United States v. Henry Vazquez Valois , 915 F.3d 717 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13535
________________________
D.C. Docket No. 4:16-cr-10052-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY VAZQUEZ VALOIS,
LUIS FELIPE VALENCIA,
DIEGO PORTOCARRERO VALENCIA,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 12, 2019)
Before JORDAN, GRANT, and HULL, Circuit Judges.
HULL, Circuit Judge:
Henry Vazquez Valois (“Vazquez”), Luis Felipe Valencia (“Valencia”), and
Diego Portocarrero Valencia (“Portocarrero”) appeal their convictions and
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sentences for trafficking cocaine in international waters, in violation of the
Maritime Drug Law Enforcement Act (“MDLEA”). See 46 U.S.C. §§ 70501–
70508. Broadly speaking, they raise five issues on appeal. After review and with
the benefit of oral argument, we conclude that the defendants have shown no error,
and we affirm their convictions and sentences. We address each issue in turn.
I. MDLEA
All three defendants challenge the district court’s exercise of extraterritorial
jurisdiction under the MDLEA. 1 Collectively, they argue that the MDLEA is
unconstitutional for four reasons: (1) Congress’s authority to define and punish
felonies on the high seas does not extend to felonies without any connection to the
United States; (2) due process prohibits the prosecution of foreign nationals for
offenses that lack a nexus to the United States; (3) the MDLEA violates the Fifth
and Sixth Amendments by removing the determination of jurisdictional facts from
the jury; and (4) the admission of a certification of the Secretary of State to
establish extraterritorial jurisdiction violates the Confrontation Clause.
As the defendants concede, each of these arguments is foreclosed by binding
precedent. Regarding the defendants’ first argument, in United States v. Campbell,
we held that the MDLEA is a valid exercise of Congress’s power under the
1
We review de novo a district court’s interpretation of a statute. United States v.
Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016). Likewise, we review de novo whether a
statute is constitutional. Id.2
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Felonies Clause as applied to offenses without a nexus to the United States. 743
F.3d 802, 810 (11th Cir. 2014); see also United States v. Cruickshank, 837 F.3d
1182, 1187-88 (11th Cir. 2016) (following Campbell and reaching the same
holding). In Campbell, we recognized that we have upheld extraterritorial
convictions under our drug trafficking laws as an exercise of power under the
Felonies Clause. 743 F.3d at 810.
As to the defendants’ second contention, in United States v. Rendon, we held
that the Due Process Clause of the Fifth Amendment does not prohibit the trial and
conviction of aliens captured on the high seas while drug trafficking because the
MDLEA provides clear notice that all nations prohibit and condemn drug
trafficking aboard stateless vessels on the high seas. 354 F.3d 1320, 1326 (11th
Cir. 2003). The defendants’ MDLEA convictions do not violate their due process
rights even if the offenses lack a nexus to the United States. Campbell, 743 F.3d at
812.
Concerning the defendants’ third argument, in United States v. Tinoco, we
held that the MDLEA jurisdictional requirement goes to the subject-matter
jurisdiction of courts and is not an essential element of the MDLEA substantive
offense, and, therefore, it does not have to be submitted to the jury for proof
beyond a reasonable doubt. 304 F.3d 1088, 1109-12 (11th Cir. 2002); see also
Cruickshank, 837 F.3d at 1192 (following Tinoco and reaching the same holding);
3
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Campbell, 743 F.3d at 809 (following Tinoco and Rendon and reaching the same
holding); Rendon, 354 F.3d at 1326-28 (following Tinoco and reaching the same
holding).
As to the defendants’ fourth argument, in Campbell, we held that the
introduction of a certification of the Secretary of State to establish extraterritorial
jurisdiction under the MDLEA does not violate the Confrontation Clause. 743
F.3d at 806-08; see Cruickshank, 837 F.3d at 1192 (“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.”). In Campbell, we determined that because the stateless nature of the
defendant’s vessel was not an element of his MDLEA offense to be proved at trial,
the admission of the certification did not violate his right to confront the witnesses
against him. 743 F.3d at 806.
Based on our precedent, the district court properly exercised jurisdiction in
this case.
II. MOTION FOR MISTRIAL
Next, defendant Valencia argues that the district court abused its discretion
when it denied a motion for a mistrial based on the government’s reference in
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closing arguments to a separate drug seizure. 2 Vazquez and Portocarrero adopt
this argument.
A.
