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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13891
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMIRO HINESTROZA-NEWBBOOLL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00594-SCB-JSS-1
____________________
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2 Opinion of the Court 20-13891
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
Emiro Hinestroza-Newbbooll (“Hinestroza”) appeals his
convictions and 292-month sentence for trafficking cocaine in in-
ternational waters, in violation of the Maritime Drug Law Enforce-
ment Act (“MDLEA”). See
46 U.S.C. §§ 70501–70508. He argues
that the district court violated his rights under the Confrontation
Clause, abused its discretion by admitting unreliable expert testi-
mony, and erred in calculating his guideline range at sentencing.
After careful review, we affirm.
I. Factual Background and Procedural History
In December 2018, a Coast Guard airplane conducting coun-
ter-narcotics surveillance observed four individuals on a tarp-cov-
ered go-fast vessel that was floating in a known drug-trafficking
area about 100 miles southwest of Jamaica. After the plane arrived
in the area, the vessel began to move erratically, and Coast Guard
air personnel saw and recorded the vessel’s crew tying together and
jettisoning groups of white, rectangular packages. None of these
packages were recovered, but multiple government witnesses tes-
tified that they were consistent with 20-kilogram bales of cocaine
recovered during prior interdictions of similar go-fast vessels.
When a Coast Guard boarding team reached the vessel,
Hinestroza identified himself as the captain and stated that they had
been either fishing for mahi-mahi or scuba diving for conch. Aside
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20-13891 Opinion of the Court 3
from a single snorkeling mask, however, no fishing or scuba diving
gear was present on the vessel. And the vessel was otherwise
largely bare except for 55-gallon fuel drums. The vessel’s engines
had been tied to and sunk with the packages.
No drugs were found on board, but Coast Guard personnel
took multiple samples or “swipes” from the vessel and its crew and
ran them through an Ionscan 500 DT machine. The Ionscan ma-
chine uses ion mobility spectrometry to identify trace amounts of
illicit materials. See, e.g., United States v. Williams,
865 F.3d 1328,
1335 (11th Cir. 2017) (describing this technology). This testing re-
vealed the presence of trace amounts of cocaine on both sides of
the vessel, near the cargo hold of the vessel, and on all four of the
vessel’s crewmembers.
Hinestroza and his three codefendants were indicted under
the MDLEA on one count of conspiracy to distribute and to possess
with intent to distribute five kilograms or more of cocaine and one
count of possession with intent to distribute five kilograms or more
of cocaine. See
46 U.S.C. §§ 70503(a), 70506(a) and (b), and
21
U.S.C. § 960(b)(1)(B)(ii). Hinestroza’s trial was severed from his
codefendants, whose convictions and sentences were affirmed on
appeal in February 2021. United States v. Newball May, 846 F.
App’x 831 (11th Cir. 2021).
Before trial, the district court determined that the go-fast
vessel was “subject to the jurisdiction of the United States” as a
“vessel without nationality,” based on a certification from the U.S.
State Department submitted by the government. The court also
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4 Opinion of the Court 20-13891
denied Hinestroza’s motion to exclude the Ionscan evidence and
expert testimony about that evidence after holding a hearing under
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993).
Based on testimony from the government’s proffered expert, Coast
Guard Senior Chief Maritime Enforcement Specialist Steven
Bomentre, the court found that the evidence was sufficiently relia-
ble to be considered by the jury.
A jury ultimately found Hinestroza guilty as charged in the
indictment. Then, at sentencing, the district court determined a
drug quantity in excess of 450 kilograms of cocaine, applied en-
hancements for Hinestroza’s being the captain of the vessel and for
obstructing justice by jettisoning and sinking the packages, and
awarded a reduction under the safety valve. These calculations es-
tablished a total offense level of 40 and a corresponding guideline
range of 292 to 365 months. The court imposed a sentence of 292
months.
Hinestroza appeals, making three main arguments: (1) the
admission of a State Department certification to establish jurisdic-
tion under the MDLEA violated his rights under the Confrontation
Clause; (2) the court abused its discretion by admitting the Ionscan
evidence at trial; and (3) the court erred at sentencing in finding a
drug quantity in excess of 450 kilograms and applying the enhance-
ment for obstruction of justice. We address each argument in turn.
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20-13891 Opinion of the Court 5
I. MDLEA Jurisdiction
The MDLEA broadly prohibits drug trafficking while on
board any vessel “subject to the jurisdiction of the United States.”
See
46 U.S.C. § 70503(a). To establish extraterritorial jurisdiction
under the MDLEA, the government may submit a State Depart-
ment certification showing that the nation of registry claimed by
the vessel’s master “does not affirmatively and unequivocally assert
that the vessel is of its nationality.” See
id. §§ 70502(c)(1)(A),
(d)(1)(C), (d)(2). Whether MDLEA jurisdiction exists “is not an el-
ement of an offense” but rather a “preliminary question[] of law to
be determined solely by the trial judge.” Id. § 70504(a).
