United States v. Liver Gruezo

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11342
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIVER GRUEZO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20327-KMM-3
____________________
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Before NEWSOM, GRANT, and HULL, Circuit Judges.
PER CURIAM:
Defendant Liver Gruezo appeals his convictions and
135-month sentence for (1) conspiracy to possess with intent to
distribute five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation of 46
U.S.C. §§ 70503(a)(1) and 70506(b) (Count 1) and (2) possession
with intent to distribute five kilograms or more of cocaine while
on board a vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a) (Count 2).
On appeal, Gruezo argues that (1) the district court did not
have jurisdiction under the Maritime Drug Law Enforcement Act
(“MDLEA”), (2) the MDLEA is unconstitutional, and (3) the district
court erred when it did not apply the minor-role reduction to
decrease his offense level by two levels. After careful review of the
record and the parties’ briefs, we affirm Gruezo’s convictions and
sentence.
I. BACKGROUND
On June 2, 2021, a federal grand jury charged Gruezo and
two codefendants—Wilmar Estupinan Padilla and Yiminson
Caicedo Vallecilla—with the drug crimes in Counts 1 and 2.
Initially, Gruezo pled not guilty.
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A. Motion to Dismiss
On November 3, 2021, Gruezo moved to dismiss the
indictment for lack of jurisdiction under the MDLEA. Gruezo’s
motion asserted that the Coast Guard failed to make all the
necessary inquiries about the vessel’s nationality, as required by the
MDLEA. Gruezo requested an evidentiary hearing and proffered
that, if granted an evidentiary hearing, he would testify to material
facts demonstrating that the district court did not have jurisdiction.
On December 8, 2021, a magistrate judge held an
evidentiary hearing on Gruezo’s motion to dismiss. At that
hearing, the government called U.S. Coast Guard Petty Officer
Diego Rivera, who testified to the following events.
On May 5, 2021, Rivera’s team intercepted a vessel. Gruezo,
Estupinan, and Caicedo were all onboard the vessel. The team
noticed that the vessel did not have (1) markings indicating its
country of origin, (2) registration documents, (3) a country’s flag,
or (4) any other indicia of nationality.
Rivera, who spoke Spanish, acted as an interpreter. Rivera
asked right-of-visit questions to determine the vessel’s nationality.
As Rivera did so, another officer transcribed the responses in a
document called a Victor Report. Rivera testified that the purpose
of a Victor Report is to determine the nationality of a vessel and to
establish jurisdiction. The Victor Report here stated there were no
registration documents on the vessel and no registration number
on the vessel’s hull.
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During Rivera’s questioning, Estupinan stated that he was
the master of the vessel. Rivera asked Estupinan if he claimed a
nationality for the vessel, and Estupinan responded “no.” Rivera
then asked whether the vessel had a nationality, and Estupinan
responded “no.” Both Gruezo and Caicedo remained silent during
Rivera’s questioning and did not interject at any point to claim
nationality of the vessel.
Rivera’s team reported the information to the Coast Guard
Command Center, which directed them to treat the boat as
without nationality and indicated that the team had the authority
to conduct law enforcement boarding.
On cross-examination, Rivera testified that his team wrote
another report that day called the Alpha Report. Rivera explained
that the purpose of the Alpha Report was broader and typically
described “the whole construction of the vessel, where we’re at,
[and] what we are observing.” The Alpha Report here listed the
nationality of the vessel as Colombian. Rivera testified that this
was inaccurate and likely caused by a transcription error or an
“honest mistake.” Rivera explained that (1) the team’s original
reports, which were written with a grease pen on the vessel, were
later rewritten to improve legibility, and (2) the version of the
Alpha Report introduced by the defense was the rewritten version,
as evidenced by the fact it was not written in grease pen.
Following the evidentiary hearing, the magistrate judge
issued a report recommending that the district court deny Gruezo’s
motion to dismiss (“R&R”). First, the magistrate judge found that
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Estupinan had not made a claim of Colombian nationality for the
vessel. The magistrate judge explained that (1) although Rivera’s
testimony conflicted with the Alpha Report, that Report was
created under unclear circumstances and (2) the magistrate judge
“afford[ed] little weight to the Alpha Report, recognizing its
potential for impeachment, but credit[ed] . . . Rivera’s testimony.”
