United States v. Jose Antonio Canario-Vilomar

USCA11 Case: 22-12075 Document: 26-1 Date Filed: 02/07/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12075
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO CANARIO-VILOMAR,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cr-20019-BB-3
____________________
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2 Opinion of the Court 22-12075
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Jose Antonio Canario‑Vilomar appeals his sentence of
110 months’ imprisonment for conspiracy to possess with intent to
distribute more than 5 kilograms of cocaine on a vessel subject to
the jurisdiction of the United States. Canario‑Vilomar makes three
arguments on appeal. First, Canario‑Vilomar contends that the dis-
trict court lacked subject-matter jurisdiction over the relevant ves-
sel because the government did not provide a certification from the
Secretary of State under 46 U.S.C. § 70502(d)(2). Second, Ca-
nario‑Vilomar argues that the district court erred in determining
the amount of cocaine involved for purposes of his sentence calcu-
lation. Third, Canario‑Vilomar claims that the district court erred
by denying him a minor role adjustment under U.S.S.G. § 3B1.2.
After careful review, we affirm Canario‑Vilomar’s sentence.
I. FACTUAL AND PROCEDURAL HISTORY
The government alleges the following facts. On or about
December 6, 2021, a Dutch DH-8 Maritime Patrol Aircraft located
a go-fast vessel (the “Vessel”) approximately 145 nautical miles
north of La Guajira, Colombia, in international waters and upon
the high seas. This prompted the HNLMS Holland, manned by the
United States Coast Guard, to investigate the Vessel. Canario-Vi-
lomar, his brother, and another individual were aboard the Vessel.
Upon the arrival of the Coast Guard, one of the three individuals
on board claimed Dominican Republic nationality for the Vessel.
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22-12075 Opinion of the Court 3
That individual was identified as the master of the Vessel. The
Coast Guard then contacted the authorities of the Dominican Re-
public, which expressed that they could neither confirm nor deny
registry of the Vessel. Thus, the Coast Guard treated the Vessel as
a stateless vessel under 46 U.S.C. § 70502(d)(1)(C) and conducted a
full law enforcement boarding. At that point, the Coast Guard lo-
cated on the Vessel nineteen bales and three individual packages
containing cocaine. The Coast Guard recovered another ten bales
from the jettison field. Following these discoveries, the Coast
Guard transported the three individuals to the Southern District of
Florida for prosecution.
The government filed a criminal complaint on December
16, 2021, finding probable cause to charge the three individuals
with conspiracy to possess with intent to distribute five kilograms
or more of cocaine while on board a vessel subject to the jurisdic-
tion of the United States in violation of 46 U.S.C. § 70506(b).
On January 20, 2022, a grand jury returned a two-count in-
dictment against the three defendants, charging them with conspir-
acy to possess cocaine aboard a vessel in violation of 46 U.S.C.
§ 70506(b) (Count 1) and possession with intent to distribute co-
caine aboard a vessel in violation of 46 U.S.C. § 70503(a)(1)
(Count 2).
Around two months later, all three defendants entered
guilty pleas. Along with his guilty plea, Canario-Vilomar filed a
factual proffer. In that proffer, Canario-Vilomar agreed that the
government would have been able to prove beyond a reasonable
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4 Opinion of the Court 22-12075
doubt the version of events discussed above—i.e., that the Coast
Guard approached the Vessel on December 6, 2021; that one of the
three individuals on board claimed Dominican Republic national-
ity for the Vessel, but authorities from the Dominican Republic
could neither confirm nor deny the Vessel’s registration; that the
Coast Guard subsequently seized nineteen bales and three pack-
ages from the Vessel, along with ten bales from the jettison field,
which testified positive for the presence of cocaine; and that the
volume, packaging, and transportation of the cocaine was con-
sistent with the intent to distribute.
On April 7, 2022, the three defendants jointly moved to
withdraw their guilty pleas and dismiss the indictment. In that mo-
tion, the defendants challenged jurisdiction by arguing that 46
U.S.C. § 70502(d)(1)(C) is facially unconstitutional. The district
court denied the motion in full.
On June 10, 2022, the district court entered judgment against
Canario-Vilomar on Count 1—i.e., conspiracy to possess cocaine
aboard a vessel in violation of 46 U.S.C. § 70506(b)—and sentenced
him to 110 months in prison followed by two years of supervised
release. The district court dismissed Count 2—i.e., possession with
intent to distribute cocaine aboard a vessel in violation of 46 U.S.C.