We begin by summarizing the evidentiary context for the prosecutor’s
comments. Over a 36-hour period in November 2016, the U.S. Coast Guard Cutter
Dependable interdicted two separate go-fast vessels, each with three individuals
onboard, trafficking cocaine in international waters off the coasts of Panama and
Costa Rica. The first vessel was seized overnight on November 23 to November
24. The Coast Guard recovered 16 bales of cocaine from the water after the
individuals on the first vessel had jettisoned the bales. This group of individuals
was indicted and prosecuted for this drug trip independently from this case.
The three defendants in this case were on a second vessel seized during the
day on November 25, about 36 hours after the first vessel was seized. The
defendants in this group were the only individuals charged in this indictment. At
trial, Valencia tried to sow doubt about whether he, Vazquez, and Portocarrero
were trafficking cocaine onboard their vessel. There was testimony at trial that on
November 25 the defendants here had jettisoned 16 bales of cocaine, which the
Coast Guard retrieved from the water. By the time the Coast Guard got to the
2
We review for abuse of discretion the denial of a motion for a mistrial. United States v.
McGarity, 669 F.3d 1218, 1232 (11th Cir. 2012).
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defendants’ vessel, no cocaine was found onboard the vessel itself. Valencia
therefore attempted to show that the Coast Guard mistakenly attributed the cocaine
from the first seizure to the defendants in this case.
To that end, Valencia’s defense counsel, over the government’s objections,
repeatedly cross-examined government witnesses about the prior seizure that had
happened 36 hours earlier. The government objected on relevance grounds and
because the questions were beyond the scope of direct examination. Vazquez and
Portocarrero did not object to this line of questioning from Valencia’s defense
counsel, and the district court overruled the government’s objections.
More specifically, on cross-examination, Valencia’s defense counsel asked
one government witness about how close in time the prior seizure was, whether he
was patrolling in the same area, whether individuals were detained, how many
packages were retrieved, and whether and when the packages were tested for
cocaine. The witness answered that he was involved in another operation with a
go-fast boat overnight on November 23 to November 24, approximately 24 to 36
hours before interdicting the defendants’ vessel. He stated that the prior seizure
occurred in the same area in the Eastern Pacific that he was patrolling and that he
had detained individuals. He stated that there were no drugs on the earlier vessel
because the vessel was sinking when the Coast Guard approached. He answered
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that the Coast Guard retrieved 16 bales from the water in the earlier case, and he
tested those bales for cocaine on November 24 and 26.
Valencia’s defense counsel also asked another government witness whether
he personally was able to find the debris field of packages from the prior seizure on
November 23 to November 24. The witness answered that he personally was not
able to find the debris field, but that the Coast Guard did find the debris field in the
vicinity of where the individuals on the earlier vessel jettisoned the bales. The
witness also stated that he saw at least one individual jettisoning the bales off the
defendants’ vessel in this case.
Valencia’s defense counsel asked another government witness whether the
packages from the prior seizure were packaged similarly to those from this case
and whether 16 packages were recovered from each seizure. The witness answered
that the bales from the earlier seizure looked very similar and had similar
multicolored packaging to the bales in this case. He stated that there were 16 bales
recovered from the earlier seizure on November 23 to November 24 and another 16
bales recovered on November 25 as part of the second seizure.
On redirect, the prosecutor invariably tried to make clear that the witnesses
were not mistaken that the cocaine retrieved from the water on November 25 had
come from the defendants’ vessel in this case.
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Notably, in addition to not objecting to the cross-examination by Valencia’s
defense counsel, Vazquez’s defense strategy aligned with Valencia’s in that
Vazquez denied having any cocaine on his boat. Specifically, at trial, Vazquez
testified in his defense that he owned the go-fast vessel and that he had hired
Valencia and Portocarrero to help him flee Colombia to escape death threats from
individuals who had demanded he pay a “tax” on the boat. Vazquez testified that
there was never any cocaine on his vessel and that he did not transport cocaine. In
other words, the cocaine found in the water came from the first vessel seized.
