United States v. David Lopez Mendez

Case: 10-15101 Date Filed: 09/21/2012 Page: 1 of 17

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-15101

Non-Argument Calendar

________________________

D. C. Docket No. 8:10-cr-00100-JSM-MAP-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID LOPEZ MENDEZ,

Defendant-Appellant.

________________________

No. 10-15175

Non-Argument Calendar

________________________

D.C. Docket No. 8:10-cr-00100-JSM-MAP-2

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

Case: 10-15101 Date Filed: 09/21/2012 Page: 2 of 17

VICTOR MANUEL BALLESTERO LINARES,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

No. 10-15176

Non-Argument Calendar

________________________

D.C. Docket No. 8:10-cr-00100-JSM-MAP-4

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

EDWIL DIEGO NAVAS CARCAMO,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

No. 10-15177

Non-Argument Calendar

________________________

D.C. Docket No. 8:10-cr-00100-JSM-MAP-5

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

2

Case: 10-15101 Date Filed: 09/21/2012 Page: 3 of 17

EDGARDO EUDORO EVERETH OCAMPO,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(September 21, 2012)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

David Lopez Mendez appeals his convictions and concurrent 151-month

sentences, Victor Ballestero Linares appeals his concurrent 188-month sentences,

Edwil Navas Carcamo appeals his convictions and concurrent 151-month

sentences, and Edgardo Evereth Ocampo appeals his convictions, for

(1) conspiracy to possess with the intent to distribute 5 kilograms or more of

cocaine while on board a vessel subject to United States jurisdiction with persons

“known and unknown” and starting on an “unknown date,” in violation of 46

U.S.C. §§ 70503(a)(1), 70506(a) and (b), and 21 U.S.C. § 960(b)(1)(B)(ii) (“Count

1”); and (2) aiding and abetting possession with intent to distribute 5 or more

kilograms of cocaine while on board a vessel subject to United States jurisdiction,

in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a), 18 U.S.C. § 2, and 21 U.S.C.

3

Case: 10-15101 Date Filed: 09/21/2012 Page: 4 of 17

§ 960(b)(1)(B)(ii) (“Count 2”). All four defendants were tried in a joint trial, and

they were held accountable for 1,500 kilograms of cocaine, which was the amount

seized from the vessel.

I.

Mendez and Carcamo argue that the district court erred during voir dire in

failing to ask proposed questions regarding the jurors’ opinions about the

government engaging in maritime seizures, the defendants being Honduran, the

defendants not having the burden of proof, and the defendants having the right to

remain silent and not testify.

We review a district court’s conduct of voir dire for abuse of discretion.

United States v. Vera, 701 F.2d 1349, 1355 (11th Cir. 1983). The court’s

discretion includes whether to submit a party’s proposed questions to the venire.

United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983).

“The constitutional standard of fairness requires that a defendant have a

panel of impartial, indifferent jurors.” Murphy v. Florida, 421 U.S. 794, 799, 95

S. Ct. 2031, 2036 (1975) (quotations omitted). To this effect, voir dire plays a

critical function because without adequate voir dire, the trial court will be unable

to effectively remove jurors who are unable to act impartially, and the defendant

4

Case: 10-15101 Date Filed: 09/21/2012 Page: 5 of 17

will be unable to effectively challenge jurors. Rosales-Lopez v. United States, 451

U.S. 182, 188, 101 S. Ct. 1629, 1634 (1981).

“The purpose of voir dire is to enable the defendant to evaluate the

prospective jurors and select a fair and impartial jury.” Vera, 701 F.2d at 1355.

Because a “juror is poorly placed to make a determination as to his own

impartiality,” it is up to the trial court to make that determination. United States v.

Hawkins, 658 F.2d 279, 285 (5th Cir. 1981) (quotation omitted). The proper

inquiry is “whether the district judge’s overall examination, coupled with his

charge to the jury, affords a party the protection sought.” Tegzes, 715 F.2d at 507

(quotation omitted). A district court does not abuse its discretion unless it fails to

reasonably assure that prejudice would be discovered if present. Id.; see also

United States v. Brunty, 701 F.2d 1375, 1378-79 (11th Cir. 1983) (holding that the

district court did not abuse its discretion because it asked voir dire questions that

“adequately covered those matters which the defendant had a legitimate interest in

bringing out”).

