United States v. Antonio Moreno-Membache

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2020 Decided: April 27, 2021

No. 19-3051

UNITED STATES OF AMERICA,

APPELLEE

v.

ANTONIO MORENO-MEMBACHE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cr-00134-5)

Carmen D. Hernandez, appointed by the court, argued the

cause for appellant. With her on the briefs was Richard K.

Gilbert, appointed by the court.

James I. Pearce, Attorney, U.S. Department of Justice,

argued the cause and filed the brief for appellee. John M.

Pellettieri, Attorney, entered an appearance.

Before: TATEL, MILLETT, and KATSAS, Circuit Judges.

Opinion for the court filed by Circuit Judge MILLETT.

Dissenting opinion filed by Circuit Judge KATSAS.

2

MILLETT, Circuit Judge: Plea agreements are at once

ordinary and extraordinary. Ordinary because they resolve

nearly 98% of criminal cases in the federal system every year. 1

And extraordinary because of what they entail for individual

defendants. A guilty plea is not only the defendant’s admission

in open court that he committed a crime, but also a “grave and

solemn act” through which the defendant waives a panoply of

constitutional rights, including his rights to a jury trial and to

put the government to its heavy burden of proof. See Brady v.

United States, 397 U.S. 742, 748 (1970). Because of the vital

interests at stake, “when a plea rests in any significant degree

on a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such

promise must be fulfilled.” Santobello v. New York, 404 U.S.

257, 262 (1971).

In this case, Antonio Moreno-Membache entered a guilty

plea on the understanding that the government would not argue

that he was ineligible for a sentence reduction because of his

alleged supervisory or managerial role in a drug-smuggling

conspiracy. That promise would eliminate a statutory barrier

to Moreno-Membache seeking relief under the Safety Valve

provision of the Sentencing Reform Act of 1984, 18 U.S.C.

§ 3553(f)(4), from his mandatory minimum sentence.

The government understood its promise differently,

arguing that it retained the ability to oppose any Safety Valve

relief and characterizing the relevant language in the plea

1

See Federal Judicial Caseload Statistics, Table D-4, U.S.

COURTS (2020), https://www.uscourts.gov/statistics/table/d-

4/federal-judicial-caseload-statistics/2020/03/31 (last accessed April

26, 2021).

3

agreement as “inelegant[]” and “unnecessary.” Oral Arg. Tr.

17:1–3, 21:8–9.

The question before this court is whether the language of

the plea agreement is ambiguous because the law demands

clarity when constitutional rights are waived. We hold that the

plea agreement is ambiguous as to the government’s ability to

oppose Safety Valve relief on the ground that Moreno-

Membache was a supervisor or manager in a drug conspiracy.

Controlling precedent requires that the ambiguity be resolved

in favor of the defendant. For that reason, we vacate Moreno-

Membache’s sentence and remand for a new sentencing

proceeding, untainted and uninfluenced by the government’s

breach of the plea agreement and the evidence it introduced in

the process.

I

A

In June 2012, the United States Coast Guard surveilled the

Mistby, a so-called “go-fast” boat, off the coast of Panama. 2

When the Coast Guard approached, the Mistby fled. As the

Coast Guard pursued the boat, the Mistby’s crew began

dumping cargo overboard. To no avail. The Coast Guard soon

interdicted the Mistby and retrieved the discarded cargo, which

amounted to more than 220 kilograms of cocaine and more than

235 kilograms of marijuana.

Moreno-Membache was not a member of the Mistby’s

crew, nor was he present when the ship was stopped. See

2

A “go-fast” boat is “a type of boat that can travel at high rates

of speed and thus is considered a favored vehicle for drug smuggling

operations.” United States v. Tinoco, 304 F.3d 1088, 1117 (11th Cir.

2002).

4

United States v. Mosquera-Murillo, 902 F.3d 285, 287–288

(D.C. Cir. 2018). Instead, he was arrested and extradited to the

United States after a joint investigation of the Colombian and

United States governments concluded that he was involved in

the conspiracy that ultimately resulted in the Mistby’s failed

journey. Id.

