United States v. Jhon Jairo Valencia Saac , 632 F.3d 1203 ( 2011 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 9, 2011
No. 09-14204
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00010-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JHON JAIRO VALENCIA SAAC,
Defendant-Appellant.
________________________
No. 09-14228
________________________
D. C. Docket No. 09-00010-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ANDRES MINA MENESES,
Defendant-Appellant.
________________________
No. 09-14329
________________________
D. C. Docket No. 09-00010-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR RODRIGUEZ RENEGIFO,
Defendant-Appellant.
________________________
No. 09-14345
________________________
D. C. Docket No. 09-00010-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL OTERO ESTUPINAN,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 9, 2011)
2
Before EDMONDSON, MARTIN and COX, Circuit Judges.
MARTIN, Circuit Judge:
This case consolidates criminal appeals by four co-defendants challenging
the constitutionality of the Drug Trafficking Vessel Interdiction Act of 2008
(“DTVIA”), 18 U.S.C. § 2285. Jhon Jairo Valencia Saac, Victor Rodriguez
Renegifo, Miguel Otero Estupinan, and Carlos Andres Mina Meneses
(“defendants”) also appeal their 108 month sentences, imposed after they pleaded
guilty to conspiring to violate and to knowingly violating the DTVIA. They argue
that their sentences are procedurally and substantively unreasonable. Mr.
Estupinan argues separately that the district court violated Fed. R. Crim. P.
32(i)(3)(C) by failing to attach a copy of its rulings on the parties’ objections to
the PSI. After thorough review, and having had the benefit of oral argument, we
affirm and conclude that the DTVIA is constitutional. We remand only so that the
district court can attach a copy of its rulings on Mr. Estupinan’s objections to the
PSI.
I. FACTUAL BACKGROUND
On January 6, 2009, a United States helicopter crew observed defendants on
board a self-propelled, semi-submersible vessel that was dead in the international
waters of the eastern Pacific Ocean. Defendants’ semi-submersible vessel lacked a
3
flag, registration number, homeport, or navigational lights. The next day, as the
United States Coast Guard approached defendants’ vessel, a helicopter crew saw
the four defendants, three of whom were wearing life vests, emerge from the
vessel’s hatch and jump into the water. The vessel sank within minutes. The
Coast Guard recovered all four defendants the same day. Mr. Rodriguez Renegifo
identified himself as the master of the vessel but claimed no nationality for it.
Defendants asserted that they were Colombian citizens.
The government filed a two-count indictment in federal district court. The
first count charged defendants with knowingly conspiring to operate a semi-
submersible vessel without nationality and with the intent to evade detection in
violation of 18 U.S.C. §§ 2285(a) and (b). The second charged defendants with
knowingly and intentionally, while aiding and abetting each other, operating and
embarking in a semi-submersible vessel without nationality, with the intent to
evade detection in violation of 18 U.S.C. § 2285(a) and (b).
The DTVIA provides that:
[w]hoever knowingly operates, or attempts or conspires to operate, by
any means, or embarks in any submersible vessel or semi-submersible
vessel that is without nationality and that is navigating or has navigated
into, through, or from waters beyond the outer limit of the territorial sea
of a single country or a lateral limit of that country’s territorial sea with
an adjacent country, with the intent to evade detection, shall be fined
under this title, imprisoned not more than 15 years, or both.
4
18 U.S.C. § 2285(a). A submersible vessel is one that “is capable of operating
completely below the surface of the water, including both manned and unmanned
watercraft.” 46 U.S.C. § 70502(f)(2). A semi-submersible vessel is “any
watercraft constructed or adapted to be capable of operating with most of its hull
and bulk under the surface of the water, including both manned and unmanned
watercraft.” Id. at § 70502(f)(1).
Defendants pleaded not-guilty at arraignment. Mr. Rodriguez Renegifo
filed a motion to dismiss the indictment, arguing that 18 U.S.C. § 2285 is
unconstitutional. The other defendants each filed a “motion to adopt co-defendant
Rodriguez Renegifo’s motion to dismiss indictment,” and the district court
considered Mr. Rodriguez Renegifo’s motion as to all defendants. The district
court denied the motion to dismiss the indictment, concluding that § 2285 is not
unconstitutionally vague, does not violate the Due Process Clause, and does not
exceed Congress’s power under Article I, Section 8, Clause 10 of the Constitution.
