United States v. Luis Alberto Riascos Valencia

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
__________________________ FILED
U.S. COURT OF APPEALS
No. 03-15541 ELEVENTH CIRCUIT
March 2, 2006
__________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00030-CR-T-27-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS ALBERTO RIASCOS VALENCIA,
CARLOS MARTINEZ LEDESMA,
JOHN CAICEDO VALLECILLA,
JUAN CARLOS HOYOS, a.k.a. Juan Jaramillo Moyos, etc.,
CELSO MARINO NUNEZ MOSQUERA,
JULIAN CASTRO PORTOCARRERO,

Defendants-Appellants.

__________________________

Appeals from the United States District Court
for the Middle District of Florida
__________________________
(March 2, 2006)

Before TJOFLAT and KRAVITCH, Circuit Judges and LIMBAUGH*, District
Judge.

*
Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of
Missouri, sitting by designation.
LIMBAUGH, District Judge:

A federal grand jury in the Middle District of Florida indicted Julian Castro

Portocarrero (“Portocarrero”), Carlos Martinez Ledesma (“Ledesma”), Luis

Alberto Riascos Valencia (“Valencia”), John Caicedo Vallecilla (“Vallecilla”),

Juan Carlos Jaramillo Hoyos (“Hoyos”), and Celso Marino Nunez Mosquera

(“Mosquera”) claiming that while onboard a vessel subject to the jurisdiction of

the United States they conspired with each other and other persons to possess five

kilograms or more of cocaine with the intent to distribute it, in violation of 46

U.S.C. app. § 1903(a), (g), and (j) and 21 U.S.C. § 960(b)(1)(B)(ii) (Count One)

and that while onboard a vessel subject to the jurisdiction of the United States they

possessed five kilograms or more of cocaine with the intent to distribute it, in

violation of 46 U.S.C. app. § 1903(a) and (g) (18 U.S.C. § 2); 21 U.S.C. §

960(b)(1)(B)(ii) (Count Two).

The six defendants proceeded to trial, at which the jury found them all

guilty of both charged offenses. Thereafter, the district court sentenced

Portocarrero, Ledesma, Valencia, Vallecilla, and Mosquera to serve 235 months

imprisonment and sentenced Hoyos to serve 292 months imprisonment. This

appeal followed.

2
I. Facts

On January 22, 2003, a United States Navy team in a P-3 surveillance

aircraft observed two fishing vessels in a “very high drug trafficking route” in the

Pacific Ocean north of Ecuador. These vessels carried multiple fuel bladders,

which are used to refuel “go-fast” boats that transport narcotics from Colombia to

Central America.

Later that morning, also in the drug trafficking route, the Navy team

observed a go-fast boat that had four 200-horsepower engines and was painted to

match the color of the sea. The go-fast boat was unmarked, had no flag, and had

no registration numbers, contrary to international law. Although that type of go-

fast boat typically has a fuel range of only about 400 miles, the go-fast boat was

700 miles from land.

The go-fast boat, which had been moving quickly, went dead in the water as

the P-3 plane approached. The plane passed over the go-fast boat and proceeded

about two miles in order to turn around to make another pass. The plane takes

about five minutes to make a full turn and return its sights to its target. As the

plane returned and passed by the boat again, the plane’s crewmembers could see

people in the boat for only about thirty seconds.

After the plane’s second pass, the boat started up again and took off,

3
traveling very fast at about 35 knots and making erratic, evasive turns. The boat’s

occupants did not look up as the plane passed overhead. The boat was riding low

in the water, as though it was heavy.

The plane continued to pass over the boat, and some of the plane’s

crewmembers saw bales in the boat’s wake, about 50 to 150 yards behind the boat.

No member of the crew saw any bale being jettisoned from the boat. The plane’s

crew dropped a marker buoy in the debris field of the bales. The crew had seen no

other boats out on the sea that day (other than the refueling vessels, which were

about one-hundred miles away). Furthermore, there was negligible drift in the

ocean that day.

The Seneca, a United States Coast Guard cutter, was about ten miles away

from the go-fast boat, and on notification from the P-3 crew launched a helicopter

to pursue and consider stopping the boat. The helicopter approached the boat and

signaled for it to stop, but the men on the boat merely looked up at the helicopter

and continued to speed across the water. The helicopter eventually fired warning

shots in front of the boat, after which the boat slowed down but did not stop.

Then, the helicopter shot at the boat’s engines, and the boat finally stopped.