In January 2016, Moreno-Membache pled guilty to

conspiracy to “knowingly and intentionally distribute, and

possess with intent to distribute * * * on board a vessel subject

to the jurisdiction of the United States” both (i) five kilograms

or more of cocaine, and (ii) 100 kilograms or more of

marijuana. J.A. 130 ¶ 1. The charge was a violation of the

Maritime Drug Law Enforcement Act (“Maritime Drug Act”),

46 U.S.C. §§ 70503, 70506(b), and the Controlled Substances

Import and Export Act, 21 U.S.C. § 960(b)(1)(B), (b)(2)(G).

Under the Maritime Drug Act, the conspiracy charge to

which Moreno-Membache pled carries a mandatory minimum

sentence of ten years in prison. 46 U.S.C. § 70506(a) (stating

that violators of the Maritime Drug Act shall be punished as

provided in 21 U.S.C. § 960(b)); see 21 U.S.C. § 960(b)(1)(B),

(b)(2)(G) (providing for ten-year mandatory minimum).

A separate statutory provision, known as the Safety Valve,

allows district courts to approve sentences below a mandatory

minimum in certain circumstances. Sentencing Reform Act of

1984, Pub. L. No. 98-473, § 212(a), 98 Stat. 1987, 1989–1990

(codified at 18 U.S.C. § 3553(f)). Specifically, the Safety

Valve provision sets out five eligibility criteria for obtaining

relief. 18 U.S.C. § 3553(f). The offense (i) must not have

resulted in death or serious bodily injury to any person, and the

defendant (ii) must not have a significant criminal history,

(iii) must not have used or threatened violence or possessed a

firearm or other dangerous weapon in connection with the

5

offense, (iv) must not be “an organizer, leader, manager, or

supervisor of others in the offense, as determined under the

sentencing guidelines,” and (v) must truthfully provide all

relevant information and evidence concerning the offense to

the government. 18 U.S.C. § 3553(f)(1)–(5).

Also relevant to this appeal, Moreno-Membache’s plea

agreement was a “C-Plea.” Referencing Federal Rule of

Criminal Procedure 11(c)(1)(C), a “C-Plea” is one that makes

the government’s recommended sentence “binding on the court

‘once the court accepts the plea agreement[.]’” Freeman v.

United States, 564 U.S. 522, 529 (2011) (quoting FED. R. CRIM.

P. 11(c)(1)(C)); accord United States v. Goodall, 236 F.3d 700,

703 (D.C. Cir. 2001). A C-Plea presents the district court with

a take-it-or-leave-it proposition: The court must either accept

or reject the plea; it may not modify the plea’s terms, including

the proposed sentence. See Goodall, 236 F.3d at 703 (citing

United States v. Cunavelis, 969 F.2d 1419, 1422 (2d Cir.

1992)).

Under the C-Plea, the government and Moreno-

Membache agreed to a sentence of 120 months (the mandatory

minimum sentence), unless the district court determined that

Moreno-Membache was eligible for relief under the Safety

Valve provision. J.A. 131 ¶ 7. So the district court could either

accept the 120-month sentence or find that Moreno-Membache

deserved a lesser sentence under the Safety Valve provision.

But the district court could not impose a longer sentence.

Under the plea agreement, Moreno-Membache expressly

preserved his ability to seek relief from his mandatory

minimum sentence under the Safety Valve provision. J.A. 132

¶ 9; see also J.A. 132 ¶¶ 6, 7. And the government preserved

its right to argue both that (i) the Safety Valve provision is

categorically inapplicable to Moreno-Membache’s conviction

6

under the Maritime Drug Act, and (ii) Moreno-Membache does

not meet the Safety Valve eligibility criteria. J.A. 132 ¶ 9.

In the same paragraph of the plea agreement in which the

government preserved its Safety Valve arguments, the

government also surrendered its ability “to seek any of the

adjustments set out in U.S.S.G. Chapter 3, Part B.” J.A. 132

¶ 9. That part of the Sentencing Guidelines includes, as

relevant here, sentencing enhancements for a defendant’s

aggravating role in the offense. U.S. SENTENCING GUIDELINES

MANUAL § 3B1.2 (U.S. SENTENCING COMM’N 2004)

(“U.S.S.G.”). A defendant plays an “aggravating role” when

he acts as an organizer, leader, manager, or supervisor in the

criminal operation. Id.

B

The district court initially ruled that the Safety Valve

provision had no application to the Maritime Drug Act crimes

to which Moreno-Membache had pleaded guilty. See United

States v. Mosquera-Murillo, 172 F. Supp. 3d 24, 38 (D.D.C.

