MEMORANDUM OPINION
Beryl
A. Howell Chief Judge
On
September 14, 2018, the D.C. Circuit's mandate issued
remanding this case for resentencing of all three defendants,
Alfredo Mosquera-Murillo (“Murillo”), Joaquin
Chang-Rendon (“Rendon”), and Antonio
Moreno-Membache (“Membache”), see
Mandate, ECF No. 266, upon holding that the defendants'
convictions for violations 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, under 18 U.S.C. § 3553(f), see
United States v. Mosquera-Murillo, 902 F.3d 285, 292,
296 (D.C. Cir. 2018).[1] The D.C. Circuit vacated the
defendants' sentences and directed on remand that the
Court “consider whether the defendants meet the five
remaining safety-valve requirements.” Id. at
296.[2]
The defendants are scheduled to be resentenced on July 18,
2019. Min. Entry (June 6, 2019).
If
ineligible for safety-valve relief, each defendant would
receive the same sentence previously imposed: 120 months'
imprisonment, which is the applicable mandatory minimum
sentence that the Court agreed to impose upon acceptance of
the defendants' plea agreements, 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,
191. Upon satisfaction of the five safety-valve requirements,
the appropriate sentence to be imposed at or below the
mandatory minimum of 120 months' incarceration would be
based upon consideration of the factors set out in 18 U.S.C.
§ 3553(a). See 18 U.S.C. § 3553(f)
(“[I]f the court finds at sentencing, after the
Government has been afforded the opportunity to make a
recommendation, ” that the defendant meets the
safety-valve requirements, then “the court shall impose
a sentence pursuant to [the] guidelines . . . without regard
to any statutory minimum sentence.”). The safety-valve
thus “permit[s] a narrow class of defendants, those who
are the least culpable participants in [the] offense[], to
receive strictly regulated reductions in prison sentences for
mitigating factors currently recognized under the federal
sentencing guidelines.” H.R. Rep. No. 103-460 (1994).
The
parties vigorously dispute the requisite scope of information
Murillo and Membache would have to provide to satisfy the
fifth requirement for safety valve eligibility, see
Jt. Status Rept., dated Mar. 1, 2019 (“Mar. 2019
JSR”) at 3-5, ECF No. 273, but resolution of that
dispute would be unnecessary if these defendants also fail to
satisfy other eligibility requirements. Consequently, an
evidentiary hearing was held on June 12 and 13, 2019 to
determine whether Murillo or Membache were ineligible for
safety-valve relief due to their failure to satisfy other
requirements, namely: because they were “organizer[s],
leader[s], manager[s], or supervisor[s] of others in the
offense, ” 18 U.S.C. § 3553(f)(4), or because
Membache “possess[ed] a firearm or other dangerous
weapon . . . in connection with the offense, ”
id. § 3553(f)(2). The evidence presented at
that hearing, together with the record in this case,
including supplemental memoranda filed after the hearing,
demonstrates that neither Murillo nor Membache is eligible
for safety-valve relief for the reasons outlined
below.[3]
I.
BACKGROUND
The
indictment in this case was filed on May 9, 2013 and
originally charged five defendants with conspiring, in
violation of the MDLEA, 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. See Indictment at
1-2, ECF No. 1. While Colombia denied the United States'
extradition request for two of the defendants, William
Obando-Gonzalez (“Obando”) and Carlos Ivan
Ortega-Tello (“Tello”), see
Gov't's Mot. to Dismiss Indictment at 2, ECF No. 26;
Order Granting Motion to Dismiss Indictment, ECF No. 28, the
three remaining defendants were extradited and entered guilty
pleas, on January 20, 2016, reserving their right to contest
on appeal their eligibility for relief from the statutory
mandatory minimum under the safety-valve provision, 18 U.S.C.
