United States v. Jorge Ramon Newball May ( 2021 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13114
Non-Argument Calendar
________________________
D.C. Docket No. 8:18-cr-00594-SCB-JSS-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JORGE RAMON NEWBALL MAY,
CALBOT REID-DILBERT,
RUDOLPH RANDOLPH MEIGHAN,
Defendants - Appellants.
______________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(February 24, 2021)
Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
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Jorge Ramon Newball May (“Newball May”), Calbot Reid-Dilbert (“Reid-
Dilbert”), and Rudolph Randolph Meighan (“Meighan”) appeal their convictions
and sentences for trafficking cocaine in international waters, in violation of the
Maritime Drug Law Enforcement Act (“MDLEA”). See 46 U.S.C. § 70501–70508.
The defendants were apprehended on a go-fast vessel in international waters after
having jettisoned their cargo, which was not recovered. A jury concluded that they
were guilty of trafficking cocaine based in part on “Ionscan” testing evidence
showing the presence of trace amounts of cocaine on the vessel and the hands of all
three defendants. Then, at sentencing, the district court determined a drug quantity
in excess of 450 kilograms of cocaine, applied enhancements for obstruction of
justice, and rejected the defendants’ requests for a minor-role reduction.
Broadly speaking, the defendants raise four issues on appeal: (1) whether the
admission of a certification of the U.S. State Department to establish extraterritorial
jurisdiction under the MDLEA violated their rights under the Confrontation Clause;
(2) whether the district court abused its discretion by admitting the Ionscan testing
evidence at trial; (3) whether sufficient evidence supports their convictions; and
(4) whether the district court properly calculated their guideline ranges. After
careful review, we affirm. We address each issue in turn.
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I. MDLEA Jurisdiction
Newball May contends that the district court violated his rights under the
Confrontation Clause by relying on a certification from the U.S. State Department
to establish jurisdiction under the MDLEA. Reid-Dilbert and Meighan adopt this
argument. We review constitutional objections de novo. United States v. Campbell,
743 F.3d 802, 805 (11th Cir. 2014).
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). A vessel
subject to the jurisdiction of the United States includes a “vessel without
nationality,” which, in turn, includes “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.” Id.§ 70502(c)(1)(A), (d)(1)(C). A foreign nation’s consent or waiver of objection to
United States jurisdiction is conclusively proven by a certification from the State
Department. Id. § 70502(c)(2). Whether a vessel is subject to the jurisdiction of the
United States “is not an element of an offense” but rather a “[j]urisdictional issue”
that is a “preliminary question[] of law to be determined solely by the trial judge.”
Id. § 70504(a).
In support of its pretrial motion to establish that the defendants’ vessel was
subject to the jurisdiction of the United States, the government introduced a
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certification on behalf of the U.S. State Department stating that the vessel met the
definition of a “vessel without nationality.” The district court found jurisdiction,
overruling a defense objection based on the Confrontation Clause.
Under binding precedent, the district court correctly found that the
introduction of a State Department certification to establish MDLEA jurisdiction
does not violate the Confrontation Clause. In Campbell, we held that “a pretrial
determination of extraterritorial jurisdiction does not implicate the Confrontation
Clause” because the MDLEA’s jurisdictional requirement is not an element of an
offense. 743 F.3d at 806–09. Likewise, in United States v. Cruickshank, we held
that “[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.” 837 F.3d 1182, 1192 (11th Cir. 2016).
Defendants maintain that Campbell and Cruickshank were wrongly decided
and that their rights to confrontation attached during the pretrial determination of
MDLEA jurisdiction. Whatever the merits of these arguments, we must follow our
prior precedent. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.
2008) (“Under the prior precedent rule, we are bound to follow a prior binding
precedent unless and until it is overruled by this court en banc or by the Supreme
Court.” (quotation marks omitted)). Accordingly, the district court properly
determined that it had jurisdiction.
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II. Admission of Ionscan Evidence
Next, Newball May contends that the district court abused its discretion in
denying the defendants’ motion to exclude evidence of the Ionscan testing at trial.
While he concedes that the government’s expert witness was qualified to testify as
to the results of the Ionscan testing, he asserts that the government failed to present
evidence establishing that the testing procedure itself was the product of reliable
scientific principles and methods. Reid-Dilbert and Meighan join this argument.