Despite the assertions of Mendez and Carcamo, the district court did

question the jurors regarding the defendants’ Honduran nationality and the fact

that the defendants did not have the burden to prove anything at trial.

Furthermore, with regard to maritime seizures, the record shows that the court

5

Case: 10-15101 Date Filed: 09/21/2012 Page: 6 of 17

comprehensively questioned the prospective jurors about potential bias, which

allowed Mendez and Carcamo sufficient information upon which to base their

juror challenges. In addition, the court specifically instructed the jury at trial that

the defendants had a right not to testify, and that it could not consider their choice

to invoke that right as evidence against them. See United States v. Ramirez, 426

F.3d 1344, 1352 (11th Cir. 2005) (“A jury is presumed to follow the instructions

given to it by the district judge.”). Thus, the court did not abuse its discretion in

refusing to ask the proposed voir dire questions.

II.

Mendez, Linares, and Carcamo assert that the district court erred in finding

that they were not eligible for a reduction under U.S.S.G. § 3B1.2(b) based on

their minor role in the offense on the ground that each crew member aboard the

vessel was equally culpable.

A district court’s determination of a defendant’s role in the offense is a

factual finding to be reviewed for clear error. United States v. De Varon, 175 F.3d

930, 937 (11th Cir. 1999) (en banc). When the district court’s decision is

supported by the record and is not a misapplication of the Guidelines, we rarely

conclude that the determination was clearly erroneous. Id. at 945. The party

6

Case: 10-15101 Date Filed: 09/21/2012 Page: 7 of 17

seeking the minor-role adjustment “bears the burden of proving a mitigating role

in the offense by a preponderance of the evidence.” Id. at 939.

If the defendant was a “minor participant” in any criminal activity, his

offense level is reduced by two levels. U.S.S.G. § 3B1.2(b) (2009). A minor

participant is one “who is less culpable than most other participants, but whose

role could not be described as minimal.” Id. § 3B1.2, comment. (n.5).

In determining whether a mitigating-role adjustment applies, the district

court should consider two principles: “first, the defendant’s role in the relevant

conduct for which [he] has been held accountable at sentencing, and, second, [his]

role as compared to that of other participants in [his] relevant conduct.” De

Varon, 175 F.3d at 940. As to the first prong of this analysis, the court must

assess the defendant’s role in relation to all of the relevant conduct that was

attributed to him under § 1B1.3, as the broad scope of that section may cause some

defendants to be held accountable for conduct that is much broader than their

specific acts. Id. at 940-41. “Only if the defendant can establish that [he] played a

relatively minor role in the conduct for which [he] has already been held

accountable—not a minor role in any larger criminal conspiracy—should the

district court grant a downward adjustment for minor role in the offense.” Id. at

944.

7

Case: 10-15101 Date Filed: 09/21/2012 Page: 8 of 17

Under U.S.S.G. § 1B1.3, a defendant’s relevant conduct includes “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B) (2009). Because this is

a broad definition, we have noted that a defendant can be held accountable for

conduct that is broader than his specific acts. De Varon, 175 F.3d at 941. We

noted that a conspiracy is such an example because the defendant’s relevant

conduct can include the entire conspiracy even though his role in the conspiracy

was minor. Id. However, the defendant must show that his role was minor, and he

cannot make this showing when his conduct was more serious than suggested by

his base-offense level, or when the relevant conduct attributed to him is identical

to his actual conduct. Id.

