United States v. Martin Sinisterra , 237 F. App'x 467 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 13, 2007
No. 06-15824 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00190-CR-T-27-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN SINISTERRA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 13, 2007)
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Martin Sinisterra appeals his 121-month sentence for conspiracy and
possession with intent to distribute cocaine while on board a vessel subject to the
jurisdiction of the United States, 46 U.S.C. app. § 1903(a), and (g), 21 U.S.C.
§ 960(b)(1)(B)(ii), and 18 U.S.C. § 2; and conspiracy to possess with intent to
distribute cocaine while on board a vessel subject to the jurisdiction of the United
States, 46 U.S.C. app. § 1903(a), (g), and (j), and 21 U.S.C. § 960(b)(1)(B)(ii).
Initially, Sinisterra has not demonstrated that the district court committed error in
failing to dismiss the indictment for lack of jurisdiction. Second, the record shows,
and Sinisterra concedes, that the district court did not clearly err by applying a two
level enhancement for being the captain of the vessel. Finally, the district court
considered the 18 U.S.C. § 3553(a) factors, accurately calculated the guideline
range, and sentenced Sinisterra at the low end of the guidelines range, and no other
circumstances suggest that his sentence is unreasonable. Accordingly, as discussed
below, we AFFIRM.
I. BACKGROUND
In May 2006, a federal grand jury entered a two-count indictment against
Sinisterra, a Colombian national, and four others. Count one charged that on 14
May 2006, the defendants conspired to possess with intent to distribute five
kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United
2
States, in violation of 46 U.S.C. app. § 1903(a), (g),1 and (j), 21 U.S.C. §
960(b)(1)(B)(ii). Count two charged that on the same day the defendants
possessed with intent to distribute five kilograms of cocaine, in violation of 46
U.S.C. app. § 1903(a) and (g), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 2.
Prior to trial, Sinisterra agreed to enter a guilty plea to counts one and two of
the indictment. At his plea hearing, the government proffered that on 14 May
2006, while on patrol in the international waters in the eastern Pacific Ocean, a
United States maritime patrol aircraft sighted a suspected go-fast vessel
approximately one hundred fifteen-nautical miles southwest of the Galapagos
Islands. The go-fast vessels are typically used by drug trafficking operations to
smuggle large quantities of cocaine from Colombia to Mexico for distribution to
the United States. As the United States Coast Guard closed in on the go-fast
vessel, the crew on the go-fast vessel set it on fire, and all five crew members
(defendants) jumped into the water. The Coast Guard crew rescued the defendants
and attempted to extinguish the fire but the vessel broke up and started to sink.
Multiple bales of cocaine floated to the surface as the vessel sunk. The United
States recovered thirty-six bales of cocaine plus another seven hundred and fifteen
1
The appendix to Title 46 containing the subject provisions was repealed effective 6
October 2006, and reenacted as 46 U.S.C. §§ 70503 and 70506, respectively, with no relevant
changes. See Pub.L. No. 109-134, 120 Stat. 1485 (2006).
3
individual bricks from the damaged bales, for a total weight seized of four
thousand pounds. At the time of their initial arrest, none of the defendants
admitted to being the captain of the vessel. Since the captain of the vessel failed to
make any claim of nationality, the Coast Guard declared the vessel flagless and to
be a vessel without nationality, which authorized the enforcement of the laws of
the United States on the vessel and its crew members, defendants in this case.
Sinisterra agreed with the government’s recitation of the facts and pleaded guilty to
the charges.
The presentence investigation report (“PSI”) assigned Sinisterra a base
offense level of 38 pursuant to U.S.S.G. § 2D1.1(c)(3). The PSI noted that others
arrested identified Sinisterra as the captain of the “go-fast” boat, and, therefore,
recommended adding two points pursuant to U.S.S.G. § 2D1.1(b)(2)(B). Sinisterra
was granted a safety-valve reduction and two points were deducted pursuant to
U.S.S.G. § 5C1.2. Three points were deducted for acceptable of responsibility
pursuant to U.S.S.G. § 3E1.1(a), and (b). The PSI reported that the charged
offense carried a mandatory term of imprisonment of 10 years pursuant to 21
U.S.C. § 960(b)(1)(B). Sinisterra, however, met the criteria set forth in 18 U.S.C.
