United States v. Jorge Enrique Valencia Vergara ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 7, 2008
THOMAS K. KAHN
No. 07-12326
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00279-CR-T-17TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ENRIQUE VALENCIA VERGARA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 7, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Jorge Enrique Valencia-Vergara appeals his conviction and sentence for
conspiracy to possess with intent to distribute cocaine while aboard a vessel subject
to the jurisdiction of the United States and possession with intent to distribute
cocaine while aboard a vessel subject to the jurisdiction of the United States, both
in violation of 46 App. U.S.C. § 1903(a),(g),(j),1 and 21 U.S.C. § 960(b)(1)(B)(ii).
Valencia-Vergara asserts three issues on appeal, which we address in turn. After
review, we affirm Valencia-Vergara’s conviction and sentence.
I.
Valencia-Vergara asserts the district court erred in denying his motion to
dismiss the indictment, which was based on his assertion that a Federal Bureau of
Investigation agent coerced him into pleading guilty. A motion to dismiss the
indictment due to outrageous government conduct involves a question of law that
we review de novo. United States v. Gupta, 463 F.3d 1182, 1191 (11th Cir. 2006);
United States v. Savage, 701 F.2d 867, 868 n.1 (11th Cir. 1983). We have
determined that “a due process violation may result when the government’s
enforcement techniques reach a certain level of outrage.” Id. at 868. “The case
law emphasizes the extreme circumstances that must exist before a due process
violation will be found: law enforcement techniques will be deemed
1
These sections recently were codified in 46 U.S.C. § 70503.
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unconstitutional only if they violate that fundamental fairness, shocking to the
universal sense of justice, mandated by the Due Process Clause of the Fifth
Amendment.” Id. (quotations omitted). Cases in which the government’s conduct
rises to that level of outrageousness are rare. Id. at 869. Moreover, “absent
demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is
plainly inappropriate, even though the violation may have been deliberate.” United
States v. Morrison, 101 S. Ct. 665, 668 (1981).
Here, the district court expressed concern over the Government’s conduct,
but ultimately determined that the conduct did not rise to the level of a due process
violation, and Valencia-Vergara did not show prejudice that resulted to his defense.
The district court’s finding is supported by the record. Although Agent Faria
undermined the attorney-client relationship and ingratiated himself with Valencia-
Vergara by making three-way telephone calls to his family, this conduct cannot be
said to be “shocking to the universal sense of justice.” See Savage, 701 F.2d at
868. The offense had already been committed before Agent Faria intervened,
Valencia-Vergara had the opportunity to proceed to trial, but chose to plead guilty,
and he was represented during his plea and sentencing hearings by his attorney.
Based on these considerations, Agent Faria’s conduct, though reprehensible, did
not rise to the level of fundamental unfairness and outrageousness contemplated by
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this Court’s precedent. See id. at 868-69. Moreover, as the magistrate judge
noted, neither this Court nor the Supreme Court has reversed a conviction because
of a failure to dismiss a case based on government misconduct, and this case is not
one of the rare instances in which government conduct was so outrageous that it
violated due process. See United States v. Tobias, 662 F.2d 381, 385-87 (5th Cir.
Unit B Nov. 1981) (holding where (1) the government provided the defendant with
all the necessary drug-making materials, (2) the government provided instructions
on how to make the drugs, and (3) the defendant sought out the materials and help
from the undercover government agents, the case “set the outer limits to which the
government may go in the quest to ferret out and prosecute crimes,” but the
government’s conduct did not rise to the level of a due process violation).
Moreover, even if Valencia-Vergara had shown that Agent Faria’s actions
were so shocking as to violate due process, he failed to show how he was
prejudiced by these actions. Valencia-Vergara contends the agent’s conduct
should have been found to be “prejudicial per se,” and states that he only admitted
knowing there was cocaine on board the vessel after the Government spoke with
him. However, because the Government stated it did not obtain any information
from Agent Faria’s contacts with Valencia-Vergara, and the attorney-client
relationship was repaired before Valencia-Vergara entered his plea and proceeded
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to sentencing, no prejudice can be established. See United States v. Ofshe, 817
F.2d 1508, 1516 (11th Cir. 1987) (finding no demonstrable evidence of prejudice
where the “invasion of the attorney-client relationship” produced no evidence
against the defendant). Accordingly, because Agent Faria’s actions did not rise to
the extreme level of misconduct justifying dismissal of an indictment, and
Valencia-Vergara did not show how these actions resulted in prejudice to his
defense, the district court correctly denied the motion to dismiss the indictment.
II.
Valencia-Vergara next asserts the court erred in denying him a mitigating-
role reduction because he was merely the cook aboard the boat. A district court’s
determination of a defendant’s role in an offense constitutes a factual finding to be
reviewed only for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th
Cir. 1999) (en banc). The defendant bears the burden of proving, by a
preponderance of the evidence, that he is entitled to a mitigating-role reduction.