After the district court denied the motion to dismiss, defendants entered
unconditional guilty pleas, without plea agreements, as to both counts of the
indictment. At the change of plea hearing, defendants informed the district court
that, based on binding precedent, they understood that their guilty pleas would not
preclude them from contesting the constitutionality of the DTVIA on appeal. The
5
district court agreed with defendants’ reading of the relevant precedent. The
government made no argument to the contrary.
At sentencing, the district court determined defendants’ sentences by
applying the 18 U.S.C. § 3553(a) factors. The district court declined to apply any
offense-specific sentencing guidelines. The court sentenced each defendant to 108
months imprisonment and 3 years of supervised release for each count, all to run
concurrently. The court assessed each defendant $100 per count. Defendants each
filed separate, timely notices of appeal.
II. DISCUSSION
Defendants’ appeal raises four issues. First, we address whether
defendants’ guilty pleas preclude them from challenging the constitutionality of
the DTVIA, and because we find defendants are not precluded, whether the
DTVIA is constitutional. We next address the procedural and substantive
reasonableness of defendants’ sentences. Finally, we decide whether the district
court erred by failing to attach a copy of its rulings on disputed sentencing issues
to the PSI.
A.
To begin, the government argues that defendants’ voluntary, unconditional
guilty pleas prevent them from challenging the constitutionality of the DTVIA, 18
6
U.S.C. § 2285. “Generally, entering a guilty plea waives a defendant’s right to all
non-jurisdictional challenges to a conviction.” United States v. Bonilla, 579 F.3d
1233, 1240 (11th Cir. 2009). An unconditional guilty plea, however, “does not
waive jurisdictional defects.” United States v. Tomeny, 144 F.3d 749, 751 (11th
Cir. 1998).
“Whether a claim is ‘jurisdictional’ depends on whether the claim can be
resolved by examining the face of the indictment or the record at the time of the
plea without requiring further proceedings.” Id. (quotation marks omitted). A
defendant’s claim that the indictment failed to charge a legitimate offense is
jurisdictional and is not waived upon pleading guilty. Id.; see also United States
v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980) ("The violation of [a defendant's]
right to be free of prosecution for a nonoffense would bar his conviction even if
his 'factual guilt' had been established validly.");1 accord United States v. Brown,
586 F.3d 1342, 1350 (11th Cir. 2009). Thus, “[a] guilty plea [] does not waive the
right of an accused to challenge the constitutionality of the statute under which he
is convicted.” United States v. Palacios-Casquete, 55 F.3d 557, 561 (11th Cir.
1995); see also Haynes v. United States, 390 U.S. 85, 87 & n.2, 88 S. Ct. 722, 725
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
7
(1968) (determining constitutionality of criminal statute, which defendant
challenged before district court through motion to dismiss, even though defendant
was convicted under that statute after pleading guilty).
The constitutionality of the DTVIA, the statute under which defendants
were convicted, is a jurisdictional issue that defendants did not waive upon
pleading guilty. See Tomeny, 144 F.3d at 751; Brown, 586 F.3d at 1350. It is
clear that defendants did not waive their argument that Congress lacked the
authority to enact the DTVIA insofar as this claim goes to the legitimacy of the
offense that defendants’ indictment charged. Even if defendants are factually
guilty of DTVIA violations, the government would lack the power to prosecute if
Congress exceeded its authority in enacting the DTVIA. For this reason, we
address the merits of defendants’ constitutional challenge to the DTVIA.
B.
Defendants challenge the constitutionality of the DTVIA on two grounds,
only one of which is properly before us. Defendants first argue that the DTVIA
violates their procedural due process rights because it shifts to the defendant the
burden of disproving essential elements of the offense and creates a presumption
of guilt. Defendants lack standing to raise that argument because “[a] guilty plea
serves as an admission of all the elements of a formal criminal charge . . . . [A]
8
defendant may not challenge the statute where the facts admitted by the guilty plea
render the statute’s alleged unconstitutionality moot as to the defendant.” United
States v. Skinner, 25 F.3d 1314, 1316–17 (6th Cir. 1994) (quotation marks
omitted); Baxter v. Estelle, 614 F.2d 1030, 1036 (5th Cir. 1980) (“By entering a
guilty plea, [a defendant] has admitted all the elements of the offense, including
the very fact to be presumed.”). Because defendants voluntarily pleaded guilty,
thereby admitting guilt, the government never made use of any presumption,
assuming that one exists, nor shifted the burden of proof to defendants.2 Baxter,