§ 70503(a)(1)—on the government’s motion.
Canario-Vilomar subsequently filed a timely notice of ap-
peal.
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II. STANDARDS OF REVIEW
“We review a district court’s interpretation and application
of a statute concerning its subject-matter jurisdiction de novo, but
we review factual findings with respect to jurisdiction for clear er-
ror.” United States v. Cruickshank, 837 F.3d 1182, 1187 (11th Cir.
2016). “We review for clear error a district court’s determination
of the drug quantity attributable to a defendant,” United States v.
Azmat, 805 F.3d 1018, 1046 (11th Cir. 2015), as well as a district
court’s denial of a role reduction, United States v. Valois, 915 F.3d
717, 731 (11th Cir. 2019). Under the clear error standard, “we will
not disturb a district court’s findings unless we are left with a defi-
nite and firm conviction that a mistake has been made.” Id.III. ANALYSIS
As previewed, Canario‑Vilomar’s arguments on appeal con-
cern subject-matter jurisdiction, the district court’s determination
of the amount of cocaine attributable to him, and the district
court’s denial of a minor role adjustment. We address these argu-
ments in turn.
A. Subject-Matter Jurisdiction
Under the Maritime Drug Law Enforcement Act, a vessel
without nationality is subject to the jurisdiction of the United
States. 46 U.S.C. § 70502(c)(1)(A). The statute defines a “vessel
without nationality” to include “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
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6 Opinion of the Court 22-12075
assert that the vessel is of its nationality.” 46 U.S.C.
§ 70502(d)(1)(C). The statute clarifies that the response by a
claimed nation of registry “may be made by radio, telephone, or
similar oral or electronic means, and is proved conclusively by cer-
tification of the Secretary of State or the Secretary’s designee.” 46
U.S.C. § 70502(d)(2).
Canario‑Vilomar contends that the government failed to
meet its burden of establishing subject-matter jurisdiction—and
that the district court erred by finding otherwise—because the gov-
ernment neither produced nor claimed the existence of a certifica-
tion from the Secretary of State confirming the Dominican Repub-
lic’s response on December 6, 2021. But as this Court has ex-
plained, the notion that the government “must produce a certifica-
tion when subject-matter jurisdiction is based on [46 U.S.C. §
70502(d)(1)(C)] is unsupported by the language of [46 U.S.C. §
70502(d)(2)].” United States v. Cabezas-Montano, 949 F.3d 567, 589
n.15 (11th Cir. 2020) (emphasis added). “While a certification pro-
vides conclusive proof of the foreign nation’s response, [46 U.S.C.
§ 70502(d)(2)] does not state that the response cannot be proven by
other means.” Id.In this case, Canario‑Vilomar’s factual proffer confirms that,
when the Coast Guard approached the Vessel, one of the three in-
dividuals on board “made a verbal claim of Dominican Republic
nationality for the [Vessel]” and that authorities from the Domini-
can Republic “advised [that they] could not confirm nor deny reg-
istration of the [Vessel].” That proffer, along with the affidavit of
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22-12075 Opinion of the Court 7
Alec M. Sanchez and the other record evidence, provided a suffi-
cient basis for the district court to determine that the Vessel satis-
fied 46 U.S.C. § 70502(d)(1)(C) and therefore subject-matter juris-
diction exists. We find no error on this point.
B. Amount of Cocaine
For sentencing purposes, “[t]he government bears the bur-
den of establishing drug quantity by a preponderance of the evi-
dence.” Azmat, 805 F.3d at 1046. To meet that burden, the gov-
ernment must “present[] reliable and specific evidence.” United
States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). In this
case, the district court found the government’s showing sufficient
to establish that Canario‑Vilomar was responsible for at least 450
kilograms of cocaine. This determination was based on, among
other things, the DEA 7 report produced by the government,
which states that the property seized had a gross weight of 561.7
kilograms and includes an inventory listing 493 kilogram-sized
bricks.
Canario‑Vilomar contends that the district court’s determi-
nation was clear error for several reasons. First, Canario‑Vilomar
argues that the DEA 7 constituted hearsay and therefore, in order
to consider it, the district court was required to make a finding
about its reliability. During the sentencing hearing, however, Ca-
nario‑Vilomar acknowledged the DEA 7 as “a reliable document.”