Id. at 939.
The Guidelines provide for a four-level reduction for a defendant who acts
as a minimal participant, a two-level reduction for a minor participant, and a three-
level reduction for cases falling in between the minor and minimal level. U.S.S.G.
§ 3B1.2. A minor role in the offense means any participant “who is less culpable
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than most other participants, but whose role could not be described as minimal,”
U.S.S.G. § 3B1.2, cmt. (n.5), and a minimal participant is a defendant who is
“plainly among the least culpable of those involved in the conduct of a group,”
U.S.S.G. § 3B1.2 cmt. (n.4). To determine whether this reduction applies, a
district court should first measure the defendant’s role against the relevant conduct
for which the defendant has been held accountable. De Varon, 175 F.3d at 940-41.
The amount of drugs involved is a material consideration in assessing the
defendant’s role in his relevant conduct. Id. at 943. Further, “when a drug
courier’s relevant conduct is limited to [his] own act of importation, a district court
may legitimately conclude that the courier played an important or essential role in
the importation of those drugs.” Id. at 942-43.
Although, in many cases, this first method of analysis will be dispositive, the
district court also may measure the defendant’s culpability in comparison to that of
other participants in the relevant conduct. Id. at 944-45. Two sub-principles guide
this application of the analysis: (1) the district court should look only to other
participants who are identifiable or discernable from the evidence; and (2) only
those participants who were involved in the relevant conduct attributed to the
defendant may be considered. Id. at 944. “The conduct of participants in any
larger criminal conspiracy is irrelevant.” Id. Further, a defendant whose role in
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the relevant conduct was less than that of other participants is not necessarily
entitled to a minor-role reduction, where no participants are minor participants. Id.The district court did not clearly err in denying Valencia-Vergara a
mitigating-role reduction because his role in the offense was identical to the
conduct for which he was held accountable, and he did not show that he was
substantially less culpable than the other participants in the offense. Valencia-
Vergara and eight other crew members knowingly helped transport 5,000
kilograms of cocaine on board a vessel as part of a conspiracy, and each was held
accountable for this conduct. Valencia-Vergara testified he helped load the bales
of cocaine onto the boat, and despite his assertions that he was merely a cook, this
conduct demonstrates that he participated in transporting a substantial amount of
drugs, and his role was not minor in the relevant conduct of possession and
conspiracy to possess with intent to distribute the cocaine. See De Varon, 175 F.3d
at 940-41. Furthermore, to the extent that Valencia-Vergara contends he was
substantially less culpable than the other participants in a wider drug conspiracy,
the conduct of anyone else not identifiable from the evidence involved in the
overall scheme of transporting and selling cocaine was irrelevant to the assessment
of his role. See id. at 944. Accordingly, the district court did not clearly err by
denying Valencia-Vergara a mitigating-role reduction.
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III.
Valencia-Vergara also contends the district court erred in denying safety-
valve relief because the injuries that he and a codefendant sustained during the
commission of the crime did not rise to the level of “serious bodily injury.” We
review a district court’s safety-valve fact-finding for clear error. United States v.
Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). Under the safety-valve provision, a
district court shall impose a sentence without regard to any statutory mandatory
minimum if a defendant convicted of certain drug crimes satisfies certain criteria,
U.S.S.G. § 5C1.2, and also give a reduction in the defendant’s offense level,
U.S.S.G. § 2D1.1(b)(11). A defendant has the burden of proving his eligibility for
this relief. Cruz, 106 F.3d at 1557. One of the criteria that must be met is found in
§ 5C1.2(3), which requires that “the offense did not result in death or serious
bodily injury to any person.” U.S.S.G. § 5C1.2(3). The Guidelines define “serious
bodily injury” to include “injury involving extreme physical pain or the protracted
impairment of a function of a bodily member, organ, or mental faculty; or
requiring medical intervention such as surgery, hospitalization, or physical
rehabilitation.” U.S.S.G. § 1B1.1, cmt. (n.1(L)).
The district court did not clearly err in denying Valencia-Vergara a reduction
under the safety-valve provision. The evidence shows that both he and one of his
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codefendants sustained second and third degree burns on their bodies, for which
they had to be treated at a hospital. In fact, Valencia-Vergara testified that he was
hospitalized for two and a half days. Accordingly, because Valencia-Vergara was
hospitalized, his injuries fall under the Guidelines definition for “serious bodily
injury.” See U.S.S.G. § 1B1.1, cmt. (n.1(L)). Accordingly, because two people
sustained serious bodily injury during the offense, the district court did not clearly
err in denying Valencia-Vergara safety-valve relief because he did not meet the
requirements set forth in § 5C1.2(3).
AFFIRMED.
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