2016). This court reversed, holding that the Safety Valve was

available for such offenses. Mosquera-Murillo, 902 F.3d

at 296.

On remand, the district court turned to Moreno-

Membache’s request for relief under the Safety Valve

provision. United States v. Mosquera-Murillo, No. 13-cr-

00134-BAH, 2018 WL 6267765, at *1 (D.D.C. Nov. 30, 2018).

Turning to the five statutory criteria for relief, the district court

concluded as to the first and third criteria that Moreno-

Membache had no serious criminal history and that the crime

did not result in serious injury or death to any person. Id. at *5.

The district court also declined to address the fifth criterion,

which is whether Moreno-Membache fully shared all relevant

information about his criminal activities with the government.

7

Id. So the district court’s analysis of Moreno-Membache’s

eligibility for relief under the Safety Valve provision turned on

the two remaining criteria: whether Moreno-Membache

performed some leadership or supervisory role in the offense

“as determined under the sentencing guidelines,” and whether

he possessed a weapon in conjunction with the crime, 18

U.S.C. § 3553(f)(2) & (4).

With respect to acting as a leader or supervisor, Moreno-

Membache contended that the government expressly

surrendered its right to argue that he had served such a role

when it “agree[d] not to seek any of the adjustments set out in

U.S.S.G. Chapter 3, Part B[,]” J.A. 132 ¶ 9, which necessarily

included arguing that he served as an organizer, leader,

manager, or supervisor in the conspiracy, see U.S.S.G. § 3B1.1

cmt. n.2; Joint Status Report at 4–5, 7–8, Mosquera-Murillo,

No. 13-cr-00134-BAH (D.D.C. Nov. 19, 2018), ECF No. 271.

The government disagreed and would present evidence that

Moreno-Membache was ineligible for relief under the Safety

Valve provision because of his alleged supervisory or

managerial role in the offense. Joint Status Report at 6,

Mosquera-Murillo, No. 13-cr-00134-BAH (D.D.C. Nov. 19,

2018), ECF No. 271.

The district court ruled that the plea agreement preserved

the government’s ability to argue that Moreno-Membache was

ineligible for Safety Valve relief because of his supervisory or

managerial role. The district court reasoned that, in the plea

agreement, the government waived only its right to seek an

increase in Moreno-Membache’s guideline sentence because

of his alleged leadership status. The district court also pointed

to other provisions of the plea agreement that allowed the

government to “inform the Court and the Probation Office” of

facts relevant to sentencing, J.A. 132 ¶ 8, and to “dispute

8

sentencing factors or facts material to sentencing,” J.A. 133

¶ 12.

After conducting an evidentiary hearing, the district court

found that Moreno-Membache was a supervisor or manager of

crew members involved in the offense. United States v.

Mosquera-Murillo, No. 13-cr-00134-BAH, 2019 WL

3037533, at *12–15 (D.D.C. July 11, 2019).

With respect to the other Safety Valve criterion pertaining

to the use of a firearm in conjunction with the offense, the

district court credited a law enforcement agent’s description of

two cooperating co-conspirators’ claims that Moreno-

Membache possessed a firearm. The captain of the Mistby

reportedly said that he saw Moreno-Membache with a firearm

at a planning meeting. Mosquera-Murillo, 2019 WL 3037533,

at *15. And a “streetwise” crewmember reportedly said that he

saw what appeared to him to be the outline of a firearm in

Moreno-Membache’s waistband, but he did not see the firearm

itself. Id.

Based on its findings as to Moreno-Membache’s

supervisory or managerial status and possession of a firearm in

conjunction with the crimes, the district court ruled that

Moreno-Membache was ineligible for relief from the Maritime

Drug Act’s mandatory minimum sentence under the Safety

Valve provision. The court then sentenced Moreno-Membache

to the mandatory minimum of 120 months in prison. Moreno-

Membache filed a timely notice of appeal.

II

The district court had jurisdiction to hear this case under

18 U.S.C. § 3231, which gives the district courts of the United

States original jurisdiction over “all offenses against the laws

of the United States.” This court has jurisdiction to hear the

9

appeal of the final judgment in this case under 28 U.S.C.

§ 1291.

To determine whether a party has breached the terms of a

plea agreement, we generally apply principles of contract law.