As part of its case, the government sought to qualify an expert, Coast Guard
Senior Chief Maritime Enforcement Specialist Steven Bomentre, to testify about the
results of Ionscan testing that the Coast Guard conducted upon boarding the
defendants’ go-fast vessel. Ionscan technology is designed to detect trace amounts
of illicit materials—often amounts so small as to be imperceptible to the human eye.
Samples, or “swipes,” are taken of areas and objects thought to contain contraband
and then run through the Ionscan machine (here, the Ionscan 500DT), which
interprets the samples. Ionscan testing in this case revealed 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 crew members, including the three defendants.
The defendants moved to exclude all Ionscan evidence, including Bomentre’s
testimony. After holding a hearing to assess the admissibility of the expert
testimony, see Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), the district
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court concluded that the Ionscan technology was sufficiently reliable under Daubert
and that the expert testimony and Ionscan evidence was admissible. The court
therefore denied the defendants’ motion and permitted Bomentre to testify at trial.
We review the district court’s decisions regarding the admissibility of expert
testimony and the reliability of an expert opinion for an abuse of discretion. United
States v. Barton, 909 F.3d 1323, 1330 (11th Cir. 2018). “This abuse-of-discretion
standard recognizes the range of possible conclusions the trial judge may reach, and
thus affords the district court considerable leeway in evidentiary 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 substantial prejudice to the defendant. Id. at 1330–31.
Rule 702 of the Federal Rules of Evidence governs the admission of expert
testimony. 1 Fed. R. Evid. 702. The district court is the gatekeeper for expert
testimony and is tasked with ensuring that it is sufficiently reliable and relevant to
1
Rule 702 states in full as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods reliably to the facts of the case.
Fed. R. Evid. 702.
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be considered by the jury. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–
48 (1999). The Supreme Court in Daubert listed four factors for determining
whether expert testimony is sufficiently reliable for admission under Rule 702.
Daubert, 509 U.S. at 592–94. They include (1) whether it can be and has been
tested; (2) whether it has been subjected to peer review and publication; (3) what its
known or potential rate of error is, and whether standards controlling its operation
exist; and (4) whether it is generally accepted in the field. Id.Nevertheless, the inquiry is “flexible,” and Daubert’s list of specific factors
neither necessarily nor exclusively applies to all experts or in every case. United
States v. Brown, 415 F.3d 1257, 1267 (11th Cir. 2005). Whether the Daubert factors
are relevant to “assessing reliability in a given case will depend[] on the nature of
the issue, the expert’s particular expertise, and the subject of his testimony.” Id. at
1268 (quotation marks omitted). So expert testimony that does not meet all or most
of the Daubert factors may sometimes be admissible. Id. In Brown, for example,
we upheld the admission of expert testimony that met only the “general acceptance”
Daubert factor. Id. (explaining that the experts’ “method and conclusions were not
quantitative or testable by the scientific method” and that the government offered no
supporting peer-review studies, but that the court reasonably credited the experts’
testimony that their method was “generally accepted”).
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The defendants’ sole argument is that the government failed to offer any
evidence showing that the Ionscan technology itself is a reliable tool for identifying
the presence of narcotics. 2 They do not dispute that Bomentre was otherwise
qualified to testify as an expert about Ionscan technology or to interpret the results
from the Ionscan machine used in this case.
Here, the district court did not abuse its discretion in denying the defendants’
motion to exclude the Ionscan evidence at trial because it reasonably concluded that
the Ionscan technology was sufficiently reliable for admission. 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 detecting trace amounts of narcotic substances
on surfaces”; was widely used by the Coast Guard and other federal agencies,
including at airports, the border, and the U.S. Capitol; had a published error or false-
alarm rate of less than one percent, with false negatives more likely than false
positives; and was supported by peer-reviewed studies showing that ion mobility
spectrometry, the technology used by the Ionscan machine, was “highly reliable in
detecting specifical molecules that it’s looking for.” Based on this testimony, which
2
We recently upheld the admission of expert testimony regarding Ionscan testing in United
States v. Williams, 865 F.3d 1328, 1338–41 (11th Cir. 2017), which likewise involved defendants
accused of drug trafficking on a vessel on which no drugs were recovered. But Williams is not
controlling here because the defendants in that case, unlike the defendants here, “concede[d] that
Ionscan technology is, in general, a reliable tool for identifying the presence of narcotics—and
cocaine specifically—in a given location. Id. at 1338–39.