Under this Circuit’s binding precedent, “[a] United States
Department of State certification of jurisdiction under the MDLEA
does not implicate the Confrontation Clause because it does not
affect the guilt or innocence of a defendant.” United States v.
Cruickshank,
837 F.3d 1182, 1192 (11th Cir. 2016); United States v.
Campbell,
743 F.3d 802, 807–09 (11th Cir. 2014). Although
Hinestroza argues that our precedent is wrong, we are bound to
follow it “unless and until it is overruled by this court en banc or
by the Supreme Court.” United States v. Vega-Castillo,
540 F.3d
1235, 1236 (11th Cir. 2008) (quotation marks omitted).
Accordingly, the district court did not violate Hinestroza’s
confrontation rights by relying on a certification from the State De-
partment to establish jurisdiction under the MDLEA.
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6 Opinion of the Court 20-13891
II. Admission of Ionscan Evidence
We review for abuse of discretion the district court’s deci-
sions regarding the admissibility of expert testimony and the relia-
bility of an expert opinion. United States v. Barton,
909 F.3d 1323,
1330 (11th Cir. 2018). “This abuse-of-discretion standard recog-
nizes the range of possible conclusions the trial judge may reach,
and thus affords the district court considerable leeway in eviden-
tiary rulings.”
Id. (citations and quotation marks omitted). We
must affirm the district court unless it has applied the wrong legal
standard or made a clear error of judgment that resulted in substan-
tial prejudice to the defendant.
Id. at 1330–31.
Rule 702 of the Federal Rules of Evidence governs the ad-
mission of expert testimony. Fed. R. Evid. 702. As the “gate-
keeper” for expert testimony, the district court is tasked with en-
suring that the expert is qualified and that the testimony is suffi-
ciently reliable and relevant to be considered by the jury. Kumho
Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 147–48 (1999).
Whether expert testimony is sufficiently reliable depends on
several factors. See, e.g., Daubert v. Merrell Dow Pharma., Inc.,
509 U.S. 579, 593–94 (1993). They include whether the theory or
technique at issue can be and has been tested, whether it has been
subjected to peer review and publication, its known or potential
rate of error, and whether it is generally accepted in the field.
Id.
This inquiry is “flexible” and context-dependent, however; not
every factor applies or must be met in every case for the expert
testimony to be admissible. See United States v. Brown, 415 F.3d
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20-13891 Opinion of the Court 7
1257, 1267 (11th Cir. 2005) (upholding the admission of expert tes-
timony that met the “general acceptance” Daubert factor only).
Hinestroza contends that the government failed to offer any
evidence showing that the Ionscan technology is a reliable tool for
identifying the presence of narcotics. He does not contest the qual-
ifications of the government’s expert more generally.
Here, the district court did not abuse its discretion in deny-
ing the motion to exclude the Ionscan evidence. At the Daubert
hearing, the government’s expert, Bomentre, who had extensive
training and experience with Ionscan testing, testified in relevant
part that Ionscan testing was generally accepted as a method of de-
tecting trace amounts of narcotic substances and explosives on sur-
faces; was widely used by federal law enforcement agencies, includ-
ing at airports, the border, and the U.S. Capitol; had a published
error or false-alarm rate of less than one percent, with false nega-
tives more likely than false positives; and was supported by peer-
reviewed studies showing that ion mobility spectrometry, the tech-
nology used by the Ionscan machine, was highly reliable in detect-
ing specific molecules.
This testimony suggests that Ionscan testing is widely used
for the detection of trace amounts of narcotics and is based on a
peer-reviewed and reliable methodology. See Daubert,
509 U.S. at
592–94; Brown, 415 F.3d at 1267. That Hinestroza identifies short-
comings that could be raised on cross-examination does not show
that the evidence was inadmissible. See Daubert,
509 U.S. at 596
(“Vigorous cross-examination, presentation of contrary evidence,
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8 Opinion of the Court 20-13891
and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evi-
dence.”). Given the flexible nature of the gatekeeping inquiry, the
district court acted well within its discretion in concluding that the
expert testimony and Ionscan evidence in this case was sufficiently
reliable for admission under Rule 702.
III. Sentencing
Turning to the sentencing issues, we review for clear error
the district court’s determination of the quantity of drugs used to
establish a base offense level for sentencing purposes. United States
v. Reeves,
742 F.3d 487, 506 (11th Cir. 2014). For the obstruction-
of-justice enhancement, “we review the district court’s factual find-
ings for clear error and we review its application of the factual find-
ings to the sentencing guidelines de novo.” United States v. Doe,
661 F.3d 550, 565 (11th Cir. 2011).
A. Drug Quantity
The base offense level for drug offenses usually depends on
the quantity of drugs involved in the offense. See U.S.S.G.
