USA v. Gaspar Isaul Huerta Estrada, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10778
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GASPAR ISAUL HUERTA ESTRADA,
CARLOS ANTONIO DURAN HERNANDEZ,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20123-RS-1
____________________
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2 Opinion of the Court 20-10778
Before WILSON, ROSENBAUM , and BLACK , Circuit Judges.
PER CURIAM:
Gaspar Isaul Huerta Estrada and Carlos Antonio Duran
Hernandez challenge their convictions for conspiracy and posses-
sion with intent to distribute more than five kilograms of cocaine
on a vessel subject to the jurisdiction of the United States, in vio-
lation of the Maritime Drug Law Enforcement Act (MDLEA), 46
U.S.C. §§ 70503(a)(1) and 70506(a), 21 U.S.C. § 960(b)(1)(B)(ii), 18
U.S.C. § 2. Hernandez also appeals his sentence, contending the
district court erred in denying a mitigating role adjustment. After
review,1 we affirm the convictions of Estrada and Hernandez and
Hernandez’s sentence.
I. CONVICTIONS
Estrada and Hernandez argue the court did not have
MDLEA jurisdiction because the Coast Guard officers that board-
ed their vessel never asked them to identify the individual in
1 We review a district court’s exercise of jurisdiction under the MDLEA
de
novo and its factual findings for clear error.
United States v. Cabezas-
Montano, 949 F.3d 567, 588 n.13 (11th Cir.),
cert. denied, 141 S. Ct. 162
(2020). As to the sentencing, we review factual findings of the district court
for clear error and the court’s interpretation and application of the Sentenc-
ing Guidelines to the facts
de novo.
United States v. Cubero, 754 F.3d 888,
892 (11th Cir. 2014). A district court’s determination of a defendant’s role in
the offense is a finding of fact reviewed only for clear error.
United States v.
De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (
en banc).
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20-10778 Opinion of the Court 3
charge of the vessel. They also assert they did not understand the
Coast Guard’s questioning because the boarding officers were not
certified Spanish translators. Finally, they contend the Coast
Guard was required to contact Mexico given that Estrada was
identified and listed as the master in the Coast Guard’s report
prepared after the boarding.
Under the MDLEA, it is a crime for any person to possess
with intent to distribute a controlled substance while on a vessel
subject to the jurisdiction of the United States. 46 U.S.C.
§ 70503(a)(1), (e)(1). It provides that “[j]urisdiction of the United
States with respect to a vessel . . . is not an element of an offense,”
and “[j]urisdictional issues arising under this chapter are prelimi-
nary questions of law to be determined solely by the trial judge.”
Id. § 70504(a). “The government bears the burden of establishing
that the statutory requirements of MDLEA subject-matter juris-
diction are met.”
United States v. Cabezas-Montano, 949 F.3d
567, 588 (11th Cir.),
cert. denied, 141 S. Ct. 162 (2020).
A vessel without nationality is subject to the jurisdiction of
the United States. 46 U.S.C. § 70502(c)(1)(A). A vessel without
nationality includes “a vessel aboard which the master or individ-
ual in charge fails,” on request of a United States officer, to make
a claim of nationality for that vessel.
Id. § 70502(d)(1)(B).
In
Cabezas-Montano, we held that a vessel was subject to
the jurisdiction of the United States where the Coast Guard asked
the crew to identify the master of the vessel and, when no one
identified himself, asked if anyone wished to make a claim of na-
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4 Opinion of the Court 20-10778
tionality for the vessel. 949 F.3d at 589-90. This Court noted that
the questions were sufficient, even though the Coast Guard failed
to ask for the “individual in charge,” because that individual still
had an opportunity to make a claim of nationality for the vessel
when the Coast Guard asked if anyone wished to do so.
Id. at 589
n.14.
The district court did not err by finding the United States
had jurisdiction under the MDLEA over the smuggling vessel op-
erated by Estrada and Hernandez. While the boarding officers
may have failed to ask who the “individual in charge” was, their
failure to do so was not dispositive.
See 46 U.S.C.
§ 70502(d)(1)(B);
Cabezas-Montano, 949 F.3d at 589-90. The
boarding officers asked every crewmember, in both English and
Spanish, about the nationality of the smuggling vessel, in addition
to asking if any of them was its master. Their failure to respond
to the boarding officers’ affirmative request to identify the vessel’s
nationality established jurisdiction over the vessel.
See id. at 589-
90 & n.14 (“[T]he team’s questions were nevertheless sufficient
because they did ask all defendants if anyone wished to make a
claim of nationality for the vessel.”). That Estrada was later—
after the Coast Guard departed the vessel—listed as master in the
Coast Guard report has no bearing on the jurisdictional issue be-
cause he failed to claim nationality for the vessel when asked to
do so by the boarding officers.