The Seneca also launched a small boat to pursue the go-fast boat. While in

pursuit of the go-fast boat, the Coast Guard boat passed at least thirty or forty

4
bales floating in the water. The bales, which were later observed not to be very

waterlogged rode high in the water and it appeared that they had just recently been

in the water.

When the Coast Guard boat eventually caught up to the go-fast boat,

Coastguardsmen boarded and searched the go-fast boat. The go-fast boat had fuel

bladders under its deck that contained about 400 gallons of fuel. While on the

boat, the Coastguardsmen found three spare radios, including one that is used only

for short-distance communications, a global positioning system (“GPS”) device,

and two spare engines. Someone had pre-programmed into the GPS various “way

points” in the ocean at intervals from 250 to 350 nautical miles. The GPS

provided directions to each of these inputted way points. The data in the GPS

showed that from January 19 to January 22, 2003, the GPS had traveled along the

course of those input way points. The course began in Colombia, but it did not

include Ecuador.

Coastguardsmen conducted ion scans of the boat for cocaine residue, but the

scans were negative. There was testimony that ion scans frequently test negative

because drug smugglers use masking agents.

No one on the boat claimed to be the captain.1 The men onboard claimed to

1
In post-arrest interviews, defendant Hoyos admitted he was the captain.

5
have found the boat in Ecuador, although they all were Colombian, and they stated

that they had taken turns driving it. They claimed that they were looking for a

friend who was in the water.

Ultimately, 91 identically wrapped and marked bales of cocaine were

recovered at different points in the water where the boat had passed, but about 10

nautical miles from where the boat was stopped. Some clusters of bales were one-

half nautical mile from other clusters. The storage area under the go-fast boat’s

deck was large enough to hold the ninety-one bales of cocaine. The cocaine

weighed a total of 1,816 kilograms.

The six defendants, who were on board the go-fast boat, were taken into

custody and flown to the United States. They were not questioned on the flight,

nor were they yet advised of their Miranda rights.2

Once the defendants arrived in the United States, they were advised of their

Miranda rights and interviewed. The defendants all stated that a man named

“Chucho” had recruited them to help rescue a disabled fishing boat. For the two-

day mission, they were to be paid from 600,000 to 1,000,000 pesos, which is

approximately a two month salary in Colombia. There was testimony that some

drug couriers are paid much more for their services.

2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

6
 At trial, Mosquera’s counsel asked DEA Special Agent Lincoln Benedicto,

on cross-examination, whether, while onboard the plane flight to the United States,

there was conversation about the one bale that was on the plane.3 Agent Benedicto

responded that Mosquera had asked him what was in the bale and had acted

surprised when he had told Mosquera that the bale contained drugs. Mosquera

denied that any bales of cocaine had been on the defendants’ boat. On redirect

examination, Agent Benedicto explained that all of the defendants had been on that

small plane, along with agents, suitcases, the one bale, and “items of non-drug

evidence.” The prosecutor then asked, “Did any of the other detainees ask about

any of that other evidence?” Agent Benedicto responded, “No, they did not. And

all of this stuff was--it was in the passenger compartment of the plane. There was

not a separate cargo area. It was in the passenger compartment. So everything was

pretty much visible there.” The defendants moved for a mistrial, arguing that the

prosecutor had impermissibly commented on their silence. After a hearing, the

district court concluded that United States v. Rivera, 944 F.2d 1563, 1568 (11th

Cir. 1991) controls and says expressly that the Government may comment on a

defendant’s silence if it occurs before he is given Miranda warnings. Accordingly,

3
Apparently one of the rescued bales of cocaine was loaded in the plane transporting
defendants to the United States.

7
the district court denied the motion for mistrial.

II. Discussion

A. 46 U.S.C. § 1903 does not Violate the Sixth Amendment to the United States
Constitution (Ledesma Issue I)

Defendants4 argue that § 1903 violates the Sixth Amendment to the U.S.

Constitution because (1) Congress has not required that statute’s penalty

provisions, set forth in 21 U.S.C. § 960(b), be alleged in the indictment or proven

to a jury, and (2) the issue of whether a vessel is subject to the jurisdiction of the

United States was an essential element of the substantive offense and thus must be

determined by a jury “beyond a reasonable doubt.” As such, the defendants argue

that 46 U.S.C. § 1903 is unconstitutional because it violates Apprendi v. New

Jersey, and perhaps, United States v. Gaudin5. The government’s position is that

this Court has previously rejected both of these arguments in two decisions, and the

defendants reply that this Court should revisit its prior rejections of these

4
Each defendant adopts the arguments set forth in one another’s appellate briefs, to the
extent that they are beneficial to that defendant; therefore, each argument is addressed as if each
defendant raised it, unless otherwise specified. (Hoyos Brief at ii; Ledesma Brief at viii;
Mosquera Brief at vii; Portocarrero Brief at x; Valencia Brief at vi; Vallecilla Brief at vi). Even
though all defendants have adopted the issue as to whether § 1903 violates the Sixth
Amendment, only Ledesma has briefed this issue.
5
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000); United States v. Gaudin,
515 U.S. 506, 115 S.Ct. 2310 (1995).

