United States of America v. Joaquin Gonzalez Vicencio, a/k/a Joaquin Gonzalez Chairez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4724
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOAQUIN GONZALEZ VICENCIO, a/k/a Joaquin Gonzalez Chairez,
Defendant - Appellant.
No. 14-4746
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOAQUIN BERUMEN CORTES,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, Chief
District Judge; Michael F. Urbanski, District Judge. (5:13-cr-
00015-GEC-1; 5:13-cr-00015-GEC-2)
Argued: December 8, 2015 Decided: April 26, 2016
Before MOTZ, KING, and KEENAN, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
ARGUED: Michael Thayer Hemenway, THE LAW OFFICES OF MICHAEL T.
HEMENWAY, Charlottesville, Virginia; Russell Darren Bostic,
BOSTIC & BOSTIC, PC, Harrisonburg, Virginia, for Appellants.
Elizabeth G. Wright, OFFICE OF THE UNITED STATES ATTORNEY,
Harrisonburg, Virginia, for Appellee. ON BRIEF: Anthony P.
Giorno, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
The defendants, Joaquin Gonzalez Vicencio and Joaquin
Berumen Cortes, were convicted and sentenced in the Western
District of Virginia for conspiracy, manufacturing marijuana,
and using a hazardous substance on federal land while
manufacturing marijuana. Berumen Cortes was separately
convicted and sentenced for illegally reentering the United
States. Gonzalez Vicencio and Berumen Cortes maintain that the
district court committed error as to Count Three. Specifically,
they argue — for the first time on appeal — that the government
failed to prove, in connection with their hazardous substance
convictions, that they knew they were on federal land.
Additionally, Berumen Cortes challenges the district court’s
denial of sentencing relief under the safety valve provision of
18 U.S.C. § 3553(f). As explained below, we reject their
contentions and affirm.
I.
A.
On August 1, 2013, the federal grand jury in Harrisonburg,
Virginia, returned a four-count indictment against Gonzalez
Vicencio and Berumen Cortes. Count One charged them with
conspiracy to manufacture marijuana, in violation of 21 U.S.C.
§ 846. Count Two alleged a substantive marijuana manufacturing

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offense under 21 U.S.C. § 841(a)(1) and (b)(1)(A). Count Three
charged the two defendants with using a hazardous substance on
federal land while manufacturing marijuana and thereby causing
environmental damage, in contravention of 21 U.S.C. § 841(b)(6).
Finally, Count Four charged Berumen Cortes with illegally
reentering the United States, in violation of 8 U.S.C.
§ 1326(a).
B.
In December 2013, the district court conducted the three-
day jury trial of Gonzalez Vicencio and Berumen Cortes in
Harrisonburg. We recite the evidence in the light most
favorable to the government. See United States v. Perry, 757
F.3d 166, 175 (4th Cir. 2014).
1.
In June 2013, Agent Willis, an officer of the Virginia
State Police and supervisor of the Alleghany Highlands Drug Task
Force, responded to an informant’s report that “somebody had
been growing something” in the George Washington National Forest
in Highland County, Virginia (the “National Forest”). See J.A.
24.1 Willis met with the informant, and they walked together a
few hundred feet into the National Forest. As they crested a
1 Citations herein to “J.A. __” and “S.J.A. __” refer to the
contents of the Joint Appendix and Supplemental Joint Appendix
filed by the parties in these appeals.

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small hill, Willis saw a partially cleared area where a plot of
marijuana plants was growing. Although the informant advised
that there were other suspicious plots nearby, Willis decided
that they should withdraw from the area for safety reasons.
Upon leaving the National Forest, Agent Willis reported his
discovery of marijuana to state and federal law enforcement
authorities, including the United States Forest Service. A few
days later, on the morning of July 2, 2013, four officers —
Willis, Agent Mullins of the State Police, and Forest Service
Officers Fisher and Buchanan — went to the marijuana plot to
install surveillance cameras to gather intelligence. As Fisher
and Mullins were installing the cameras, Willis spotted a
strange-looking object up the hill from their location. After
examining the object through binoculars, Willis determined that
it was probably a tent or a tarp and decided to investigate
further.
Agent Willis and Officer Buchanan soon found a well-worn
path leading up the hill, which they followed from the marijuana
plot toward the object. In less than a minute, they arrived at
a campsite, which consisted of a tent covered by a tarp and
enclosed within a small corral, plus a kitchen area covered by a
second tarp. They also saw various gardening tools scattered
about. After announcing their identity and presence at the
campsite, Willis heard movements inside the tent. Willis