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suggests that the Ionscan technology has been tested, peer reviewed, has a low error
rate, and is generally accepted, see Daubert, 509 U.S. at 592–94, the district court
reasonably concluded that the expert testimony and evidence was sufficiently
reliable for admission under Rule 702.
The defendants respond that Bomentre simply “regurgitate[d] the
manufacturer’s claim that the machine had an error rate of less than 1%” but could
not explain how that error rate was derived. But even assuming Bomentre’s
testimony on this point could not be credited, the defendants offer no response to
other aspects of his testimony, including that Ionscan testing and its underlying
methodology are generally accepted in the scientific community and widely used for
the detection of trace amounts of narcotics. See Brown, 415 F.3d 1267–68 (relying
solely on the “general acceptance” Daubert factor to uphold the admission expert
testimony). Given the flexible nature of the gatekeeping inquiry, the district court
acted well within its discretion in concluding that the government met its burden of
proving the reliability of the Ionscan testing used in this case.
III. Sufficiency of the Evidence
Newball May next argues that insufficient evidence supports his convictions,
asserting that the government failed to prove that the go-fast vessel contained
cocaine. Reid-Dilbert and Meighan adopt this argument.
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We review de novo whether sufficient evidence in the record supports the
jury’s verdict in a criminal trial. United States v. Wilchcombe, 838 F.3d 1179, 1188
(11th Cir. 2016). The evidence, which we view in the light most favorable to the
government, “must be such that a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” Id. (quotation marks omitted). But it
need not exclude every reasonable hypothesis of innocence or be wholly inconsistent
with every conclusion except guilt. United States v. Williams, 865 F.3d 1328, 1344
(11th Cir. 2017). In reviewing the evidence, we assume that the jury made all
credibility choices in support of the verdict, and we accept all reasonable inferences
that tend to support the government’s case. Id.A. Trial Evidence
In the light most favorable to the government, the evidence offered at trial
established as follows. On December 1, 2018, a Coast Guard airplane conducting
counter-narcotics surveillance observed four persons on a tarp-covered go-fast
vessel that was floating in a known drug-trafficking area about 100 miles southwest
of Jamaica. After relaying information about the vessel to a command center, which
contacted a nearby Canadian vessel, the HMCS Moncton, to intercept, the Coast
Guard plane continued to surveil the go-fast vessel for approximately three hours
from an altitude of 6,500 to 7,000 feet.
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When the Coast Guard plane arrived in the area, the go-fast vessel began to
move erratically, though it made no sign of distress, and Coast Guard air personnel
saw multiple crew members on the go-fast vessel tying together and jettisoning
groups of white, rectangular packages. None of these packages were recovered,
although multiple Coast Guard witnesses testified that they were consistent with 20-
kilogram packages of cocaine that they had personally recovered and handled during
prior interdictions of similar go-fast vessels. Video footage from the Coast Guard
plane, which depicted the crew jettisoning the packages, was played for the jury.
Eventually, the Moncton intercepted the go-fast vessel and sent out Coast
Guard boarding teams, which had been stationed aboard the Moncton to conduct law
enforcement and counter-drug operations. The boarding teams found a black, 30-
foot by 7-foot vessel that had no engines, no navigation lights, no electronic
equipment except a cellphone, lines or ropes hanging over the side that had been cut,
and about a dozen 55-gallon fuel drums set up so the crew could switch quickly
between them. The two outboard engines had been removed and jettisoned along
with the packages.
When the boarding teams reached the go-fast vessel, Emiro Hinestroza-
Newbbooll, whose trial was severed from the three defendants in this case, identified
himself as the captain. He stated that the crew had departed Colombia and had been
fishing for mahi-mahi. When questioned about their fishing gear, which was
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nowhere in sight, the captain changed the story and stated that they had been scuba
diving for conch shells. But they had no scuba gear, either, and produced just one
snorkeling mask. The captain advised that they had been fishing in the area, but the
depth of the water was roughly 1,300 feet, making conch fishing without scuba gear
somewhat impractical. The captain further stated that the crew had jettisoned the
conch shells when they saw the Coast Guard plane because it was illegal to fish for
them in Colombia. The captain stated that they had been out of fuel for six days and
had used the engines as anchors, though the lines broke. The captain also claimed
Colombian registry, but the crew lacked required Colombian documentation
regarding the vessel and trip.
