362-63. The statutory maximum for purposes of Apprendi is “the
maximum sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S.
296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004) (emphasis omitted).
No Apprendi violation occurred in this case. Torres Cobas and
Hernandez-Sanchez admitted to smuggling three aliens when they pled guilty to
Counts 27, 28, and 29. Thus, their enhanced mandatory minimum sentence was
based on their own admissions, not on factual findings made by the district court.
See Blakely, 542 U.S. at 303, 124 S.Ct. at 2537.
Torres Cobas’s and Hernandez-Sanchez’s remaining sentencing arguments
are also meritless. They cannot challenge the reasonableness of their sentences
because the district court sentenced them to the minimum term required by statute.
See United States v. Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008)
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(holding that a district court must sentence a defendant in accordance with any
applicable statutory minimum sentence, even after the Supreme Court’s decision
in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).
Moreover, neither defendant was entitled to a guideline reduction under U.S.S.G.
§ 2L1.1(b)(1). That section provides for a three-level reduction if “the offense
was committed other than for profit,” or if it involved the smuggling “only of the
defendant’s spouse or child.” U.S.S.G. § 2L1.1(b)(1). In this case, the overall
conspiracy was committed for profit, even if Torres Cobas and
Hernandez-Sanchez personally did not receive any financial compensation for
their involvement. In addition, the smuggling venture involved a total of 25
aliens, most of whom were not the spouse or child of either defendant. Thus, the
district court properly concluded that § 2L1.1(b)(1) did not apply.
Accordingly, after review of the record and consideration of the parties’
briefs, we affirm.
AFFIRMED.
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