United States v. Henry, 758 F.3d 427, 431 (D.C. Cir. 2014);

United States v. Jones, 58 F.3d 688, 692 (D.C. Cir. 1995). We

interpret the terms of the plea agreement de novo. Henry, 758

F.3d at 431. Consistent with constitutional principles and the

settled rule that contracts are construed against their drafters,

we construe any ambiguities in the plea agreement against the

government. In re Sealed Case, 702 F.3d 59, 65 (D.C. Cir.

2012).

III

A

1

At the heart of this case is the ninth paragraph of Moreno-

Membache’s plea agreement. That paragraph reads, in relevant

part:

The government agrees not to seek any of the

adjustments set out in U.S.S.G. Chapter 3,

Part B. The Defendant is permitted to request

relief under Safety Valve provisions, and the

Government is permitted to argue that the

Safety Valve provisions do not apply to the

maritime offense to which the Defendant has

agreed to plead guilty and that, in any event, the

Defendant does not meet the criteria to qualify

for Safety Valve relief.

J.A. 132 ¶ 9 (emphasis added).

10

The question is whether the government’s express

agreement not to seek any adjustment under Chapter 3, Part B

of the Sentencing Guidelines—including arguing that Moreno-

Membache qualified for a supervisory or managerial role

enhancement—foreclosed it from nevertheless arguing that

Moreno-Membache was ineligible for Safety Valve relief

because he was a supervisor or manager “as determined under

the sentencing guidelines,” 18 U.S.C. § 3553(f)(4).

Under settled precedent, ambiguity in the meaning of a

plea agreement must be resolved against the government.

Henry, 758 F.3d at 431; Jones, 58 F.3d at 691. Here, the scope

of the government’s waiver of its right to argue that Moreno-

Membache had a supervisory or managerial role in the offense

is, at a minimum, ambiguous, and Moreno-Membache

reasonably read the plea agreement as foreclosing the

government’s opposition to his eligibility for Safety Valve

relief on that basis.

To start with, the statutory Safety Valve criterion

regarding supervisory and managerial roles expressly

references the sentencing guidelines. See 18 U.S.C.

§ 3553(f)(4). And Section 5C1.2 of the Sentencing Guidelines,

which specifically implements the Safety Valve criterion in

Section 3553(f)(4), provides that a criminal defendant is

disqualified from Safety Valve relief only if he “receives an

adjustment for an aggravating role under § 3B1.1.” U.S.S.G.

§ 5C1.2 cmt. n.5 (emphasis added). In other words, the Safety

Valve criterion only seems to proscribe relief for those who are

actually given an “organizer, leader, manager, or supervisor”

adjustment under the Sentencing Guidelines. That is what the

government under Paragraph Nine expressly surrendered by

forgoing its ability to argue that Moreno-Membache should

“receive[]” a supervisory adjustment under Section 3B1.1.

11

And Moreno-Membache in fact never “receive[d]” any such

adjustment under the Sentencing Guidelines.

Because the government’s ability to oppose Moreno-

Membache’s eligibility for Safety Valve relief on the grounds

of his supervisory or managerial status textually hinged on that

status actually being “determined” under the Sentencing

Guidelines and Moreno-Membache actually “receiv[ing]” such

an adjustment, the plea agreement, at the very least, can

reasonably be read to foreclose the government from pursuing

such an argument at sentencing. 3

Reinforcing our conclusion, the government candidly

acknowledged at oral argument that Paragraph Nine was

“inelegantly drafted.” Oral Arg. Tr. 21:8–9. Which seems to

be a deft way of admitting that the agreement was unclear.

Because Moreno-Membache reasonably read that inelegant

phrasing as foreclosing the government from arguing his

ineligibility for Safety Valve relief based on his asserted

supervisory or managerial status, that is the reading we must

give the agreement’s text.

The government’s only counter is to read Paragraph Nine

as simply promising that it would not seek any additional

adjustments to Moreno-Membache’s sentence. That cannot be.

Remember, Moreno-Membache’s plea agreement was a “C-

Plea” that, by its very terms, already precluded the government

from seeking any additional adjustments or enhancements to

Moreno-Membache’s sentence. See, e.g., Freeman, 564 U.S.

