United States v. Cortez-Vergara , 873 F.3d 390 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1342
UNITED STATES OF AMERICA,
Appellee,
v.
FREDDY CORTEZ-VERGARA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Xiomara M. Hernandez on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, on brief for appellee.
October 17, 2017
HOWARD, Chief Judge. After pleading guilty to maritime
drug and conspiracy offenses, Freddy Cortez-Vergara was sentenced
to a bottom-of-the-range guidelines sentence of 108 months'
incarceration. He now challenges his sentence on the ground that
the sentencing court erred by not granting him a minor role
adjustment under U.S.S.G. §3B1.2(b). Finding Cortez's argument
meritless, we affirm.
I.
Because Cortez pled guilty, we draw the facts from the
change-of-plea and sentencing hearing transcripts and the
Presentence Investigation Report's ("PSR") uncontested portions.
See United States v. Rossignol, 780 F.3d 475, 476 (1st Cir. 2016).
Prior to his arrest, Cortez worked as a fisherman in
Ecuador. Cortez met with a man named "Abraham," another local
fisherman, who offered Cortez $2,000 to join the crew of one of
Abraham's vessels on a trip to Guatemala. Cortez and two other
crew members set out from Ecuador in January 2015 on Abraham's
thirty-foot boat. One of the two men served as the boat's captain,
the other was the boat's mariner, and Cortez helped steer the boat.
The crew voyaged approximately 200 nautical miles to
rendezvous at sea with Abraham, who was aboard another vessel.
Abraham supplied the crew with cocaine bales and fuel containers.
The three-person crew then continued for approximately 400 miles
before the Coast Guard intercepted the boat about 291 miles south
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of the Guatemala-El Salvador border. Shortly before the Coast
Guard boarded the vessel, Cortez and his confederates realized
that they were being tracked and started throwing the cocaine bales
and excess fuel tanks overboard. When it apprehended the crew,
the Coast Guard determined that the vessel was without nationality
and thus subject to United States jurisdiction. 46 U.S.C. §
70502(c)(1)(A). About 433 kilograms of cocaine were recovered
from the scene.
Cortez and the two other men were brought to Puerto Rico,
where, in February 2015, a grand jury indicted them on two counts.
The first count alleged that the three men conspired to possess
with the intent to distribute a controlled substance on board a
vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. §§ 705031(a)(1), 70504(b)(1) and 70506(a)
and (b). The second count alleged that the men possessed, and
aided and abetted the possession, with the intent to distribute a
controlled substance on board a vessel subject to the jurisdiction
of the United States, in violation of 46 U.S.C. §§ 705031(a)(1),
70504(b)(1) and 70506(a) and (b). Cortez entered an unconditional
guilty plea in October 2016.
At sentencing, Cortez contested the PSR's recommendation
that he be denied a two-level downward minor role adjustment under
U.S.S.G. §3B1.2(b). Cortez claimed that he played a minor role
because he "was only a small part of" an "overall very large
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conspiracy." Agreeing with the PSR's recommendation, the district
court denied Cortez's request on the ground that Cortez was
responsible for transporting 433 kilograms of cocaine across the
ocean. The court sentenced Cortez to a bottom-of-the-range
guidelines sentence of 108 months. After being sentenced, Cortez
seasonably filed this appeal.
II.
We apply an abuse of discretion standard of review to
procedural challenges to sentences. United States v. Coleman, 854
F.3d 81, 84-85 (1st Cir. 2017). Within this framework, we review
the district court's conclusions of law de novo and its findings
of fact for clear error. Rossignol, 780 F.3d at 477. And because
"[r]ole in-the-offense determinations are notoriously fact-
specific," "absent a mistake of law," we will only reverse the
district court's decision if it is clearly erroneous. United
States v. Perez, 819 F.3d 541, 545-46 (1st Cir. 2016)(internal
citations omitted). Because a district court's choice between
multiple permissible inferences cannot be clearly erroneous, we
will "rarely reverse[] a district court's decision regarding
whether to apply a minor role adjustment." United States v. Bravo,
489 F.3d 1, 11 (1st Cir. 2007) (citing United States v. Tom, 330
F.3d 83, 95 (1st Cir. 2003)).
A defendant seeking a minor role adjustment under
U.S.S.G. §3B1.2(b) must demonstrate by a preponderance of the
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evidence that: (1) they are less culpable than their co-
conspirators or accomplices; and (2) they are less culpable than
"most of those who have perpetrated similar crimes." United States
v. Mateo-Espejo, 426 F.3d 508, 512 (1st Cir. 2005). Overcoming an
adverse minor role decision is a difficult burden for a defendant
to meet on appeal, for the district court's determination is, as
noted, "invariably fact-specific and, thus, appellate review of
such a determination is respectful." United States v. Meléndez-
Rivera, 782 F.3d 26, 28 (1st Cir. 2015).
"[A] defendant need not be the key figure in a conspiracy
in order to be denied a mitigating role-in-the-offense
adjustment." See id. at 29. In Meléndez-Rivera, we rejected a
drug-smuggler's argument that he played a minor role simply because
he characterized himself "as an 'expendable cog' in the venture"
and because he was not the conspiracy's leader. Id. Similarly,
we upheld the denial of a minor role adjustment where the
defendant's sole role was hauling a single shipment of thirty
kilograms of cocaine by truck. United States v. Vargas, 560 F.3d
45, 50 (1st Cir. 2009).
Moreover, in United States v. Perez, we recently
rejected a defendant's argument that he was a minor participant in
a nautical narcotics-smuggling scheme because he merely assisted
in transporting drugs across the sea. 819 F.3d at 545-46. Similar
to Cortez, the defendant in Perez also protested that "he played
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a bit part" compared to the drugs' owners and U.S. distributors.
We rejected those claims because "[w]hen two persons undertake to
transport by themselves a large quantity of drugs in a long and
hazardous voyage at sea, it is not clear error for a sentencing
court to regard each as a principal and refuse to grant any
mitigating role adjustment." Id. at 546.
Perez controls this case. Like the defendant in Perez,
Cortez asserts that he is entitled to a minor role adjustment
because he only assisted in transporting the drugs across the sea.
Here, Cortez helped steer the vessel and he was one of just three
crew members who, by themselves, and otherwise unsupervised, moved
a large quantity of drugs hundreds of miles over the Eastern
Pacific Ocean. Accordingly, the district court's determination
that Cortez was not less culpable than his codefendants or the
average seafaring drug smuggler falls far short of clear error.
Therefore, the district court did not abuse its discretion when it
declined to assign to Cortez a two-level downward minor role
adjustment under U.S.S.G. §3B1.2(b).
III.
For the foregoing reasons, we AFFIRM Cortez's sentence.
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