8
arguments in light of the Supreme Court’s recent decision in Blakely.6

The constitutionality of a statute presents a legal issue reviewable de novo.

U.S. v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002),cert denied, 538 U.S. 909

(2003); United States v. Cunningham, 161 F.3d 1343, 1345 (11 Cir. 1998).

46 App. U.S.C. § 1903(a) provides, “[i]t is unlawful for any person ... on

board a vessel subject to the jurisdiction of the United States ... to knowingly or

intentionally manufacture or distribute, or to possess with the intent to manufacture

or distribute, a controlled substance.” Section 1903(f) provides, “[a]ll

jurisdictional issues arising under this chapter are preliminary questions of law to

be determined solely by the trial judge”. The penalty for a violation of § 1903(a)

involving five kilograms or more of cocaine is a term of imprisonment of not less

than 10 years and not more than life. 46 App. U.S.C. § 1903(g); 21 U.S.C. §

960(b)(1)(B).

This Court has already determined that defendants’ statute of conviction is

not unconstitutional. See United States v. Tinoco, 304 F.3d at 1096-1102, in which

the Court has resolved the issues raised by defendants. See also U.S. v. Rendon,

354 F.3d 1320, 1326-1328 (11th Cir. 2003), cert. denied, 124 S.Ct. 2110 (2004).

In Tinoco, this Court held that § 1903 is not facially invalid under the Sixth

6
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed 2d 403 (2004).

9
Amendment because that statute does not require that the penalty provisions

thereof be alleged in the indictment or proven to a jury. Unless “the sentencing

judge’s factual finding [as to drug quantities] actually increased the defendant’s

sentence above the statutory maximum found in [21 U.S.C.] § 960(b)(3),” id. at

1101, there is no constitutional error. The sentence of each defendant here was not

above the statutory maximum.7

In addition, we determined that the § 1903 requirement that a vessel be

subject to the jurisdiction of the United States was not an essential element of the

substantive offense and, thus, did not have to be submitted to a jury for proof

beyond a reasonable doubt. U.S. v. Tinoco, 304 F.3d at 1112.8

B. Motions to Suppress Evidence (Mosquera’s Issue II,
Vallecilla’s Issue III)

Mosquera and Vallecilla argue that the district court erred in denying their

motions to suppress the evidence that was found in the go-fast boat. The

Government argues that neither Mosquera or Vallecilla, nor any other Defendant,

filed a motion to suppress evidence in this case. The District Court noted, “there’s

7
Further, as set out in later discussions, drug quantities found by the district court were
not objected to and thus, admitted by all defendants.
8
Ledesma recognizes that Tinoco is controlling but suggests we reconsider the ruling in
that case in light of Blakely v. Washington, supra. There is nothing in Blakely or, for that matter,
in U.S. v. Booker, 543 U.S. , 125 S.Ct. 735, 160 L.Ed.2d 621 (2005) that would require a re-
examination of our holding in Tinoco.

10
no motion to suppress that has been filed.” As the Defendants did not move to

suppress the evidence against them, they have waived that issue and may not raise

it on appeal absent good cause shown. United States v. Ford, 34 F.3d 992, 994 n.2

(11th Cir. 1994).

C. The District Court did not Err in Denying the Defendants’
Motions for Judgments of Acquittal because the Evidence was
Sufficient for a Reasonable Juror to find Defendants Guilty of
the Charged Offenses (Valencia’s Issue I, Ledesma’s Issue III,
Mosquera’s Issue I,Vallecilla’s Issue II, Hoyos’ Issue III,
Portocarrero’s Issue I)

The Defendants challenge the sufficiency of the evidence of their guilt,

arguing that the U.S. did not prove that they had possessed cocaine on board their

go-fast boat with intent to distribute or that there was a conspiracy to do so. The

Government argues that the evidence was adequate for a reasonable juror to find

the Defendants guilty of the charged crimes beyond a reasonable doubt.

The sufficiency of the evidence against defendants is reviewed de novo. U.S.

v. Jernigan, 341 F.3d 1273, 1278 (11th Cir. 2003).

