United States v. Raul Cruz-Mendez , 811 F.3d 1172 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-50154
Plaintiff-Appellee, 14-50157
v. D.C. Nos.
13-CR-3970-LAB
RAUL ANTONIO CRUZ-MENDEZ, 08-CR-3618-LAB
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted October 21, 2015*
Pasadena, California
Filed January 27, 2016
Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,
Circuit Judges, and Michael A. Ponsor, Senior District
Judge.**
Opinion by Judge Ponsor
*
The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
2 UNITED STATES V. CRUZ-MENDEZ
SUMMARY***
Criminal Law
The panel affirmed a sentence for possession of 100
kilograms or more of marijuana on a vessel, and a
consecutive sentence for violation of the terms of supervised
release imposed in a prior case.
The panel held that the district court did not err in
applying a two-level “pilot/captain” enhancement under
U.S.S.G. § 2D1.1(b)(3)(C), which applies where 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.” The panel rejected
the defendant’s assertion that, because he simply operated a
panga by standing at the tiller of the outboard motor, he
lacked the requisite special skills or authority on the vessel to
support the imposition of the enhancement. The panel
explained that the fact that the Guidelines commentary
acknowledges that pilots and boat captains may use “special
skills” also subject to an adjustment under U.S.S.G. § 3B1.3
and dictates that the two sections may not both apply to the
same conduct does not mean that § 2D1.1(b)(3) can only
apply where such special skills are demonstrated by a pilot or
captain.
The panel concluded that the 92-month total sentence was
not substantively unreasonable.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CRUZ-MENDEZ 3
COUNSEL
Sarah R. Weinman, Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney; Bruce R. Castetter
and Steve Miller, Assistant United States Attorneys, San
Diego, California, for Plaintiff-Appellee.
OPINION
PONSOR, Senior District Judge:
Defendant Raul Cruz-Mendez received an eighty-month
sentence after pleading guilty to possessing one-hundred
kilograms or more of marijuana on a vessel. In the same
sentencing proceeding, he received a consecutive twelve-
month sentence for violation of the terms of supervised
release imposed in a prior case. On appeal, he raises two
issues. First, Cruz-Mendez challenges the district court’s
imposition of a two-level enhancement to his offense level for
the marijuana conviction, as contemplated under U.S.S.G.
§ 2D1.1(b)(3)(C) (the “pilot/captain” enhancement). Second,
he contends that the combined sentence of ninety-two months
was substantively unreasonable.
We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). We affirm.
BACKGROUND
The underlying facts are not significantly disputed. On
October 5, 2013, Customs and Border Protection agents
4 UNITED STATES V. CRUZ-MENDEZ
aerially observed two men operating a so-called “panga”
vessel1 off the coast of Ensenada, Mexico, heading northwest
toward the United States. They also spotted several bales of
suspected narcotics visible in the open hull. Shortly
afterwards, a U.S. Coast Guard vessel initiated an
interception of the panga, during which the helicopter crew
observed defendant and another man dumping bales
overboard. Warning shots from the Coast Guard vessel, and
finally disabling gunfire directed at the engine, ultimately
succeeded in bringing the panga to a stop, whereupon law
enforcement agents recovered thirty-one bales of marijuana
totaling over 568 kilograms. Cruz-Mendez and a co-
defendant were arrested for possession of marijuana with
intent to distribute, on a vessel, in violation of 46 U.S.C.
§§ 70503 and 70506. At the time of his arrest, Cruz-Mendez
was on supervised release for a 2008 conviction for
transporting undocumented aliens in a vessel, in violation of
8 U.S.C. § 1324.2
On December 5, 2013, Cruz-Mendez pled guilty to the
marijuana charge, and on January 6, 2014, he admitted to a
violation of the terms of supervised release imposed in
connection with his 2008 conviction. A consolidated
sentencing hearing took place on April 1, 2014.
The presentence report filed by the probation department
included application of the two-level “pilot/captain”
enhancement for the specific offense characteristic of acting
1
A panga boat is “an open-bow vessel commonly used for smuggling.”
United States v. Ramos-Atondo, 732 F.3d 1113, 1117 (9th Cir. 2013).
2
Cruz-Mendez had one additional earlier conviction in 2007 for
possession with intent to sell marijuana.
UNITED STATES V. CRUZ-MENDEZ 5
“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)(3)(C). With
the enhancement, the probation department calculated Cruz-
Mendez’s guideline range to be seventy to eighty-seven
months. After Cruz-Mendez objected to the two-level
increase, the probation department filed an addendum
asserting that, because Cruz-Mendez and his co-defendant
possessed the skill of being able to pilot a vessel and
exercised that skill in furtherance of their crime, the two-level
increase was warranted. The government recommended a
sentence of sixty months, based on a sentencing guidelines
range of sixty to seventy-one months, which did not include
the two-level upward adjustment.
At the hearing, the district court overruled Cruz-Mendez’s
objection to the application of the “pilot/captain”
enhancement. Specifically, Cruz-Mendez argued that he and
his co-defendant had equal responsibility on the boat, with
each piloting the boat at different points of the voyage. The
court determined that, by the Coast Guard’s observation and
by his own admission, Cruz-Mendez was operating the panga
and was therefore the pilot of the vessel under the plain text
of the enhancement. After recognizing the parties’ agreement
that the starting offense level was twenty-eight, the district
court increased the level by two with the application of the
“pilot/captain” enhancement.
