The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 30, 2025 Decided April 11, 2025
No. 23-3126
UNITED STATES OF AMERICA,
APPELLEE
v.
GERARDO GONZALEZ-VALENCIA, ALSO KNOWN AS LALO,
ALSO KNOWN AS FLACO, ALSO KNOWN AS SILVER, ALSO
KNOWN AS SILVERIO, ALSO KNOWN AS EDUARDO, ALSO
KNOWN AS LALINE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cr-00065-1)
Devin Burstein argued the cause and filed the briefs for
appellant.
Katherine Twomey Allen, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief were
Kaitlin Sahni, Acting Deputy Chief, and Kate Naseef, Trial
Attorney, Narcotic and Dangerous Drug Section, Criminal
Division. Jonathan R. Hornok, Trial Attorney, entered an
appearance.
2
Before: HENDERSON and PAN, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge RANDOLPH.
RANDOLPH, Senior Circuit Judge: Gerardo Gonzalez-
Valencia pleaded guilty, without a plea agreement, to one count
of conspiracy to distribute five or more kilograms of cocaine for
importation into the United States. The district court sentenced
him to life imprisonment. Gonzalez-Valencia appeals his
sentence, asserting a range of procedural and substantive claims,
most of which are raised for the first time on appeal. We affirm.
I.
Gonzalez-Valencia was a leader of Los Cuinis, a Mexican
drug-trafficking organization.1 Over the course of a decade, he
coordinated shipments of tens of thousands of kilograms of
cocaine into the United States. Gonzalez-Valencia and his
associates employed numerous methods to conceal the
drugs—like smuggling cocaine in a shipment of shark
carcasses—and employed a wide range of transportation
methods, including commercial airplanes, watercraft, and local
news trucks. For example, in 2007, Gonzalez-Valencia used a
semi-submersible ship filled with 5,000 kilograms of cocaine.
When the Coast Guard interdicted the vessel off the coast of
Mexico, the crew scuttled the craft. The Coast Guard recovered
280 kilograms of cocaine from the wreckage.
Gonzalez-Valencia frequently employed violence and
threats of violence in his drug trafficking enterprise. He
personally carried a pistol, and he armed his subordinates with
1
We rely on the district court’s factual findings from the sentencing
hearing.
3
AK-47 rifles. On one occasion in 2005, he hired gunmen,
provided them with weapons, and directed them to kill a man he
suspected of stealing his cocaine. After the murder, Gonzalez-
Valencia called the victim’s family—during the funeral—to take
responsibility for the killing and to demand $12 million for the
supposedly missing drugs.2
In 2016, a grand jury in the District of Columbia indicted
Gonzalez-Valencia for participation in a conspiracy to distribute
more than five kilograms of cocaine in violation of 21 U.S.C.
§§ 959(a), 960(b)(1), 963 and 18 U.S.C. § 2. Later that year, he
was arrested in Uruguay. When arrested, Gonzalez-Valencia
crushed his cell phone; officers found his car loaded with
luggage, jewelry, and multiple fake identification documents.
While in Uruguayan custody, he threw bleach at a prison guard
and threatened to kill several others. And he threatened to hang
the Uruguayan Interior Minister from a bridge.
The United States sought his extradition in 2016. Gonzalez-
Valencia fought the proceedings in the Uruguayan courts for
four years. As relevant to this appeal, he argued that extradition
was impermissible because the United States, unlike Uruguay,
permits life sentences. One lower court in Uruguay agreed and
conditioned extradition on the United States agreeing not to seek
a life sentence. The Uruguayan Supreme Court of Justice
reversed, holding that the death penalty was the “only penalty”
the United States-Uruguay extradition treaty eliminated. S.A.
56. Though that Court seemed to suggest that the condition
nevertheless held, the U.S. Embassy later sent a note to the
2
The district court heard and found credible several other accounts of
Gonzalez-Valencia using violence to further the cocaine conspiracy.