No quantity of drugs was found aboard the go-fast vessel, nor were any of the
jettisoned packages recovered, as they apparently sank. In an attempt to detect the
presence of contraband aboard the vessel, Coast Guard personnel used an Ionscan
machine, which as we have noted, analyzes samples or “swipes” of areas or objects
to detect tract amounts of illicit materials. Coast Guard personnel took samples from
various parts of the vessel and from its crew and ran them through the Ionscan
machine. Of the eighteen samples analyzed, nine tested positive for cocaine,
including the vessel’s left and right rails and center hold and the hands of all four of
the go-fast’s crew.
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Following their arrests, the defendants spoke with authorities. Meighan stated
that, before the trip, he had traveled from Belize to Colombia at the expense of
Mexican nationals who he believed were the intended recipients of cocaine from the
venture. He also stated that he likely tested positive for cocaine because he helped
jettison bales from the go-fast vessel, though he denied seeing the bales before that
time. Reid-Dilbert stated that he was offered approximately $1,500 to go on a conch-
fishing trip. According to Reid-Dilbert, the go-fast vessel had mechanical problems
during the trip, and they eventually used the engines as anchors. Reid-Dilbert
recognized the jettisoned packages as cocaine bales, though he too denied knowing
about the bales or the presence of drugs before the crew began jettisoning the
packages. Newball May reported that the crew had dived for conch near the Serrana
Bank, an atoll in the western Caribbean sea, before running out of fuel on the way
to its next destination. Upon seeing what he believed to be a Colombian Coast Guard
airplane, Newball May jettisoned the bags of conch by tying them to the two engines
so they would sink. He said there were approximately fifteen to seventeen bags of
conch tied to each engine.
B. Analysis
All three defendants were convicted of conspiracy to distribute and to possess
with intent to distribute at least five kilograms of a substance containing cocaine
while on board a vessel subject to the jurisdiction of the United States, in violation
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of 46 U.S.C. §§ 70503(a)(1) and 70506(b), and of possession with intent to distribute
at least five kilograms of a substance containing cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation of 46 U.S.C.
§§ 70503(a)(1) and 70506(a).
To convict a defendant for conspiracy, the government must prove that two
or more persons entered into an unlawful agreement to commit an offense and that
the defendant knowingly and voluntarily joined the conspiracy. Williams, 865 F.3d
at 1344. In maritime drug-trafficking cases, a jury may infer a defendant’s
“knowledgeable, voluntary participation from presence when the presence is such
that it would be unreasonable for anyone other than a knowledgeable participant to
be present.” Wilchcombe, 838 F.3d at 1188 (quotation marks omitted). In making
this determination, the jury may consider several factors, including the probable
length of the voyage, the amount and location of the contraband, the relationship
between captain and crew, suspicious or evasive behavior before and after
apprehension, post-apprehension statements, and the absence of supplies or
equipment necessary to the vessel’s intended use. Id. at 1188–89. “The government
bears a heavier burden where the quantity of drugs is smaller; if the quantity of drugs
is ‘large,’ the government need only prove any one of the additional factors listed
above.” Id. at 1189.
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To convict a defendant for possession with intent to distribute a controlled
substance, the government must prove knowing possession and an intent to
distribute. Williams, 865 F.3d at 1344. Possession may be actual or constructive.
United States v. Tinoco, 304 F.3d 1088, 1123 (11th Cir. 2002). If a defendant had
some measure of dominion or control over the contraband, either exclusively or
together with others, he constructively possessed it. Id.For either offense, the government must prove the identity of the drug through
direct or circumstantial evidence. Williams, 865 F.3d at 1344. Generally, drug
identity can be established by evidence of “lay experience based on familiarity
through prior use, trading, or law enforcement; a high sales price; on-the-scene
remarks by a conspirator identifying the substance as a drug; and behavior
characteristic of sales and use, such as testing, weighing, cutting and peculiar
ingestion.” Id. (quotation marks omitted).
Here, the district court properly denied the defendants’ motions for judgment
of acquittal because sufficient evidence supports their convictions. The evidence
shows that the defendants were on board a tarp-covered go-fast vessel, outfitted with
a dozen 55-gallon fuel drums set up so the crew could switch quickly between them,
in a known drug-trafficking area. When the Coast Guard plane encountered the go-
fast vessel, it began to move erratically, and Coast Guard witnesses saw the vessel’s
crew tying together and jettisoning groups of white, rectangular packages, which
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then apparently sank along with the vessel’s engines. While none of these packages
were recovered, a reasonable jury could conclude from the evidence as a whole that
the packages contained cocaine and that each of the three defendants knew of the
cocaine and voluntarily trafficked it.