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advised the tent’s occupants — first in English and then in
Spanish — to come out and surrender with their hands up. In
response, Gonzalez Vicencio and Berumen Cortes emerged from the
tent and were arrested. Agent Mullins and Officer Fisher
promptly joined their colleagues at the campsite, having heard
Willis’s commands from down the hill. Willis and Buchanan left
the two suspects with Mullins and Fisher and quickly surveyed
the surrounding area for others, but found no one. The officers
then returned to their vehicles — with Gonzalez Vicencio and
Berumen Cortes in tow — and sought backup support to gather the
marijuana and other evidence.
Further investigation of the area near the campsite led to
the discovery of three additional marijuana plots, all within
the National Forest and connected to the campsite by walking
paths.2 The four plots were located on land cleared of natural
underbrush, and each plot consisted of hundreds of mounds of
store-bought topsoil where marijuana plants were growing. The
officers ultimately seized nearly 5,000 marijuana plants from
the four plots.
2 More specifically, in terms of geography, the marijuana
plots were located less than two miles east of the West
Virginia-Virginia line, in the watershed of the northern branch
of Scaffold Run. Formed on the eastern slope of the continental
divide, Scaffold Run flows east to Back Creek, the Jackson
River, and then to the James River and the Chesapeake Bay.

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The officers also found trash littered throughout the
campsite and marijuana plots, including candy wrappers, empty
topsoil bags, and plastic cups that had been used for marijuana
seedlings. One trash heap, located within a few feet of a
stream, contained several empty containers for fertilizer,
insecticide, pesticide, rat poison, and other animal repellants.
Some of the empty containers bore the marks of animal teeth.
Back at the campsite, the officers found and seized the
defendants’ cell phones, a notepad, and a day planner. Berumen
Cortes’s cell phone contained a photograph of himself at the
campsite, plus various photographs of the marijuana plots and
seedlings growing in plastic cups. The notepad, labeled with
Berumen Cortes’s name, documented prior work by the defendants
at the site and contained notations such as “we watered” and
“threw fertilizer.” See J.A. 474-75. One notation indicated
that Berumen Cortes had planted seeds on May 13 and 14, 2013.
The day planner, found in a plastic bag with Gonzalez Vicencio’s
cell phone, had dates crossed out from June 2 through July 1,
2013, and contained notations about work completed during that
thirty-day period, including spreading fertilizer, removing
seeds, and fumigating the plots.
2.
At trial, the government introduced the cell phone
photographs, Berumen Cortes’s notepad, and Gonzalez Vicencio’s

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day planner, as well as maps, photographs, and video footage
that detailed the locations of the marijuana plots, the
campsite, and the trash heap in the National Forest. The
various entries from Berumen Cortes’s notepad and Gonzalez
Vicencio’s day planner were translated from Spanish into English
and introduced into evidence.
The prosecutors also introduced the defendants’ separate
post-arrest statements, which they made during interviews
conducted by Forest Service officers with the assistance of a
Spanish-language interpreter. In their statements, Gonzalez
Vicencio and Berumen Cortes each admitted planting approximately
600 to 700 marijuana plants, watering the plants, and spreading
fertilizer on the marijuana plots. Both men acknowledged
knowing that growing marijuana was illegal. When asked who had
assisted them in the marijuana growing operations, Berumen
Cortes explained that he had agreed to tend to the marijuana
plots after meeting a man named “Jesus” earlier that year at a
bar in Harrisonburg. According to Berumen Cortes, he was to be
paid for his work by Jesus after harvesting the marijuana yield.
Gonzalez Vicencio also said that he worked for Jesus, whom he
had met two years earlier at a bar in North Carolina, and
likewise explained that he would receive payment at the
conclusion of his work. Finally, both Gonzalez Vicencio and