Second, the magistrate judge found that (1) under
§ 70502(d)(1)(B), an officer is required to ask about either
nationality or registry of the vessel, and (2) Rivera had provided
credible testimony that when he asked the vessel’s master whether
he claimed nationality for it, Estupinan replied “no.” The
magistrate judge concluded that the vessel was appropriately
deemed stateless and was subject to the jurisdiction of the United
States.
Gruezo objected to the R&R. The district court overruled
Gruezo’s objections, adopted the R&R, and denied Gruezo’s
motion to dismiss.
B. Guilty Plea
On January 26, 2022, Gruezo pled guilty to both counts in
the indictment, without the benefit of a written plea agreement.
Gruezo signed a factual proffer recounting the following specific
events that he stipulated the government could prove beyond a
reasonable doubt.
On May 5, 2021, while on patrol in the eastern Pacific Ocean,
a U.S. Marine Patrol Aircraft detected a low-profile vessel north of
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Darwin Island, Ecuador, in international waters. Coast Guard
officers intercepted the vessel and observed (1) no vessel name,
(2) no registration number, (3) no markings on the vessel, and
(4) no other indicia of nationality.
Once on board, the officers asked the master of the vessel
whether he claimed a nationality for it, and the master of the vessel
did not do so. “Based on the master’s failure to make a claim of
nationality, the Coast Guard authorized the treatment of the vessel
as one without nationality and conducted a full law enforcement
boarding.”
In doing so, the officers opened a hatch in the vessel and
observed packages consistent with contraband. After removing the
packages, officers conducted a field test of the packages’ contents
for narcotics. The test returned positive for cocaine, weighing
approximately 1,390 kilograms, which the defendants were
knowingly transporting. Gruezo conspired with Estupinan and
Caicedo, as well as people in Colombia, to possess with intent to
distribute five kilograms or more of cocaine while on board a vessel
that was without nationality in international waters.
The magistrate judge presided over Gruezo’s change of plea
hearing and recommended that the district court accept Gruezo’s
guilty plea. Gruezo did not object to this recommendation, and
the district court adopted it and accepted Gruezo’s guilty plea.
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C. Presentence Investigation Report (“PSR”) and Gruezo’s
Objections
The probation officer prepared a PSR, which described the
offense conduct consistent with the factual proffer. The PSR also
provided information from interviews of Estupinan, Caicedo, and
Gruezo.
The PSR recommended an adjusted offense level of 33,
consisting of (1) a base offense level of 38, (2) a two-level reduction
under U.S.S.G. § 2D1.1(b)(18) because Gruezo met the criteria set
forth in U.S.S.G. § 5C1.2(a)(1)–(5), and (3) a three-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b).
With no criminal history points, Gruezo’s criminal history
category was I. Gruezo’s advisory guidelines range was 135 to 168
months’ imprisonment. As to both counts, Gruezo’s statutory
minimum term of imprisonment was 10 years and his statutory
maximum was life imprisonment. See 46 U.S.C. § 70506(a); 21
U.S.C. § 960(b)(1)(B)(ii).
Gruezo objected to the PSR and moved for a downward
variance. In his objections, Gruezo argued that he should receive
a two-level reduction because he was a minor participant in the
criminal activity. Gruezo emphasized that the PSR had identified
several uncharged individuals who were directly involved in the
commission of the drug scheme. Gruezo contended that those
individuals, as well as Estupinan, played a much larger role in the
planning and execution of the scheme than he had. Gruezo argued
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that he had merely served as a crewman on the drug boat and was
involved in the scheme only for a brief period. In his motion for a
downward variance, Gruezo requested a total sentence of
“around” 70 months.
D. Gruezo’s Sentencing
At sentencing, Gruezo reiterated his objection, emphasizing
the roles of the other individuals involved and how his conduct, in
comparison, was lesser and thus warranted a minor-role reduction.
