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United States v. Mosquera-Murillo

United States District Court, District of Columbia

November 30, 2018



          BERYL A. HOWELL Chief Judge

         On September 14, 2018, the D.C. Circuit's mandate issued remanding this case for resentencing of the three defendants, Alfredo Mosquera-Murillo (“Murillo”), Joaquin Chang-Rendon (“Rendon”), and Antonio Moreno-Membache (“Membache”), see Mandate, ECF No. 266, in accordance with that Court's holding that the defendants' convictions for violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503 and 70506(b), did not bar their eligibility for safety-valve relief, see United States v. Mosquera-Murillo, 902 F.3d 285, 292 (D.C. Cir. 2018). Specifically, the D.C. Circuit directed, on remand, that this Court “consider whether the defendants meet the five remaining safety-valve requirements.” Id. at 296.

         Shortly after issuance of the mandate, the parties were directed to confer and propose a resentencing date, Minute Order (Sept. 17, 2018), but instead the parties suggested that a status conference be held, with waiver of the defendants' presence, “to discuss how to proceed with the resentencing of the defendants, ” Parties' Joint Report on Resentencing Schedule at 1, ECF No. 268. At the requested status conference, the parties outlined issues they believed required resolution at the resentencing hearing and were directed again to confer and submit another joint report summarizing, inter alia, those issues requiring an evidentiary hearing, Minute Order (Oct. 29, 2018), which lengthy, 22-page report they timely submitted, Joint Status Report (“JSR”), ECF No. 271.

         The defendants raise a myriad of issues in the JSR as requiring resolution at a further hearing in a valiant effort to clean the slate of what has come before in this case, but the issue remanded for consideration at resentencing is “whether the defendants meet the five remaining safety-valve requirements.” Mosquera-Murillo, 902 F.3d at 296. If the defendants do not-and indisputably, no defendant currently satisfies all five safety-valve requirements-each defendant's sentence remains exactly the same: 120 months' imprisonment, the mandatory minimum sentence agreed to in their plea agreements, which were accepted by the Court, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), on each defendant's guilty plea to one count of conspiring to distribute, and possess with intent to distribute, at least 5 kilograms of cocaine and 100 kilograms of marijuana on board a vessel subject to the jurisdiction of the United States, in violation of the MDLEA, 46 U.S.C. §§ 70503, 70506(b) and 21 U.S.C. §§ 960(b)(1)(B), (b)(2)(G). See Plea Agreements ¶¶ 1, 6, ECF Nos. 185, 188, 191. If any defendant is safety-valve eligible, this Court must then determine the appropriate sentence to be imposed at or below 120-months' incarceration, upon consideration of the factors set out in 18 U.S.C. § 3553(a).

         Nevertheless, the defendants raised at the status conference and in the JSR several issues that have either already been resolved in this case or are extraneous to the single issue required by the mandate to be resolved at resentencing. That single issue is whether any defendant meets the five safety-valve requirements, listed in 18 U.S.C. § 3553(f) and incorporated verbatim into the U.S. Sentencing Guidelines, U.S.S.G. § 5C1.2(a). To re-focus the parties on this issue, which, in the case's current procedural posture, is the only means by which any defendant may obtain a different sentence than that already imposed, set out below are the legal and factual issues raised in the JSR that are either extraneous or already resolved, and the issues in the JSR appropriately to be addressed at the evidentiary hearing for purposes of resentencing.


         The JSR indicates that the defendants seek to relitigate factual determinations already conceded and/or irrelevant to determination of their safety-valve eligibility, including (1) the quantity of illegal narcotics recovered from the Mistby go-fast boat on June 19, 2012, see JSR at 2-3, 5 & n.3, 6-7, 9-10; but see Id. at 11 (Rendon concedes the Mistby quantity); and (2) the subsequent testing of those drugs by Drug Enforcement Administration chemists, id. at 5 n.3, 9- 10. Resolution of these issues falls outside the mandate of the D.C. Circuit and, thus, resolution is unnecessary for purposes of resentencing.

         A. Quantity of Narcotics Recovered from the Mistby Has Been Resolved

         Each defendant, in pleading guilty, stipulated to a Joint Statement of Facts (“SOF”) incorporated into his plea agreement, stating that “[t]he Government can prove beyond a reasonable doubt that: . . . United States law enforcement personnel . . . recovered over 220 kilograms of cocaine and 235 kilograms of marijuana that had been jettisoned into the water” from the Mistby. See Murillo Joint Statement of Facts (“Murillo SOF”) ¶ 4, ECF No. 186; Rendon Joint Statement of Facts (“Rendon SOF”) ¶ 5, ECF No. 189; Membache Joint Statement of Stipulated Facts (“Membache SOF”) ¶ 3, ECF No. 192; Plea Agreements ¶ 2. Indeed, at the end of each SOF, each defendant acknowledged “that this proffer of facts is true and accurate.” See Murillo SOF at 4; Rendon SOF at 4; Membache SOF at 4. By so acknowledging, each defendant conceded that the government “can prove” the amounts of illegal narcotics recovered from the Mistby beyond a reasonable doubt, thereby necessarily agreeing that those drug quantities could be proven under the lesser preponderance of the evidence standard applicable to a sentencing hearing. See United States v. Burnett, 827 F.3d 1108, 1120 (D.C. Cir. 2016) (“A district court makes findings of drug quantities under a preponderance of the evidence standard.”); United States v. Bell, 795 F.3d 88, 103-05 (D.C. Cir. 2015) (distinguishing between elements of a crime that must be found beyond a reasonable doubt and other facts that can be found by a sentencing judge relying on a preponderance of the evidence standard). Indeed, each defendant expressly agreed to “waive any right to have facts that determine his sentence under the guidelines alleged in the indictment or found by a jury beyond a reasonable doubt.” Plea Agreements ¶ 14.