To begin with, that no cocaine was recovered does not preclude conviction for
cocaine trafficking. In Williams, we held that sufficient evidence supported the
jury’s determination that jettisoned packages contained cocaine, even though no
witness identified the jettisoned contraband as cocaine and no cocaine was
recovered. 865 F.3d at 1344–46. We explained that the question was “whether all
of the evidence presented by the government, taken together, permitted any
reasonable jury to arrive at that conclusion,” not whether any single piece of
evidence on its own sufficed. Id. at 1346. The evidence in Williams showed that
Coast Guard witnesses had been involved in previous drug interdictions in the area
and only cocaine had been recovered, that the packages they saw jettisoned from the
go-fast vessel were the same size and shape as bales of cocaine seized previously,
and that Ionscan testing revealed traces of cocaine on the vessel and on the person
of four of the five defendants. Id. “The cumulative effect of this evidence,” we
stated, “was enough to permit a reasonable jury to determine, beyond a reasonable
doubt, that the substance jettisoned from the vessel was cocaine, notwithstanding the
fact that no visible amount of cocaine was recovered by the Coast Guard.” Id.
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The same is true here. As in Williams, multiple Coast Guard witnesses
testified that the packages jettisoned from the go-fast vessel were consistent with 20-
kilogram cocaine bales they had personally recovered and handled during prior
interdictions. Likewise, Ionscan samples of the vessel and its four crew members
tested positive for cocaine. In particular, nine Ionscan samples tested positive for
cocaine, including from the vessel’s left and right rails and center hold and the hands
of the crew. Along with this evidence, the jury heard testimony about post-arrest
statements made by Meighan and Reid-Dilbert in which they admitted or did not
dispute that there was cocaine aboard the go-fast vessel, even though they denied
knowing about the cocaine or the packages until after the Coast Guard arrived. Reid-
Dilbert stated that he recognized the jettisoned packages as cocaine bales, and
Meighan stated that he likely tested positive for cocaine because he helped jettison
bales from the go-fast vessel. Viewing this evidence as a whole, a reasonable jury
could find beyond a reasonable doubt that the jettisoned packages contained cocaine
in excess of five kilograms.
The defendants claim that they presented a reasonable, alternative
explanation—that the packages contained conch, which was considered contraband
in Colombia—that the government failed to rebut. So in their view, the lack of
evidence of actual cocaine dooms the case against them. They are mistaken on the
evidence and on the law.
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To the extent the defendants’ proffered explanation was “supported by some
modicum of evidence, the jury was not required to return a verdict of acquittal” but
was instead “free to choose between or among the reasonable conclusions to be
drawn from the evidence presented at trial.” Williams, 865 F.3d at 1345–46
(quotation marks omitted). In any event, the government’s evidence gave the jury
good reason to discredit the defendants’ explanation. Apart from a single snorkeling
mask, there was nothing on board the go-fast vessel to corroborate the defendants’
claim that they had been fishing for conch or anything else. The evidence also
tended to contradict the defendants’ post-arrest claims of experiencing engine
problems and drifting for six days. For instance, the Coast Guard plane observed
the go-fast vessel’s engines in operation, and the go-fast vessel’s crew gave no sign
of distress when it saw the plane. Combined with the evidence supporting the
presence of cocaine in the jettisoned packages, this was more than sufficient for a
reasonable jury to reject the defendants’ explanation.
Beyond the issue of whether the government proved the existence of cocaine
on the go-fast vessel, the defendants compare this case to United States v. Garate-
Vergara, 942 F.2d 1543, 1549 (11th Cir. 1991), where we vacated the convictions
of certain defendants because the evidence did not link them to the cocaine jettisoned
from the subject vessel. But the circumstances of that case were very different. The
vessel in Garate-Vergara was approximately 330 feet in length with a crew of
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thirteen, and the contraband had been thoroughly hidden, weakening the inferences
that could be drawn about the crew’s knowledge from its presence onboard the
vessel. See id. (describing the large size of the vessel as the “[m]ost important” fact
supporting acquittal).