With this evidentiary context in mind and Valencia’s interjection of the first
vessel into evidence in the trial, we now turn to the prosecutor’s comments in
closing arguments. Responding to Vazquez’s testimony, the prosecutor referenced
the prior seizure and suggested that both go-fast vessels were part of a “concerted
effort” that was “being directed by whoever was orchestrating these deliveries to
Central America.” The prosecutor asserted that the defendants’ vessel “followed
the exact same procedures as that first boat had done,” including attempting to
elude the Coast Guard, jettisoning the cargo, and then scuttling the vessel. These
activities, according to the prosecutor, showed that the defendants “were following
the instructions of the people who hired them and directed their activities,” just like
the individuals on the other vessel. The prosecutor also argued that the 640
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kilograms of cocaine recovered from the water by the Coast Guard came from the
defendants’ vessel and not from the prior seizure the night before. 3
During the prosecutor’s argument, defense counsel for Valencia reserved a
motion and, once the prosecutor concluded, moved for a mistrial outside of the
presence of the jury. Valencia argued that the government appeared to be trying to
tie the defendants to a broader conspiracy and to hold them accountable for the
first drug seizure. Defense counsel for Vazquez and Portocarrero did not explicitly
object to the prosecutor’s comments or join in Valencia’s mistrial motion on the
record. However, Vazquez’s defense counsel did assist Valencia’s defense counsel
with the argument on the motion.
As to Valencia’s mistrial argument, the prosecutor responded that he was
simply trying to place the other seizure—which Valencia “interjected into this
trial” and made “a primary feature of his defense”—in context of the overall
scheme.
After hearing from the parties, the district court found that “an appropriate
curative instruction would ameliorate any potential harm to any defendant” and
that none of the defendants “ha[d] been deprived [of] their right to a fair and
impartial trial.” Valencia’s counsel conferred with the other defense counsel and
3
The 16 bales totaled 640 kilograms of cocaine.
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prepared a curative instruction. The prosecutor did not object to the instruction.
The district court then read the curative instruction to the jury as follows:
During the trial you heard evidence of acts allegedly done by other
individuals on other occasions that may be similar to acts with which
the defendants are currently charged. You must not consider any of this
evidence to decide whether the defendants engaged in the activity
alleged in the indictment.
After the prosecutor’s closing argument and the district court’s curative
instruction, defense counsel gave their closing arguments. Vazquez’s defense
counsel argued that the Coast Guard did not see the first bale in the water thrown
off the defendants’ boat, but the Coast Guard immediately attributed it to the
defendants’ boat. Vazquez’s counsel contended that the Coast Guard did not have
any video showing any of the 16 bales of cocaine being thrown off the defendants’
boat. Vazquez’s counsel argued that just because the Coast Guard recovered 640
kilograms of cocaine and Vazquez’s boat was in the proximity of where the
cocaine was recovered did not put that cocaine on Vazquez’s boat or mean that the
cocaine was his.
Portocarrero’s defense counsel argued that as soon as the Coast Guard saw a
bale in the water, the Coast Guard claimed that the defendants were jettisoning the
bales from their boat and that the bales belonged to the defendants, even though
many of the witnesses did not see bales being tossed off the defendants’ boat and
the video did not record any jettisoning of bales. Portocarrero’s counsel argued
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that the conflicting evidence and lack of details in the case showed without a doubt
that nobody was throwing bales off the defendants’ boat. Specifically, he argued
that the Coast Guard could not state how many bales they saw jettisoned off the
defendants’ boat or who was jettisoning the bales, even though the bales were
brightly colored. Portocarrero’s counsel also contended that the physical evidence
showed that the debris field of bales did not trail the defendants’ boat. Also, he
argued that there was no evidence the defendants had cocaine in their boat, as there
was nothing on their boat that could be connected to the cocaine found in the
water. Portocarrero’s counsel argued that if there was cocaine on the defendants’
boat, there would have been evidence of it.
In turn, Valencia’s defense counsel argued that the jury could consider that
the government witnesses who he questioned about the prior seizure became
defensive or unhappy when he asked them about the prior seizure. Valencia’s
counsel also argued about the similarities between the prior seizure and the instant
case, including that 16 bales were also recovered from the prior seizure and they
had the same packaging as those in this case. Valencia’s counsel argued that the
boat from the prior seizure could have carried 16 bales of cocaine, but the boat in
this case would have been over maximum load. He argued that the boat from the
prior seizure could have carried and jettisoned all 32 bales of cocaine, including
the 16 bales mistakenly attributed to the defendants. He contended that there was
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reasonable doubt that Valencia, Vazquez, and Portocarrero were transporting 16
bales of cocaine. Once again, Vazquez’s and Portocarrero’s counsel did not object
to the argument of Valencia’s counsel that the cocaine in the water came from the
first vessel, not the defendants’ boat.
In the prosecutor’s rebuttal argument, the prosecutor argued that the
government witnesses testified that they did not confuse what happened with the
prior seizure with the instant case.
B.