§ 3553(f). See Plea Agreements ¶¶ 6,
14. As noted, the D.C. Circuit concluded that MDLEA
convictions did not preclude eligibility for safety-valve
relief. Mosquera-Murillo, 902 F.3d at 292, 296.
On
remand, the parties raised a myriad of issues regarding the
quantity of drugs at issue, the applicability of various
specific offense characteristics for bribery of a law
enforcement officer and involvement of a minor in the charged
conspiracy, under U.S.S.G. §§ 2D1.1(b)(1), (11),
(15)(B), the scope of relevant conduct pertinent to
resentencing, Murillo and Membache's roles in the
offense, and the extent to which the plea agreement terms
barred the government from making a recommendation as to any
of these issues. See generally Jt. Status Rept.,
dated Nov. 19, 2018 (“2018 JSR”), ECF No. 271. A
number of these issues had either been resolved or were
extraneous to the single issue required by the mandate to be
resolved at resentencing, prompting the Court to issue a
Memorandum and Order “[t]o re-focus the parties”
on the “single issue” to be addressed on remand:
“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), ” and “the only means
by which any defendant may obtain a different sentence than
that already imposed.” Mem. & Order, dated Nov. 30,
2018, at 2-3, ECF No. 272.
The
parties initially focused on resolving whether any defendant
met the fifth requirement for safety-valve relief by
“truthfully provid[ing] to the Government all
information and evidence the defendant has concerning the
offense or offenses that were part of the same course of
conduct or of a common scheme or plan, ” 18 U.S.C.
§ 3553(f)(5); see also U.S.S.G. §
5C1.2(a)(5) (incorporating statutory safety-valve
requirements, as they existed prior to the First Step Act,
verbatim into the U.S. Sentencing Guidelines Manual), and the
defendants sought clarification regarding the requisite scope
of any proffer, Mar. 2019 JSR at 3-5. Irrespective of the
truthfulness or completeness of any proffer, however, the
government contended that Murillo and Membache were
ineligible for safety-valve relief because they failed to
satisfy other safety-valve requirements. 2018 JSR at 2, 6;
Mar. 2019 JSR at 6; Rough Transcript of Hearing (Mar. 8,
2019) (“Mar. 8 H'rg Tr. (Rough)”) at
18:10-23:3.[4] Specifically, the government contended
that these two defendants played a managerial or supervisory
role with respect to the charged conspiracy involving the
interdicted vessel, the Mistby, see 18
U.S.C. § 3553(f)(4); U.S.S.G. § 5C1.2(a)(4), and
that Membache possessed a dangerous weapon in connection with
this charged conspiracy, see 18 U.S.C. §
3553(f)(2); U.S.S.G. § 5C1.2(a)(2). The parties were
therefore directed to prepare for an evidentiary hearing
solely focused on those two eligibility requirements under
§ 3553(f)(2) and (4), deferring further argument on the
requisite scope of any proffer. Mar. 8 H'rg Tr. (Rough)
at 18:10-23:3; id. at 24:12-25 (Court directing the
parties “to focus on expeditiously and efficiently
resolving this case, beginning with the single issue in front
of me: are these defendants safety valve eligible? And if the
government has evidence that meets its burden by a
preponderance of the evidence that they were managers or
supervisors in the Mistby operation . . . they are
just not eligible”); id. at 39:17-25
(Membache's counsel agreeing that it makes sense to hold
a limited evidentiary hearing on these two requirements);
id. at 40:10-20 (Murillo's counsel indicating he
“absolutely understand[s]” why the Court wants to
hold an evidentiary hearing as to the two requirements and
indicating that he “think[s] it's a good
idea”).[5]
To
further focus the parties on the issues at stake in any
resentencing, they were directed to submit a Joint Status
Report providing “for each defendant, the parties'
calculations of the applicable advisory Guidelines range,
assuming the defendant is deemed eligible for safety-valve
relief and is sentenced based on the 220 kilograms of cocaine
and 235 kilograms of marijuana recovered from the
Mistby . . . with no other special offense
characteristics.” Min. Order (Mar. 8, 2019). The
government estimated that the applicable advisory Guidelines
range for each defendant would be 121 to 151 months'
imprisonment, slightly above the 120-month-sentence imposed
under their plea agreements. See May 2019 JSR at 3.