3

To be clear, whether a criminal defendant must actually

receive an aggravating role adjustment under the Sentencing

Guidelines to be ineligible for Safety Valve relief is not the question

in this case. The only question is whether Moreno-Membache

reasonably read the plea agreement that way, in light of Paragraph

Nine and the incorporated Sentencing Guidelines provision. He did.

12

at 529 (quoting FED. R. CRIM. P. 11(c)(1)(C)). So there was no

reason for the plea agreement to include language prohibiting

the government from seeking an adjustment under Chapter 3,

Part B of the Sentencing Guidelines other than to preclude the

government’s opposition to Safety Valve relief on the basis of

an asserted supervisory or managerial role.

In other words, the language of the plea agreement either

meant something under Moreno-Membache’s reading or meant

nothing under the government’s. We are loath to assume that

a defendant surrendered a panoply of constitutional rights in

exchange for a meaningless and valueless promise. See 11

WILLISTON ON CONTRACTS § 32:5 (4th ed. Supp. Nov. 2020)

(“An interpretation which gives effect to all provisions in the

contract is preferred to one which renders part of the writing

superfluous, useless, or inexplicable.”); cf. United States v.

Franco-Lopez, 312 F.3d 984, 991 (9th Cir. 2002) (“[W]e prefer

a contractual interpretation that gives some effect to the

government’s apparent promises contained in the

agreement[.]”). At a minimum, whether the government’s

promise was meaningful or meaningless is textually

ambiguous.

2

Of course, Paragraph Nine’s language cannot be read in

isolation. Because a plea agreement is a contract, it must be

read as a whole. United States v. Schwartz, 511 F.3d 403, 405

(3d Cir. 2008) (Plea agreements “must be interpreted as a

whole and no part should be ignored.”) (quoting CALAMARI &

PERILLO, CONTRACTS §3.13 (5th ed. 2003)); see also 11

WILLISTON ON CONTRACTS §32:5 (4th ed. Supp. Nov. 2020).

In that regard, the district court pointed to two other provisions

in the agreement that, in its view, preserved the government’s

ability to oppose Safety Valve relief on the basis of Moreno-

13

Membache’s asserted supervisory or managerial status.

Neither provision resolves, nor even addresses, the relevant

ambiguity.

The district court pointed to Paragraphs Eight and Twelve

of the agreement, both of which preserved the government’s

ability to advise the court of “facts pertinent to the sentencing

process,” J.A. 132 ¶ 8, and “facts material to sentencing,”

J.A. 133 ¶ 12. But those provisions are more naturally read as

allowing the government to introduce evidence bearing on

those other sentencing and Safety Valve factors not expressly

waived in Paragraph Nine. That, in fact, is exactly what the

government has done in arguing that Moreno-Membache is

ineligible for the Safety Valve because of his possession of a

firearm to facilitate the offense.

The district court offered a second rationale for finding

that the plea agreement was unambiguous. It reasoned that the

Sentencing Guidelines commentary defining an “organizer,

leader, manager, or supervisor” as a person “who receive[d] an

adjustment for an aggravating role” does not limit the court’s

ability to determine Safety Valve eligibility because the court,

“not the government, makes the final determination of the

applicability of such a role enhancement.” See Mosquera-

Murillo, 2018 WL 6267765, at *6. So in the district court’s

view, the government’s promise not to present evidence did not

prevent the court itself from finding that a role enhancement

applied. See id. Maybe. But the issue here is not about the

power of the court, but whether the government’s conduct

breached the plea agreement when it asked the court to find that

Moreno-Membache was a supervisor or manager as part of the

sentencing proceeding and submitted evidence to that end on

which the court relied. Or, more specifically, whether the plea

agreement’s ambiguous language could reasonably be

14

understood by Moreno-Membache as foreclosing that

argument and introduction of evidence by the government.

In sum, based on the plain text of the plea agreement, the

correlative wording of the Sentencing Guidelines, and the

longstanding rule that ambiguity in a plea agreement is

interpreted against the government, we hold that the

government breached its agreement with Moreno-Membache

when it argued that he was ineligible for Safety Valve relief

because of any supervisory or managerial role he might have

played in the offense. With so much at stake for the defendant,

it is not too much to hold the government that drafted the plea

agreement responsible for the misunderstanding that arose

from a confusing, unclear (“inelegant[]”), and “unnecessary”

hollow promise in the agreement, Oral Arg. Tr 21:8–9, 17:1–3.