§ 3553(f)(1-5), and, therefore, the district court could impose a sentence in
accordance with the sentencing guidelines and without regard to the statutory
4
minimum sentence. Accordingly, the probation officer recommended a total
offense level of 35, and criminal history category of I, which produced a
sentencing guideline range of 168-210 months.
Neither Sinisterra nor the government objected to the PSI prior to
sentencing. At sentencing, Sinisterra did not enter any objections to the PSI or to
the application of the advisory guidelines. Accordingly, the court then adopted the
guidelines calculations set forth in the PSI.
Sinisterra spoke to the court in allocution. Defense counsel then stated that
Sinisterra did not object to the two level increase for captain’s role in the offense
because “the law is not on my side.” R3 at 8. Nonetheless, defense counsel asked
the court to consider that the defendants were low on the totem pole of the drug
trafficking organization, and that any of them could technically be the captain since
“[t]hey all drive the boat.” Id. Defense counsel requested that it impose a
reasonable sentence, and suggested that a term of 120 months of imprisonment
would serve the sentencing goals.
The court found that Sinisterra had done what he could to lower his exposure
in terms of sentencing by cooperating early and indicating his decision to plead
guilty early. The court noted that it considered the sentencing factors set forth in
18 U.S.C. § 3553(a), the advisory guidelines, the government’s U.S.S.G. § 5K1.1
5
motion, and the seriousness of the offense. The court also discussed the goals of
sentencing including the need for deterrence and to promote respect for the laws.
Based on this, the court departed three levels to offense level 32, and sentenced
Sinisterra to 121 months as to each count, the terms to run concurrently, followed
by five years of supervised release. The parties did not object to the sentence.
Sinisterra timely appealed. In his brief, Sinisterra states that he wished to
adopt the arguments filed by his co-appellants providing they inure to his benefit.
The government responds that Sinisterra may not do so because he has no co-
Appellants, and none of his co-defendants had filed an appeal when he submitted
his brief.
II. DISCUSSION
A. Whether the district court plainly erred by failing sua sponte to dismiss
the indictment for lack of jurisdiction
On appeal, Sinisterra first argues that the Maritime Drug Law Enforcement
Act (MDLEA), 46 U.S.C. app. §§ 1901-1904, is unconstitutional to the extent that
it confers jurisdiction over drug trafficking within international waters regardless
of proof that the drugs were destined for the United States. Specifically, Sinisterra
argues that the district court did not have jurisdiction over him because the vessel
was seized nowhere near the United States, there were no facts showing that the
vessel was bound to or came from the United States, and the government did not
6
establish a nexus between the vessel and the United States. Sinisterra further
argues that the fact that the go-fast vessel was similar to other vessels known to
transport drugs was not enough to confer jurisdiction over him. Sinisterra asserts
that this issue should be reviewed de novo.
At the outset, contrary to the government’s assertion that Sinisterra waived
this challenge to the district court’s jurisdiction by entering a guilty plea, our law is
clear that a guilty plea does not bar an appeal that raises a jurisdictional question.
United States v. Reynolds, 215 F.3d 1210, 1215 (11th Cir. 2000) (per curiam)
(citation omitted). Rather, we review de novo a district court’s “interpretation and
application of statutory provisions” that go to whether the court has subject matter
jurisdiction. United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir. 2002)
(citation and quotation omitted). “Consequently, defects in subject-matter
jurisdiction require correction regardless of whether the error was raised in district
court.” United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002)
(citations omitted).
The United States Constitution empowers 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. In enacting the MDLEA, Congress
found and declared these things:
7
trafficking in controlled substances aboard vessels is a serious
international problem and is universally condemned. Moreover, such
trafficking presents a specific threat to the security and societal
well-being of the United States.