See J.A. 1487. For simplicity, however, the court only made a specific
factual finding concerning this particular alleged murder in 2005, see
id., and we likewise rely on it alone.
4
Uruguayan Attorney General rejecting the legal basis for any
such condition. The Uruguayan Attorney General then wrote to
the courts, agreeing that “there is nothing regarding life
imprisonment” in the extradition treaty and that Uruguay thus
“cannot require the [American] counterparty to provide
guarantees, since the Treaty does not obligate it to do so.” S.A.
92. The letter expressed hope that the United States might
voluntarily comply. Shortly thereafter, and without any further
representations by the United States, Uruguay extradited
Gonzalez-Valencia. He was arraigned in May 2020 and pleaded
guilty to the conspiracy charge in December 2022, without a
plea agreement. During the plea colloquy, Gonzalez-Valencia
stated that he had participated in the conspiracy between 2003
and 2016, and he admitted his involvement in the 2007 semi-
submersible smuggling attempt.
After extensive briefing, a three-day evidentiary hearing
involving six witnesses, and a separate sentencing hearing, the
district court sentenced Gonzalez-Valencia to life imprisonment.
Using the Sentencing Guidelines, the district court determined
that he was in Criminal History Category III, principally due to
his escape from a court-mandated halfway house in 2001. See
U.S. Sent’g Guidelines Manual §§ 4A1.1(a), (d); 4A1.2(e)(1)
(U.S. Sent’g Comm’n 2021). The court calculated his base
offense level as thirty-eight: thirty-six points from the
conspiracy to distribute cocaine, and two additional points
because the quantity exceeded 450 kilograms. See id.
§ 2D1.1(c)(1). The court then tacked on ten points of
enhancements—two points for possession of a firearm, two
points for the use of violence, four points for a leadership role in
the conspiracy, and two points for the use of a semi-submersible
smuggling vessel—and subtracted three points for acceptance of
responsibility, leaving Gonzalez-Valencia with forty-five points.
See id. §§ 2D1.1(b)(1), (2), (3)(B); 3B1.1(a); 3E1.1. The court
adjusted the final point value to forty-three, the maximum
5
contemplated by the Sentencing Guidelines, which translates
into a recommendation of life imprisonment. The court declined
to depart downward from the Guidelines given “the level of
violence, the amount of cocaine, the duration and scope of this
conspiracy, and the effects on both Mexico and the United
States.” J.A. 1519.
II.
We review timely objections to sentencing decisions for
abuse of discretion. See United States v. Iracks, 106 F.4th 61, 66
(D.C. Cir. 2024). That review, while deferential, looks for
“significant procedural error,” “clearly erroneous” factual
findings, or a sentence that is substantively unreasonable. Id. If
the defendant failed to object at sentencing and raises an
objection for the first time on appeal, we review only for “plain
error.” Id. This means that there must be (1) an error that (2) is
“plain” and (3) “affect[s] substantial rights,” in which case we
may exercise our discretion to correct it, (4) provided the error
“seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” United States v. Olano, 507 U.S. 725, 732
(1993) (alterations in original) (last excerpt quoting United
States v. Young, 470 U.S. 1, 15 (1985)). An error is plain if the
district court contravened “an opinion by this circuit or the
Supreme Court on the issue,” or some other “‘absolutely clear’
legal norm.” United States v. Andrews, 532 F.3d 900, 909 (D.C.
Cir. 2008) (quoting United States v. Vizcaino, 202 F.3d 345, 348
(D.C. Cir. 2000)).
III.
Gonzalez-Valencia’s first objection is to his placement in
Criminal History Category III under the Guidelines. At
sentencing, the district court determined that his past actions
warranted five criminal history points, two of which were due to
6
his previous status as an “escape[e].” J.A. 1466. This translated
into Criminal History Category III.