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Berumen Cortes drew maps of the area where they had been
apprehended, which showed the campsite and the marijuana plots.
The government’s evidence included two expert witnesses.
The first expert, a DEA special agent, explained that the
marijuana plants were four to six weeks old. The second expert,
an environmental conservation specialist, described how the
substances found in the trash heap degrade the National Forest’s
ecosystem. The conservation specialist explained that those
chemicals and pesticides posed significant hazards to wildlife.
Indeed, they kill insects and small animals and poison larger
organisms further up the food chain. Moreover, the gradual
leaching of those products into streams, according to the
expert, “would cause continual damage” to the environment. See
J.A. 382.
After the government rested, Gonzalez Vicencio and Berumen
Cortes sought judgments of acquittal under Rule 29 of the
Federal Rules of Criminal Procedure. With respect to Count
Three, they each contended that there was insufficient evidence
that they had used the hazardous substances found in the trash
heap near the campsite. Neither asserted, however, that there
was a lack of evidence that he knew the campsite and the
marijuana plots were on federal land. The prosecutors opposed
the Rule 29 motions, and the district court denied them.

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3.
Gonzalez Vicencio testified in his own defense. He
admitted having been at the campsite with Berumen Cortes, but
only for the week preceding their arrests. Regarding the
previous three months, Gonzalez Vicencio claimed he had been
living in White Post, Virginia, a town approximately 150 miles
from the marijuana plots. Indeed, he produced a traffic ticket
issued on April 15, 2013, in Manassas, Virginia. The ticket
bore his signature and a White Post address, and Gonzalez
Vicencio explained that he had responded to the ticket in court
in June 2013. Gonzalez Vicencio also said that Jesus had
offered him work, but had not explained what the work would be.
Jesus had driven Gonzalez Vicencio and Berumen Cortes to the
campsite and abandoned them without further instructions.
Gonzalez Vicencio asserted that he and Berumen Cortes did
nothing during the week they were at the campsite, and were
awaiting the return of Jesus when they were arrested.
Gonzalez Vicencio acknowledged that the officers had
interviewed him after his arrest, but said that he told them he
did not know how many plants were at the site. Only after an
officer “insisted” that Gonzalez Vicencio provide an estimate
did he state that “there would be about 650 to 700” marijuana
plants. See J.A. 395. Nevertheless, Gonzalez Vicencio denied
planting, watering, or fertilizing any of the plants, and said

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that he had never seen Berumen Cortes do anything with the
plants either. Gonzalez Vicencio explained that he drew the map
of the campsite area because one of the officers told him to do
so.
Berumen Cortes did not testify, and the defendants called
no other witnesses. Gonzalez Vicencio and Berumen Cortes then
renewed their Rule 29 motions for judgments of acquittal,
incorporating the arguments they raised at the close of the
government’s evidence. The district court denied the renewed
motions.
Following closing arguments by counsel, the district court
instructed the jury. As pertinent here, the prosecutors and
defense counsel had agreed to instructions on Count Three that
tracked the statutory language of 21 U.S.C. § 841(b)(6). As to
that count, the court instructed:
For you to find a defendant guilty of Count Three
. . . , you must be convinced that the government has
proven each of the following elements beyond a
reasonable doubt . . . :
First, that the defendant manufactured or
attempted to manufacture marijuana, a
controlled substance;
Second, that the defendant knowingly or
intentionally used a poison, chemical, or
other hazardous substance on federal land;
Third, that such use either (a) created a
serious hazard[] to humans, wildlife, or
domestic animals; or (b) degraded or harmed
the environment or natural resources; or (c)

