United States v. Felix H. Cordero-Castro , 688 F. App'x 633 ( 2017 )

Case: 16-14150 Date Filed: 05/04/2017 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14150
Non-Argument Calendar
________________________
D.C. Docket No. 4:10-cr-10018-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIX H. CORDERO-CASTRO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 4, 2017)
Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 16-14150 Date Filed: 05/04/2017 Page: 2 of 9
After pleading guilty, Felix Cordero-Castro appeals his 46-month sentence
for one count of possession and concealment of a stolen vessel that crossed state
and United States boundaries after having been stolen, in violation of 18 U.S.C.
§§ 2313(a) and 2. On appeal, Cordero-Castro argues that the district court erred in
applying two-level increases in Cordero-Castro’s offense level for use of a special-
skill, pursuant to U.S.S.G. § 3B1.3, and obstruction of justice, pursuant to U.S.S.G.
§ 3C1.1. Cordero-Castro also argues that his 46-month sentence, at the low end of
his advisory guidelines range of 46 to 57 months, was substantively unreasonable.
Upon review of the record and the parties’ briefs, we affirm Cordero-Castro’s
sentence.
I. GUIDELINES ENHANCEMENTS
A. Special Skill Enhancement
The district court did not err in applying a two-level special-skill
enhancement to Cordero-Castro’s offense level pursuant to § 3B1.3.1 The
Guidelines call for the two-level increase if “the defendant . . . used a special skill[]
in a manner that significantly facilitated the commission or concealment of the
offense.” U.S.S.G. § 3B1.3. According to the commentary, a “special skill” is one
“not possessed by members of the general public and usually requiring substantial
1
We review de novo the legal meaning of the term “special skills,” but review the district
court’s application of the guidelines to the facts of the case for clear error. United States v.
Calderon, 127 F.3d 1314, 1339 (11th Cir. 1997).
2
Case: 16-14150 Date Filed: 05/04/2017 Page: 3 of 9
education, training or licensing. Examples would include pilots, lawyers, doctors,
accountants, chemists, and demolition experts.” Id. § 3B1.2 cmt. n.4. This Court
has concluded that “captaining a vessel on the high seas is the type of activity that
requires skills not possessed by members of the general public” and therefore
qualifies as a “special skill” for purposes of § 3B1.3. United States v. Calderon,
127 F.3d 1314, 1339 (11th Cir. 1997).
It is undisputed that when the U.S. Coast Guard interdicted the stolen yacht
in international waters approximately 65 nautical miles off the coast of Mexico,
Cordero-Castro was at the helm, driving the vessel. Cordero-Castro identified
himself as the master of the vessel and the other individuals on the boat as his
crew. Cordero-Castro also provided the Coast Guard with the vessel’s purported
registration document, which turned out to be fraudulent. Data from the GPS
found on the yacht indicated that the vessel had made repeated trips back and forth
between Cuba and Mexico. At the sentencing hearing, Special Agent Paul Shultz
of the Coast Guard Investigative Service, the government’s expert in the navigation
and operation of vessels larger than 40 feet, testified that an average person could
not walk off the street and pilot a vessel such as the yacht in question because of
the size of the vessel, certain startup and battery procedures, and the need to switch
from shore power to a main breaker.
3
Case: 16-14150 Date Filed: 05/04/2017 Page: 4 of 9
The facts here are similar in several respects to Calderon, where we
concluded that captaining vessel on the high seas was a special-skill under § 3B1.3.
See Calderon, 127 F.3d at 1339. Cordero-Castro piloted a yacht that was over 20
feet longer than the 38-foot boat piloted by the defendants in Calderon and was
likewise engaged in a long international voyage with specific, predetermined
stopping points. See id. at 1339-40. The district court properly concluded that the
similarities between this case and Calderon and the expert testimony from Special
Agent Shultz were sufficient to show that an average person off the street could not
have piloted the yacht.
B. Obstruction-of-Justice Enhancement
The district court also did not err in applying the two-level enhancement for
obstruction of justice.2 A defendant is subject to a two-level increase in his offense
level if: (1) he “willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation, prosecution,
or sentencing” of the offense of conviction; and (2) the obstructive conduct related
to “the defendant’s offense of conviction and any relevant conduct.” U.S.S.G.
§ 3C1.1(1) & (2)(A). The § 3C1.1 increase applies when a defendant “produce[es]
2
When the district court imposes an obstruction-of-justice enhancement, we review the
district court’s factual findings for clear error and its application of the Sentencing Guidelines to
the facts de novo. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006).
4
Case: 16-14150 Date Filed: 05/04/2017 Page: 5 of 9
or attempt[s] to produc[e] a false, altered, or counterfeit document or record during
an official investigation or judicial proceeding.” Id. § 3C1.1 cmt. n.4(C).