Citing United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en
banc), the district court explained that a minor-role reduction was
not appropriate:
[Gruezo] is being charged in an indictment
involving himself and two others. He is not being
charged with some larger conspiracy, so he’s only
being charged in connection with his conduct and his
relationship to the two other individuals that are
involved in that conspiracy, and not some larger
conspiracy.
So I believe pursuant to United States vs. De
Varon, that the probation officer has correctly
calculated the guidelines, and the Court will deny the
motion for an adjustment for either a minor or a
minimal role in the offense. Okay?
The district court sentenced Gruezo to 135 months’
imprisonment as to each count, to be served concurrently,
followed by two years of supervised release. Gruezo renewed all
his objections, written and oral.
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Gruezo timely appealed.
II. JURISDICTION
On appeal, Gruezo argues that the district court did not have
jurisdiction under the MDLEA. First, we provide an overview of
MDLEA jurisdiction and our standard of review. Second, we
explain why jurisdiction exists and Gruezo’s arguments fail.
A. MDLEA Jurisdiction
The MDLEA makes it a crime to possess with intent
distribute a controlled substance or conspire to do so “[w]hile on
board a covered vessel.” 46 U.S.C. § 70503(a). A vessel is covered
by the MDLEA if it is “subject to the jurisdiction of the United
States.” Id. § 70503(e)(1). As relevant here, a vessel is “subject to
the jurisdiction of the United States” if it is “a vessel without
nationality.” Id. § 70502(c)(1)(A).
Under the MDLEA, one definition of “a vessel without
nationality” is “a vessel aboard which the master or individual in
charge fails, on request of an officer of the United States authorized
to enforce applicable provisions of United States law, to make a
claim of nationality or registry for that vessel.” Id. § 70502(d)(1)(B).
The government bears the burden of establishing that the
statutory requirements of MDLEA jurisdiction are met. United
States v. Cabezas-Montano, 949 F.3d 567, 588 (11th Cir. 2020).
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B. Standard of Review
We review de novo a district court’s subject matter
jurisdiction even when it is raised for the first time on appeal.
United States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir. 2016); see
also Cabezas-Montano, 949 F.3d at 587 (explaining that “the
MDLEA’s jurisdictional requirement goes to the subject-matter
jurisdiction of the courts”). We review for clear error the district
court’s factual findings relevant to jurisdiction. Iguaran, 821 F.3d
at 1336. While parties may not stipulate to jurisdiction, they may
“stipulate to facts that bear on [this Court’s] jurisdictional inquiry.”
Id. at 1337 (emphasis and quotation marks omitted). “A court’s
task is to determine whether the stipulated facts give rise to
jurisdiction.” Id. (quotation marks omitted).
C. The District Court Had Jurisdiction under the MDLEA
Here, Gruezo stipulated that the vessel had “no indicia of
nationality visible” and that when the master of the vessel was
asked “do you claim a nationality for the vessel and does this vessel
have a nationality,” the master “made no claim of nationality for
the [vessel].” (Quotation marks omitted.) That alone is sufficient
for this Court to affirm the determination that the vessel was
subject to the jurisdiction of the United States. 46 U.S.C.
§ 70502(c)(1)(A), (d)(1)(B).
In any event, we address Gruezo’s three arguments about
jurisdiction, all of which are unpersuasive.
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First, Gruezo argues that the magistrate judge erred when it
relied on his and Caicedo’s silence as evidence that the vessel lacked
nationality. That argument evinces a misunderstanding of the
magistrate judge’s R&R. In its “evidence presented” section, the
magistrate judge wrote: “[Gruezo] and Caicedo were also present
during the questioning and did not say anything nor did they
dispute Estupinan’s claim that the vessel did not have nationality.”
In its analysis, however, the magistrate judge did not mention, rely
on, or assign weight to Gruezo’s and Caicedo’s silence in finding
that the vessel was one without nationality. Instead, the magistrate
judge focused entirely on Estupinan’s actions, and the discrepancy
between the Alpha Report and the Victor Report. Accordingly, the
magistrate judge did not err in this respect.