Gonzalez-Valencia does not dispute the district court’s
determination. Instead, he points out that, after his sentencing,
the U.S. Sentencing Commission adopted amendments
retroactively affecting his case. Amendment 821 eliminated the
two-point bump for “escape status,” as applied to individuals
like Gonzalez-Valencia, and Amendment 825 made Amendment
821 retroactive. See U.S. Sent’g Guidelines Manual supp. to
app. C, amends. 821, 825 (U.S. Sent’g Comm’n 2023). Under
this new approach, Gonzalez-Valencia has only three criminal
history points and is in Criminal History Category II, not III.
However, Gonzalez-Valencia’s Guidelines sentence does
not change: Criminal History Categories II and III both result in
a life sentence recommendation for offense levels of forty-three
points. See U.S. Sent’g Guidelines Manual ch. 5, pt. A (U.S.
Sent’g Comm’n 2021). This makes him ineligible for relief
under 18 U.S.C. § 3582(c), the typical route for defendants after
a retroactive Guidelines amendment. Section 3582(c) permits
resentencing defendants who “ha[ve] been sentenced to a term
of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,”
provided that “such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” Id.
But since the Guidelines provide that resentencing “is not
consistent with th[e governing] policy statement and therefore
is not authorized under 18 U.S.C. § 3582(c)(2) if” the relevant
amendment “does not have the effect of lowering the
defendant’s applicable guideline range,” U.S. Sent’g Guidelines
Manual § 1B1.10(a)(2) (U.S. Sent’g Comm’n 2021), Gonzalez-
Valencia cannot avail himself of § 3582(c). He nevertheless asks
this court to remand for resentencing under 28 U.S.C. § 2106, a
statute permitting our court to “set aside or reverse any
7
judgment,” “remand,” “or require such further proceedings to be
had as may be just under the circumstances” in any case in
which we have jurisdiction. Id. This provision provides us
“broad discretion to order the appropriate relief.” Waters v.
Thornburgh, 888 F.2d 870, 877 (D.C. Cir. 1989).
Our court has employed § 2106 in the resentencing context.
In United States v. Rhodes, 106 F.3d 429 (D.C. Cir. 1997), we
remanded for resentencing when a new sentencing enhancement
became available as a result of intervening Supreme Court
precedent, holding that it was “‘just under the circumstances’ to
remand.” Id. at 433. And two decades earlier, we held that our
“settled jurisprudence call[ed] on us to apply 28 U.S.C. § 2106
so as to order a remand following a sentence when there is a
possibility that there was a failure to give” all sentencing options
“full consideration.” United States v. Moore, 486 F.2d 1139,
1203 (D.C. Cir. 1973) (Leventhal, J., concurring but controlling
on this point).
We decline to exercise our § 2106 authority in this case.
Amendments 821 and 825 affect the Guidelines calculations, but
they do not affect Gonzalez-Valencia’s recommended sentence.
In both Category II and Category III, his Guidelines sentence is
a life term. Were we to remand, Gonzalez-Valencia would
presumably request a downward departure—but that is the same
request he already made, a request the district court rejected.
There is nothing to indicate that the district court would
change its mind. On the contrary, the district court twice rejected
his requests for discretionary leniency.
Gonzalez-Valencia first sought a discretionary adjustment
from Criminal History Category III to Category II—precisely
what he now seeks—and the district court denied that request.
The court found that a downward departure was not “warranted”
8
given both his past felony conviction and his escapee status. J.A.
1467. Category III was “neither fundamentally unfair nor d[id]
it overrepresent defendant’s criminal conduct,” and this case
therefore did not have “the kind of record providing a reason to
show the defendant leniency.” J.A. 1467–68. While those
comments were made against the backdrop of the previous
Guidelines, they provide strong evidence that the district court
believed the sentencing range was appropriate.
Then, in calculating the final sentence, Gonzalez-Valencia
requested the court depart downward and sentence him to
twenty-to-twenty-five years instead of life. The court rejected
that request, finding that “a [G]uidelines sentence [wa]s
appropriate here.” J.A. 1518–19. The court emphasized the
“level of violence, the amount of cocaine, the duration and scope
of this conspiracy, and the effects on both Mexico and the
United States of this level of international narcotics trafficking.”