The defendants assert that the prosecutor’s reference to the earlier seizure
amounted to the introduction of improper evidence under Federal Rule of Evidence
404(b), for which no notice had been given. We disagree. For starters,
“statements and arguments of counsel are not evidence.” United States v. Lopez,
590 F.3d 1238, 1256 (11th Cir. 2009) (quotations omitted). More importantly, it
was Valencia who interjected the prior seizure, which involved other individuals,
into the trial as part of his defense. Neither Vazquez nor Portocarrero objected to
Valencia’s introduction of evidence about the prior seizure. Indeed, it was only the
government that opposed that effort. Because this evidence was not introduced by
the government and did not concern a prior bad act by any of the defendants, Rule
404(b) and its notice requirements did not apply.
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To the extent the defendants argue more generally that the prosecutor’s
comments in closing were improper suggestions that the two seizures were
connected, they must prove two things: (1) that the remarks were improper; and
(2) that the remarks prejudicially affected their substantial rights. United States v.
Reeves, 742 F.3d 487, 505 (11th Cir. 2014). The prosecutor understandably
desired to refute Vazquez’s story of no cocaine on his boat and to respond to the
considerable testimony Valencia elicited regarding the details of the other seizure
and how similarly the cocaine was packaged. Moreover, the prosecutor had
objected to the defendants presenting evidence about the prior seizure, but the
district court had allowed the evidence, which showed that 16 bales of cocaine
similarly packaged had been seized 36 hours earlier. While one possible inference
was that the second 16 cocaine bales seized came from the first boat, another
possible inference, as the prosecutor argued, was the two vessels were doing the
same activity in the same way and were connected. Given the way the trial
proceeded, we cannot say the prosecutor’s brief comments in closing were
improper.
Even if we assume arguendo that the prosecutor’s comments were somehow
improper, the defendants have not proved prejudice to their substantial rights. The
district court cured the complained-of remarks through a clear and specific limiting
instruction to the jury. See Lopez, 590 F.3d at 1256 (“If the district court takes a
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curative measure, we will reverse only if the evidence is so prejudicial as to be
incurable by that measure.”). The court told the jury that it could not consider the
evidence of the other drug seizure when deciding whether the defendants engaged
in the activity of the second vessel alleged in the indictment. “We presume that the
jury followed the district court’s curative instructions.” Id. And the defendants
“ha[ve] not come close to establishing that the closing argument was so highly
prejudicial as to be incurable by the court’s instructions.” Reeves, 742 F.3d at 506.
Therefore, the district court did not abuse its discretion by denying the defendants’
motion for mistrial.
III. CONFLICT OF INTEREST
The third issue, raised by defendant Portocarrero, likewise concerns the two
seizures. As noted above, the two groups of three defendants were prosecuted
independently. A total of three attorneys were appointed for the six defendants,
with each attorney representing one defendant within each group. 4 Portocarrero
argues that this defense arrangement violated his Sixth Amendment right to
conflict-free counsel because he did not validly waive the conflict and the conflict
harmed his defense. Portocarrero says that the conflict prevented his attorney from
4
Attorney Juan Gonzalez represented Portocarrero in this case and a defendant in the
other drug case. Attorney Stewart Abrams represented Vazquez in this case and a defendant in
the other drug case. Attorney Martin Feigenbaum represented Valencia in this case and a
defendant in the other drug case.
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attempting to shift blame to the other group of defendants arrested overnight on
November 23 to 24 for the cocaine found in the water on November 25. Vazquez
adopts this argument, but Valencia does not raise this claim.
A defendant’s right to effective assistance of counsel is violated when the
defendant’s attorney has an actual conflict of interest that impacts the defendant
adversely. United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993). A
defendant, however, may in some circumstances waive his right to conflict-free
counsel. United States v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975).5 Garcia
provides that, in the case of a potential conflict of interest, the court should conduct
an inquiry, akin to the plea colloquy under Federal Rule of Criminal Procedure 11,
to determine whether a defendant wishes to waive the conflict. Id. at 277–78. A
defendant may waive an actual conflict of interest if the waiver is “knowing,
intelligent, and voluntary.” United States v. Ross, 33 F.3d 1507, 1524 (11th Cir.
1994).