“. . . [I]n making this determination we ‘view the evidence “ in the light
most favorable to the government, with all reasonable inferences and
credibility choices made in the government’s favor’”(citations omitted).
“In the end, ‘[a] jury’s verdict will be affirmed “if a reasonable trier of fact
could conclude that the evidence establishes guilt beyond a reasonable
doubt.’”(citations omitted). “Moreover, as we have explained, we also
‘review de novo the district court’s denial of a motion for judgment of
acquittal, applying the same standard used in reviewing the sufficiency of

11
 the evidence, meaning that we view the facts and draw all inferences in
the light most favorable to the government.’” (citations omitted). Id.

“The standard to be applied in judging the sufficiency of the evidence is the same

whether the evidence is direct or circumstantial.” U.S. v. Peddle, 821 F.2d 1521, 1525

(11th Cir. 1987). (Defendants found guilty of conspiracy to possess with intent to

distribute cocaine solely on circumstantial evidence. There was no direct evidence that

defendants were aware of the cocaine.) See also U.S. v. Tinoco, 304 F.3d at 1122.

As to the conspiracy, Count 1 of the indictment, the Government must prove

beyond a reasonable doubt that a conspiracy existed, the purpose of which was to

possess with intent to distribute cocaine, that defendants knew of it, and that they

voluntarily joined in it. United States v. Hernandez, 896 F.2d 513, 518 (11th Cir.

1990). Obviously, as to Count 2, the Government must prove defendants possessed

cocaine with intent to distribute beyond a reasonable doubt as well. See also U.S. v.

Tinoco, 304 F.3d at 1121-1124.

In conspiracy and possession cases involving narcotics-laden vessels, we have

held that certain factors should be considered in determining whether a jury could

reasonably conclude that a defendant, found on the vessel, was guilty of the drug

conspiracy and possession charges such as: “(1) probable length of the voyage, (2) the

size of the contraband shipment, (3) the necessarily close relationship between captain

12
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.

at 1123.

“We also have stated that once a large quantity of contraband is
shown to have been present on a vessel, the government’s remaining
burden of showing that the crew knowingly participated in the drug
smuggling operation is ‘relatively light.’ Cruz-Valdez, 773 F.2d at 1547.
Indeed the government can meet its remaining burden by proving any one
of the other previously listed factors. United States v. Ospina, 823 F.2d
429, 433 (11th Cir. 1987) (per curiam).” Id. 1123.

Here the Government established that the crew of a U.S. Navy P-3 surveillance

aircraft observed a go-fast boat in the Pacific Ocean north of Ecuador. The boat was

700 miles from land and was in a “very high drug-trafficking route.” Earlier in the

day, the P-3 crew observed two fishing vessels in the same drug trafficking route and

these carried multiple fuel bladders which are used to refuel go-fast boats. The go-fast

boat had been moving quickly and stopped as the P-3 plane approached it. The plane

made several passes during which the boat began to move quickly again. Thereafter,

the boat began making erratic and evasive turns. During the observance, no occupant

of the boat looked up at the plane as it passed overhead. The boat was riding low in

the water and traveling perhaps 35 knots. No member of the crew saw any bale being

13
jettisoned from the boat, however, during one of the passes one or more crew-

members saw bales in the boat’s wake and a marker buoy was dropped in the debris

field of bales. The crew saw no other boat on the sea on that occasion other than the

refueling vessels which were perhaps 100 miles away.

On notification to the Seneca, a United States Coast Guard cutter which was

about 10 miles from the go-fast boat, the crew of the Seneca launched a helicopter to

pursue the go-fast boat. A signal was sent from the helicopter for the go-fast boat to

stop, but it continued at a quick speed through the water. Warning shots were fired

in front of the boat following which it slowed, but it did not stop until the helicopter

shot at the boat’s engines.

In addition to the helicopter, the Seneca also launched a small boat to pursue the

go-fast boat. During the pursuit, the crew of that boat passed at least 30 or 40 bales

riding high in the water and it appeared they had just recently been in the water. Upon

retrieval, they were found not to be waterlogged.

Ultimately, the crew of the Coast Guard boat caught up with it and boarded and

searched the go-fast boat. The six defendants were all on board the boat, but there was

no evidence of cocaine found and after ion scans of the boat were made for cocaine

residue, all were negative. There was testimony that ion scans frequently test negative

because drug smugglers used masking agents.

