United States v. Liver Gruezo

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11342

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LIVER GRUEZO,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cr-20327-KMM-3

____________________

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2 Opinion of the Court 22-11342

Before NEWSOM, GRANT, and HULL, Circuit Judges.

PER CURIAM:

Defendant Liver Gruezo appeals his convictions and

135-month sentence for (1) conspiracy to possess with intent to

distribute five kilograms or more of cocaine while on board a vessel

subject to the jurisdiction of the United States, in violation of 46

U.S.C. §§ 70503(a)(1) and 70506(b) (Count 1) and (2) possession

with intent to distribute five kilograms or more of cocaine while

on board a vessel subject to the jurisdiction of the United States, in

violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a) (Count 2).

On appeal, Gruezo argues that (1) the district court did not

have jurisdiction under the Maritime Drug Law Enforcement Act

(“MDLEA”), (2) the MDLEA is unconstitutional, and (3) the district

court erred when it did not apply the minor-role reduction to

decrease his offense level by two levels. After careful review of the

record and the parties’ briefs, we affirm Gruezo’s convictions and

sentence.

I. BACKGROUND

On June 2, 2021, a federal grand jury charged Gruezo and

two codefendants—Wilmar Estupinan Padilla and Yiminson

Caicedo Vallecilla—with the drug crimes in Counts 1 and 2.

Initially, Gruezo pled not guilty.

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A. Motion to Dismiss

On November 3, 2021, Gruezo moved to dismiss the

indictment for lack of jurisdiction under the MDLEA. Gruezo’s

motion asserted that the Coast Guard failed to make all the

necessary inquiries about the vessel’s nationality, as required by the

MDLEA. Gruezo requested an evidentiary hearing and proffered

that, if granted an evidentiary hearing, he would testify to material

facts demonstrating that the district court did not have jurisdiction.

On December 8, 2021, a magistrate judge held an

evidentiary hearing on Gruezo’s motion to dismiss. At that

hearing, the government called U.S. Coast Guard Petty Officer

Diego Rivera, who testified to the following events.

On May 5, 2021, Rivera’s team intercepted a vessel. Gruezo,

Estupinan, and Caicedo were all onboard the vessel. The team

noticed that the vessel did not have (1) markings indicating its

country of origin, (2) registration documents, (3) a country’s flag,

or (4) any other indicia of nationality.

Rivera, who spoke Spanish, acted as an interpreter. Rivera

asked right-of-visit questions to determine the vessel’s nationality.

As Rivera did so, another officer transcribed the responses in a

document called a Victor Report. Rivera testified that the purpose

of a Victor Report is to determine the nationality of a vessel and to

establish jurisdiction. The Victor Report here stated there were no

registration documents on the vessel and no registration number

on the vessel’s hull.

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During Rivera’s questioning, Estupinan stated that he was

the master of the vessel. Rivera asked Estupinan if he claimed a

nationality for the vessel, and Estupinan responded “no.” Rivera

then asked whether the vessel had a nationality, and Estupinan

responded “no.” Both Gruezo and Caicedo remained silent during

Rivera’s questioning and did not interject at any point to claim

nationality of the vessel.

Rivera’s team reported the information to the Coast Guard

Command Center, which directed them to treat the boat as

without nationality and indicated that the team had the authority

to conduct law enforcement boarding.

On cross-examination, Rivera testified that his team wrote

another report that day called the Alpha Report. Rivera explained

that the purpose of the Alpha Report was broader and typically

described “the whole construction of the vessel, where we’re at,

[and] what we are observing.” The Alpha Report here listed the

nationality of the vessel as Colombian. Rivera testified that this

was inaccurate and likely caused by a transcription error or an

“honest mistake.” Rivera explained that (1) the team’s original

reports, which were written with a grease pen on the vessel, were

later rewritten to improve legibility, and (2) the version of the

Alpha Report introduced by the defense was the rewritten version,

as evidenced by the fact it was not written in grease pen.

Following the evidentiary hearing, the magistrate judge

issued a report recommending that the district court deny Gruezo’s

motion to dismiss (“R&R”). First, the magistrate judge found that

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Estupinan had not made a claim of Colombian nationality for the

vessel. The magistrate judge explained that (1) although Rivera’s

testimony conflicted with the Alpha Report, that Report was

created under unclear circumstances and (2) the magistrate judge

“afford[ed] little weight to the Alpha Report, recognizing its

potential for impeachment, but credit[ed] . . . Rivera’s testimony.”

Second, the magistrate judge found that (1) under

§ 70502(d)(1)(B), an officer is required to ask about either

nationality or registry of the vessel, and (2) Rivera had provided

credible testimony that when he asked the vessel’s master whether

he claimed nationality for it, Estupinan replied “no.” The

magistrate judge concluded that the vessel was appropriately

deemed stateless and was subject to the jurisdiction of the United

States.

Gruezo objected to the R&R. The district court overruled

Gruezo’s objections, adopted the R&R, and denied Gruezo’s

motion to dismiss.

B. Guilty Plea

On January 26, 2022, Gruezo pled guilty to both counts in

the indictment, without the benefit of a written plea agreement.

Gruezo signed a factual proffer recounting the following specific

events that he stipulated the government could prove beyond a

reasonable doubt.