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polluted an aquifer, spring, stream, river,
or body of water.
See S.J.A. 757. After briefly deliberating, the jury returned
verdicts convicting Gonzalez Vicencio and Berumen Cortes on
Count Three and all other charges in the indictment.
C.
On September 10, 2014, the district court sentenced
Gonzalez Vicencio and Berumen Cortes. Berumen Cortes’s
presentence report (“PSR”) initially calculated an advisory
range of 97 to 121 months in prison under the Sentencing
Guidelines, premised on a total offense level of 30 and a
criminal history category of I. Because Berumen Cortes’s
convictions on Count One and Count Two each carried 120-month
statutory minimum sentences, however, the PSR arrived at an
advisory Guidelines range of 120 to 121 months.
Berumen Cortes raised two objections to his PSR. First, he
objected to the PSR’s failure to afford him a reduction for
acceptance of responsibility, pursuant to Guidelines section
3E1.1. Second, he claimed eligibility for relief from the 120-
month statutory minimum under the safety valve provision of 18
U.S.C. § 3553(f), which permits a sentencing court to impose a
sentence within a Guidelines range below a statutory minimum
when the defendant has truthfully provided “to the government
all information and evidence [he] has concerning the offense or

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offenses that were part of the same course of conduct or of a
common scheme or plan,” i.e., a complete and truthful
disclosure. See 18 U.S.C. § 3553(f). The prosecutors opposed
both objections.
In opposing Berumen Cortes’s request for § 3553(f) relief,
the prosecutors explained that Berumen Cortes had not made the
required disclosure. Specifically, when the prosecutors met
with Berumen Cortes for a presentencing proffer session, the
“discussion went back and forth” on relatively simple questions
like where Berumen Cortes lived. See J.A. 562. After several
breaks in the questioning, Berumen Cortes’s counsel ended the
proffer session, and it was never rescheduled. The prosecutors
were thus unable to ask Berumen Cortes numerous questions about
various activities relating to the scheme and plan, including
the origin of the marijuana seeds, the day-to-day operations at
the marijuana plots, the details of how Jesus had recruited
Berumen Cortes, and how the defendants had obtained the food and
supplies found at the campsite. In response, Berumen Cortes’s
counsel acknowledged that the proffer session was fruitless,
explaining that Berumen Cortes had been “confused about some of
the questions.” See id. at 569. The lawyer maintained,
however, that Berumen Cortes “never denied or challenged that he
was involved with the marijuana.” See id. Moreover, Berumen
Cortes’s lawyer argued that Berumen Cortes had already disclosed

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everything he knew about the marijuana plots in his post-arrest
statement to the Forest Service officers and in an interview
with the probation officer. According to the lawyer, the
prosecutors were simply speculating that Berumen Cortes
possessed more information.
Ultimately, the district court sustained Berumen Cortes’s
objection to the PSR regarding his acceptance of responsibility,
but overruled his safety valve objection. In so ruling, the
court found that Berumen Cortes had not made the disclosure
required by § 3553(f), because he had not been entirely
forthcoming about his criminal activities. In light of the
acceptance of responsibility adjustment, Berumen Cortes’s
advisory Guidelines sentence was calculated as 120 months in
prison, and the court imposed that sentence.3
3 Berumen Cortes’s codefendant, Gonzalez Vicencio, was
sentenced to 134 months in prison. In the defendants’ joint
opening brief, Gonzalez Vicencio contended that the district
court erred in applying a two-level Guidelines adjustment for
obstruction of justice. During the pendency of this appeal,
however, the court reduced Gonzalez Vicencio’s sentence,
pursuant to 18 U.S.C. § 3582(c)(2), to the statutory minimum of
120 months. Gonzalez Vicencio now appropriately concedes that
any error in the court’s calculation of his advisory Guidelines
range was harmless, because “there is no legal basis in any
argument raised on direct appeal for this Court to approve a
sentence under the mandatory minimum.” See Reply Br. of
Appellants 12; see also United States v. McManus, 734 F.3d 315,
318 (4th Cir. 2013) (“Sentencing error is harmless if the
resulting sentence is not longer than that to which the
defendant would otherwise be subject.” (internal quotation marks
omitted)).