614 F.2d at 1036.
We turn to defendants’ argument that in enacting the DTVIA Congress
exceeded its power under the High Seas Clause of the Constitution, Article I, § 8,
cl. 10. The High Seas Clause enables Congress “[t]o define and punish Piracies
and Felonies committed on the high Seas, and Offences against the Law of
Nations.” U.S. Const., art. I, § 8, cl. 10. While there is a dearth of authority
interpreting the scope of Congress’s power under the High Seas Clause, early
Supreme Court opinions intimate that statutes passed under the High Seas Clause
2
Mr. Rodriguez Renegifo concedes these points. In his reply brief Mr. Rodriguez
Renegifo attempts to relabel his procedural due process challenge as a substantive due process
one to escape the preclusive effect of his guilty plea. Defendant’s new label does not change the
essential nature of the claim. Defendant’s argument that the DTVIA unconstitutionally shifts the
burden to defendants to prove essential elements of the offense remains one grounded in
procedural due process.
9
may properly criminalize conduct that lacks a connection to the United States. See
United States v. Suerte, 291 F.3d 366, 373 (5th Cir. 2002) (discussing early cases
and legislation). For instance, in United States v. Palmer, 16 U.S. (3 Wheat.) 610,
630, 4 L. Ed. 471 (1818), the Court explained that “[t]he constitution having
conferred on congress the power of defining and punishing piracy, there can be no
doubt of the right of the legislature to enact laws punishing pirates, although they
may be foreigners, and may have committed no particular offence against the
United States.”
Defendants argue that for Congress to criminalize conduct by statute under
the High Seas Clause, the conduct must have a nexus with the United States. We
first observe that the text of the clause makes no mention of such a jurisdictional
nexus requirement. The clause gives Congress the power “[t]o define and punish
Piracies and Felonies committed on the high Seas, and Offences against the Law
of Nations.” U.S. Constit., art. I, § 8, cl. 10. The clause’s text does not limit that
power to only those piracies and felonies committed in waters within the territorial
jurisdiction of the United States. Neither does the clause expressly limit
Congress’s power to only those offenses committed on or by United States
citizens.
10
Defendants rely on United States v. Furlong, 18 U.S. (5 Wheat.) 184, 185,
200, 5 L. Ed. 64 (1820), as support for the proposition that the High Seas Clause
allows Congress to reach only conduct with a connection to the United States. But
in Furlong the Supreme Court examined the scope of a statute Congress passed
pursuant to the High Seas Clause, rather than the scope of Congress’s power under
the High Seas Clause itself. The Court held that because the particular statute at
issue included the phrase “out of the jurisdiction of any particular State” its scope
was limited to murders committed “out of any one of the United States.” Id. at 200(emphasis added). The Court reasoned that “[b]y examining the context, it will be
seen that particular State is uniformly used in contradistinction to United States
[within the statute].” Id. Thus, the Court’s analysis is a textual one, confined to
an interpretation of the language and structure of the statute before it. Furlong, a
statutory interpretation case, therefore, does not resolve the parties’ debate over
the scope of Congress’s constitutional authority.
When analyzing a constitutional challenge to the Maritime Drug Law
Enforcement Act (“MDLEA”), 46 U.S.C. app. § 1901 et seq., we rejected the same
argument that defendants make here–that Congress exceeded its constitutional
authority under the High Seas Clause in passing a statute that punishes conduct
without a nexus to the United States. See United States v. Estupinan, 453 F.3d
111336, 1338 (11th Cir. 2006). In doing so, we explained that “this circuit and other
circuits have not embellished the MDLEA with the requirement of a nexus
between a defendant’s criminal conduct and the United States.” Id. (quotation
marks omitted); see also United States v. Moreno-Morillo, 334 F.3d 819, 824 (9th
Cir. 2003); United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir.