While Murillo accepted the government's calculation as
accurate based on the Court's prior rulings as to the
effect of the plea agreement, see Id. at 1 n.1,
Rendon argued that he would be eligible for a mitigating role
downward adjustment, putting him in an advisory Guidelines
range of 57 to 71 months' imprisonment, id. at
3-4, and Membache argued, in direct contravention of prior
rulings as to the effect of his plea agreement, that he
should not be held responsible for all of the drugs on the
Mistby and that he should receive a mitigating role
downward adjustment, which would result in an advisory
Guidelines range of 41 to 51 months' imprisonment,
id. at 4-6.
At the
outset, the D.C. Circuit has observed that “the safety
valve's basic purpose [is to] spare certain minor
participants in drug trafficking enterprises from mandatory
minimum sentences when imposition of the mandatory sentences
would be disproportionate to the defendants'
culpability.” In re Sealed Case (Sentencing
Guidelines' “Safety Valve”), 105 F.3d
1460, 1462-63 (D.C. Cir. 1997) (emphasis added).
Notwithstanding the disparate guideline ranges urged by the
parties, in assessing “the defendants' culpability,
” the entire record in this case relating to the
defendants' offenses and relevant conduct is considered,
starting with their admission to being “a member of a
drug trafficking organization (‘DTO') between
January 2012 and [] February 2013, which manufactured,
stored, and transported large quantities of cocaine and
marijuana in Colombia that would be later illegally imported
into Panama. . . . through the use of ‘go-fast'
boats launched from the coast of Colombia, ” and the
defendants' further concession that “[t]he
Government can prove beyond a reasonable doubt that: …
United States law enforcement personnel . . . recovered [from
the interdicted Mistby] over 220 kilograms of
cocaine and 235 kilograms of marijuana that had been
jettisoned into the water.” Murillo Jt. Statement of
Facts (“Murillo SOF”) ¶¶ 1, 4, ECF No.
186; Membache Jt. Statement of Stipulated Facts
(“Membache SOF”) ¶¶ 1, 3, ECF No. 192;
see 46 U.S.C. §§ 70503, 70506. The record
also includes the statements of five cooperating defendants
that both Murillo and Membache have a long-running history in
drug-trafficking-a history that is not reflected in any
defendant's criminal history score or in the quantity of
narcotics attributable to each defendant as a result of the
Mistby interdiction. See Gov't's
Mot. in Limine to Introduce Other Crimes Evidence At
Trial at 4-11, ECF No. 71 (summarizing evidence of
Murillo's involvement in shipments on go-fast vessels,
interdicted on February 3, 2012 and March 16, 2012, with 451
kilograms and 790 kilograms of cocaine, respectively, and in
June 2008 with approximately 5000 kilograms of cocaine, being
transported from Colombia to Panama; and of Membache's
involvement in three separate shipments of cocaine in 2011,
including a go-fast vessel interdicted on November 22, 2011,
containing 115 kilograms of cocaine, for which shipment
Membache transported the cocaine from Buenaventura to Choco,
ordered that it be hidden overnight, and organized the launch
of the vessel); see also United States v.
Mosquera-Murillo, 153 F.Supp.3d 130, 175-84 (D.D.C.
2015) (concluding the government's “evidence of
certain other crimes allegedly committed by the defendants in
connection with [nine] other narcotics shipments prior to and
after the interdiction of the Mistby” is
admissible because it is “probative of [the
defendants'] specific pattern of partnering with each
other and a common group of co-conspirators to engage in
conduct on virtually a monthly basis that was substantially
similar to the [Mistby conspiracy]” and it
“demonstrate[s] how the defendants began working
together and with their . . . co-conspirators as narcotics
traffickers, as well as their intent, knowledge, preparation,
and plan” (internal quotation marks omitted)). Based on
this entire record, the Court is hard-pressed to find that a
sentence of 10 years' imprisonment would be
“disproportionate to” either Murillo or
Membache's culpability.
