United States v. Antonio Moreno-Membache ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-3056 September Term, 2021
FILED ON: MAY 6, 2022
UNITED STATES OF AMERICA,
APPELLEE
v.
ANTONIO MORENO-MEMBACHE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cr-00134-5)
Before: WILKINS and WALKER, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
JUDGMENT
This is an appeal from a sentence imposed by the United States District Court for the District
of Columbia. The court has accorded the issues full consideration and has determined that they do
not warrant a published opinion. See D.C. CIR. R. 36(d).
We AFFIRM the district court’s sentence.
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Moreno-Membache pleaded guilty to violating the Maritime Drug Law Enforcement Act, 46
U.S.C. §§ 70503, 70506(b), and the Controlled Substances Import and Export Act, 21 U.S.C.
§ 960(b)(1)(B), (b)(2)(G). He was charged with conspiring to “knowingly and intentionally
distribute, and possess with intent to distribute” five kilograms or more of cocaine and 100 kilograms
or more of marijuana “on board a vessel subject to the jurisdiction of the United States.” R. Doc.
191, at 1 ¶ 1.
The U.S. Coast Guard seized the vessel – the Mitsby – off the coast of Panama in 2012.
Although Moreno-Membache was not a member of the Mistby’s crew, “he was arrested and
extradited to the United States after a joint investigation of the Colombian and United States
governments concluded that he was involved in the conspiracy that ultimately resulted in the
Mistby’s failed journey.” United States v. Moreno-Membache, 995 F.3d 249, 252 (D.C. Cir. 2021).
Moreno-Membache’s offense carried a mandatory minimum ten-year sentence. See 46
U.S.C. § 70506(a), (b); 21 U.S.C. § 960(b)(1)(B). A statutory provision known as the “safety valve”
provides that when imposing sentences for violations of 46 U.S.C. § 70506 and 21 U.S.C. § 960 –
among other offenses – district courts “shall impose a sentence pursuant to [the sentencing]
guidelines . . . without regard to any statutory minimum sentence, if the court finds at sentencing . . .
that” five factors are met. 18 U.S.C. § 3553(f). One factor is that “the defendant did not . . . possess
a firearm . . . in connection with the offense.” Id. § 3553(f)(2); see also U.S.S.G. § 5C1.2(a)(2).
Another is that the defendant was not a “supervisor of others in the offense.” 18 U.S.C. § 3553(f)(4);
see also U.S.S.G. § 5C1.2(a)(4).
In 2019, the district court found Moreno-Membache ineligible for safety-valve relief because
he possessed a weapon in connection with his offense and because he was a supervisor. See
Moreno-Membache, 995 F.3d at 254. On Moreno-Membache’s appeal, we ruled that the
government breached its plea agreement by arguing at sentencing that Moreno-Membache had a
supervisory role in the conspiracy. See id. at 257. Because the district court “specifically tied” its
determination that Moreno-Membache possessed a weapon in connection with the offense “to its . . .
finding that [he] acted as a manager or supervisor,” we “vacate[d] Moreno-Membache’s sentence
and remand[ed] for a new sentencing proceeding, untainted and uninfluenced by the government’s
breach of the plea agreement and the evidence it introduced in the process.” Id. at 251, 257.
On remand, the district court again found that Moreno-Membache “possess[ed] a firearm . . .
in connection with the offense,” 18 U.S.C. § 3553(f)(2).1 As a result, the court sentenced him to the
same ten-year mandatory minimum term of imprisonment. The district court based its finding on
the statements of two of Moreno-Membache’s co-conspirators, as recounted by Special Agent
Souchet of the Naval Investigative Service during Moreno-Membache’s 2019 sentencing proceeding.
Souchet testified that Luis Paredes, the Mitsby’s captain, said that he saw Moreno-Membache
loading and unloading a pistol and placing it in his waistband at a Mistby planning meeting. Souchet
also testified that Ivan Campaz-Riascos, a Mitsby crewmember, said that he saw Moreno-Membache
with what looked like a pistol tucked into his waistband at the Mitsby’s launch site.