1993); Suerte, 291 F.3d at 375 (holding that Due Process Clause does not impose
a nexus requirement because the High Seas Clause allows “for the punishment of
offenses outside the territorial limits of the United States”). In the MDLEA cases,
the appellants argued that offenses other than piracies may not be punished under
Congress’s High Seas Clause power when there is no nexus to the United States.
In each case, the court concluded, however, that Congress’s High Seas Clause
power includes the authority to punish offenses other than piracies outside the
territorial limits of the United States. See, e.g., Suerte, 291 F.3d at 375. This
Court, and our sister circuits, have refused to read a jurisdictional nexus
requirement into the clause.
In examining the constitutionality of the MDLEA, we concluded that the
statute’s extraterritorial reach was justified under the universal principle of
international law. Estupinan, 453 F.3d at 1339. According to this principle, a
nation may pass laws to define and punish certain crimes considered to be of
12
“universal concern.” See Herero People’s Reparations Corp. v. Deutsche Bank,
A.G., 370 F.3d 1192, 1196 (D.C. Cir. 2004) (quotation marks omitted). We
adopted the reasoning of the Third Circuit, which opined that “[i]nasmuch as the
trafficking of narcotics is condemned universally by law-abiding nations, we see
no reason to conclude that it is ‘fundamentally unfair’ for Congress to provide for
the punishment of persons apprehended with narcotics on the high seas.”
Estupinan, 453 F.3d at 1339 (citing Martinez-Hidalgo, 993 F.2d at 1056). Thus,
we reasoned that because the MDLEA criminalizes conduct that is condemned
universally, the statute’s extraterritorial reach was permissible.
We now conclude that the DTVIA is also justified under the universal
principle and thus a constitutional exercise of Congress’s power under the High
Seas Clause. In passing the DTVIA, Congress reported that it:
finds and declares that operating or embarking in a submersible vessel
or semi-submersible vessel without nationality and on an international
voyage is a serious international problem, facilitates transnational crime,
including drug trafficking, and terrorism, and presents a specific threat
to the safety of maritime navigation and the security of the United
States.
Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. No. 110-407, § 101, 122
Stat. 4296, 4296 (2008).3 Congress’s findings show that the DTVIA targets
3
Vessels without nationality include:
13
criminal conduct that facilitates drug trafficking, which is “condemned universally
by law-abiding nations.” Estupinan, 453 F.3d at 1339 (citing Martinez-Hidalgo,
993 F.3d at 1056).
Given Congress’s findings, the “protective principle” of international law
provides an equally compelling reason to uphold the DTVIA. Under that
principle, a nation may “assert jurisdiction over a person whose conduct outside
the nation’s territory threatens the nation’s security or could potentially interfere
with the operation of its governmental functions.” United States v. Gonzalez, 776
F.2d 931, 938 (11th Cir. 1985). “The protective principle does not require that
there be proof of an actual or intended effect inside the United States.” Id. at 939.
Those who engage in conduct the DTVIA targets threaten our nation’s security by
evading detection while using submersible vessels to smuggle illegal drugs or
other contraband, such as illegal weapons, from one country to another, and often
into the United States. See 154 Cong. Rec. H7238–39 (daily ed. July 29, 2008);
(A) a vessel aboard which the master or individual in charge makes a claim of
registry that is denied by the nation whose registry is claimed;
(B) a vessel aboard which the master or individual in charge fails, on request of an
officer of the United States authorized to enforce applicable provisions of United
States law, to make a claim of nationality or registry for that vessel; and
(C) a vessel aboard which the master or individual in charge makes a claim of
registry and for which the claimed nation of registry does not affirmatively and
unequivocally assert that the vessel is of its nationality.
46 U.S.C. § 70502(d)(1).
14
154 Cong. Rec. H10153–54, H10252–54 (daily ed. Sept. 27, 2008); H.R. Rep. No.
110-941, at 182–83 (2009); H.R. Rep. No. 110-936, at 28 (2009); see also
Gonzalez, 776 F.2d at 939–40 (explaining that the distribution of narcotics may be
prohibited under the protective principle).
The United States Coast Guard reported to Congress that semi-submersible
vessels present “one of the emerging and most significant threats we face in
maritime law enforcement today.” 154 Cong. Rec. H7239 (daily ed. July 29,
2008) (statement of Rep. Daniel E. Lungren). These vessels pose a formidable
security threat because they are difficult to detect and easy to scuttle or sink. 154
Cong. Rec. H7238–39; 154 Cong. Rec. H10153–54, H10252–54; H.R. Rep. No.