14
 In the search of the go-fast boat the Coast Guard crew found three spare radios,

a GPS and two spare engines. The GPS had been pre-programmed to set out “way

points” at intervals in the ocean from 250 to 350 nautical miles. The GPS provided

directions to each of these inputted way points. The course began in Columbia but did

not include Ecuador.

The Coast Guard ultimately retrieved 91 identically wrapped and marked bales

of cocaine in the area where the buoy had been dropped. It was an area where the boat

had passed but was 10 nautical miles from where the boat was stopped. There were

clusters of bales one-half nautical mile from other clusters. The cocaine weighed a

total of 1,816 kilograms and there was evidence that the storage area under the go-fast

boat’s deck was large enough to hold the 91 bales.

At post-arrest interviews, all defendants stated that a man named “Chucho” had

recruited them to help rescue a disabled fishing boat. For this service, each was to be

paid from $600,000 to $1,000,000 pesos.

Defendants all contend that there is no evidence to prove that they had actual

or constructive possession of the cocaine and that the ion testing for presence of

cocaine on the go-fast boat was negative.

The jury was entitled to infer possession from the evidence. Although no

member of the plane crew saw bales being jettisoned from the go-fast boat, some

15
members saw bales in the wake of the boat and there were no bales ever seen in front

of the boat. The bales that were retrieved were in the general path the boat had taken

before it was stopped. Other than the two refueling boats seen earlier in the day, there

were no other boats in the area. One of the crew of the plane testified that when the

go-fast boat was first observed, it was riding low in the water indicating a substantial

cargo on board. The bales, when retrieved, were not waterlogged which suggested

they had not been in the water for a long period of time; thus, the jury had a reasonable

basis for concluding that the bales of cocaine had been on board the go-fast vessel and

at some point were jettisoned by one or more of the defendants. The jury could also

have found that although the ion test made of the boats for cocaine were negative,

masking agents are frequently used.

Much of the criteria in Tinoco has been proved by the Government. The weight

of the bales of cocaine was almost two tons. There appeared to be a relatively close

relationship among the members of the crew and Hoyos who admitted he was the

captain. The quantity of the cocaine on board the go-fast vessel had to have been

obvious. The erratic maneuvers of the boat on being spotted, the appearance of the

boat as unmarked, flagless and with no registration numbers and the attempt to evade

the Coast Guard is not indicative of a legitimate purpose. On the basis of the evidence

presented, it was reasonable for the jury to conclude that all defendants agreed to enter

16
into the drug smuggling conspiracy, and that they knowingly and voluntarily

participated in it. Without question, the large quantity of cocaine involved created an

inference that the defendants acted with the intent to distribute it. U.S. v. Tinoco, 304

F.3d at 1124. Certainly the circumstances that were sufficient to support the

defendant’s conspiracy conviction also supports their conviction on the possession

count. Id.

We determine, therefore, that the district court did not err in denying the

defendants’ motions for judgment of acquittal because the evidence was sufficient for

a reasonable juror to find each defendant guilty of the charged offenses. [See also U.S.

v. Cardales, 168 F.3d 548 (1st Cir. 1999), aff. guilty verdicts of crewmen of go-fast

boat where boat had fled from Navy ship and aircraft, and bales of drugs later were

found floating in the vicinity.]

D. The Issue of Commenting on the Silence of a Defendant After He Has
Been Given Miranda Warnings (Valencia’s Issue II, Ledesma’s Issue IV,
Vallecilla’s Issue II, Hoyos’ Issue II and Portocarrero’s Issue II)

Defendants (with the exception of Mosquera) argue that the District Court

abused its discretion in declining to grant them a mistrial following DEA Special

Agent Benedicto’s testimony on redirect examination that, other than Mosquera, none

of the defendants had asked about the evidence stowed on the plane as they flew to the

United States. The agent testified on cross-examination that Mosquera had pointed

17
out the bale of cocaine on board the plane and asked the agent why it was on the plane

since it had not been on the boat. The defendants argue that this was a comment on

the silence of all defendants except Mosquera, in violation of Doyle v. Ohio, 426 U.S.

610, 96 S.Ct. 2240 (1976), which held that the government may not use or comment

on the silence of a defendant after he has been given Miranda warnings.

We review for abuse of discretion. U.S. v. Granville, 716 F.2d 819, 821 (11th

Cir. 1983) (a trial court’s ruling as to the scope of cross-examination by a prosecutor

is reversible on appeal only for an abuse of discretion). The difference in this case is

that defendants had not been given Miranda warnings, so the agent’s testimony was

not a comment on or use of the defendants’ post-Miranda silence. U.S. v. Rivera,

supra. (The Government may comment on a defendant’s silence if it occurred prior

to the time she/he was arrested and given Miranda warnings)9 See also U.S. v.