B

The government argues that, regardless of his supervisory

or managerial status, Moreno-Membache is still ineligible for

Safety Valve relief because he “possess[ed] a firearm or other

dangerous weapon” in connection with the conspiracy, see 18

U.S.C. § 3553(f)(2).

Specifically, the government argued to the district court

that Moreno-Membache was ineligible for Safety Valve relief

because he attended one Mistby planning meeting with a

9-millimeter pistol. The government supported this account

with the testimony of a special agent who reviewed transcripts

of interviews with the Mistby’s captain (a cooperating co-

conspirator), who stated he saw the firearm, and a crewmember

(another cooperating co-conspirator), who asserted he saw

what appeared to be the outline of a gun in Moreno-

Membache’s waistband. J.A. 226–227.

15

But to render a defendant ineligible for relief, his

possession of the firearm must have had “the potential of

facilitating the drug trafficking offense.” United States v.

Erazo, 628 F.3d 608, 611 (D.C. Cir. 2011) (alteration omitted)

(quoting United States v. DeJesus, 219 F.3d 117, 122 (2d Cir.

2000)); see 18 U.S.C. § 3553(f)(2) (firearm must be possessed

“in connection with the offense”).

In this case, the district court grounded its finding of

facilitation on Moreno-Membache’s “supervisory role”

guarding the narcotics. Mosquera-Murillo, 2019 WL 3037533,

at *16. Specifically, the district court found that Moreno-

Membache “had responsibility for supervising others in the

storage and movement of the cocaine that ultimately was

loaded onto the Mistby.” Id. at *14. The district court therefore

found that, because Moreno-Membache played a supervisory

role in safeguarding the cocaine and possessed a firearm, his

firearm had the potential of facilitating the drug trafficking

offense. See id. at *16; see also Erazo, 628 F.3d at 611.

Because the district court specifically tied its facilitation

determination to its prior finding that Moreno-Membache acted

as a manager or supervisor, we are unable to disentangle the

district court’s firearm determination from the government’s

arguments in breach of the plea agreement asserting Moreno-

Membache’s supervisory or managerial position. As a result,

“the interests of justice and appropriate recognition of the

duties of the prosecution in relation to promises made in the

negotiation of pleas of guilty will be best served by remanding

the case[.]” Santobello, 404 U.S. at 262; see Pepper v. United

States, 562 U.S. 476, 507 (2011) (“Because a district court’s

‘original sentencing intent may be undermined by altering one

portion of the calculus,’ an appellate court when reversing one

part of a defendant’s sentence ‘may vacate the entire sentence

so that, on remand, the trial court can reconfigure the

16

sentencing plan[.]’”) (formatting modified; first quoting United

States v. White, 406 F.3d 827, 832 (7th Cir. 2005), then quoting

Greenlaw v. United States, 554 U.S. 237, 253 (2008)); United

States v. Wolff, 127 F.3d 84, 86 (D.C. Cir. 1997).

The dissenting opinion asserts that the district court’s

analysis of Moreno-Membache’s firearm and his supervisory

role were sufficiently distinct because, if Moreno-Membache

guarded the cocaine while possessing a firearm, it would not

matter if he was a lowly laborer in the conspiracy or a kingpin.

Dissenting Op. 3–4. While we agree on the law, we disagree

on the facts. When it found that Moreno-Membache guarded

drugs, the district court expressly predicated its determination

upon its specific finding that Moreno-Membache “had a

supervisory role,” Mosquera-Murillo, 2019 WL 3037533,

at *16, an issue it likely would not have reached had the

government complied with the plea agreement.

The dissenting opinion separately contends that the

firearm could be connected to the offense because one

cooperating co-conspirator claimed to have seen Moreno-

Membache with a pistol at a planning meeting and another

cooperating co-conspirator said that he saw what he perceived

to be the outline of a pistol in Moreno-Membache’s waistband

at the Mistby’s launch site. But that was not the basis for the

district court’s facilitation finding. And this court is ill-

equipped to make such a factual finding. 4

4

Cf. United States v. Vaval, 404 F.3d 144, 155 (2d Cir. 2005)

(remanding for resentencing even though the district court was not

influenced by the government’s breach of the plea agreement

because, “in order to preserve the integrity of plea bargaining

procedures and public confidence in the criminal justice system, a

defendant is generally entitled to the enforcement of a plea

17

Remand will allow the district court to make an

independent determination regarding the firearm criterion,

uninfluenced in any way by any of the government’s improper

argument or evidence presented to support Moreno-

Membache’s asserted supervisory or managerial status. More

to the point, on remand Moreno-Membache will finally receive

what he bargained for—a sentencing hearing freed of the

government’s argument or evidence that he was a manager or

supervisor in the conspiracy.