Here, in contrast to the situation in Garate-Vergara, the go-fast vessel was
approximately thirty feet in length with a crew of four, it appears to have contained
a substantial amount of cocaine and little else, and there is no evidence that the
contraband was hidden. Plus, the defendants’ post-arrest statements indicated that
they helped jettison the cargo, and the hands of all four crew members tested positive
for cocaine. Given the small vessel and crew, large amount of cocaine, absence of
fishing gear, and evidence of direct participation in jettisoning the contraband, a
reasonable jury could infer the defendants’ knowing and voluntary participation in
the cocaine-trafficking conspiracy, as well as their constructive possession with
intent to distribute. See Williams, 865 F.3d at 1344; Wilchcombe, 838 F.3d at 1188;
Tinoco, 304 F.3d at 1123.
For these reasons, we affirm the defendants’ cocaine-trafficking convictions
under the MDLEA.
IV. Sentencing
Finally, the defendants present three sentencing challenges. First, Meighan
argues that the district court clearly erred in calculating a drug weight of 450
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kilograms or more of cocaine. Second, Newball May contends that the court
committed clear error by applying the U.S.S.G. § 3C1.1 enhancement for obstruction
of justice. Finally, Reid-Dilbert challenges the court’s denial of a minor-role
reduction. Each defendant purports to adopt the arguments made by his
codefendants.
A. Drug Quantity
We begin with drug quantity. At the defendants’ joint sentencing, the district
court held each of the defendants responsible for 450 kilograms or more of cocaine,
which triggered the highest base offense level of 38. See U.S.S.G. § 2D1.1(c)(1).
Based on testimony presented at trial and at the sentencing hearing, the court found
that the offense involved more than thirty bales of cocaine that each weighed twenty
kilograms. The defendants maintain the court should have adopted the jury’s finding
that the offense involved five kilograms or more of cocaine, for a base offense level
of 30. See U.S.S.G. § 2D1.1(c)(5).
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. Ruan, 966 F.3d 1101, 1171 (11th Cir. 2020). The government must establish the
drug quantity by a preponderance of the evidence. Id. at 1172. The district court
must ensure the government carries this burden by presenting “reliable and specific
evidence.” Id. When the drug amount seized does not reflect the scale of the offense,
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the court must approximate the drug quantity. Id. This determination may be based
on “fair, accurate, and conservative estimates” of the quantity attributable to a
defendant but cannot be based on “merely speculative” calculations. Id. (quotation
marks omitted).
Here, the district court did not clearly err in finding a drug quantity of 450
kilograms or more of cocaine. The court had to approximate the amount of cocaine
because none of it was recovered. Based on the evidence presented at trial and at
sentencing, at least 450 kilograms was a reasonable and conservative estimate.
A government agent testified at sentencing that the captain of the go-fast
vessel, Hinestroza-Newbboll, stated in a post-arrest interview that there were thirty-
eight bales of cocaine on the vessel. 3 That number was broadly consistent with
Newball May’s statement to authorities that the go-fast crew jettisoned at least thirty
packages (though he claimed the packages were filled with conch, not cocaine), and
with the number of packages indicated by the surveillance footage, which the court
viewed the day before sentencing. In addition, Coast Guard witnesses testified at
3
The district court properly relied on hearsay statements made by Hinestroza-Newbboll.
Hearsay is admissible in a sentencing hearing provided it is sufficiently reliable. United States v.
Baptiste, 935 F.3d 1304, 1315–16 (11th Cir. 2019). Here, Hinestroza-Newbboll’s hearsay
statements about the quantity of cocaine on the go-fast vessel have sufficient “indicia of reliability”
because they were consistent with the government’s other evidence, and the defendants provide
no reason to discount their reliability. See id. at 1316–17. As for the defendants’ own statements,
these were evidence at trial and therefore properly before the court at sentencing. See United States
v. White, 663 F.3d 1207, 1216 (11th Cir. 2011) (“The district court may base its findings of fact at
sentencing on evidence presented at trial, undisputed statements in the PSR, and evidence
presented at the sentence hearing.”).
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trial based on personal experience that the packages observed in the surveillance
video were consistent with twenty-kilogram cocaine bales, which was a standard
size in maritime cocaine trafficking.
The record therefore supports a finding that the go-fast vessel contained at
least thirty cocaine bales that each weighed twenty kilograms, for a total drug
quantity of 600 kilograms, well in excess of the 450-kilogram quantity necessary to
trigger the highest base offense level.