In the drug courier context, the amount of drugs is relevant and may indicate

the extent of the defendant’s participation in the criminal enterprise. Id. at 943. In

addition, we have held that, when a defendant is held accountable only for the

drugs he admitted to conspiring to transport, the district court did not clearly err in

refusing to grant a minor-role reduction. United States v. Alvarez-Coria, 447 F.3d

1340, 1343 (11th Cir. 2006) (per curiam). On the other hand, a district court is not

precluded from granting a minor-role adjustment when the defendant is held

accountable only for the drugs he personally transported. U.S.S.G. § 3B1.2,

8

Case: 10-15101 Date Filed: 09/21/2012 Page: 9 of 17

comment. (n.3(A)) (2009).

Under the second prong of the analysis, the court should compare the

defendant to the other participants only to the extent that the others (1) “are

identifiable or discernable from the evidence,” and (2) “were involved in the

relevant conduct attributed to the defendant.” De Varon, 175 F.3d at 944. The

defendant must show that he “was less culpable than most other participants in

[his] relevant conduct” in order to receive a minor-role reduction. Id. (quotation

omitted) (emphasis in original).

We conclude that the district court did not clearly err in refusing to grant the

minor-role reduction. The defendants were not held accountable for a larger

amount of cocaine than they personally transported. See Alvarez-Coria, 447 F.3d

at 1343; De Varon, 175 F.3d at 941. Furthermore, none of the defendants

demonstrated, by a preponderance of the evidence, that he played a mitigating role

in the offense and was less culpable than most other participants in the relevant

conduct attributed to him. See De Varon, 175 F.3d at 939, 944. Under these

circumstances, we do not find clear error in the court’s refusal to grant a minor-

role reduction.

9

Case: 10-15101 Date Filed: 09/21/2012 Page: 10 of 17

III.

Mendez, Linares, and Carcamo assert that the court erred in refusing to

apply the safety valve in 18 U.S.C. § 3553(f) based on their convictions under

Title 46 and their sentencing under 21 U.S.C. § 960(b).

“We review the district court’s interpretation of the relevant sentencing

statutes and Sentencing Guidelines de novo.” United States v. Anderson, 200 F.3d

1344, 1347 (11th Cir. 2000) (per curiam). We recently held that the safety-valve

provision does not apply to Title 46 offenses. United States v. Pertuz-Pertuz, 679

F.3d 1327, 989, 1328-29 (11th Cir. 2012) (per curiam). In Pertuz-Pertuz, the

defendant had been convicted of (1) conspiracy to possess with intent to distribute

five or more kilograms of cocaine, in violation of 46 U.S.C. §§ 70503(a)(1),

70506(a) & (b), and penalized pursuant to 21 U.S.C. § 960(b)(1)(B)(ii); and (2)

aiding and abetting the possession with intent to distribute five or more kilograms

of cocaine, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a), 18 U.S.C. § 2, and

penalized pursuant to § 960(b)(1)(B)(ii). Id. at 1328. We held that, because §

70503 is not included in the five specified offenses under § 3553(f), the safety

valve does not apply to defendants convicted under that statute. Id. We rejected

the defendant’s argument that the reference in Title 46 to § 960 makes the offense

an enumerated offense under § 3553(f); instead, we concluded that the

10

Case: 10-15101 Date Filed: 09/21/2012 Page: 11 of 17

safety-valve provision refers to an “offense under” § 960—not to an “offense

penalized under” § 960. Id. at 1328-29.

Mendez, Linares, and Carcamo were convicted of the same crimes and

under the same provisions as the defendant in Pertuz-Pertuz. Because the safety

valve does not apply to convictions under Title 46, the district court did not err in

denying their request to be sentenced in accordance with § 3553(f).

IV.

Mendez and Carcamo argue that their sentences are procedurally and

substantively unreasonable based on a miscalculation of the Guidelines, an alleged

failure to consider the factors in 18 U.S.C. § 3553(a), and sentencing disparities

with other defendants in unrelated cases. Linares separately asserts that his

sentences are procedurally unreasonable based on a miscalculation of the

Guidelines and the district court’s alleged failure to consider the § 3553(a) factors.

We review the sentence imposed by the district court for reasonableness.

United States v. Winingear, 422 F.3d 1241, 1244-45 (11th Cir. 2005) (per curiam).

