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United States v. Mosquera-Murillo

United States District Court, District of Columbia

July 11, 2019



          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.


         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, ...

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