J.A. 1519. In an explanation of the life sentence spanning fifteen
transcript pages, the district court discussed Gonzalez-
Valencia’s “massive international drug conspiracy,” J.A.
1508—including his shipment of “tonnage quantities of
cocaine,” his history of “[e]ngaging in cartel wars,” id., his
decade-long participation in the conspiracy, his “arrogant threats
of violence” even after his arrest, J.A. 1513, and his failure to
“fully own up to everything for which [he] w[as] accountable,”
J.A. 1514. The court mentioned his escapee status only in three
brief paragraphs. See J.A. 1506–07, 1510. This sentence for
“among the most serious of drug trafficking offenses,” J.A.
1506, did not principally rest on his Criminal History Category.
This case also differs from the Moore and Rhodes decisions.
In Moore, our court remanded for resentencing when there was
“a possibility” that alternative sentencing options mandated by
the Narcotic Addict Rehabilitation Act had not been considered.
486 F.2d at 1203 (Leventhal, J., concurring but controlling on
9
this point). And in Rhodes, we remanded to permit the
government to seek a previously unavailable sentencing
enhancement that would have altered the Guidelines
recommendation. 106 F.3d at 431–33. This case raises no such
considerations: the only relevant sentencing option is life
imprisonment, and a remand would not affect the Guidelines
range.3
IV.
Gonzalez-Valencia also challenges the district court’s
application of several sentencing enhancements. Since he
acknowledges that he did not object to these enhancements in
district court, see Appellant Br. 25, 34, we review for plain
error. None of his objections qualify.
Gonzalez-Valencia waived any objection to the semi-
3
Gonzalez-Valencia also urges us to adopt the Seventh Circuit’s
approach in United States v. Claybron, 88 F.4th 1226 (7th Cir. 2023).
There, the same amendment at issue in our case—Amendment
821—shifted the defendant from Criminal History Category VI to
Category V, altering the Guidelines range from 168-to-210 months to
151-to-188 months. Id. at 1229. While the original sentence of 168
months was technically within both ranges, “the district court did not
state it would have imposed the same sentence regardless of the
applicable Guidelines range,” and the appellate court “ha[d] no way
of knowing . . . whether a different guideline range would have
prompted the district court to weigh the . . . factors differently.” Id. at
1231 (first alteration in original) (quoting United States v. Adams, 746
F.3d 734, 745 (7th Cir. 2014)). The Seventh Circuit thus utilized its
§ 2106 power to order resentencing. Unlike Claybron, remand here
would not provide the district court with a new range. Nor is there any
indication that the district court would depart downward, unlike in
Claybron where the original sentence was at the lowest end of the
original range.
10
submersible ship enhancement. At sentencing, he repeatedly
conceded that the semi-submersible enhancement applied. See
J.A. 418 (counsel statement at plea hearing); J.A. 485–86
(sentencing memorandum); J.A. 406 (joint submission regarding
sentencing). Accordingly, he has “acquiesced in the . . .
calculation and thus invited any error contained therein.” United
States v. Benton, 98 F.4th 1119, 1130 (D.C. Cir. 2024).
The district court’s imposition of the violence enhancement
was not plain error. Gonzalez-Valencia argues that this
enhancement—first added to the Guidelines in 2010—violates
the Constitution’s Ex Post Facto Clause because the predicate
violent conduct occurred in 2005, even if the conspiracy
continued until 2016. In other words, he contends that a sentence
may not be enhanced using a version of the Sentencing
Guidelines adopted after the conduct giving rise to the
enhancement but before the conclusion of the criminal acts
giving rise to the offense.
This is a novel legal question in our circuit. That in itself
likely defeats any plain error claim. In a previous case, our court
noted that this situation would have “present[ed] a serious Ex
Post Facto question . . . if the objection had been properly
preserved.” United States v. Leyva, 916 F.3d 14, 29 (D.C. Cir.