At the
evidentiary hearing held on June 12 and 13, 2019, the
government presented testimony from Naval Criminal
Investigative Service (“NCIS”) Special Agent John
Souchet, who was the lead agent in the investigation of
Rendon and also assisted in the investigations into Murillo
and Membache. See Transcript of Evidentiary Hearing
(June 12, 2019) (“June 12 H'rg Tr.”) at
27:8-30:10, ECF No. 304; Gov't's Outline of Evidence
(“Gov't's Outline”) at 4-5, ECF No. 284.
Souchet is a native Spanish speaker who was stationed in
Colombia from 2008 to 2011 while investigating
drug-trafficking organizations there. See June 12
H'rg Tr. at 28:9-29:7. In preparation for the evidentiary
hearing, Souchet reviewed written reports of law enforcement
interviews with five cooperating defendants, three of whom
were crewmembers arrested on the Mistby when that
vessel was interdicted in 2012. See Id. at
30:14-31:24, 50:14-51:19, 54:4- 56:24,
105:10-106:13.[6] He also listened to audio recordings of
phone calls intercepted by the Colombian National Police
(“CNP”) that the government introduced at the
hearing, and reviewed the transcripts of those recordings
See Transcript of Evidentiary Hearing (Morning of
June 13, 2019) (“June 13 AM H'rg Tr.”) at
7:25-12:14, 14:5-19:15, 21:8-28:12, 37:4-42:22, ECF No.
305.[7]
The
three defendants arrested on the Mistby, Luis
Eduardo Paredes (“Paredes”), Ivan Campaz-Riascos
(“Campaz”), and Andres Moreno-Membache
(“Andres”), were each interviewed multiple times
under cooperation agreements with the government.
See June 12 H'rg Tr. at 50:14-51:18, 54:17-20. A
brief summary of each cooperating defendant's statements
to law enforcement follows.
Paredes,
the captain of the Mistby, told law enforcement that
Murillo was responsible for providing coordinates to allow
the crew to travel safely and instructing them whether to
launch the Mistby, and that he played a similar role
with respect to other vessels. See Id. at 57:10-15,
61:16-62:6. Paredes indicated that he knew about
Membache's involvement with drug-trafficking prior to the
Mistby launch, that he viewed Membache as having
more authority in the DTO than his brother Andres, who was a
crewmember on the Mistby, because of Membache's
greater experience, and that Membache oversaw the
transportation and storage of the cocaine that would be
placed in the Mistby and gave advice and
instructions as to whether it was safe to launch the
Mistby and where to conceal it on shore. See
Id. at 58:21-61:15, 62:7-63:17. Paredes also stated that
he had once seen Membache with a dark 9mm pistol at a
planning meeting prior to the launch of the Mistby.
Id. at 64:25-65:23.
Campaz,
a crewmember of the Mistby, corroborated
Paredes's statements regarding Membache. He told law
enforcement that Membache had more authority in the DTO and
that he had seen Membache give orders to the Mistby
crew, including an order not to depart and to remove drugs
from the Mistby and store them in the jungle, and he
had seen what he believed to be a concealed pistol tucked
into Membache's waistband at the launch site of the
Mistby. Id. at 67:25-71:15; Rough
Transcript of Evidentiary Hearing (Afternoon of June 13,
2019) (“June 13 PM H'rg Tr. (Rough)”) at
200:14-202:21.