However, a district court’s failure to comply with Garcia will not require
reversal absent an actual conflict of interest. United States v. Mers, 701 F.2d 1321,
1326 (11th Cir. 1983) (holding that a district court’s violation of Garcia and
Federal Rule of Criminal Procedure 44(c) was harmless error because there was no
5
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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actual conflict). “Although joint representation of multiple defendants creates a
danger of counsel conflict of interest, the mere fact of joint representation will
certainly not show an actual conflict.” Id. (quotation marks omitted). Rather, an
appellant must demonstrate inconsistent interests and show that the attorney chose
between courses of action that were “helpful to one client but harmful to the
other.” Id. at 1328 (quotation marks omitted). Actual conflicts must have a basis
in fact; hypothetical conflicts are not enough. Id.Here, at the time defense counsel were initially appointed, the government
had separately indicted and was prosecuting the seizures of two different go-fast
vessels on different days as two independent cases against three different
individuals in each case. No party or counsel has pointed to any place in the record
before trial where anyone alleged or mentioned that the cocaine found in the water
on November 25 came from the boat seizure overnight on November 23 to 24.
Rather, all of the testimony until Valencia’s counsel cross-examined the
government’s witnesses at trial was that the Coast Guard had seen that cocaine
being thrown from the defendants’ boat on November 25.
The issue of a potential conflict did not arise until the testimony during the
trial. Thus, we cannot say the district court was required to hold a Garcia hearing
before the trial began. And before sentencing the district court did hold a Garcia
hearing.
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Even if the Garcia hearing was timely enough, Portocarrero and Vazquez
argue that it was substantively deficient. Although they expressly waived any
potential conflict at the Garcia hearing, they allege that the district court did not
ask all of the questions it should have. We need not reach that issue because
Portocarrero and Vazquez have not shown that their attorneys’ dual representation
of the two groups presented any actual conflict. Despite the prosecutor’s brief
reference to a broader conspiracy during closing arguments, the government’s case
against Portocarrero and Vazquez related solely to their own personal acts of
transporting cocaine onboard the vessel on which they were found. They were not
being tried jointly with or for the same offenses as their attorneys’ other clients on
the first vessel. Shifting the blame in Portocarrero’s and Vazquez’s trial to the first
vessel would not have been harmful to Portocarrero and Vazquez, or to the
defendants on the first vessel who were being tried separately. In fact, as
Portocarrero notes, Valencia’s attorney attempted to do just that, despite
representing a client in the other group of defendants on the first vessel.
Furthermore, Portocarrero’s and Vazquez’s counsel did not object when
Valencia’s counsel cross-examined the government witnesses about the similarity
of the cocaine packaging and other features of the first and second boat seizures.
In fact, Vazquez’s and Portocarrero’s defense counsel later did implicitly shift the
blame to the other clients on the first vessel during their closing arguments.
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Vazquez argued that just because the Coast Guard recovered 640 kilograms of
cocaine and Vazquez’s boat was in the proximity of where the cocaine was
recovered did not put that cocaine on Vazquez’s boat or mean that it belonged to
him. Portocarrero’s counsel argued that nobody was throwing bales off of their
boat and there was no evidence that they had cocaine in their boat when the Coast
Guard boarded it. Under the particular circumstances here, neither Portocarrero
nor Vazquez have demonstrated that there was an actual conflict of interest, and,
thus, no reversal is required.6 See Mers, 701 F.2d at 1326.
IV. SAFETY-VALVE ISSUES
As to the fourth issue, Valencia challenges the constitutionality of the
“safety-valve” provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Valencia
says that these provisions both unfairly deny benefits to Title 46 defendants, in
6
Portocarrero and Vazquez abandoned any argument that an actual conflict existed
relating to any post-trial issues and proceedings. See United States v. Jernigan, 341 F.3d 1273,
1283 n.8 (11th Cir. 2003). In any case, there has been no suggestion that Portocarrero or
Vazquez knew the other group of defendants or were interested in cooperating with the
government against them. Additionally, before sentencing, the district court held a Garcia
hearing; because there is no claim in this appeal that the three defendants’ waivers given for
post-trial issues were deficient, we do not evaluate that Garcia hearing.
Although affirming in this case, we observe that, in an abundance of caution, the more
careful course next time would likely be for the magistrate judge to consider appointing separate
counsel for all defendants on each boat where (1) the two go-fast boats with cocaine are
interdicted so close in time and geography and (2) two indictments, although separate, were filed
on the same day. A conflict could have arisen here if a defendant on one boat decided to
cooperate with the government and testify against the defendants on the other boat. See Ruffin v.
Kemp, 767 F.2d 748, 749-51 (11th Cir. 1985) (concluding an actual conflict of interest existed
where the attorney represented both defendants Ruffin and Brown and actually offered the
testimony of Brown against Ruffin in exchange for a lesser penalty for Brown).