Second, Gruezo argues that Rivera could not resolve the
conflicts between the Alpha Report and the Victor Report because
his testimony was “rambling and rife with uncertainties.” But the
district court found that Rivera’s testimony was credible, and this
Court “accord[s] great deference to a district court’s credibility
determinations.” United States v. Cavallo, 790 F.3d 1202, 1227
(11th Cir. 2015). “[W]e will not reverse a district court’s factual
finding concerning credibility unless the finding is contrary to the
laws of nature, or is so inconsistent or improbable on its face that
no reasonable factfinder could accept it.” Id. (quotation marks
omitted). Rivera gave a reasonable explanation for the discrepancy
between the two Reports, and his testimony was not so improbable
that no reasonable factfinder could credit and accept it.
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Third, Gruezo argues that the magistrate judge erred in
concluding that § 70502(d)(1)(B) did not require the Coast Guard
to ask the master to make a claim of both nationality and registry
for the vessel. We are unpersuaded.
The plain text of § 70502(d)(1)(B) uses the word “or” to
connect “nationality” and “registry,” 46 U.S.C. § 70502(d)(1)(B),
and “or” is “almost always disjunctive,” United States v. Woods,
571 U.S. 31, 45, 134 S. Ct. 557, 567 (2013). Of course, “statutory
context can overcome the ordinary, disjunctive meaning of ‘or.’”
Encino Motorcars, LLC v. Navarro, --- U.S. ----, 138 S. Ct. 1134,
1141 (2018). But, here, context favors the ordinary disjunctive
meaning of “or.”
To begin with, the MDLEA treats the terms “nationality”
and “registry” as interchangeable throughout § 70502. For
example, § 70502(e) jointly defines “[a] claim of nationality or
registry” to “include[] only”:
(1) possession on board the vessel and production of
documents evidencing the vessel’s nationality as
provided in article 5 of the 1958 Convention on
the High Seas;
(2) flying its nation’s ensign or flag; or
(3) a verbal claim of nationality or registry by the
master or individual in charge of the vessel.
46 U.S.C. § 70502(e). The interchangeability and equivalency of
these two terms in the MDLEA is further evidenced by
§ 70502(d)(1)(C), where the rejection of a master’s claim of registry
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is premised on the named country’s failure to confirm nationality.
See id. § 70502(d)(1)(C).
In addition, this Court previously has read the terms to be
disjunctive. In Iguaran, for example, this Court noted that “the
term vessel without nationality includes a vessel aboard which the
master or individual in charge fails, on request of an officer of the
United States authorized to enforce applicable provisions of United
States law, to make a claim of nationality or registry for that
vessel.” 821 F.3d at 1337 (emphasis added) (quotation marks
omitted). Immediately after setting forth that definition, this Court
explained that, under that definition, if the defendants “failed, on
request of the United States officials who apprehended them, to
make a claim of nationality, their vessel was without nationality
and subject to the jurisdiction of the United States.” Id. (emphases
added) (quotation marks omitted). In other words, the master’s
failure to claim nationality was sufficient for the vessel to be subject
to the jurisdiction of the United States under the MDLEA.
Accordingly, Estupinan’s failure to claim nationality when
asked by the Coast Guard is sufficient to show the vessel was
without nationality and subject to the jurisdiction of the United
States. 46 U.S.C. § 70502(d)(1)(B).
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III. CONSTITUTIONALITY OF THE MDLEA
Next, Gruezo argues the MDLEA is unconstitutional for
three reasons: (1) it is overly vague; (2) it violates his Miranda1
rights because it does not require law enforcement to inform the
master of the vessel of the consequences of failing to make a claim
of nationality or registry; and (3) due process prohibits the
prosecution of foreign nationals who (i) do not have “minimum
contacts” with the United States and (ii) committed offenses that
do not have a “nexus” to the United States.
We review de novo the constitutionality of a criminal
statute. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).