2019). Gonzalez-Valencia cannot point to any Supreme Court or
circuit precedent, and certainly not any “absolutely clear legal
norm,” demonstrating plain error. See Andrews, 532 F.3d at 909
(quoting Vizcaino, 202 F.3d at 348).
Even if we were to reach the issue, the district court was
likely correct. The Ex Post Facto Clause prohibits the use of
Guidelines that post-date the “criminal acts” supporting a
conviction. Peugh v. United States, 569 U.S. 530, 533 (2013).
For many crimes, the date of the criminal act is simple: say, a
robbery occurring on a single date. But for complex and ongoing
11
crimes, including conspiracy, we have defined the date of the
offense as “the last date of the offense.” United States v. Gary,
291 F.3d 30, 36 (D.C. Cir. 2002) (emphasis added) (quoting
U.S. Sent’g Guidelines Manual § 1B1.11 cmt. n.2).4 Thus, in
conspiracy prosecutions, any Guidelines adopted prior to the
termination of the conspiracy can be used for sentencing. For
example, Guidelines going into effect a day before the end of a
ten-year conspiracy can retroactively apply to all acts committed
in furtherance of the conspiracy during those ten years. See
United States v. Howard, 350 F.3d 125, 127 (D.C. Cir. 2003)
(holding that the Ex Post Facto Clause permits use of the
Guidelines for so-called “straddle” offenses which begin before,
but continue after, the Guidelines became effective). Here, since
Gonzalez-Valencia pleaded guilty to a conspiracy lasting into
2016, the final “criminal acts” were in 2016. Thus, Guidelines
from 2016 or before could be validly applied to those criminal
acts. Cf. United States v. Clark, 747 F.3d 890, 897 (D.C. Cir.
2014) (holding that the use of Guidelines which post-dated the
final criminal act was plain error).
Gonzalez-Valencia’s objection is not directly governed by
our precedents, however, because it concerns predicate conduct
to an enhancement, not predicate conduct to a criminal
conviction. Though our court has not explicitly extended our Ex
Post Facto Clause jurisprudence to sentencing enhancements, at
least two other circuits have done so. In United States v.
Vallone, 752 F.3d 690 (7th Cir. 2014), the Seventh Circuit held
that enhancements could be applied to pre-enactment conduct,
provided that the conspiracy continued post-enactment. Id. at
699. Vallone reasoned that defendants are “on notice” that
persisting in criminal conduct opens them to the risk of being
sentenced for all their conduct using the latest Guidelines. Id.
4
The date is not, as Gonzalez-Valencia argues, see Reply Br. 23, the
date of the conduct supporting the enhancement.
12
Likewise, United States v. Minicone, 960 F.2d 1099 (2d Cir.
1992), as amended on reh’g in part (Apr. 13, 1992), involved
RICO enhancements based on conduct prior to the
enhancements’ enactment. While noting that “the length of
[defendant’s] sentence is determined solely on the basis of
pre-Guidelines conduct,” the Second Circuit emphasized that the
“conspirators in this case continued to act after the effective date
of the law here being challenged, with full notice of the
consequences.” Id. at 1111. Vallone and Minicone indicate that
the relevant sentencing enhancement is not being applied
retroactively; instead, it is being applied to the post-Guidelines
conduct that continued the ongoing conspiracy—and that
conduct, by virtue of conspiracy liability, sweeps in all past
conduct.
Finally, application of the violence and firearm
enhancements was not plain error. Gonzalez-Valencia argues
that foreign conduct cannot serve as a predicate act absent a
clear statement from Congress. But as with his Ex Post Facto
Clause objection, he does not cite any on-point Supreme Court
or circuit precedent. Novel legal issues generally do not give rise
to plain errors, and Gonzalez-Valencia points to no violation of
an established legal norm.
V.
In addition to his claims about the Sentencing Guidelines,
Gonzalez-Valencia presents two arguments dealing with his
extradition.