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violation of equal-protection guarantees, and violate the Fifth Amendment by
requiring a defendant to forfeit his right to silence. Portocarrero adopts these
arguments.7
When the safety valve applies, the district court may impose a sentence
without regard to the statutory minimum sentences that would otherwise limit the
court’s discretion. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). By its plain terms,
the safety valve applies only to convictions under five specified statutes: 21
U.S.C. §§ 841, 844, 846, 960, and 963. United States v. Pertuz-Pertuz, 679 F.3d
1327, 1328 (11th Cir. 2012). This Court held in Pertuz-Pertuz that, because no
Title 46 offense appears in the safety valve, defendants convicted under Title 46
are not eligible for safety-valve relief. Id. Therefore, defendants convicted of
offenses under the MDLEA, which are Title 46 offenses, are not eligible for
safety-valve relief. See id. at 1328–29. Thus, as a threshold matter, Valencia and
Portocarrero are not eligible for safety-valve relief.
As to their equal-protection claim, Valencia and Portocarrero argue that
there is no rational basis to exclude Title 46 defendants from the safety valve when
it is available to defendants convicted of drug trafficking within the United States.
7
We ordinarily review de novo the constitutionality of a statute, because it presents a
question of law, but we review for plain error where a defendant raises his constitutional
challenge for the first time on appeal. United States v. Wright, 607 F.3d 708, 715 (11th Cir.
2010). The parties debate what was raised in the district court, but we need not decide that issue
because the defendants’ constitutional claims fail in any event.
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However, this Court recently held that the safety valve’s exclusion of Title 46
defendants does not violate the equal-protection guarantee of the Fifth
Amendment. United States v. Castillo, 899 F.3d 1208 (11th Cir.), cert. denied,
2019 WL 113114 (Jan. 7, 2019). Applying rational-basis review, we concluded
that Congress had “legitimate reasons to craft strict sentences for violations of the
[MDLEA].” Id. at 1213. Specifically, “[i]n contrast with domestic drug offenses,
international drug trafficking raises pressing concerns about foreign relations and
global obligations.” Id. “Moreover, the inherent difficulties of policing drug
trafficking on the vast expanses of international waters suggest that Congress could
have rationally concluded that harsh penalties are needed to deter would-be
offenders.” Id. Thus, based on Castillo, we reject Valencia’s and Portocarrero’s
equal-protection challenge to the safety valve.
Valencia and Portocarrero also contend that the safety valve violates Fifth
Amendment protections against self-incrimination by requiring defendants to
provide the government with all information and evidence that they have
concerning the offense. 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). They
note that, while they were not eligible to be sentenced below the mandatory
minimum, see Pertuz-Pertuz, 679 F.3d at 1328, they could have received a
two-level reduction in their offense level for meeting the five safety-valve criteria.
See U.S.S.G. § 2D1.1(b)(17) (2016).
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Although this Court has not addressed in a published opinion this Fifth
Amendment issue as to the safety valve, we have concluded that U.S.S.G. § 3E1.1,
the acceptance-of-responsibility provision of the Guidelines, does not violate the
Fifth Amendment right against self-incrimination. United States v. Henry, 883
F.2d 1010, 1011 (11th Cir. 1989). “Section 3E1.1(a) is not a punishment; rather,
the reduction for acceptance of responsibility is a reward for those defendants who
express genuine remorse for their criminal conduct.” United States v. Carroll, 6
F.3d 735, 740 (11th Cir. 1993). Several of our sister circuits have concluded that
the same is true for the safety valve in 18 U.S.C. § 3553(f) and U.S.S.G.
§ 5C1.2(a). United States v. Cruz, 156 F.3d 366, 374 (2d Cir. 1998) (conviction
under § 841); United States v. Warren, 338 F.3d 258, 266-67 (3d Cir. 2003)
(conviction under § 846); United States v. Washman, 128 F.3d 1305, 1307 (9th Cir.
1997) (conviction under § 841); United States v. Arrington, 73 F.3d 144, 149-50
(7th Cir. 1996) (same).
Although the parties briefed the Fifth Amendment issue, we ultimately do
not need to address it given our conclusions above that the safety-valve relief is
unavailable to all Title 46 MDLEA defendants, such as Valencia and Portocarrero,
and that such unavailability does not violate the Equal Protection Clause and is
constitutional. Because Valencia and Portocarrero are not eligible for safety-valve
relief in the first place, we need not consider whether these defendants otherwise
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meet the substantive requirements of safety-valve relief or the defendants’
constitutional claim based on the Fifth Amendment.