Andres's
initial statements to law enforcement after his arrest were
that that he and Membache both supervised their younger
brothers in transporting cocaine through Colombia for export
on go-fast vessels. See June 12 H'rg Tr. at
71:16-72:18. He subsequently retracted these statements,
id. at 73:16-78:2, and indicated that Membache
played no role in the Mistby conspiracy-an assertion
belied by Membache's own allocution in this case.
See Rough Transcript of Plea Colloquy (Jan. 20,
2016) (“Plea Colloquy Tr. (Rough)” at 32-35
(Membache explaining that “before [the Mistby]
launched my brother asked me if I could [get] some [sailing
or launching] papers that were going to come and if I could
take them to him” and admitting that he knew
“that the Mistby was going to be used to
transport cocaine and marijuana, ” leading the Court to
conclude “there is a sufficient factual basis for
[Membache's] plea since he agreed that he accepted paper
to help facilitate licensing in connection with the
Mistby [and at] the same time . . . he knew [the
Mistby] was going to be used to transport cocaine
and marijuana on board the high seas”); see
also Membache SOF ¶ 2 (agreeing that the government
can prove beyond a reasonable doubt that Membache
“assisted in moving [narcotics] from Buenaventura to
Choco, and once the cocaine and marijuana arrived in Choco,
[he] assisted in hiding the drugs. When the go fast boat was
ready to transport the cocaine and marijuana, he assisted in
loading the drugs onto the go fast boat and otherwise ensured
the boat's successful launch.”). Further
contradicting Andres's retraction, the government
introduced several intercepted phone calls in which Andres
and Membache discuss the arrest of their two younger
brothers, with Membache expressing the view that one of the
brothers should take the blame so that the other brother can
be released. See Gov't's Exs. 5-7.
Collectively, the phone calls between Andres and Membache
corroborate other cooperating defendants' statements that
Membache was aware of and played a role in supervising his
brothers' drug-trafficking activities.
Intercepted
phone calls between Andres and other members of the
conspiracy also shed light on Murillo's role. In one
phone call, Andres tells Obando, the leader of the
conspiracy, that he is waiting on Murillo to launch the
Mistby. See Gov't's Ex. 12.
Additional phone calls record Andres and Murillo, and then
Murillo and Membache, discussing a plan for Murillo to sell
some of his marijuana to be ultimately transported on the
Mistby. See Gov't's Exs. 8-10.
That
Murillo and Membache played these roles with respect to the
Mistby is further corroborated by their similar
roles in other illegal narcotics shipments, as indicated by
interviews with two cooperating defendants arrested in
connection with the interdiction of go-fast boats other than
the Mistby. One of those defendants, Hector
Pozmino-Jezken (“Pozmino”), a crewmember of an
unnamed go-fast vessel interdicted prior to the
Mistby, told law enforcement in post-arrest
interviews that he had observed Murillo, at a planning
meeting prior to the launch of the vessel, plotting locations
of naval patrols using nautical charts and a Global
Positioning System (“GPS”) he brought to the
meeting, and using that information to create a safe route
for the vessel. See June 12 H'rg Tr. at
80:22-89:2. As for Membache, Pozmino, who had known Membache
for three years prior to Pozmino's arrest, corroborated
the Mistby co-conspirators' statements that
Membache oversaw his younger brothers in transporting cocaine
through Colombia and also supervised a second crew
responsible for specific shipments of cocaine. See
Id. at 99:5-104:11.
The
last and fifth cooperating defendant, Jimy Gonzalez-Membache
(“Gonzalez”), who was a crewmember on a go-fast
vessel interdicted prior to the Mistby, corroborated
the other cooperating defendants' accounts that Murillo
plotted out routes for vessels to follow using nautical
charts and provided information to the crews in real time and
that Membache hired, paid, and oversaw two crews, one
dedicated to transporting and storing cocaine within
Colombia, and one responsible for shipping the cocaine.
See Id. at 107:11-115:25.
II.