B. Obstruction of Justice
For each defendant, the district court applied a two-level enhancement for
obstruction of justice, U.S.S.G. § 3C1.1, based on the defendants’ jettisoning of
cocaine from the go-fast vessel upon seeing the Coast Guard plane. The defendants
contend that this conduct could not support the enhancement because no official
investigation or prosecution existed at that time, and because the Coast Guard had
not yet determined that the vessel was subject to the jurisdiction of the United States.
In evaluating the imposition of an obstruction-of-justice enhancement, we
review de novo the district court’s interpretation and application of the Guidelines,
and we review for clear error its underlying factual findings. United States v. Doe,
661 F.3d 550, 565 (11th Cir. 2011).
Under U.S.S.G. § 3C1.1, a defendant’s offense level is increased by two levels
if the defendant willfully obstructed or impeded, or attempted to obstruct or impede,
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the administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense and the obstructive conduct related to, among other
things, the defendant’s offenses of conviction. U.S.S.G. § 3C1.1. According to
§ 3C1.1’s commentary, this guideline may cover obstructive conduct that occurred
before the start of the investigation if the conduct was purposefully calculated and
likely to thwart the investigation or prosecution of the offense. Id., cmt. n.1.
Conduct covered by this enhancement 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).4
Here, the district court did not clearly err in finding that the defendants
obstructed justice within the meaning of U.S.S.C. § 3C1.1. The fact that no “official
investigation or prosecution” existed at the time the packages were jettisoned does
not, as the defendants claim, defeat application of the enhancement. Rather,
according to the commentary, the enhancement still applies “if the conduct was
purposefully calculated, and likely, to thwart the investigation or prosecution of the
offense of conviction.” U.S.S.G. § 3C1.1, cmt. n.1. That standard was met here.
4
The defendants do not claim that their destruction of evidence occurred
“contemporaneously with arrest.” See U.S.S.G. § 3C1.1, cmt. n.4(D) (explaining that destruction
of evidence that occurs “contemporaneously with arrest (e.g., attempting to swallow or throw away
a controlled substance)” does not count “unless it results in a material hindrance to the official
investigation or prosecution of the instant offense or the sentencing of the offender.”). Even if we
assume the destruction of evidence was sufficiently contemporaneous, however, the enhancement
for obstruction of justice would still be appropriate because the failure to recover the cocaine as
evidence materially hindered the official investigation and prosecution. See id.
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The record reflects that, after seeing the Coast Guard plane, the defendants
jettisoned and sank the cocaine they were transporting. The time-consuming and
involved procedure of tying the bales to the engines and sinking them was
purposefully calculated to thwart the investigation and prosecution by attempting to
destroy all evidence of the crime. 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 investigation
show that they consciously acted with the purpose of obstructing justice.”). Given
this willfully obstructive conduct, the district court properly applied the
enhancement.
As for the defendants’ jurisdictional argument, they offer no legal support for
their claim that the alleged obstructive acts are not properly before the district court
at sentencing because they occurred before the Coast Guard determined that the
vessel was subject to the jurisdiction of the United States. Nor do we find their
argument persuasive. The alleged acts of obstruction are clearly relevant conduct to
the instant offenses of conviction, over which the district court properly found
jurisdiction. See U.S.S.G. § 1B1.3(a)(1)(A); 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.”).
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For these reasons, we affirm the § 3C1.1 enhancement for all three defendants.
C. Minor Role Reduction
Finally, the defendants claim that they were simply “pawn[s]” in the transport
of the cocaine and should be granted role adjustments as minor participants. We
review a district court’s denial of a role reduction for clear error. Cruickshank, 837
F.3d at 1192. “Clear error review is deferential, and we will not disturb a district
court’s findings unless we are left with a definite and firm conviction that a mistake
has been committed.” Id. (quotation marks omitted). The defendant must prove his
minor role in the offense by a preponderance of the evidence. Id.
Section 3B1.2 provides for a two-level decrease to the defendant’s offense
level if he was a “minor participant” in the criminal activity. A “minor participant”
is someone “who is less culpable than most other participants in the criminal activity,
but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, cmt. n.5.