V. MINOR-ROLE REDUCTION
Finally, Vazquez argues that at sentencing the district court erred in denying
him a minor-role reduction under U.S.S.G. § 3B1.2(b).8 Valencia and Portocarrero
purport to adopt this argument. 9 Unlike § 3553(f) and § 5C1.2(a), MDLEA
offenders may seek a minor-role reduction under § 3B1.2(b).
As background, Vazquez’s, Portocarrero’s, and Valencia’s presentence
investigation reports (“PSI”) assigned each of them a base offense level of 38,
pursuant to U.S.S.G. § 2D1.1(a)(5) and (c)(1), because their offenses involved at
least 450 kilograms of cocaine, specifically 640 kilograms of cocaine.
Vazquez received a two-point enhancement under § 2D1.1(b)(3)(C) because
he was the captain of the vessel and a two-point enhancement for obstruction of
justice under § 3C1.1 because he made a series of statements during trial that
contradicted the evidence. As a result, Vazquez received a total offense level of
8
We review a district court’s denial of a role reduction for clear error. Cruickshank, 837
F.3d at 1192.
9
The government maintains that these adoptions were ineffective because minor-role
reductions are too individualized to be raised by adoption. Cf. United States v. Cooper, 203 F.3d
1279, 1285 n.4 (11th Cir. 2000) (stating that sufficiency arguments are too individualized to be
generally adopted). Valencia’s and Portocarrero’s general adoptions are likely inadequate to
properly raise the issue on appeal, but we need not address that issue because they lack merit in
any event.
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42. Portocarrero and Valencia received no enhancements or reductions, and their
total offense level remained at 38.
Each defendant received zero criminal history points, placing each of them
in criminal history category I. As to Vazquez, with a total offense level of 42 and a
criminal history category of I, he had an advisory guideline range of 360 months to
life imprisonment. As to Portocarrero and Valencia, with a total offense level of
38 and a criminal history category of I, each had an advisory guideline range of
235 to 293 months’ imprisonment. All three defendants also faced a statutory
minimum term of ten years’ imprisonment as to their counts.
Each defendant objected to his PSI, arguing that he was entitled to a
minor-role reduction. Specifically, Vazquez contended that there was no evidence
that he had any ownership interest in the drugs, any decision-making authority, or
any role other than transportation. Portocarrero argued that he was not the owner
or master of the vessel, was a last-minute addition to the trip, and was the youngest
and most inexperienced of the three men on the boat. Valencia asserted that there
was no evidence that he had any ownership interest in the cocaine or that he was
going to make any money from it.
At the defendants’ sentencing hearings, each of them renewed the objection
to the lack of a minor-role reduction. Vazquez reiterated that he did not own the
drugs or share in the drugs’ profits. He contended that he did not participate in
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planning or organizing the criminal activity or exercise decision-making authority,
as he merely provided transportation for the drugs. Portocarrero asserted that he
was only 20 years old and was a very small part of the operation.
The district court overruled the defendants’ objections to the lack of a
minor-role reduction because each defendant failed to establish that he was
substantially less culpable than the average participant in the offense.
After overruling the objections, the district court determined that Vazquez’s
offense level was 42, his criminal history category was I, and his advisory
guideline range was 360 months to life imprisonment. After hearing arguments
and considering the 18 U.S.C. § 3553(a) factors, the district court sentenced
Vazquez to 144 months’ imprisonment as to both of his counts, to run
concurrently, followed by 5 years’ supervised release. The district court noted that
Vazquez’s punishment should be slightly greater than his codefendants based on
his enhancements for being captain of the vessel and obstruction of justice.
The district court determined that Portocarrero’s and Valencia’s total offense
level was 38, their criminal history category was I, and their advisory guideline
range was 235 to 293 months’ imprisonment. Following arguments from the
parties, the court sentenced both Portocarrero and Valencia to 120 months’
imprisonment as to both counts, to run concurrently, followed by 5 years’
supervised release.
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As to our review of a district court’s denial of a role reduction, we will not
disturb a district court’s findings unless we are left with a definite and firm
conviction that a mistake has been made. Cruickshank, 837 F.3d at 1192. The
court’s choice between two permissible views of the evidence will rarely constitute
clear error, so long as the basis of the trial court’s decision is supported by the
record and the court did not misapply a rule of law. Id. “The defendant bears the
burden of establishing his minor role in the offense by a preponderance of the
evidence.” Id.