Thus, any error on this point was invited by Canario‑Vilomar and
does not warrant reversal. See United States v. Stone, 139 F.3d 822,
838 (11th Cir. 1998) (“The doctrine of invited error is implicated
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8 Opinion of the Court 22-12075
when a party induces or invites the district court into making an
error.”); Ford ex rel. Est. of Ford v. Garcia, 289 F.3d 1283, 1294
(11th Cir. 2002) (“Where invited error exists, it precludes a court
from ‘invoking the plain error rule and reversing.’” (quoting United
States v. Davis, 443 F.2d 560, 564–65 (5th Cir. 1971))).
Next, Canario‑Vilomar argues that the amount offered by
the government, 561.7 kilograms, was the gross weight of all the
containers—meaning it “include[d] the weight of the boxes, pallets,
and packing.” But given that this gross weight greatly exceeds 450
kilograms, and considering the inventory included in the DEA 7
report and the rest of the evidence in the record, we do not find
that the district court clearly erred by concluding that Canario‑Vi-
lomar was responsible for at least 450 kilograms of cocaine.
Finally, although the proffer recognizes that the govern-
ment recovered ten bales from the jettison field, Canario‑Vilomar
insists that the proffer does not connect him to those bales in any
way and therefore he cannot be held responsible for the cocaine
contained in those bales. This argument is unavailing. Given the
factual details and circumstances described in the proffer, along
with the rest of the evidence, the district court did not clearly err
by including the ten bales recovered from the jettison field in its
drug quantity determination.
C. Minor Role Adjustment
The Sentencing Guidelines provide that a defendant is enti-
tled to a two‑level decrease in his offense level if he was a minor
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22-12075 Opinion of the Court 9
participant in any criminal activity. U.S.S.G. § 3B1.2(b). A minor
participant is one who is substantially less culpable than the aver-
age participant in the criminal activity and less culpable than most
other participants in the criminal activity. U.S.S.G. § 3B1.2, com-
ment. (n.3(A), 5). Thus, as we recognized in United States v. De
Varon, 175 F.3d 930, 940 (11th Cir. 1999) (en banc), two principles
guide the determination of whether a defendant constitutes a mi-
nor participant: (1) the defendant’s role in the relevant conduct and
(2) the defendant’s role compared to that of the other participants.
Furthermore, “[i]n 2015, the Sentencing Commission
amended § 3B1.2’s commentary to provide additional guidance re-
garding the minor role reduction.” United States v. Presendieu,
880 F.3d 1228, 1249 (11th Cir. 2018). According to that amend-
ment, district courts should also consider (1) “the degree to which
the defendant understood the scope and structure of the criminal
activity”; (2) “the degree to which the defendant participated in
planning or organizing the criminal activity”; (3) “the degree to
which the defendant exercised decision-making authority or influ-
enced the exercise of decision-making authority”; (4) “the nature
and extent of the defendant’s participation in the commission of
the criminal activity, including the acts the defendant performed
and the responsibility and discretion the defendant had in perform-
ing those acts”; and (5) “the degree to which the defendant stood
to benefit from the criminal activity.” U.S.S.G. § 3B1.2, comment.
(n.3(C)).
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As these authorities indicate, the determination of whether
a defendant is entitled to this reduction is a “fact‑intensive inquiry”
based on the totality of the circumstances. See De Varon, 175 F.3d
at 940–46. And “[t]he defendant bears the burden of establishing
his minor role in the offense by a preponderance of the evidence.”
Cruickshank, 837 F.3d at 1192.
In this case, Canario‑Vilomar sought a minor role adjust-
ment on the grounds that he (1) came from a poor family; (2) was
not the master of the Vessel; (3) was not the “intellectual author”
of the criminal offense; (4) was not going to receive “a greater por-
tion of the proceeds”; (5) had no prior association with any of the
individuals who provided the cocaine; and (6) was brought into the
situation “by a father and a brother who had done this before.” The
district court denied Canario‑Vilomar’s request, and Canario‑Vi-
lomar now claims that this denial constituted clear error. We dis-
agree. The district court recognized that Canario‑Vilomar was less
culpable than “the major transporters and owners of the [cocaine],”
but noted and underscored that Canario‑Vilomar presented no ev-
idence that meaningfully distinguished the role he played in the
charged offense from the roles played by the other two individuals
aboard the Vessel. Given the absence of such evidence, the district
court did not clearly err by concluding that Canario‑Vilomar failed
to meet the burden of establishing his minor role in the criminal
activity.
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IV. CONCLUSION
For these reasons, we affirm Canario‑Vilomar’s sentence of
110 months’ imprisonment.
AFFIRMED.