110-941, at 182–83; H.R. Rep. No. 110-936, at 28. These vessels therefore
facilitate the destruction of evidence and hinder prosecution of smuggling
offenses. See 154 Cong. Rec. H7238–39; 154 Cong. Rec. H10153–54,
H10252–54.
Based on the foregoing, we conclude that Congress acted properly within its
constitutional authority under the High Seas Clause in passing the DTVIA. The
fact that defendants are challenging the constitutionality of a statute other than the
MDLEA does not alter our conclusion about the scope of Congress’s power under
the High Seas Clause. See Estupinan, 453 F.3d at 1338. We declined to embellish
15
one statute passed under the High Seas Clause with a nexus requirement. We now
decline defendants’ invitation to rewrite the Constitution to create one.
C.
Defendants next argue that their sentences are procedurally and
substantively unreasonable. “We review sentencing decisions only for abuse of
discretion, and we use a two-step process.” United States v. Shaw, 560 F.3d 1230,
1237 (11th Cir. 2009); see also Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591 (2007). First, we “ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Shaw, 560 F.3d at 1237 (quoting Gall, 552
U.S. at 51, 128 S. at 597). “[T]he second step is to review the sentence’s
‘substantive reasonableness’ under the totality of the circumstances, including ‘the
extent of any variance from the Guidelines range.’” Id. (quoting Gall, 552 U.S. at
51, 128 S. Ct. at 597). “[T]he party who challenges the sentence bears the burden
of establishing that the sentence is unreasonable in the light of both th[e] record
and the factors in section 3553(a).” United States v. Alfaro-Moncado, 607 F.3d
16720, 735 (11th Cir. 2010) (quoting United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005)).
i.
Defendants argue that their sentences are procedurally unreasonable
because the district court failed to apply the proper sentencing guideline.
Specifically, defendants argue that the court should have applied the border tunnel
guideline, United States Sentencing Guidelines § 2X7.1 (Nov. 2008), because no
offense-specific guideline had been promulgated for violations of 18 U.S.C.
§ 2285 at the time they were sentenced. See U.S.S.G. § 2X5.1 (“If the offense is a
felony for which no guideline expressly has been promulgated, apply the most
analogous offense guideline.”). Section 2X7.1, the border tunnel guideline,
expressly applies to violations of 18 U.S.C. § 555. That statute criminalizes the
construction, finance and use of tunnels or subterranean passages that cross
international borders between the United States and another country. See 18
U.S.C. § 555.
The government does not dispute that at the time of sentencing no guideline
had been promulgated for DTVIA violations. Rather, the sentencing commission
had proposed an amendment to the guidelines to add an offense-specific guideline
for DTVIA violations:
17
§2X7.2. Submersible and Semi-Submersible Vessels
(a) Base Offense Level: 26
(b) Specific Offense Characteristic
(1) (Apply the greatest) If the offense involved –
(A) a failure to heave to when directed by
law enforcement officers, increase by 2
levels;
(B) an attempt to sink the vessel, increase
by 4 levels; or
(C) the sinking of the vessel, increase by 8
levels.
(Nov. 2009). Congress later adopted the proposed DTVIA guideline, which
became effective on November 1, 2009, months after the district court sentenced
defendants. See U.S.S.G. app. C at 314–16 (Nov. 2010).
In defendants’ presentence investigation report (“PSI”), the probation
officer calculated their advisory guidelines range as 108 to 135 months
imprisonment, using the base offense level in proposed guideline amendment
§ 2X7.2. The probation officer added 8 levels, pursuant to § 2X7.2(b)(1)(C),
because defendants sank their vessel. She also deducted 3 levels for early
acceptance of responsibility and cooperation. The probation officer acknowledged
that § 2X7.2 had been submitted by the United States Sentencing Commission but
had not been promulgated by Congress as of the time of sentencing.
The district court found that the border tunnel guideline is not “sufficiently
analogous” to DTVIA violations. The court observed that “Section 555 deals with
18
problems associated with smuggling activities occurring on land, specifically
between the border . . . because there [are] only two countries we border, Canada
and Mexico.” The court noted, however, that the new proposed guideline for
DTVIA violations, on the other hand, is “design[ed] to address problems
associated with drug smuggling at sea, especially in terms of the substantial
quantities of drugs that are involved in these drug smuggling ventures.”