Under § 3B1.2(b), a defendant is entitled to a two-level decrease in his
offense level if he was a minor participant in the criminal activity. U.S.S.G
§ 3B1.2(b). A minor participant is one “who is less culpable than most other
participants in the criminal activity, but whose role could not be described as
minimal.” Id. § 3B1.2, cmt. n.5.
When evaluating a defendant’s role in the offense, the district court must
consider the totality of the circumstances. Id. § 3B1.2, cmt. n.3(C). According to
§ 3B1.2’s commentary, the factors courts should consider include “the degree to
which the defendant understood the scope and structure of the criminal activity,”
“the degree to which the defendant participated in planning or organizing the
criminal activity,” “the degree to which the defendant exercised decision-making
authority,” “the nature and extent of the defendant’s participation in the
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commission of the criminal activity,” and “the degree to which the defendant stood
to benefit from the criminal activity.” Id. The court must consider all of these
factors to the extent applicable, and it commits “legal error in making a minor role
decision based solely on one factor.” United States v. Presendieu, 880 F.3d 1228,
1249 (11th Cir. 2018).
In United States v. De Varon, we established two principles to “guide the
determination of whether a defendant played a minor role in the criminal scheme:
(1) ‘the defendant’s role in the relevant conduct for which [he] has been held
accountable at sentencing,’ and (2) ‘[his] role as compared to that of other
participants in [his] relevant conduct.’” Presendieu, 880 F.3d at 1249 (quoting
United States v. De Varon, 175 F.3d 930, 940 (11th Cir. 1999) (en banc)). “In
making the ultimate finding as to role in the offense, the district court should look
to each of these principles and measure the discernable facts against them.” De
Varon, 175 F.3d at 945.
Here, the district court did not clearly err in denying the defendants’ requests
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 minor role in any larger criminal
conspiracy.” Id. at 944. The record shows that all three defendants knowingly
participated in the illegal transportation of a large quantity of cocaine, they were
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important to that scheme, and they were held responsible only for that conduct.
See U.S.S.G. § 3B1.2, cmt. n.3(C); De Varon, 175 F.3d at 941-43; see also United
States v. Monzo, 852 F.3d 1343, 1347 (11th Cir. 2017) (considering, as part of the
totality of the circumstances, the facts that the defendant “was responsible only for
his direct role in the conspiracy, and that he was important to the scheme”). While
these facts do not render the defendants ineligible, they support the court’s denial
of the role reduction.
Further, under De Varon’s second principle, the record supports the district
court’s finding that none of the defendants were “less culpable than most other
participants in the criminal activity.” U.S.S.G. § 3B1.2, cmt. n.5. Vazquez was
the most culpable of the three defendants because he was the master of the vessel
and, according to his own testimony, he recruited Valencia and Portocarrero to
accompany him. While Valencia and Portocarrero appear to have had less of a role
than Vazquez, that fact alone does not make them minor participants. “The fact
that a defendant’s role may be less than that of other participants engaged in the
relevant conduct may not be dispositive of role in the offense, since it is possible
that none are minor or minimal participants.” De Varon, 175 F.3d at 944. And the
defendants here failed to show how they were less culpable than “most other
participants” in the criminal activity. See U.S.S.G. § 3B1.2, cmt. n.5. Based on
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the totality of the circumstances, the district court did not clearly err in denying the
defendants minor-role reductions under § 3B1.2.
Alternatively and as an independent ground for affirmance as to Valencia
and Portocarrero, we note that both Valencia and Portocarrero received a
substantial sentencing variance from their advisory guideline range of 235 to 293
months’ imprisonment to 120 months. The sentencing court did not just
mechanically impose the statutory mandatory minimum but did so only after
considering the defendants’ request for a variance. Nonetheless, 120 months is the
statutory mandatory minimum. See 21 U.S.C. § 960(b)(1)(B) and 46 U.S.C.
§ 70506(a). Thus, any error in the guidelines calculation was harmless as both
Valencia and Portocarrero received the statutory mandatory minimum sentence and
the district court could not have sentenced them to less. See United States v.
Westry, 524 F.3d 1198, 1221-22 (11th Cir. 2008) (finding no error in district
court’s application of firearm enhancement and then concluding, in any event, any
error in guidelines calculation was harmless where application of enhancement did
not affect defendants’ overall sentences).
VI. CONCLUSION
For the reasons stated, we reject the defendants’ challenges and affirm their
convictions and total sentences.
AFFIRMED.
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