Campbell, 223 F.3d 1286, 1290 (11th Cir. 2000).

The Government also argues that the defendants’ silence was not used “against

them,” but rather Mosquera’s non-silence in asking about the bale may have tended

to incriminate him because he was making an issue of the bale of cocaine, while the

other defendants were not incriminated by not commenting on it. The silent

9
Portocarrero in his brief admits that Rivera is controlling in this issue, and he is only
raising the point “to preserve it for en banc or certiorari review” as he feels Rivera was wrongly
decided.

18
 defendants have not explained how this evidence on their silence was used “against

them.” This issue should be affirmed; it certainly does not fit into any post-Miranda

case law holdings (like Doyle).

E. The District Court did not Commit Clear Error in its Findings in
Regard to the Roles of Each Defendant (Valencia’s Issue III,
Ledesma’s Issue II, Mosquera’s Issue III, Vallecilla’s Issue IV,
Portocarrero’s Issue IV)

All defendants, except Hoyos, argue that the district court clearly erred in finding

that they did not have minor roles in the charged offenses. The defendants that raise this

issue maintain they were entitled to a two-point downward adjustment for their minor

role in the offenses under § 3B1.2 of the United States Sentencing Guidelines (USSG).

Alternatively, whatever role that each complaining defendant may have had, in the

conspiracy was such that it deserved consideration for a downward departure under §

5K2 of the Guidelines.

The Court reviews the district court’s findings as to a defendant’s role in an

offense for clear error. U.S. v. Rodriguez DeVaron, 175 F.3d 930, 937 (11th Cir. 1999),

cert denied, Rodriguez DeVaron v. U.S., 528 U.S. 976 (1999).

In calculating a total offense level, USSG §3B1.2 provides an adjustment that if

a defendant was a minor participant in any criminal activity, the offense level should be

decreased by two levels. USSG § 5K2 authorizes departures, based on circumstances

19
of a kind not adequately taken into account in the Guidelines.

Defendants, referring to all defendants except Hoyos for the purpose of this

assignment of error, aver that if, in fact, they were guilty of the charges, they were

nothing more than couriers; as such, a courier plays only a minor role in the offenses.

Defendants assert further that under Rodriguez DeVaron they should be compared with

other participants. For illustration, defendants suggest that the role of the originator of

the drugs, the owner of the boat, the owner of the drugs and the recipient of the drugs

should all be considered and their conduct compared with that of defendants, and in so

doing, defendants’ conduct was minor.

In denying defendants’ request for downward adjustment as minor participants,

the district court agreed that Rodriguez DeVaron was controlling.

Rodriguez DeVaron smuggled 70 heroin filled pellets into the United States from

Columbia. On coming into the United States, she was arrested and confessed. After

recovering the pellets, while Rodriguez DeVaron was in a hospital, the quantity

measured 512.04 grams of 85% pure heroin. Rodriguez DeVaron admitted that a

woman identified as “Nancy” provided her with travel advance money and promised

that upon delivery of the drugs in Miami, she would receive $6,000. Rodriguez

DeVaron entered a plea of guilty pursuant to plea bargaining and we determined that the

district court did not commit clear error in denying defendant a downward adjustment

20
as a minor player in the offense.

In Rodriguez DeVaron we held that a defendant’s status as a drug courier does

not alter the principle that the district court must assess the defendant’s role in light of

the relevant conduct attributed to her, Id. 942. We stated that the amount of drugs

imported is a material consideration in assessing a defendant’s role in her relevant

conduct, id. 943, and the district court may also measure the defendant’s culpability in

comparison to that of other participants in the relevant conduct, Id. 944. We also said,

“In the drug courier context, examples of some relevant factual
considerations include: 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. This is not
an exhaustive list, nor does it suggest that any one factor is more important
than another. In the final analysis, this decision falls within the sound
discretion of the trial court.” Id. 945.

Here, the jury found defendants guilty of a conspiracy to possess with the intent

to distribute 5 kilograms, or more, of cocaine and possession with the intent to distribute

that quantity of cocaine. Defendants were a part of a crew operating a go-fast boat

containing almost two tons of cocaine. The go-fast boat had four 200 horsepower

engines, was unmarked, had no flag and no registration numbers. Ordinarily, that type

of boat has a fuel range of only 400 miles. However, the go-fast boat was 700 miles

from land when intercepted. There were fuel bladders under the go-fast boat deck

which contained 400 gallons of fuel. The go-fast boat was equipped with three spare

21
radios, including one that is used only for short distance communications and a GPS

device and two spare engines. Defendants’ participation as members of the crew of the

go-fast boat was central to the conspiracy scheme. The role that each defendant played

as members of the crew constituted an integral and essential part in the scheme to

possess with intent to distribute cocaine.