See 46 U.S.C. § 70502(d)(1)(B);
Cabezas-Montano, 949 F.3d at 589-90.
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20-10778 Opinion of the Court 5
The district court did not err in finding it had MDLEA ju-
risdiction because Estrada, Hernandez, and the third crewmem-
ber accompanying them failed to make a claim of nationality for
the vessel when asked to do so by the Coast Guard.2 We there-
fore affirm Hernandez’s and Estrada’s convictions.
II. SENTENCE
Hernandez also challenges his sentence on the ground the
district court erred by failing to explain its denial of a mitigating
role adjustment. He argues he was entitled to that adjustment
because he did not know he was being recruited for a smuggling
operation until it was too late to back out, he was a poor fisher-
man who did not know about the scope and structure of the ac-
tivity, he was less culpable compared to another co-conspirator,
and he played a minimal or minor role in an otherwise larger con-
spiracy involving other people in South America.
A defendant’s offense level may be reduced by four levels if
he was a minimal participant in a criminal activity or by two lev-
2 Hernandez and Estrada’s argument they were unable to comprehend the
Coast Guard’s questioning was not raised before the district court and is
therefore deemed waived.
See Access Now, Inc. v. S.W. Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004) (stating we generally will not consider an
issue not raised in the district court and raised for the first time on appeal).
And even if they had presented the argument to the district court, they
abandoned it on appeal by raising it only in their reply briefs.
See United
States v. Thomas, 242 F.3d 1028, 1033 (11th Cir. 2001) (explaining we will
not consider issues raised for the first time in a reply brief).
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6 Opinion of the Court 20-10778
els if he was a minor participant in a criminal activity. U.S.S.G.
§ 3B1.2(a), (b). A minimal participant is “plainly among the least
culpable of those involved in the conduct of a group.”
Id., §
3B1.2, comment. (n.4). 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,
comment. (n.5).
In
De Varon, we instructed that, in determining whether to
grant a minor-role reduction, the district court should consider
two principles: first, the defendant’s role in the relevant conduct
for which he has been held accountable at sentencing and, sec-
ond, his role as compared to that of other identifiable or discerna-
ble participants in the relevant conduct.
United States v. De Va-
ron, 175 F.3d 930, 940 (11th Cir. 1999) (
en banc). That a defend-
ant’s role is less than that of the other participants in the relevant
conduct may not be dispositive because none of them may be
minor or minimal participants.
Id. at 944.
Similarly, a defendant’s status as a drug courier is not by it-
self “dispositive of whether a defendant is entitled to or precluded
from receiving a downward adjustment for role in the of-
fense.”
Id. at 942. The court still must assess the defendant’s role
considering the relevant conduct attributed to him.
Id. “There-
fore, when a drug courier’s relevant conduct is limited to [his]
own act of importation, a district court may legitimately conclude
that the courier played an important or essential role in the im-
portation of those drugs.”
Id. at 942-43. Other “relevant factual
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20-10778 Opinion of the Court 7
considerations include: amount of drugs, fair market value of
drugs, amount of money to be paid to the courier, equity interest
in the drugs, role in planning the criminal scheme, and role in the
distribution.”
Id. at 945.
The district court did not err in failing to further explain its
denial of a mitigation role reduction for Hernandez because its
conclusion is supported by the record.
See id. at 939 (“So long as
the district court’s decision is supported by the record and the
court clearly resolves any disputed factual issues, a simple state-
ment of the district court’s conclusion is sufficient.” (quotation
marks and emphasis omitted)). Hernandez did not establish that
he was entitled to a mitigating role adjustment because even if he
was a mere transporter in a broader conspiracy, the conduct of
individuals not charged in the relevant conduct or the scope of a
broader conspiracy is irrelevant in the mitigating role determina-
tion.
See id. at 940. The conspiracy Hernandez was charged with
included him, Estrada, and the other crewmember on the smug-
gling vessel. That Hernandez and Estrada might have discovered
the purpose of the voyage later than the other crewmember is not
dispositive because none of them may be minor participants.
See
id. at 944. Similarly, that Hernandez was merely a courier does
not entitle him to a mitigating role reduction.
See id. at 940, 942-
43. Because the record demonstrates that Hernandez was respon-
sible for smuggling the large quantity of drugs by operating the
vessel and that both he and Estrada jointly attempted to flee the
Coast Guard, Hernandez failed to establish by a preponderance of
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8 Opinion of the Court 20-10778
the evidence that he played a minimal or minor role compared to
the other two crewmembers.
See United States v. Cruickshank,
837 F.3d 1182, 1192 (11th Cir. 2016) (stating the defendant bears
the burden of establishing his lesser role in the offense by a pre-
ponderance of the evidence). We therefore affirm Hernandez’s
sentence.
AFFIRMED.
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