DISCUSSION
The
defendants have failed to rebut or materially undermine the
evidence presented by the government establishing, by a
preponderance of the evidence, that Murillo and Membache are
disqualified for safety-valve relief.[8] Murillo is ineligible for
safety-valve relief because he had a supervisory role in the
offense, and Membache is ineligible for safety-valve relief
because he had a supervisory role in, and possessed a firearm
in connection with, the offense. The offense, in this
context, includes both the specific offense of conviction and
“all relevant conduct.” See U.S.S.G.
§ 5C1.2 app n.3 (“Offense, ” as described in
subsection (a)(2)-(4), “mean[s] the offense of
conviction and all relevant conduct.”).[9] Contrary to the
defendants' challenges to the government's evidence,
for reasons discussed below, this evidence was sufficiently
reliable and persuasive to conclude that the defendants are
ineligible for safety-valve relief.
A.
Murillo and Membache had Supervisory Roles in the
Offense
Both
the statutory and Guidelines safety-valve provisions
disqualify a defendant for relief when the defendant was
either “an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing
guidelines” or was “engaged in a continuing
criminal enterprise, as defined in [21 U.S.C. §
848].” 18 U.S.C. § 3553(f)(4); U.S.S.G. §
5C1.2(a)(4). The disqualifying role of
“‘[o]rganizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing
guidelines, '. . . means a defendant who receives an
adjustment for an aggravating role under § 3B1.1
(Aggravating Role).” U.S.S.G. § 5C1.2 app. n.5. If
the government demonstrates that the defendants were
organizers, leaders, managers, or supervisors of any other
person in connection with the offense, the defendants cannot
meet the first prong of U.S.S.G. § 5C1.2(a)(4), and
consideration of the second prong, concerning a continuing
criminal enterprise, is unnecessary. Id. §
5C1.2 app. n.6 (confirming that “[a]s a practical
matter, it should not be necessary to apply this prong of
subsection (a)(4), ” referring to the § 848
continuing criminal enterprise prong).
The
government focused its evidence on proving that the
defendants were “managers or supervisors, ”
rather than “organizers or leaders.” In
distinguishing a leadership and organizational role from one
of mere management or supervision, the following factors,
listed in U.S.S.G. § 3B1.1 app. n.4, are relevant: (1)
the exercise of decision making authority; (2) the nature of
participation in the commission of the offense; (3) the
recruitment of accomplices; (4) the claimed right to a larger
share of the fruits of the crime; (5) the degree of
participation in planning or organizing the offense; (6) the
nature and scope of the illegal activity; and (7) the degree
of control and authority exercised over others. See
United States v. Olejiya, 754 F.3d 986, 990 (D.C. Cir.
2014) (quoting U.S.S.G. § 3B1.1 app. n.4). No. single
factor is dispositive. Id. An enhancement under
U.S.S.G. § 3B1.1 requires only some “proof that
[the defendant] was hierarchically superior to [his]
co-conspirators.” United States v. Quigley,
373 F.3d 133, 140 (D.C. Cir. 2004).
As the
D.C. Circuit explained in Quigley, “the
concept of ‘control' or ‘authority,'
implicit in the notion of ‘management' or
‘supervision' . . . connote[s] some sort of
hierarchical relationship, ” id., and U.S.S.G.
§ 3B1.1(b), concerning managers and supervisors,
“sweep[s] in lower level managerial and supervisory
conduct, ” id. at 139, whereas U.S.S.G. §
3B1.1(a) “encompass[es] higher level managerial and
supervisory conduct, ” id. More than one
person may qualify as a leader or organizer of a criminal
association or conspiracy. U.S.S.G. § 3B1.1, app. n.4.
Therefore, both Murillo and Membache may be deemed managers
or supervisors in the same offense. Moreover, even if the
defendants were supervised by others, they may still qualify
as managers or supervisors by exerting sufficient control
over another participant in the conspiracy. See United
States v. Vega, 826 F.3d 514, ...