The role of defendants here was even more vital to the success of the scheme than

it was in Rodriguez DeVaron. There, the defendant was simply carrying an illegal drug

from one country to another via commercial aircraft. Here, defendants’ actions as

members of a boat crew transporting cocaine were essential to the success of the journey

which, under all of the facts here, was a hazardous one and one which needed the

combined efforts of all defendants to be successful. This is a proper measurement of

the role of defendants in assessing their relevant conduct. Their participation and

implementation of the scheme was central to its success.

To be sure, the quantity of the cocaine, about two tons, was a material

consideration in assessing the role of each defendant here and their relevant conduct

which was alluded to by the district court in the sentencing process.

Finally, defendants have not met their burden of proof that their participation in

22
the scheme involved a minor role only.10 Defendants elected not to testify at trial,

which obviously was their right, nor did they testify at the sentencing hearing. The

district court, in ruling on the request for a downward departure, was limited to the

evidence presented during the course of the trial. There was no evidence as to the

originators, or the owners or recipients of the cocaine. There was no evidence as to

what contact, if any, the defendants had with the supplier. There was no evidence that

the defendants themselves could have owned the cocaine and were transporting it solely

for their own benefit. In fact, the record is devoid of any facts, other than speculation,

suggesting other parties are discernable or identifiable. Other than Hoyos, there is

nothing to show that any defendant had any different duty or responsibility than the

other or was less or more culpable than the other.

Defendants argue that the small sum of money to be paid a defendant obviates the

participation of others and that it is insignificant when compared to the value of the

cocaine which was perhaps as much as $30,000,000 on the drug market. This argument

is somewhat incongruous as it admits the guilt of each defendant, whereas defendants

at their post-arrest briefing stated that the money to be paid to them was to help rescue

a disabled fishing boat.

10
The burden of establishing a minor role in the offense rests with the proponents. U.S.
v. Rodriguez DeVaron, 175 F.3d at 946.

23
 In the later context, the amount is not significant. In any event, the pay of

600,000 to 1,000,000 pesos or perhaps $500 per member of the crew was somewhat

insignificant as compared to the value of the cargo. This is a factor to be considered but

is not dispositive and is far outweighed by the other evidence in this case showing that

defendants have not met their burden in proving that they were entitled to a two-level

reduction as a minor player in the scheme.

The district court also concluded that if a defendant has not qualified for a

downward adjustment as a minor player in the conspiracy, he is unable to qualify for a

§ 5K2 downward adjustment. This finding of the district court is not clearly erroneous.

F. The Blakely and Booker Issues (Portocarrero’s Issue III,
Hoyos Issue I)

All defendants contend that the factual determination of the district court that the

crime involved a quantity of cocaine resulting in a base offense level of 38 and the same

total offense level for all except Hoyos, whose level was 40, was not charged in the

indictment nor was it submitted to a jury, all in violation of the Fifth and Sixth

Amendments to the Constitution11 and inapposite to the Apprendi, Blakely and Booker

holdings.12 Hoyos also contends that the two-level sentencing enhancement he received

11
Only Portocarrero and Hoyos made specific Apprendi, Blakely and Booker objections
to the findings of the district court, however, each defendant asked, and was granted leave, to
adopt the objections of the other defendants.
12
Apprendi v. New Jersey, supra; Blakely v. Washington, supra, U.S. v. Booker, supra.

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under § 2D1.1(b)(2) violated the Sixth Amendment because this issue was not submitted

to a jury.

No defendant objected in the district court that his sentence was unconstitutional

in view of Blakely because it was based upon a finding of drug quantity by the district

court as opposed to a jury finding. In addition, while Hoyos objected at sentencing that

it was inappropriate for the district court to enhance his sentence under §2D1.1(b)(2)

there was no objection until this appeal that the enhancement was unconstitutional in

view of Blakely. Therefore, our standard of review is for plain error only. U.S. v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir., 2005), cert denied Rodriguez v. U.S., 125

S.Ct. 2935 (2005).13

The standard for a plain error review is that an appellate court may not correct an

error a defendant failed to raise in the district court unless there is 1) error; 2) that is

plain, 3) that affects substantial rights. If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but only if 4) the error

seriously affects the fairness, integrity or public reputation of judicial proceedings, U.S.

v. Rodriguez, 398 F.3d at 1298.