IV

For all of those reasons, we reverse the ruling of the district

court, vacate Moreno-Membache’s sentence, and remand to the

district court for further proceedings consistent with this

opinion.

So ordered.

agreement without showing tangible harm resulting from a breach”);

see also United States v. Yah, 500 F.3d 698, 704 (8th Cir. 2007)

(remanding for resentencing, even where “[t]he district court

specifically stated that the government’s [breach] was irrelevant” to

the imposed sentence because “‘[t]he fact that the district court stated

the government’s remark did not influence its decision does not

ameliorate the government’s breach.’”) (quoting United States v.

McCray, 849 F.2d 304, 305 (8th Cir. 1988)).

KATSAS, Circuit Judge, dissenting: Antonio Moreno-

Membache, who belonged to a smuggling operation in

Colombia, pleaded guilty to an offense carrying a minimum

prison sentence of ten years. The plea bargain preserved his

ability to seek a lower sentence under 18 U.S.C. § 3553(f),

popularly known as the Safety Valve, which permits a sentence

below statutory minima if the district court makes five findings

favorable to the defendant. One of them is that the defendant

was not an “organizer, leader, manager, or supervisor of others

in the offense.” Id. § 3553(f)(4). Another is that the defendant

did not “possess a firearm ... in connection with the offense.”

Id. § 3553(f)(2). The district court here found that Membache

satisfied neither requirement, so it imposed a ten-year sentence.

United States v. Mosquera-Murillo, No. 13-cr-00134-BAH,

2019 WL 3037533, at *12–16 (D.D.C. July 11, 2019).

In vacating the sentence, my colleagues reason in two

steps. First, the government breached the plea bargain by

arguing that Membache was ineligible for Safety Valve relief

because he supervised others in the offense. Ante at 9–14.

Second, evidence of such supervision may have improperly

influenced the district court’s finding that Membache

possessed a firearm in connection with the offense. Id. at 14–

17. I will assume the first point for the sake of argument. But

as explained below, I disagree with the second.

A

Section 3553(f)(4) disqualifies a defendant from Safety

Valve relief if he “possess[ed] a firearm ... in connection with

the offense.” Possession happens “in connection with the

offense” if the firearm has the “potential of facilitating” the

offense, United States v. Erazo, 628 F.3d 608, 611 (D.C. Cir.

2011)—as when, for example, a firearm is “present in order to

protect contraband,” United States v. Evans, 888 F.2d 891, 896

(D.C. Cir. 1989). The defendant must prove eligibility for

Safety Valve relief by a preponderance of the evidence. United

2

States v. Mathis, 216 F.3d 18, 29 (D.C. Cir. 2000). We review

findings about such eligibility only for clear error. United

States v. Gales, 603 F.3d 49, 53 (D.C. Cir. 2010).

The district court did not clearly err in finding that

Membache possessed a firearm in connection with his offense.

In his guilty plea, Membache acknowledged membership in an

organization that grew and stored large amounts of cocaine and

marijuana in Colombia, then used speedboats to smuggle the

drugs into Panama. Two members of the organization told the

government that Membache possessed a firearm in connection

with the smuggling. The captain of the ill-fated Mistby saw

Membache carry a 9-millimeter pistol—and at one point

openly display it—during a planning meeting before the boat’s

launch. A Mistby crew member likewise saw Membache with

a pistol tucked into his waistband at the launch site. The district

court credited these statements and thus concluded that

Membache possessed a firearm. Mosquera-Murillo, 2019 WL

3037533, at *15–16. The court then found that Membache

possessed the firearm “in connection with” his offense because

his job included “safeguarding” the contraband. Id. at *16.

That conclusion rested in part on statements from five co-

conspirators—including two of Membache’s brothers—that

Membache was responsible for guarding and moving the drugs

in Colombia. Id. at *6–7.

Membache asks us to disregard this evidence because it

was introduced through the hearsay testimony of a government

investigator. But sentencing courts may consider all evidence

of a defendant’s “background, character, and conduct,” 18

U.S.C. § 3661, including reliable hearsay, United States v.