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Gonzalez Vicencio and Berumen Cortes timely noted these
appeals, which we consolidated. We possess jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).4
II.
A.
Gonzalez Vicencio and Berumen Cortes now contend — for the
first time on appeal — that 21 U.S.C. § 841(b)(6) requires the
government to prove that a defendant knows he is on federal land
when he uses a hazardous substance in violation of 21 U.S.C.
§ 841(a). Section 841(b)(6) provides:
Any person who violates [21 U.S.C. § 841(a)], or
attempts to do so, and knowingly or intentionally uses
a poison, chemical, or other hazardous substance on
Federal land, and, by such use
(A) creates a serious hazard to humans,
wildlife, or domestic animals,
(B) degrades or harms the environment or
natural resources, or
(C) pollutes an aquifer, spring, stream,
river, or body of water,
shall be [punished as provided by law].
4 Gonzalez Vicencio and Berumen Cortes have not appealed
their convictions on Counts One and Two — the conspiracy and
marijuana manufacturing offenses — nor does Berumen Cortes
contest his conviction on Count Four for illegally reentering
the United States.

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See 21 U.S.C. § 841(b)(6) (emphasis added). According to
Gonzalez Vicencio and Berumen Cortes, § 841(b)(6)’s mens rea
requirements extend beyond knowing or intentional use of a
hazardous substance to knowledge that such substance is being
used on federal land.
Gonzalez Vicencio and Berumen Cortes frame their contention
as one of evidence sufficiency, arguing that the prosecutors
failed to present any evidence from which the jury could find
that either of them knew he was on federal land when he used
hazardous substances to manufacture marijuana. Because that
argument was never presented to or addressed by the district
court, we cannot grant relief unless the plain error standard is
satisfied. See United States v. Olano, 507 U.S. 725, 732
(1993).5
To satisfy the Olano plain error standard, a defendant must
first show: “(1) that an error was made; (2) that the error was
plain; and (3) that the error affected his substantial rights.”
See United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.
2013). Even if those requirements are satisfied, we will
exercise our discretion to correct a plain error only when
necessary to prevent “a miscarriage of justice” or to ensure
5 Contrary to the defendants’ contention, the government
maintains that the issue they raise regarding § 841(b)(6) is one
of instructional error. However framed, the issue was never
presented to or addressed by the district court.

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“the fairness, integrity or public reputation of judicial
proceedings.” See Olano, 507 U.S. at 736 (internal quotation
marks omitted). We have recognized that the plain error
standard “is strictly circumscribed and meeting all four prongs
is difficult, as it should be.” See United States v. Byers, 649
F.3d 197, 213 (4th Cir. 2011) (internal quotation marks
omitted).
The stringent requirements of plain error review flow from
the fundamental principle that a right “may be forfeited in
criminal as well as civil cases by the failure to make timely
assertion of the right” in the trial court. See Olano, 507 U.S.
at 731 (internal quotation marks omitted). Our strict adherence
to the Olano standard “serves to induce the timely raising of
claims and objections, which gives the district court the
opportunity to consider and resolve them.” See Puckett v.
United States, 556 U.S. 129, 134 (2009). That inducement
engenders judicial efficiency, because the trial court is better
suited to address an issue in the first instance. In contrast,
a court of appeals sits as “a court of review, not of first
view.” Cf. Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326,
1335 (2013) (internal quotation marks omitted). As such, plain
error review discourages both mousetrapping and convenient
afterthoughts. That is, arguments and objections that are
strategically withheld until appeal, or identified only after