Furthermore, we review the reasonableness of a sentence under a deferential abuse

of discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). The party challenging the sentence bears the burden of proving

11

Case: 10-15101 Date Filed: 09/21/2012 Page: 12 of 17

the sentence is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005) (per curiam). Although we do not automatically presume reasonableness

for a sentence within the guidelines range, we ordinarily expect such a sentence to

be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

In determining reasonableness, we “evaluate whether the sentence imposed

by the district court fails to achieve the purposes of sentencing as stated in section

3553(a).” Talley, 431 F.3d at 788. In making this determination, we conduct a

two-step review, first ensuring that the sentence was procedurally reasonable, and

then examining whether the sentence was substantively reasonable in light of the

totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128

S. Ct. at 597.

To be procedurally reasonable, the district court should have properly

calculated the guideline range, treated the Guidelines as advisory, considered the

§ 3553(a) factors, not considered clearly erroneous facts, and adequately explained

the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597. The district court’s

acknowledgment that it has considered the § 3553(a) factors and the parties’

arguments is sufficient, and the court does not need “to state on the record that it

has explicitly considered each of the section 3553(a) factors or to discuss each of

the section 3553(a) factors.” Talley, 431 F.3d at 786 (quotation omitted).

12

Case: 10-15101 Date Filed: 09/21/2012 Page: 13 of 17

As discussed above, the district court did not miscalculate the guideline

range by failing to grant a minor-role reduction or by failing to apply the safety

valve. Furthermore, the court acknowledged the § 3553(a) factors during

sentencing and stated that it found the sentences sufficient to satisfy those factors.

Therefore, we conclude that the sentences of Linares, Carcamo, and Mendez were

all procedurally reasonable. As Linares does not challenge the substantive

reasonableness of his sentence, we conclude that his sentence was reasonable.

With regard to substantive reasonableness, “[t]he district court has wide

discretion to decide whether the section 3553(a) factors justify a variance.”

United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010), cert. denied,

131 S. Ct. 2166 (2011). “We do not reweigh relevant factors nor do we remand

for re-sentencing unless the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence outside the range of

reasonable sentences.” United States v. Langston, 590 F.3d 1226, 1237 (11th Cir.

2009). When imposing a sentence, the district court must “avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). However, unwarranted

sentencing disparities do not occur between defendants that are not similarly

situated. United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009).

13

Case: 10-15101 Date Filed: 09/21/2012 Page: 14 of 17

Mendez and Carcamo failed to show that their sentences were substantively

unreasonable, as they did not show that there were sentence disparities with any

similarly situated defendants.1 Furthermore, we note that Carcamo received the

151-month sentence that he expressly requested during the sentencing hearing, and

thus, under the doctrine of invited error, he “may not challenge as error a ruling or

other trial proceeding [that he] invited.” United States v. Love, 449 F.3d 1154,

1157 (11th Cir. 2006) (per curiam) (quotation omitted); see United States v.

Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (“The doctrine stems from the

common sense view that where a party invites the trial court to commit error, he

cannot later cry foul on appeal.”). Accordingly, Mendez, Carcamo, and Linares

1

Carcamo and Mendez raise their deportation argument for the first time on appeal.

We review any arguments not raised at the district court only for plain error. United States v.

Bennett, 472 F.3d 825, 831 (11th Cir. 2006) (per curiam). This standard requires the defendant

to show “(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United States v.

Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010). With regard to plain error, when the language

of the statute or rule does not resolve the issue, “there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United States v. Chau,

426 F.3d 1318, 1322 (11th Cir. 2005) (per curiam) (quotation omitted).

In an opinion issued prior to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005), we held that a court could not apply a downward departure to shield a defendant from

collateral consequences based on the defendant’s deportation status. United States v. Maung,

320 F.3d 1305, 1308-10 (11th Cir. 2003). In a post-Booker case, we cited our prior holding in

Maung, but declined to determine whether it was still binding precedent after Booker. United

States v. Saac, 632 F.3d 1203, 1215 & n.6 (11th Cir. 2011), cert. denied, 132 S. Ct. 139 (2011).