46 U.S.C. app. § 1902. The MDLEA provides, in relevant part, that “[i]t is
unlawful for any person . . . on board a vessel subject to the jurisdiction of the
United States . . . to possess with intent to manufacture or distribute, a controlled
substance.” 46 U.S.C. app § 1903(a). A “vessel subject to the jurisdiction of the
United States” includes “a vessel without nationality.” 46 U.S.C. app.
§ 1903(c)(1)(A). Additionally, “a ‘vessel without nationality’ includes . . . a vessel
aboard which the master or person in charge makes a claim of registry, which
claim is denied by the flag nation whose registry is claimed” or “a vessel aboard
which the master or person in charge makes a claim of registry and the claimed
nation of registry does not affirmatively and unequivocally assert that the vessel is
of its nationality.” Id. at § 1903(c)(2)(A), (C).
In United States v. Estupinan, 453 F.3d 1336, 1339 (11th Cir. 2006) (per
curiam), we noted that “the district court committed no error in failing to sua
sponte rule that Congress exceeded its authority under the Piracies and Felonies
Clause in enacting the MDLEA.”
In Tinoco, we addressed a similar issue where a vessel was intercepted in
international waters, flew no flag, contained no registration documentation or
8
identifying markings, and Colombian officials were unable to confirm its
registration. 304 F.3d at 1092-94. We concluded that the vessel in Tinoco
comported with the “vessel without nationality” under § 1903(c)(2)(C), and,
consequently, was stateless. Id. at 1116. “Because stateless vessels do not fall
within the veil of another sovereign’s territorial protection, all nations can treat
them as their own territory and subject them to their laws.” United States v.
Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003) (citation and quotation omitted).
Additionally, in Tinoco, we concluded that “Congress, under the ‘protective
principle’ of international law, may assert extraterritorial jurisdiction over vessels
in the high seas that are engaged in conduct that ‘has a potentially adverse effect
and is generally recognized as a crime by nations that have reasonably developed
legal systems.’” Id. at 1108 (citation omitted). Further, our circuit and other
circuits have not embellished the MDLEA with a nexus requirement. See, e.g.,
United States v. Mena, 863 F.2d 1522, 1527 (11th Cir. 1989) (rejecting facial
challenge to MDLEA based on a lack of a “meaningful relationship” to the United
States).
Accordingly we reject Sinisterra’s argument that the district court erred by
failing to sua sponte dismiss the indictment for lack of jurisdiction. As noted
above, we have upheld the prosecution of vessels without nationality under § 1903.
9
See Tinoco, 304 F.3d at 1112. In addition, we do not attach a nexus requirement
to the MDLEA. See Mena, 863 F.2d at 1527. Furthermore, we have held that the
district court does not commit error in failing to sua sponte find that Congress
exceeded its authority in enacting the MDLEA. See Estupinan, 453 F.3d at 1339.
Thus, the district court committed no error on this issue.
B. Whether the district court erred by finding that Sinisterra was a captain
and increasing by two levels his base offense level
On appeal, Sinisterra concedes that according to our decision in Rendon, 354
F.3d 1320, the district court properly calculated a two-level increase in his offense
level for being a captain in the offense. Nevertheless, Sinisterra requests that we
reexamine our prior decisions in boat cases. Sinisterra argues that all defendants
could and did navigate the vessel, and, therefore, none was more culpable than
another.
We review a district court’s findings of fact for clear error and its application
of the sentencing guidelines de novo. United States v. Jackson, 276 F.3d 1231,
1233 (11th Cir. 2001) (citation omitted). Section 2D1.1(b)(2)(B) imposes the
enhancement based on the role of the defendant in the importation or exportation
of a controlled substance: “If . . . the defendant acted as a pilot, copilot, captain,
navigator, flight officer, or any other operation officer aboard any craft or vessel
carrying a controlled substance.” U.S.S.G. § 2D1.1(b)(2)(B). Moreover, we have
10
adopted the rule that a prior decision of the circuit (panel or en banc) cannot be
overruled by a later panel but only by the court sitting en banc or by the United
States Supreme Court. United States v. Machado, 804 F.2d 1537, 1543 (11th Cir.