Here, the record established that Cordero-Castro provided a false vessel
registration to the Coast Guard when they boarded the yacht to investigate. Much
of the false information in the registration was related to Cordero-Castro. For
example, the driver’s license number listed on the registration belonged to
Cordero-Castro, rather than the listed owner of the yacht, Manuel Aguirre. Also,
the title number, transaction ID number, and previous ID on the yacht registration
provided by Cordero-Castro were identical to the identification numbers on
Cordero-Castro’s car registration. Given that the false information in the vessel
registration matched Cordero-Castro’s personal information, the district court
reasonably found that Cordero-Castro was aware that the vessel registration was
false. The evidence presented was sufficient to support the finding that Cordero-
Castro attempted to obstruct justice by providing the false vessel registration to the
Coast Guard.
Cordero-Castro argues that there was no evidence that he prepared the
registration, and thus he did not “produce” it for § 3C1.1 purposes. This Court,
however, has upheld application of the obstruction-of-justice enhancement where
the defendant merely “presented” a false document, without requiring evidence
that the defendant also created it. See United States v. Callahan, 981 F.2d 491,
5
Case: 16-14150 Date Filed: 05/04/2017 Page: 6 of 9
494, 496-97 (11th Cir. 1993) (involving a defendant who “presented to the IRS” a
false compensation agreement during discovery in an income tax evasion case).
Accordingly, we reject Cordero-Castro’s claim that the term “produce” in
commentary note 4(C) to § 3C1.1 means prepared or created, as opposed to
presented.
The government also did not need to prove that the false vessel registration
created an actual hindrance for the obstruction-of-justice enhancement to apply.
While some examples of obstruction in the commentary to § 3C1.1 expressly
require a showing that the obstructive conduct hindered the investigation, see, e.g.,
§ 3C1.1 cmt. n. 4(G) & 5(A), this Court has explained that when the defendant
produced a false document during an official investigation, no actual hindrance is
necessary under commentary note 4(C). See United States v. McGuinness, 451
F.3d 1302, 1305 n.1 (11th Cir. 2006).
II. SUBSTANTIVE REASONABLENESS
Cordero-Castro has not shown that his sentence is substantively
unreasonable. We review the reasonableness of a sentence for an abuse of
discretion using a two-step process. United States v. Pugh, 515 F.3d 1179, 1190
(11th Cir. 2008). We look first at whether the district court committed any
significant procedural error and then at whether the sentence is substantively
unreasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality
6
Case: 16-14150 Date Filed: 05/04/2017 Page: 7 of 9
of the circumstances. Id. 3 The party challenging the sentence bears the burden of
proving it is unreasonable. Id. at 1189. We will reverse only if 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.” Id. at
1191 (quotation marks omitted). 4
Here, the district court listened to Cordero-Castro’s arguments for a
downward variance, including his lack of a criminal history and his family
situation. The district court also considered the fact that Cordero-Castro spent
seven years in a Cuban prison for human smuggling, describing it as a “horrible
thing.” However, in response to Cordero-Castro’s argument that he was
imprisoned in Cuba based on the same facts supporting his current federal offense,
the district court pointed out that there was no evidence as to why Cuba prosecuted
Cordero-Castro for human smuggling.
3
Apart from the two guidelines calculations discussed above, Cordero-Castro does not
raise any procedural error at his sentencing and argues only that his sentence is substantively
unreasonable.
4
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
7
Case: 16-14150 Date Filed: 05/04/2017 Page: 8 of 9
The district court then explicitly considered the § 3553(a) factors and
determined that the need for deterrence and the seriousness of the offense
outweighed the remaining factors. The district court expressed sympathy for
Cordero-Castro’s children and family, noting that “the innocents are the ones who
always suffer the most in . . . these cases.” The district court denied Cordero-
Castro’s request for a downward variance and imposed a 46-month sentence, at the
low end of the advisory guidelines range of 46 to 57 months’ imprisonment.
Cordero-Castro has not met his burden to show that his sentence was
substantively unreasonable. First, Cordero-Castro’s 46-month sentence is at the
low end of the advisory guidelines range of 46 to 57 months and less than half the
10-year statutory maximum for his offense, both indicators of reasonableness. See
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008); United States v.
McKinley, 732 F.3d 1291, 1299 (11th Cir. 2013).
The district court’s determination that a downward variance was not
warranted because of the seriousness of the offense and the need for deterrence is
supported by the record. When he was interdicted by the Coast Guard, Cordero-
Castro was piloting a roughly one-million dollar stolen yacht in international
waters. Cordero-Castro gave the Coast Guard false registration papers for the
vessel and a false South Florida address for his U.S. residence. Upon being
released on his own recognizance, Cordero-Castro absconded to Cuba, where he
8
Case: 16-14150 Date Filed: 05/04/2017 Page: 9 of 9
was arrested a couple of months later and prosecuted by Cuban authorities for
human smuggling. He was apprehended by U.S. authorities only because, after he
served his 7-year Cuban prison sentence, he attempted to re-enter the United States
at the Texas border.
Although Cordero-Castro complains that the district court did not adequately
consider the time he spent in a Cuban prison, he did not come forward with
evidence supporting his claim that he was sentenced in Cuba for the same conduct
at issue here. Under the circumstances, we cannot say the district court abused its
discretion in refusing to grant Cordero-Castro’s request for a downward variance.
AFFIRMED.
9