Instead of applying either provision, the district court explained that it was
“rely[ing] solely on the 3553(a) factors in imposing [a] sentence on these
Defendants.” The sentence the court applied corresponds to a sentence at the
bottom of the guideline range that would have resulted from application of the
proposed submersible vessel guideline. See U.S.S.G. § 2X7.2 (Nov. 2009).
ii.
When no offense-specific guideline has been promulgated, the district court
either must apply the most analogous guideline or, “[i]f there is not a sufficiently
analogous guideline, the provisions of 18 U.S.C. § 3553 shall control . . . .”
U.S.S.G. § 2X5.1. “The most analogous guideline contemplated by section 2X5.1
is the guideline that applies to the most analogous statute of conviction.” United
States v. Hyde, 977 F.2d 1436, 1438–39 (11th Cir. 1992). “Section 2X5.1
19
indicates that ‘the most analogous offense guideline’ is determined by analogy of
criminal behavior . . . .” Id. at 1439.
We cannot say that the district court erred in rejecting defendants’ request to
apply the border tunnel guideline. Section 2X7.1 pertains to “[b]order [t]unnels
and [s]ubterranean [p]assages.” Every provision under § 2X7.1 expressly and
solely addresses convictions under 18 U.S.C. § 555, which criminalizes the
construction, finance and use of border tunnels that cross international borders
between the United States and another country.4 Because the most analogous
offense guideline is determined by analogy of criminal behavior, the district court
did not abuse its discretion in finding the border tunnel guideline insufficiently
analogous. The actus reus involved in constructing, financing and using border
tunnels differs materially from the criminal acts punished by the DTVIA. The
DTVIA targets maritime smuggling in the broader international arena.
4
§2X7.1. Border Tunnels and Subterranean Passages
(a) Base Offense Level:
(1) If the defendant was convicted under 18 U.S.C.
§ 555(c), 4 plus the offense level applicable to the
underlying smuggling offense. If the resulting offense
level is less than level 16, increase to level 16.
(2) 16, if the defendant was convicted under 18 U.S.C.
§ 555(a); or
(3) 8, if the defendant was convicted under 18 U.S.C.
§ 555(b).
20
Faced with “no guideline [that] expressly ha[d] been promulgated” and no
“sufficiently analogous guideline,” the district court followed the sentencing
guidelines’ instruction to select a sentence based on the § 3553 factors.5 See
U.S.S.G. § 2X5.1. The § 3553 factors include, among others:
the nature and circumstances of the offense and the history and
characteristics of the defendant; [t]he need for the sentence imposed– to
reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; to afford adequate deterrence
. . .; to protect the public . . .; and to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment; [and] [t]he need to avoid unwarranted disparities among
defendants with similar records who have been found guilty of similar
conduct.
5
We need not address whether the district court erred by considering, even if not
applying, the proposed submersible vessel guideline. The district court clearly explained that it
would have applied the same sentence based solely on the § 3553 factors. See United States v.
Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (“[T]he Supreme Court and this Court have long
recognized that it is not necessary to decide guidelines issues or remand cases for new sentence
proceedings where the guidelines error, if any, did not affect the sentence.” (quotation marks
omitted)).
We also need not address Mr. Meneses’s argument that the district court erred by
implicitly applying an eight-level enhancement under the proposed subterranean vessel guideline,
§ 2X7.2(b)(1)(C), because defendants sank their vessel. The district court explained that had it
applied the proposed subterranean vessel guideline, it “would have found that the enhancement
for scuttling is more than appropriate under the facts as [the court] kn[e]w them.” The
indictment alleged that defendants’ vessel sank within minutes after defendants jumped from it.
Defendants never refuted this point. Because the district court calculated defendants’ sentences
based on an application of the § 3553 factors alone, however, we need not decide whether it
would have been proper for the district court to apply the enhancement under the facts of this
case. See Keene, 470 F.3d at 1349.
21
18 U.S.C. § 3553(a). The district court expressly considered the § 3553 factors.
The court stated that it imposed defendants’ particular sentences to send a message
to deter drug cartels from using submersible vessels to smuggle drugs, to protect
the public, and to provide proper punishment, especially in light of the seriousness
of the offense. The district court considered the parties’ arguments and gave a
reasoned basis for its sentence. That is all that we require of sentencing courts.
See Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007). We
therefore conclude that the district court committed no procedural error in
selecting defendants’ sentence.
iii.
Defendant Meneses argues that his 108 month sentence is substantively
unreasonable. Mr. Meneses argues that the district court should have departed
downward from its guideline calculation when determining his sentence because
his status as an alien creates a sentencing disparity. Mr. Meneses asserts that his
alienage renders him ineligible for certain vocational and other programs that
could lead to early release and precludes placement in a minimum security facility
or home confinement. The crux of his argument is that he received “a sentence
that is greater than necessary.”
22
In reviewing a sentence for substantive reasonableness, we examine the
totality of the circumstances and determine whether the sentence achieves the
sentencing goals stated in 18 U.S.C. § 3553(a). United States v. Culver, 598 F.3d
740, 753 (11th Cir. 2010); United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.
2008). It is within the district court’s discretion to weigh the § 3553(a) factors,
and “[w]e will not substitute our judgment in weighing the relevant [statutory]
factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotation
marks omitted). In a pre-Booker decision, we held that a sentencing court may not
apply a downward departure to shield aliens from detrimental collateral
consequences stemming from defendants’ status as an alien. United States v.
Maung, 320 F.3d 1305, 1308–10 (11th Cir. 2003); see also United States v.
Veloza, 83 F.3d 380, 382 (11th Cir. 1996) (holding that collateral consequences of
defendants’ alienage could serve as basis for downward departure only if those
consequences “were extraordinary in nature or degree,” and affirming court’s
refusal to depart based on “the unavailability of preferred conditions of
confinement” (quotation marks omitted)), overruled on other grounds by United
States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc).6
6
Mr. Meneses argues that our Maung and Veloza decisions are no longer binding
precedent after United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). In the alternative,
he argues that even if they remain binding, his case is distinguishable because he suffers greater
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We conclude that Mr. Meneses’s sentence is substantively reasonable. The
district court considered Mr. Meneses’s disparity argument. Defendants’ sentence
is well below the 15 year statutory maximum for violations of the DTVIA. See 18
U.S.C. § 2285(a). Given the severity of the offense and need for deterrence, Mr.
Meneses’s sentence achieves the sentencing goals stated in § 3553. We cannot say
that “we are ‘left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.’” United States v. McBride, 511 F.3d 1293, 1297–98 (11th Cir.
2007) (quoting United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006)).
We therefore affirm Mr. Meneses’s sentence.
D.
Finally, Mr. Estupinan argues that the district court erred by failing to attach
a copy of its rulings on the parties’ sentencing objections to his PSI. Federal Rule
of Criminal Procedure 32(i)(3)(C) requires the sentencing court to “append a copy
of the court’s determinations [for any disputed portion of the PSI or other
controverted matter] to any copy of the presentence report made available to the
hardships as a result of his alienage than the aliens in Maung and Veloza. We need not resolve
these issues, as we conclude that Mr. Meneses’s sentence is substantively reasonable in light of
the district court’s consideration of his disparity concerns in its application of the § 3553 factors.
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Bureau of Prisons.” We have said that failure to follow Rule 32(i)(3) is a mere
“‘ministerial matter’ which may be remedied without resentencing by attaching a
copy of the sentencing hearing transcript to the presentence report.” United States
v. Spears, 443 F.3d 1358, 1362 (11th Cir. 2006) (quotation marks omitted). At the
sentencing hearing, Mr. Estupinan, through counsel, raised objections to the
proposed guideline calculation in the PSI. The district court erred by failing to
append a copy of its rulings on these objections. We therefore remand for the
limited purpose of allowing the district court to attach a copy of its rulings on Mr.
Estupinan’s objections to his PSI.
III. CONCLUSION
For these reasons, we AFFIRM the district court’s finding that the DTVIA
is a constitutional exercise of Congress’s power under the High Seas Clause. We
also AFFIRM defendants’ sentences. We REMAND for the district court to
follow the procedures outlined in Fed. R. Crim. P. 32(i)(3)(C) for appending its
rulings on contested sentencing issues to the PSI.
AFFIRMED and REMANDED.
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