A. Vagueness
Gruezo argues that the MDLEA is overly vague and
ambiguous because it does not require the Coast Guard to explain
what it means to “make a claim of nationality or registry for the
vessel.”
This challenge is unpersuasive, as the text of § 70502(d)(1)(B)
is sufficiently clear to give ordinary people notice that, without a
claim of nationality or registry for the vessel upon request, the
vessel will be considered stateless for purposes of jurisdiction under
the MDLEA. 46 U.S.C. § 70502(d)(1)(B).
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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In addition, this Court repeatedly has rejected constitutional
vagueness challenges to the jurisdictional provisions in the
MDLEA’s predecessors. See, e.g., United States v. Mena, 863 F.2d
1522, 1527 (11th Cir. 1989) (rejecting a vagueness challenge to a
jurisdictional provision of the MDLEA’s predecessor statute
because “[t]hose embarking on voyages with holds laden with illicit
narcotics, conduct which is contrary to the laws of all reasonably
developed legal systems, do so with the awareness of the risk that
their government may consent to enforcement of the United
States’ laws against the vessel” (quotation marks omitted)); United
States v. Marino-Garcia, 679 F.2d 1373, 1384 (11th Cir. 1982)
(rejecting a vagueness challenge to a jurisdictional provision of the
MDLEA’s predecessor statute and explaining that even though the
phrase “vessel without nationality” was undefined in the statute, it
“obviously encompasse[d] vessels not operating under the flag and
authority of any sovereign nation”).
B. Miranda
Gruezo contends that the MDLEA violates his Miranda
rights because it does not require law enforcement to inform the
master of the vessel of the consequences of failing to make a claim
of nationality or registry.
To the extent Gruezo asserts that § 70502(d)(1)(B) is
unconstitutional as applied to the facts of his case, his claim is
waived by his guilty plea. See United States v. Castillo, 899 F.3d
1208, 1214 (11th Cir. 2018) (“A valid guilty plea renders irrelevant—
and thereby prevents a defendant from appealing—the
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constitutionality of case-related government conduct that takes
place before the plea is entered.” (cleaned up)).
To the extent Gruezo asserts that § 70502(d)(1)(B) is facially
unconstitutional, our prior precedent forecloses his facial
challenge. “This [C]ircuit has long recognized that the Coast
Guard’s routine stop, boarding[,] and inspection of an American
vessel on the high seas does not normally rise to the level of
custodial detention thus requiring Miranda warnings.” United
States v. Rioseco, 845 F.2d 299, 302–03 (11th Cir. 1988). This Court
in Rioseco, for example, concluded that the defendant was not in
custody for Miranda purposes when five Coast Guard officers,
having probable cause, boarded the vessel and ordered the crew
members to remain in a particular area of the vessel. Id. at 303. It
determined that an ordinary man would not believe that he was in
custody because (1) the officers did not tell the defendant he was in
custody or under arrest and (2) the officers’ conduct “was simply
routine procedure in a usual boarding action.” Id.C. Due Process Clause
Gruezo also challenges the constitutionality of the MDLEA
under the Due Process Clause. “The Due Process Clause prohibits
the exercise of extraterritorial jurisdiction over a defendant when
it would be arbitrary or fundamentally unfair.” United States v.
Baston, 818 F.3d 651, 669 (11th Cir. 2016) (quotation marks
omitted). A defendant challenging the facial validity of a statute
must show that “no set of circumstances exists under which the
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[statute] would be valid.” United States v. Salerno, 481 U.S. 739,
745, 107 S. Ct. 2095, 2100 (1987).
Congress enacted the MDLEA to define and punish felonies
committed on the high seas. United States v. Campbell, 743 F.3d
802, 805 (11th Cir. 2014). This Court in Campbell held that “the
conduct proscribed by the [MDLEA] need not have a nexus to the
United States because universal and protective principles support
its extraterritorial reach.” Id. at 810. We explained that, given that
trafficking drugs is “condemned universally by law-abiding
nations,” it is not “fundamentally unfair” to punish those who
traffic drugs on the high seas. Id. (quotation marks omitted). We
further determined that the prosecution of a foreign national for
“drug trafficking aboard [a] stateless vessel[] on the high seas” is not
prohibited by the Due Process Clause, as the MDLEA “provides
clear notice that all nations prohibit” such conduct. Id. at 812; see
also Cabezas-Montano, 949 F.3d at 587 (“[T]his Court has held that
the Fifth Amendment’s Due Process Clause 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.”).