§ 2D1.1(a)(5), (c). When the drug amount seized does not reflect
the scale of the offense, the district court must approximate drug
quantity. Reeves, 742 F.3d at 506. This determination may be
based on “fair, accurate, and conservative estimates” of the quan-
tity attributable to a defendant but cannot be based on “merely
speculative” calculations. Id. (quotation marks omitted). The
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government bears the burden of proving drug quantity by a pre-
ponderance of the evidence. Id.
Here, the district court did not clearly err in finding a drug
quantity of 450 kilograms or more of cocaine, which triggered the
highest base offense level of 38. As support for that finding, the
court noted that a video admitted at trial clearly depicted the de-
fendants tying together and jettisoning the packages, that the num-
ber of packages could be counted if the video was slowed down,
and that several officers testified at trial based on their personal ex-
perience in similar interdictions that the packages were consistent
with 20-kilogram bales of cocaine. Over Hinestroza’s objection,
the court also found that it could consider his post-arrest state-
ments admitting that the go-fast vessel was loaded with 38 bales of
cocaine weighing approximately 760 kilograms. In addition,
Hinestroza did not object to the presentence investigation report’s
(“PSR”) statement that a codefendant had told authorities that they
dumped 30 to 34 sacks, though he claimed the sacks were filled
with conch, not cocaine.
Besides a vague reference to “impermissible PSR state-
ments,” Hinestroza fails to develop on appeal, and so has aban-
doned, any argument that the court could not consider these state-
ments at sentencing. See United States v. Jernigan,
341 F.3d 1273,
1283 n.8 (11th Cir. 2003) (issues not “plainly and prominently”
raised appeal, with supporting arguments and authority, are
deemed abandoned). In short, we find no clear error in the court’s
determination of drug quantity. See Reeves, 742 F.3d at 507.
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10 Opinion of the Court 20-13891
B. Obstruction of Justice
Under § 3C1.1, a defendant’s offense level is increased by
two levels if the defendant “willfully obstructed or impeded, or at-
tempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the in-
stant offense of conviction,” and the obstructive conduct related to
that offense. U.S.S.G. § 3C1.1. According to § 3C1.1’s commen-
tary, this guideline may cover obstructive conduct that occurred
before the start of the investigation “if the conduct was purpose-
fully calculated, and likely, to thwart the investigation or prosecu-
tion of the offense of conviction.” Id., cmt. n.1. Obstructive con-
duct includes “destroying or concealing or directing or procuring
another person to destroy or conceal evidence that is material to
an official investigation or judicial proceeding.” Id., cmt. n.4(D).
The district court did not clearly err in finding that
Hinestroza obstructed justice within the meaning of § 3C1.1. The
record reflects that, after seeing the Coast Guard plane, over a pe-
riod of nearly two hours, Hinestroza and his codefendants jetti-
soned and sank the cocaine they were transporting. Even assuming
no “official investigation or prosecution” existed at that time, the
obstruction enhancement still applies because this conduct was
“purposefully calculated, and likely, to thwart the investigation or
prosecution” by destroying all evidence of their crime. U.S.S.G. §
3C1.1, cmt. n.1; see United States v. Wayerski,
624 F.3d 1342, 1352
(11th Cir. 2010) (“The defendants’ affirmative steps to prevent law
enforcement from detecting their illicit activity and to impede any
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20-13891 Opinion of the Court 11
investigation show that they consciously acted with the purpose of
obstructing justice.”).
Hinestroza also asserts that, “at the time the packages were
jettisoned, the United States had no jurisdiction over the boat at
issue or its crew.” Leaving aside the accuracy of that statement,
which the government disputes, he fails to explain its relevance for
sentencing. The evidence of jettisoning was admitted at trial and
is plainly relevant to the offenses of conviction, over which the dis-
trict court properly found jurisdiction. See U.S.S.G. § 3C1.1;
United States v. Green,
981 F.3d 945, 953 (11th Cir. 2020) (stating
that, at sentencing, “[t]he district court may base factual findings
on evidence presented at trial”). Hinestroza offers no support for
his view that the court could not consider this conduct when cal-
culating his guideline range. Cf. United States v. Behr,
93 F.3d 764,
765–66 (11th Cir. 1996) (“[D]istrict court[s] may consider criminal
conduct that occurred outside of the statute of limitations period
as relevant conduct for sentencing purposes.”).
IV. Conclusion
In sum, we reject Hinestroza’s arguments and affirm his
convictions and 292-month sentence.
AFFIRMED.