Moreno-Membache contends that by relying on evidence presented at his previous sentencing
proceeding, the district court failed to follow this court’s mandate in Moreno-Membache, 995 F.3d
249. According to Moreno-Membache, his “re-sentencing could only be ‘untainted and
uninfluenced’ by the earlier evidence if . . . the district court considered only evidence presented at
the new hearing.” Appellant Br. 12 (quoting Moreno-Membache, 995 F.3d at 251). However, our
1
The government contends that the district court erroneously placed the burden of proof on the
government and that “it was Moreno-Membache who bore the burden to prove by a preponderance of the
evidence that he did not possess a firearm in connection with the instant offense.” Appellee Br. 12 n.2. We
need not resolve who bore the burden. Whoever had the burden, the district court did not clearly err in
finding that Moreno-Membache possessed a firearm in connection with his offense.
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court did not require the district court to hold a new evidentiary hearing on remand. Instead we
directed the district court to “make an independent determination regarding the firearm criterion”
without considering evidence that Moreno-Membache played a supervisory or managerial role in the
offense. Id. at 258. The district court followed that command. At Moreno-Membache’s latest
sentencing proceeding, the court found that regardless whether Moreno-Membache played a
supervisory or managerial role in the offense, the testimony of his co-conspirators showed that he
“was responsible for moving, storing, and protecting cocaine,” and his possession of the firearm
helped him fulfill that role. J.A. 134–35.
The district court’s finding is not clearly erroneous. See United States v. Erazo, 628 F.3d
608, 611 (D.C. Cir. 2011). To support a finding that a firearm is possessed in connection with an
offense, “the firearm need only facilitate, or have the potential of facilitating, the drug trafficking
offense.” Id. (internal quotation marks omitted). The district court did not clearly err in concluding
that Moreno-Membache’s possession of a firearm “facilitate[d]” his drug trafficking based on his
co-conspirators’ statements. See id. Moreno-Membache challenges the credibility of those hearsay
statements. However, the district court did not abuse its discretion in finding the statements credible.
See United States v. Leyva, 916 F.3d 14, 26 (D.C. Cir. 2019). The statements have an “indicia of
reliability” because they were “mutually corroborative” of the fact that Moreno-Membache carried
a firearm while fulfilling his drug-trafficking duties. Id. at 25–26 (internal quotation marks omitted).
Moreno-Membache next contends that the government violated its disclosure obligations
under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose Paredes’s 2018
cocaine-trafficking conviction prior to the 2019 sentencing. But Moreno-Membache’s appeal
involves his latest sentencing, not the 2019 one. He admits that the government disclosed Paredes’s
conviction “approximately one week before” the latest sentencing proceeding. Appellant Br. 23.
Thus, the government did not suppress any exculpatory evidence that could have impacted
Moreno-Membache’s sentence. See United States v. Emor, 573 F.3d 778, 782 (D.C. Cir. 2009). In
fact, the district court explicitly considered the effect of Paredes’s 2018 federal drug trafficking
conviction on the credibility of his statement. See J.A. 131–34.
Moreno-Membache also argues that under Santabello v. New York, 404 U.S. 257, 262–63
(1971), “the interests of justice required that [his] resentencing should take place before a different
judge” after this court “determined that the government had breached the plea agreement.”
Appellant Br. 15. There is no such requirement: “Santobello does not require remand upon a
breached plea agreement to be reassigned to a different judge.” United States v. Wolff, 127 F.3d 84,
88 (D.C. Cir. 1997). Indeed, we noted in Wolff that reassignment is only required “in the unusual
case.” Id. Moreno-Membache has not demonstrated that such an “unusual case” is present here.
For the reasons stated above, Moreno-Membache’s sentence is affirmed.
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3
This disposition is unpublished. See D.C. CIR. R. 36(d). We direct the Clerk to withhold the
mandate until seven days after any timely petition for rehearing or rehearing en banc is resolved.
See FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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