Because there is no precedent from the Supreme Court or this Court requiring a district court to

consider these collateral consequences, there was no plain error.

14

Case: 10-15101 Date Filed: 09/21/2012 Page: 15 of 17

have failed to show that their sentences are procedurally or substantively

unreasonable.

V.

Ocampo argues separately that his rights under the Confrontation Clause

were violated based on a Federal Bureau of Investigation (“FBI”) agent’s

testimony at trial that Ocampo gave a statement regarding his participation in the

conspiracy that was essentially the same as Carcamo’s statement. Ocampo asserts

that the agent’s testimony regarding the similarity of the two statements violated

his rights under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968).

We review preserved Bruton claims for abuse of discretion and evaluate any

Bruton error for harmlessness beyond a reasonable doubt, meaning that we “ask

whether the properly admitted evidence of guilt was so overwhelming, and the

prejudicial effect of the co-defendant’s statement so insignificant, that beyond any

reasonable doubt the improper use of the statement was harmless.” United States

v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007) (quotation and alteration

omitted).

The Confrontation Clause of the Sixth Amendment provides a defendant in

a criminal trial the right “to be confronted with the witnesses against him.” and to

15

Case: 10-15101 Date Filed: 09/21/2012 Page: 16 of 17

cross-examine them. U.S. Const. amend. VI; see Bruton, 391 U.S. at 126; 88 S.

Ct. at 1623. In Bruton, the Supreme Court held that, in a joint trial, the

Confrontation Clause was violated by the admission of “powerfully incriminating

extrajudicial statements” of a non-testifying codefendant, despite a curative

instruction given to the jury. 391 U.S. at 135-36, 88 S. Ct. at 1628. In other

words, “a defendant’s confrontation right is violated when the court admits a

codefendant statement that, in light of the Government’s whole case, compels a

reasonable person to infer the defendant’s guilt.” United States v. Schwartz, 541

F.3d 1331, 1351 (11th Cir. 2008). However, only those statements by a

non-testifying codefendant that directly inculpate the defendant give rise to a

constitutional violation. United States v. Arias, 984 F.2d 1139, 1142 (11th Cir.

1993). “[A]dmission of a codefendant’s statement is not error under Bruton where

the statement was not incriminating on its face, and became so only when linked

with evidence introduced later at trial.” Id. (quotations omitted).

The agent’s challenged testimony was not an extrajudicial statement that

was subject to Bruton, as it was a statement made by a sworn witness who was

subject to cross-examination. However, even assuming that the challenged

testimony did qualify as an extrajudicial statement, Ocampo has not shown that

Carcamo’s statement directly inculpated Ocampo in the conspiracy. At no time

16

Case: 10-15101 Date Filed: 09/21/2012 Page: 17 of 17

did the agent testify that Carcamo mentioned Ocampo nor that Carcamo stated that

Ocampo knew the drugs were cocaine. Furthermore, the agent clarified both

during direct examination and during Ocampo’s cross-examination that Ocampo’s

statement contained the word “drugs” and not “cocaine.” For the foregoing

reasons, we conclude that the agent’s testimony that Carcamo and Ocampo’s

statements were similar did not violate Bruton.2

VI.

Finally, we note that the district court’s written judgments each contain

scrivener’s errors about the statutes under which the defendants were convicted,

indicating that each defendant was convicted in Count 1 under Title 42, rather than

under Title 46. Therefore, a remand is necessary for the limited purpose of

correcting the written judgments to so reflect. We remand to the court for the

limited purpose of correcting those errors in the judgments.

Upon a thorough review of the entire record on appeal, and after

consideration of the parties’ briefs, we affirm the convictions and sentences.

AFFIRMED, and REMANDED with instructions.

2

Even if the admission of the agent’s testimony had violated Bruton, any error

would be harmless in light of the overwhelming evidence at trial that Ocampo was part of the

conspiracy and knew the drugs were cocaine.

17