In United States v. De Varon, we instructed that, in assessing a defendant’s
role in the criminal activity, the district court should consider two principles: first,
the defendant’s role in the relevant conduct for which he has been held accountable
at sentencing, and second, his role as compared to that of other identifiable or
discernible participants in the relevant conduct. 175 F.3d 930, 940 (11th Cir. 1999)
(en banc). Nevertheless, the fact that a defendant’s role is less than other
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participants’ roles in the relevant conduct may not be dispositive because it is
possible that none of them are minor or minimal participants. Id.The decision whether to apply a mitigating-role reduction is “based on the
totality of the circumstances and involves a determination that is heavily dependent
upon the facts of the particular case.” U.S.S.G. § 3B1.2, cmt. n.3(C). Section
3B1.2’s commentary outlines a non-exhaustive list of factors relevant to determining
the defendant’s role. See id.; see also Cruickshank, 837 F.3d at 1193 (explaining
that the purpose of this commentary was to “further clarify the factors for a court to
consider for a minor-role adjustment” in a way that “still continue[s] to embrace the
approach we took in De Varon”). These factors include (a) “the degree to which the
defendant understood the scope and structure of the criminal activity”; (b) “the
degree to which the defendant participated in planning or organizing the criminal
activity”; (c) “the degree to which the defendant exercised decision-making
authority”; (d) “the nature and extent of the defendant’s participation in the
commission of the criminal activity”; and (e) “the degree to which the defendant
stood to benefit from the criminal activity.” Id.
Here, based on the totality of the circumstances, the district court did not
clearly err in denying the defendants’ request for a minor-role reduction. Under De
Varon’s first principle, the inquiry is whether the defendant “played a relatively
minor role in the conduct for which [he] has already been held accountable—not a
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minor role in any larger criminal conspiracy.” De Varon, 175 F.3d at 944. As the
record shows, all three defendants knowingly participated in the illegal
transportation of a large quantity of cocaine, they and their transportation roles were
important to that scheme, and they were held accountable for that conduct only. See
United States v. Cabezas-Montano, 949 F.3d 567, 607 (11th Cir. 2020) (considering
these same factors in affirming the denial of a minor-role reduction).
In addition, under De Varon’s second principle, the record supports the district
court’s finding that none of the defendant were “less culpable than most other
participants in the criminal activity.” U.S.S.G. § 3B1.2, cmt. n.5. While the three
defendants appear to have had less of a role than codefendant Hinestroza-Newbboll,
the captain of the vessel, that fact alone does not make them minor participants
because “it is possible that none are minor or minimal participants.” De Varon, 175
F.3d at 944. The evidence supports that all three defendants helped jettison and sink
the cocaine when the Coast Guard began surveillance. And none of the defendants
presented evidence “to show how they were less culpable than ‘most other
participants’ in the criminal activity,” although it was their burden to do so. See
Cabezas-Montano, 949 F.3d at 607.
The defendants stress that they were simply couriers in an international
criminal organization. But under De Varon, “[t]he conduct of participants in any
larger criminal conspiracy is irrelevant.” 175 F.3d at 944. Nor did the defendants
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submit evidence “at trial or at sentencing regarding any other co-conspirators, let
alone anyone who recruited or trained the defendants, plotted the offense, or owned
the drugs.” Cabezas-Montano, 949 F.3d at 607.
We agree with the defendants to the extent that none of the foregoing facts
made them ineligible for a minor-role reduction. See U.S.S.G. § 3B1.2, cmt. n.3(A)
(“[A] defendant who is convicted of a drug trafficking offense, whose participation
in that offense was limited to transporting or storing drugs and who is accountable
under § 1B1.3 only for the quantity of drugs the defendant personally transported or
stored may receive an adjustment under this guideline.”). And there is no evidence
that the defendants participated in planning the criminal activity, exercised decision-
making authority, or had much discretion in performing their courier role, which are
relevant factors under the commentary. See id., cmt. n.3(C)(ii)–(iv).
Nevertheless, under the totality of the circumstances, and in light of De Varon,
we are not left with a definite and firm conviction that the district court made a
mistake in finding that the defendants did not have a minor role in the offense. The
court did not misapply a rule of law, and its decision was supported by the record as
a whole. See Cruickshank, 837 F.3d at 1192. We therefore affirm the district court’s
denial of the defendants’ request for a minor-role reduction.
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V. Conclusion
In sum, and for the foregoing reasons, we affirm the defendants’ convictions
and sentences for trafficking cocaine in international waters.
AFFIRMED.
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