The first is that the district court, as a matter of international
comity, “was required to comply with the Uruguay’s [sic]
condition” on his extradition, Appellant Br. 46, that he would
not be sentenced to life imprisonment.
13
The second argument is that the district court at least had to
explain why it rejected his first argument.
In support of his first argument—that Uruguay extradited
him on the condition that he would not be sentenced to life
imprisonment—Gonzalez-Valencia relies on United States v.
Cuevas, 496 F.3d 256 (2d Cir. 2007), for the proposition that,
“in the sentencing context,” a court “must balance its
discretionary sentencing decision with the principles of
international comity.” Id. at 262 (second excerpt quoting United
States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003) (per curiam)).
Accordingly, a district court “should temper [its] discretion in
sentencing an extradited defendant with deference to the
substantive assurances made by the United States to an
extraditing nation.” Id. (emphasis and alterations in original)
(quoting Baez, 349 F.3d at 93).
The reasoning of the Second Circuit in Cuevas and Baez is
sound, but Gonzalez-Valencia’s quotation of those opinions
gives away the game. The district court should consider
assurances “made by the United States,” but in this case the
United States made no assurances. Instead, the U.S. Embassy in
Montevideo stated that “the United States is not obliged to grant
[any] guarantee” about life sentences. S.A. 92.5 Any “unilateral
belief[s]” held by Uruguay are “insufficient to bind the United
States” or the district court. Cuevas, 496 F.3d at 263. Gonzalez-
Valencia’s argument is, to put it bluntly, frivolous or close to it.6
5
The Government has submitted sealed materials, but we decide this
case only on the basis of the public record.
6
It is an open question whether a criminal defendant may benefit from
the government’s violation of an extradition treaty. See, e.g., United
States v. Lopesierra-Gutierrez, 708 F.3d 193, 206 (D.C. Cir. 2013)
(“We have previously noted conflicting authority as to whether a
14
His second argument is that the district court erred in failing
to explain why the court imposed a life sentence despite
Uruguay’s opposition to such a sentence.
To respond as we have to several of his other claims, no
such error is evident. Federal Rule of Criminal Procedure
32(i)(3)(B) requires district courts, for any “controverted
matter” at sentencing, to “rule on the dispute or determine that
a ruling is unnecessary.” Likewise, 18 U.S.C. § 3553(c)
demands that the sentencing court “state in open court the
reasons for its imposition of the particular sentence.” We have
repeatedly held that these provisions “do not require the court to
expressly address every argument advanced by a defendant,” but
merely provide “a ‘reasoned basis for exercising [the court’s]
legal decisionmaking authority.’” United States v. Borda, 848
F.3d 1044, 1071 (D.C. Cir. 2017) (quoting United States v.
Locke, 664 F.3d 353, 358 (D.C. Cir. 2011)); see also Locke, 664
F.3d at 357 (rejecting the need for “‘a full opinion’” on “each
and every argument advanced by the defendant” (quoting Rita
v. United States, 551 U.S. 338, 356 (2007))). The contrary cases
Gonzalez-Valencia cites involve far more egregious
conduct—for example, district courts applying enhancements
“without ever making specific factual findings.” United States
v. McCants, 434 F.3d 557, 561 (D.C. Cir. 2006). Here, by
contrast, the district court explained its reasoning in
considerable detail.7
criminal defendant—as opposed to the extraditing state—has standing
to assert the [objection to extradition].”); Casey v. Dep’t of State, 980
F.2d 1472, 1476 n.4 (D.C. Cir. 1992) (“[I]t remains an open question
in this circuit whether Casey has ‘standing’ to raise his claims after
extradition.”).
7
Mr. Gonzalez-Valencia also initially argued that the district court
erred in denying his motion to dismiss the indictment for extradition-
15
***
Since Gonzalez-Valencia has neither demonstrated that the
district court committed reversible error nor that remand is
warranted under 28 U.S.C. § 2106, we affirm his sentence.
So ordered.
related reasons. But as his reply brief expressly conceded that this
argument was waived, see Reply Br. 5, we do not consider it.