         This plain reading of the plea agreements and SOFs is confirmed by examination of other SOF paragraphs that use different language than that used to describe the Mistby facts, which, again, the defendants agreed “[t]he Government can prove beyond a reasonable doubt.” Murillo SOF ¶ 4; Rendon SOF at ¶ 5; Membache SOF ¶ 3. By contrast, other paragraphs summarize factual matters that “[t]he Government contends that it can prove beyond a reasonable doubt, ” Murillo SOF ¶¶ 6, 7; Rendon SOF ¶¶ 6, 7; Membache SOF ¶¶ 5, 6 (emphasis added), and also emphasize the disputed nature of these facts with the caveat that the defendants contested the factual matter, compare, e.g., Murillo SOF ¶ 4, with Id. ¶ 6 (stating “Defendant disputes the foregoing statements in this paragraph” regarding factual assertion of seizure of 318 kilograms of cocaine from a stash house in Buenaventura, Colombia), with ¶ 7 (stating “Defendant contends that the total amount of cocaine involved in this conspiracy that was reasonably foreseeable to the Defendant was five (5) kilograms or more and that the total amount of marijuana involved in this conspiracy that was reasonably foreseeable to the Defendant was fifty (50) kilograms or more, ” in contrast to government's contentions); Rendon SOF ¶ 5, with id. ¶¶ 6, 7 (same); Membache SOF ¶ 3, with id. ¶¶ 5, 6 (same).

         Thus, the quantity of illegal controlled substances recovered from the Mistby is an issue already resolved and no further evidentiary hearing on this issue is necessary. Similarly, the additional issue referenced by Membache's counsel regarding the “Reliability of the Drug Tests, ” JSR at 9-10, of the substances recovered from the Mistby is irrelevant for purposes of resentencing.

         In any event, since each defendant agreed that the total amount of cocaine involved in the conspiracy reasonably foreseeable to him was “five (5) kilograms or more, ” Murillo SOF ¶ 7; Rendon SOF ¶ 7; Membache SOF ¶ 6, absent safety-valve eligibility, each is subject to the 120-month statutory mandatory minimum under the MDLEA, see 46 U.S.C. § 70506 (setting punishment for a first offense of id. § 70503 as provided in 21 U.S.C. § 960, which provides a mandatory minimum of 10 years for offenses involving 5 kilograms or more of cocaine), if they persist in their guilty pleas.[1]

         B. Government's Evidence Pertinent Only to Guideline Determinations Is Unnecessary

         The government indicates in the JSR an intent to present evidence relevant to a precise guideline determination for each defendant, including the applicability of various Specific Offense Characteristics under U.S.S.G. § 2D1.1. Specifically, the government intends to present evidence regarding: (1) other relevant conduct and associated drug quantities, including 318 kilograms of cocaine seized in March 2012 by Colombian National Police from a stash house in Buenaventura, Colombia, “as well as over 1350 seized kilograms of cocaine from other shipments that are part of the same course of conduct and/or common scheme or plan, ” JSR at 2- 3, 6-7, 11; see Murillo PSR ¶ 13; (2) each defendant's bribery of a law enforcement officer, JSR at 3, 7, 11; (3) Murillo's knowing distribution of a controlled substance to a minor under 18 years of age, id. at 4; (4) Murillo and Membache's involvement of a minor under 18 years of age in the instant offense, id. at 4, 7; and (5) Rendon's abuse of a position of trust, id. at 11. This proffered evidence may be critical to a guideline determination for each defendant but not for the focused purpose of resentencing in this case.

         At the prior sentencing hearing, the Court determined, with the parties' agreement, that it was not necessary to calculate a sentencing guidelines range for a sentence based on a Rule 11(c)(1)(C) plea to a mandatory minimum, provided that the Court made clear that the guidelines were irrelevant to the sentence it imposed. See Transcript of Sentencing Hearing (July 29, 2016) (“Sentencing Tr.”) at 73:18-74:13, 76:1-11, ECF No. 264. Justifiable reasons were present for the government to extend, and the Court to accept, the plea agreements regardless of the guideline determination, given the substantial prison terms set out in the agreements and the nature of the evidence, much of which was collected overseas by foreign law enforcement agents. See Koons v. United States, 138 S.Ct. 1783, 1788-89 (2018) (recognizing that, in some guilty pleas, such as where the district court “scrap[s] the ranges in favor of the mandatory minimums, ” guidelines ranges play no relevant part in the defendant's ultimate sentence); Hughes v. United States, 138 S.Ct. 1765, 1773 (2018) (noting that the ...

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