Leyva, 916 F.3d 14, 26 (D.C. Cir. 2019). And we review the

decision to consider hearsay only for abuse of discretion. Id.

at 25. Here, the district court noted that the co-conspirators’

statements corroborated one another, the captain’s statements

3

about Membache were consistent, and an intercepted phone

call verified some of the captain’s other statements. Mosquera-

Murillo, 2019 WL 3037533, at *14–16. Under these

circumstances, the district court did not abuse its discretion in

considering the co-conspirators’ statements. See, e.g., Leyva,

916 F.3d at 25–26; United States v. Jones, 744 F.3d 1362,

1367–68 (D.C. Cir. 2014).

B

My colleagues take a different approach. They do not

contest the factual support for the finding that Membache

possessed a firearm in connection with his offense. Instead,

they worry that this finding may have rested on “improper

argument or evidence” that Membache supervised others. Ante

at 17. And they order the district court to reconsider the firearm

issue without any “argument or evidence” that Membache was

a supervisor. Id. This approach is wrong for two reasons.

First, the question whether Membache possessed a firearm

in connection with his offense is distinct from the question

whether Membache supervised others. The district court

recognized this by devoting separate sections of its opinion to

the evidence bearing on each question. See Mosquera-Murillo,

2019 WL 3037533, at *12–16. To be sure, in addressing the

firearm issue, the court did make one reference to Membache’s

supervisory role: “Moreover, as already established,

Membache had a supervisory role in the Mistby offense, and

played a role in safeguarding cocaine while it was transported

throughout Colombia onto go-fast vessels for shipment

elsewhere. Given this role in guarding the narcotics, his

firearm had the potential of facilitating the drug trafficking

offense.” Id. at *16 (cleaned up). The court’s analysis focused

on Membache’s conduct in “safeguarding” or “guarding”

illegal drugs, not on his exact position in the criminal

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enterprise. And that focus makes sense, for the court’s

conclusion—that the firearm helped Membache guard the

contraband—follows regardless of whether Membache acted

as one pawn among many, as a mid-level supervisor, or as a

high-level organizer. Similarly, once the court credited

testimony that Membache (i) displayed a pistol “at a planning

meeting prior to the launch of the Mistby” and (ii) possessed a

pistol “at the launch site of the Mistby,” Mosquera-Murillo,

2019 WL 3037533, at *15, the conclusion that he possessed the

weapon “in connection with the offense” follows inexorably.

The court’s stray reference to “supervisory role” made no

difference in its resolution of the firearm issue.

In any event, the plea bargain permitted the government to

present all evidence relevant to the firearm issue. The

agreement expressly allowed the government both to argue that

Membache “does not meet the criteria to qualify for Safety

Valve relief” and to “inform the Court” of “all relevant

information concerning the offenses committed.” J.A. 132. To

be sure, the agreement also barred the government from

seeking “any of the adjustments set out in” chapter 3.B of the

Sentencing Guidelines, id., which contains adjustments for the

defendant’s “role in the offense,” U.S.S.G. § 3B1. And

because the Safety Valve requires a finding that “the defendant

was not an organizer, leader, manager, or supervisor of others

in the offense, as determined under the sentencing guidelines,”

18 U.S.C. § 3553(f)(4) (emphasis added), there is at least

arguably no distinction between statutory arguments under

section 3553(f)(4) and guideline-adjustment arguments under

chapter 3.B. But whatever the force of this point to bar the

government from opposing Safety Valve relief under section

3553(f)(4), it cannot possibly bar the government from

opposing Safety Valve relief under section 3553(f)(2)—or

from introducing any evidence relevant to that provision. So if

Membache’s supervisory role were relevant to the firearm

5

question, the government could introduce evidence of it for that

purpose, and the district court could so consider it. See 18

U.S.C. § 3661 (“No limitation shall be placed on the

information concerning the background, character, and

conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

imposing an appropriate sentence.”). At most, that is how the

district court assessed the firearm issue.

In sum, the district court was permitted to consider all

evidence bearing on whether Membache possessed a firearm in

connection with his drug trafficking, and the court permissibly

resolved that question against him. Because that was enough

to foreclose Safety Valve relief, I would affirm Membache’s

ten-year sentence.