Here, Gruezo fails to show that the absence of a “minimum
contacts” or “nexus” requirement in the MDLEA violates the Due
Process Clause. He points to no precedent from this Court or the
Supreme Court applying the “minimum contacts” standard to the
MDLEA, and his “nexus” argument is foreclosed by our precedent.
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Therefore, Gruezo’s MDLEA convictions do not violate the Due
Process Clause.
IV. MINOR-ROLE REDUCTION
Lastly, Gruezo argues that the district court erred by
declining to reduce his offense level by two levels under U.S.S.G.
§ 3B1.2 because he was only a minor participant in the criminal
activity.
We review for clear error a district court’s determination of
a defendant’s role. De Varon, 175 F.3d at 937. The district court
has “considerable discretion in making this fact-intensive
determination.” United States v. Boyd, 291 F.3d 1274, 1277–78
(11th Cir. 2002). As long as the district “court’s decision is
supported by the record and does not involve a misapplication of
the law,” the “choice between two permissible views of the
evidence as to the defendant’s role in the offense will rarely
constitute clear error.” United States v. Cruickshank, 837 F.3d
1182, 1192 (11th Cir. 2016) (quotation marks omitted).
Section 3B1.2 of the Sentencing Guidelines directs the
sentencing court to decrease a defendant’s offense level by two
levels “[i]f the defendant was a minor participant in any criminal
activity.” U.S.S.G. § 3B1.2. 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. cmt. 5. The
defendant “bears the burden of proving a mitigation role in the
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offense by a preponderance of the evidence.” De Varon, 175 F.3d
at 939.
Here, Gruezo argues that he was entitled to a minor-role
reduction because Estupinan and several uncharged individuals
were directly involved in the planning and execution of the drug
scheme, while he worked only as a crewman for a brief period.
Gruezo criticizes the district court for (1) focusing on a
hypothetical “sub-conspiracy” that included only the crew
members of the vessel and (2) never acknowledging the existence
of other participants in the conspiracy.
Gruezo’s argument is directly foreclosed by our binding
precedent. In De Varon, we “unambiguously held that a
defendant’s role in the offense may not be determined on the basis
of criminal conduct for which the defendant was not held
accountable at sentencing.” 175 F.3d at 941. Gruezo was charged
in an indictment that involved two other people and did not
involve some larger, unspecified conspiracy. United States v.
Martin, 803 F.3d 581, 591 (11th Cir. 2015) (“Only those participants
who were involved in the relevant conduct attributed to the
defendant may be considered.” (quotation marks omitted)).
Gruezo may not prove he is entitled to a minor-role reduction by
pointing to a broader criminal scheme in which he was a minor
participant but for which he was not charged.
Further, as to Estupinan, Gruezo has not shown that the
district court clearly erred in denying him a minor-role reduction.
Gruezo’s involvement—as a crewmember of a vessel that was
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smuggling a large quantity of drugs—was still serious and
important enough to warrant the denial of a minor-role reduction
under § 3B1.2. Gruezo knowingly participated in the illegal
transportation of a large quantity of cocaine, he and his
transportation role were important to that scheme, and he was
held accountable for that conduct only. Cabezas-Montano, 949
F.3d at 607 (considering these same factors in affirming the denial
of a minor-role reduction); see also United States v. Valois, 915 F.3d
717, 732 (11th Cir. 2019) (same).
We conclude that the district court did not err, clearly or
otherwise, in finding that Gruezo did not qualify for a minor-role
reduction.
V. CONCLUSION
For all these reasons, we affirm Gruezo’s convictions and
sentence.
AFFIRMED.