1986).
Here, the district court did not err factually by applying the enhancement
based on its conclusion that Sinisterra was captain of the vessel that was
transporting the cocaine. See United States v. Bonilla, 463 F.3d 1176, 1179 (11th
Cir. 2006). At sentencing, Sinisterra conceded that he was, at least, a captain of the
vessel.
C. Whether Sinisterra’s 121 month sentence was unreasonable, in violation
of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005)
Sinisterra requests that we conduct an independent analysis of his case rather
than apply the typical sentences imposed in other boat cases from the Middle
District of Florida. Sinisterra asserts that sentences in boat cases were historically
inflated due to the mandatory sentencing guidelines, and have remained so in spite
of the now-advisory scheme. Sinisterra argues that he has no criminal history, he
had no knowledge that the drugs would reach the United States, he will be
deported following the completion of his sentence, there is no need for restitution,
and he was a pawn in a large drug cartel.
11
Pursuant to the Supreme Court’s instructions in Booker, 543 U.S. 220, 125
S. Ct. 738 (2005), we review a district court’s sentence, imposed after consulting
the guidelines and considering the factors set forth at 18 U.S.C. § 3553(a), for
reasonableness. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006)
(per curiam) (“Under Booker, we review a defendant's ultimate sentence for
reasonableness.”). Some of the § 3553(a) factors include the nature and
circumstances of the offense, the history and characteristics of the defendant, the
need for adequate deterrence and protection of the public, pertinent sentencing
guidelines, and the need to avoid unwarranted sentencing disparities. See 18
U.S.C. § 3553(a). The reasonableness review is “deferential” and focuses on
whether the sentence imposed fails to achieve the purposes of sentencing as stated
in § 3553(a). United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per
curiam). Moreover, we have recognized that a range of reasonable sentences exists
from which the district court may choose. Id. “[T]he party who challenges the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of both [the] record and the factors in section 3553(a).” Id.
We conclude that Sinisterra’s 121-month sentence is reasonable and affirm.
First, the district court followed the proper procedure in determining the sentence
because it: (1) correctly calculated the advisory Guidelines range; and (2) indicated
12
that it had considered the factors contained in 18 U.S.C. § 3553(a). See id.
Second, the district court imposed a sentence at the bottom of the advisory
guidelines range and far from the statutory maximum of life imprisonment, both of
which are indications of a reasonable sentence. See id. (noting that “ordinarily we
would expect a sentence within the Guidelines range to be reasonable”). Finally,
Sinisterra has failed to meet his burden of showing that his sentence was
unreasonable in light of the record and the § 3553(a) factors. See id. Sinisterra’s
claim that his sentence was unreasonable because it was based almost exclusively
on the drug quantity, fails because the goals of the sentencing guidelines are also
reflected in the reasonableness factors, including the need for the sentence imposed
to reflect the seriousness of the offense and to provide just punishment for the
offense, and the kinds of sentence and the sentencing range. See 18 U.S.C. §§
3553(a)(2)(A), and (4). Likewise, Sinisterra’s claim that his sentence was
unreasonable because he has no criminal history also fails because the sentencing
guidelines are also reflected in the reasonableness factors. Also, the district court
did consider Sinisterra’s role in the offense, and he conceded that he was the
captain of the vessel. Finally, the 121-month sentence imposed on Sinisterra is
only one month longer than the sentence he advocated for at sentencing. Also,
Sinisterra’s offenses involved a large drug quantity, over 1800 kilograms, which
13
was substantially more than the 150 kilogram minimum necessary to achieve the
maximum offense level contemplated by the sentencing guidelines under U.S.S.G.
§ 2D1.1(c).
III. CONCLUSION
Because the district court correctly calculated the guidelines range and
considered the factors of § 3553(a), and because Sinisterra failed to establish that
his sentence at the low end of the advisory Guidelines range is unreasonable, we
AFFIRM.
14