All defendants were found guilty of conspiring to possess, with intent to

distribute, five kilograms or more of cocaine. Following the drug quantity table in

13
See also U.S. v. Rodriguez, 406 F.3d 1261 (11th Cir.) (den. req. for reh’g.
en banc).

25
(USSG) § 2D1.1(c)(4) a base offense level of 32 would be established as found by the

jury, and thus not unconstitutional.

The presentence investigation report (PSI) set out facts based on the evidence at

trial that after combing the area involved, officers recovered a total of 91 bales

containing approximately 1,816 kilograms of cocaine. Pursuant to the drug quantity

table, this would correspond to a base offense level of 38. The district court accepted

the report setting out this evidence and assessed a base offense level of 38 as to all

defendants.

In the consideration of the plain error review of this objection, as set out in

Rodriguez, supra, the first prong of the test is not satisfied. There was no error. At

sentencing, no defendant raised any objection to the finding that each was accountable

for 1,816 kilograms of cocaine which corresponded to a base offense level of 38.

Counsel for all defendants urged the Court to depart downward under (USSG) § 3B1.2

or § 5K2 asserting defendants were minor players in the conspiracy, and some

defendants suggested they were less involved than other defendants, but all stated they

had no other objections to the PSI. No defendant objected to the quantity of cocaine or

that it was equivalent to a base offense level of 38.14 Accordingly, all facts set out in the

14
In fact, defendants used the 1,816 kilograms of cocaine in their argument for a
downward departure as minor participants suggesting the disparity between what they were to be
paid as against the huge value of the drugs as discussed earlier.

26
PSI of each defendant are admitted as true. U.S. v. Shelton, 400 F.3d 1325, 1329, 1330

(11th Cir. 2005). As defendants admitted the facts forming the basis for establishing a

base offense level of 38, there is no Sixth Amendment violation under Booker. Id.

The same reasoning applies to Hoyos’ separate objection. Using § 2D1.1(b)(2)

the district court added two levels to the base offense level of 38, making Hoyos’ total

offense level 40.

(USSG) § 2D1.1(b)(2) provides that:

“If the defendant unlawfully imported or exported a controlled
substance under circumstances in which . . . [B. the defendant acted as a
pilot, co-pilot, captain, navigator, flight officer or any other operation
officer aboard any craft or vessel carrying a controlled substance, increase
by two levels.”

Hoyos asserts, on appeal, that the facts supporting this two-level adjustment were

not charged in the indictment nor were they submitted to a jury, all in violation of

Apprendi, Blakely and Booker. Here, too, we conclude that the first prong of the

Rodriguez test, when considering plain error review, is not satisfied.

It was stated in the Hoyos’ PSI “In post-arrest interviews, several of the crew

members identified Juan Carlos Jaramillo Hoyos (Jaramillo-Hoyos) as the ‘go-fast’

vessel captain. Jaramillo-Hoyos confirmed that he was the captain of the go-fast and he

advised that he had been attending training in Buena Ventura, Colombia to earn his

captain’s license.”

27
 Counsel for Hoyos did not object to the accuracy of the PSI findings which the

district court adopted, but urged that there be something more than the admission in

order to apply the enhancement. We do not accept that argument.

The district court adopted the PSI statements which were not controverted and

found that the two level enhancement should be applied because Hoyos admitted that

he was the captain of the go-fast vessel and several crew members identified him as

such. At sentencing, the district court stated, “The word captain is applied in a common

sense manner.” There is nothing in § 2D1.1(b)(2) to suggest otherwise. As the facts set

out in Hoyos’ PSI are admitted as true, they are sufficient to form the basis for

establishing the enhancement. U.S. v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005) (a

waiver of objections to factual statements about a defendant’s relevant conduct in the

presentence report is an admission of the facts in the report.) Therefore, there is no

Sixth Amendment violation under Booker. U.S. v. Shelton, 400 F.3d at 1329 and 1330.

U.S. v. Cartwright, 413 F.3d 1295, 1298 (11th Cir. 2005).

As the Court found in Burge, here too, there is no error under Booker. Hoyos has

not carried his burden as to the third prong of the Rodriguez plain error test. Hoyos

cannot show “there is a reasonable probability of a different result if the Guidelines had

been applied in an advisory instead of binding fashion by the sentencing judge in this

case.” Burge, 407 F.3d at 1192 citing Rodriguez, 398 F.3d at 1301.

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For the foregoing reasons, we affirm.

AFFIRMED.

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