With a three-level reduction for acceptance of
responsibility and a four-level reduction based on the
district’s “fast track” program, the offense level was twenty-
three, with a criminal history category of IV, generating a
sentencing guideline range of seventy to eighty-seven
months. The court imposed upon Cruz-Mendez a sentence in
6 UNITED STATES V. CRUZ-MENDEZ
the middle of this range: eighty months. With regard to the
violation of supervised release the district court found,
without objection, that the sentencing guideline range was
fifteen to twenty-one months, but varied to a below-guideline
sentence of twelve months, consecutive to the eighty-month
sentence on the marijuana charge, resulting in a total of
ninety-two months.
Cruz-Mendez filed a timely notice of appeal contesting
both the application of the “pilot/captain” enhancement and
the substantive reasonableness of the total sentence.
STANDARD OF REVIEW
We review the district court’s interpretation of the
Sentencing Guidelines de novo and its application of the
Guidelines to the facts of the case for abuse of discretion.
United States v. Garcia-Guerrero, 635 F.3d 435, 438 (9th
Cir. 2011). We review the substantive reasonableness of a
sentence for abuse of discretion. United States v. Autery,
555 F.3d 864, 871 (9th Cir. 2009).
DISCUSSION
A. Interpretation and Application of the Enhancement
Cruz-Mendez contends that the district court’s use of the
“pilot/captain” enhancement to increase his offense level was
legal error because the plain meaning of the terms “pilot,”
“captain,” “navigator,” and “officer,” as well as the
Guidelines commentary, structure, and legislative history, all
support a narrow reading of the enhancement such that it
applies only to individuals either who occupied a position of
authority on the vessel or who possessed “special skills”
UNITED STATES V. CRUZ-MENDEZ 7
aboard the ship. Cruz-Mendez asserts that, because he simply
operated a panga by standing at the tiller of the outboard
motor, he lacked the requisite special skills or authority on
the vessel to support the imposition of the enhancement.
The proper application of a “pilot/captain” enhancement
is an issue of first impression in this circuit. We agree with
every other circuit court to consider this issue – the First,
Fifth, Seventh, and Eleventh – and hold that the proper
reading of the “pilot/captain” enhancement is not as
constrained as Cruz-Mendez suggests. See United States v.
Bautista-Montelongo, 618 F.3d 464, 466–67 (5th Cir. 2010)
(adopting the holdings of the First, Seventh, and Eleventh
Circuit Courts of Appeals that the enhancement applied to a
defendant who “drove a boat containing contraband”); United
States v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003)
(declining to adopt a technical definition of “captain” and
applying it to a defendant who operated a boat); United States
v. Senn, 129 F.3d 886, 896–97 (7th Cir. 1997) (stating that
“the plain language of the statute carries the day” and
declining to find that a pilot or captain must have special
skills), abrogated on other grounds, United States v.
Vizcarra, 668 F.3d 516, 523 n.2 (7th Cir. 2012); United
States v. Guerrero, 114 F.3d 332, 346 (1st Cir. 1997) (finding
that the term “pilot” did not require proof of any special skill
or authority, only evidence that the person steered the vessel).
The plain language of § 2D1.1(b)(3)(C), which calls for
a two-level enhancement where “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” (emphasis added), is strongly indicative
of a broad scope, not dependent on a finding of any particular
formal training or type of boat. See United States v. Shill,
8 UNITED STATES V. CRUZ-MENDEZ
740 F.3d 1347, 1351 (9th Cir. 2014) (stating that “analysis
begins and ends with the ordinary meaning of the statutory
language”). The fact that the Guidelines commentary
acknowledges that pilots and boat captains may use “special
skills” also subject to a two-level adjustment under § 3B1.3
and dictates that the two sections may not both apply to the
same conduct does not mean, as Cruz-Mendez would have it,
that § 2D1.1(b)(3)(C) can only apply where such special skills
are demonstrated by a pilot or captain. Such a reading would
lead to complete overlap between the two sections, and would
also ignore situations where an individual obviously assumed
the role of pilot or captain but demonstrated little skill in
doing so. See Senn, 129 F.3d at 890 (upholding application
of the enhancement where defendant was listed as captain on
customs documents and directed boat operations, but journey
involved several stops for repairs, a stop for fuel, and a stop
to ask directions from a passing freighter, followed by
difficulty locating Jamaica). As with our sister circuits, we
decline to apply “rigid requirements of professionalism” to
the “pilot/captain” enhancement and instead opt for a
“common sense approach.” Bautista-Montelongo, 618 F.3d
at 467.
We find no error in the application of the “pilot/captain”
enhancement on the facts of this case. By Cruz-Mendez’s
own account, he was a lifelong fisherman hired to transport
marijuana bales, and in so doing he operated a boat laden
with substantial cargo in open water by controlling both its
speed and direction.3 Such conduct fully justifies the
3
While Cruz-Mendez highlights that he had no authority over his co-
defendant, he does not argue that his co-defendant had any authority over
him while they were on the panga. See Bautista-Montelongo, 618 F.3d at
466–67 (upholding application of enhancement to career fisherman who,
UNITED STATES V. CRUZ-MENDEZ 9
imposition of the two-point enhancement. Cf. United States
v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005)
(upholding application of the enhancement where defendant
was a lifelong fisherman who was one of several men who
drove the boat).
B. Reasonableness of the Sentence
The district court’s imposition of the twelve-month
sentence for violation of supervised release consecutive to the
eighty-month sentence for possession of marijuana on a
vessel, resulting in a global sentence of ninety-two months,
was not an abuse of discretion. See Autery, 555 F.3d at 871.
In fact, the district court exercised its discretion in departing
downward from the Guidelines range, “just not by as many
months as [the defendant] requested.” United States v. Ayala-
Nicanor, 659 F.3d 744, 752 (9th Cir. 2011). Under these
circumstances, we cannot say that the below-Guidelines
sentence was substantively unreasonable.
CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
inter alia, did not use navigational tools and had no crew other than co-
conspirator).