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the trial court has ruled, will not prevail unless the rigorous
plain error standard is satisfied.
Importantly, an unpreserved error will constitute plain
error “only if it contravenes the law of the Supreme Court or
this circuit.” See United States v. King, 628 F.3d 693, 700
(4th Cir. 2011) (internal quotation marks omitted). In that
regard, we have recognized that “when we have yet to speak
directly on a legal issue and other circuits are split, a
district court does not commit plain error by following the
reasoning of another circuit.” See United States v. Shepperson,
739 F.3d 176, 181 (4th Cir. 2014) (internal quotation marks
omitted). As a corollary to that principle, the requirements of
plain error review are more difficult to satisfy when the
unpreserved issue has not been addressed by a court of appeals.
In the context of these proceedings, we are content to
assume that an error occurred and that the first prong of Olano
has been satisfied. See, e.g., United States v. Godwin, 272
F.3d 659, 679 (4th Cir. 2001) (“Without belaboring the point, we
simply assume trial error and proceed with the Olano
analysis.”). Turning to Olano’s second prong, however, it is
apparent that Gonzalez Vicencio and Berumen Cortes have failed
to demonstrate that the assumed error is plain. Put succinctly,
the defendants have not referred us to any authorities — and
there are none — that delineate the mens rea requirements of

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§ 841(b)(6). We therefore conclude that Gonzalez Vicencio and
Berumen Cortes fail to satisfy the requirements of plain error
review.
B.
Finally, Berumen Cortes challenges the district court’s
denial of his request for relief under the safety valve
provision, 18 U.S.C. § 3553(f). Had the court granted safety
valve relief to Berumen Cortes, he would have been eligible for
a sentence below the 120-month statutory minimum. The
government counters that the court properly found that Berumen
Cortes had not made a complete and truthful disclosure to the
authorities. We review for clear error a sentencing court’s
decision to deny a defendant safety valve relief. See United
States v. Henry, 673 F.3d 285, 292 (4th Cir. 2012).
The safety valve provision authorizes a sentencing court to
afford a first-time offender relief from a mandatory minimum
sentence, if the defendant satisfies five requirements. The
defendant must shoulder the burden by showing that: (1) he has
no more than one criminal history point under the Guidelines;
(2) his offense did not involve violence or the possession of a
firearm; (3) the offense did not result in serious bodily injury
or death; (4) he did not play a leadership role in the offense;
and (5) “no later than the time of sentencing, [he] truthfully
provided the government with all evidence and information [he]

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had concerning the offense or offenses comprising the same
course of conduct or a common scheme or plan.” See Henry, 673
F.3d at 292-93.
As our good Chief Judge recently explained in United States
v. Aidoo, “[t]he defendant’s burden under the safety valve is a
true burden of proof that rests, at all times, on the
defendant.” See 670 F.3d 600, 607 (4th Cir. 2012). Section
3553(f) is thus a “tell-all provision,” and requires the
defendant to “persuade the district court that he has made full,
truthful disclosure of information required by the safety
valve.” See id. at 607, 609. Importantly, if the prosecutors
oppose a request for safety valve relief, the defendant must
present “some kind of evidence” that shows “he had provided the
government with complete and truthful disclosure.” See id. at
609. Here, the district court specifically found that Berumen
Cortes had not revealed to the government everything he knew
regarding his criminal activities. It thus denied safety valve
relief to Berumen Cortes under the fifth element of § 3553(f).
According to the court, Berumen Cortes had “failed miserably”
when given the opportunity “to be totally forthcoming and to
volunteer information relevant to the case.” See J.A. 582-83.
The record provides ample support for the district court’s
finding on the safety valve issue. For example, Berumen Cortes
maintained throughout the district court proceedings that he had

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been present at the campsite for only one week, but the evidence
was strong that Berumen Cortes had been there growing marijuana
much longer. Specifically, Berumen Cortes’s notepad showed that
he had planted seeds as early as May 13, 2013, nearly two months
before his arrest. In the face of the prosecutor’s opposition
to safety valve relief, Berumen Cortes failed to rebut the
contention that he had not been entirely forthcoming to the
government, let alone carry his burden to establish otherwise.
We are therefore satisfied that the court did not err in denying
Berumen Cortes’s request for relief under 18 U.S.C. § 3553(f).
III.
Pursuant to the foregoing, we reject the defendants’
contentions of error and affirm the judgments.
AFFIRMED

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