On May 5, 2021, while on patrol in the eastern Pacific Ocean,

a U.S. Marine Patrol Aircraft detected a low-profile vessel north of

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Darwin Island, Ecuador, in international waters. Coast Guard

officers intercepted the vessel and observed (1) no vessel name,

(2) no registration number, (3) no markings on the vessel, and

(4) no other indicia of nationality.

Once on board, the officers asked the master of the vessel

whether he claimed a nationality for it, and the master of the vessel

did not do so. “Based on the master’s failure to make a claim of

nationality, the Coast Guard authorized the treatment of the vessel

as one without nationality and conducted a full law enforcement

boarding.”

In doing so, the officers opened a hatch in the vessel and

observed packages consistent with contraband. After removing the

packages, officers conducted a field test of the packages’ contents

for narcotics. The test returned positive for cocaine, weighing

approximately 1,390 kilograms, which the defendants were

knowingly transporting. Gruezo conspired with Estupinan and

Caicedo, as well as people in Colombia, to possess with intent to

distribute five kilograms or more of cocaine while on board a vessel

that was without nationality in international waters.

The magistrate judge presided over Gruezo’s change of plea

hearing and recommended that the district court accept Gruezo’s

guilty plea. Gruezo did not object to this recommendation, and

the district court adopted it and accepted Gruezo’s guilty plea.

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C. Presentence Investigation Report (“PSR”) and Gruezo’s

Objections

The probation officer prepared a PSR, which described the

offense conduct consistent with the factual proffer. The PSR also

provided information from interviews of Estupinan, Caicedo, and

Gruezo.

The PSR recommended an adjusted offense level of 33,

consisting of (1) a base offense level of 38, (2) a two-level reduction

under U.S.S.G. § 2D1.1(b)(18) because Gruezo met the criteria set

forth in U.S.S.G. § 5C1.2(a)(1)–(5), and (3) a three-level reduction

for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b).

With no criminal history points, Gruezo’s criminal history

category was I. Gruezo’s advisory guidelines range was 135 to 168

months’ imprisonment. As to both counts, Gruezo’s statutory

minimum term of imprisonment was 10 years and his statutory

maximum was life imprisonment. See 46 U.S.C. § 70506(a); 21

U.S.C. § 960(b)(1)(B)(ii).

Gruezo objected to the PSR and moved for a downward

variance. In his objections, Gruezo argued that he should receive

a two-level reduction because he was a minor participant in the

criminal activity. Gruezo emphasized that the PSR had identified

several uncharged individuals who were directly involved in the

commission of the drug scheme. Gruezo contended that those

individuals, as well as Estupinan, played a much larger role in the

planning and execution of the scheme than he had. Gruezo argued

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that he had merely served as a crewman on the drug boat and was

involved in the scheme only for a brief period. In his motion for a

downward variance, Gruezo requested a total sentence of

“around” 70 months.

D. Gruezo’s Sentencing

At sentencing, Gruezo reiterated his objection, emphasizing

the roles of the other individuals involved and how his conduct, in

comparison, was lesser and thus warranted a minor-role reduction.

Citing United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en

banc), the district court explained that a minor-role reduction was

not appropriate:

[Gruezo] is being charged in an indictment

involving himself and two others. He is not being

charged with some larger conspiracy, so he’s only

being charged in connection with his conduct and his

relationship to the two other individuals that are

involved in that conspiracy, and not some larger

conspiracy.

So I believe pursuant to United States vs. De

Varon, that the probation officer has correctly

calculated the guidelines, and the Court will deny the

motion for an adjustment for either a minor or a

minimal role in the offense. Okay?

The district court sentenced Gruezo to 135 months’

imprisonment as to each count, to be served concurrently,

followed by two years of supervised release. Gruezo renewed all

his objections, written and oral.

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Gruezo timely appealed.

II. JURISDICTION

On appeal, Gruezo argues that the district court did not have

jurisdiction under the MDLEA. First, we provide an overview of

MDLEA jurisdiction and our standard of review. Second, we

explain why jurisdiction exists and Gruezo’s arguments fail.

A. MDLEA Jurisdiction

The MDLEA makes it a crime to possess with intent

distribute a controlled substance or conspire to do so “[w]hile on

board a covered vessel.” 46 U.S.C. § 70503(a). A vessel is covered

by the MDLEA if it is “subject to the jurisdiction of the United

States.” Id. § 70503(e)(1). As relevant here, a vessel is “subject to

the jurisdiction of the United States” if it is “a vessel without

nationality.” Id. § 70502(c)(1)(A).

Under the MDLEA, one definition of “a vessel without

nationality” is “a vessel aboard which the master or individual in

charge fails, on request of an officer of the United States authorized

to enforce applicable provisions of United States law, to make a

claim of nationality or registry for that vessel.” Id. § 70502(d)(1)(B).

The government bears the burden of establishing that the

statutory requirements of MDLEA jurisdiction are met. United

States v. Cabezas-Montano, 949 F.3d 567, 588 (11th Cir. 2020).

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B. Standard of Review

We review de novo a district court’s subject matter

jurisdiction even when it is raised for the first time on appeal.

United States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir. 2016); see

also Cabezas-Montano, 949 F.3d at 587 (explaining that “the

MDLEA’s jurisdictional requirement goes to the subject-matter

jurisdiction of the courts”). We review for clear error the district

court’s factual findings relevant to jurisdiction. Iguaran, 821 F.3d

at 1336. While parties may not stipulate to jurisdiction, they may

“stipulate to facts that bear on [this Court’s] jurisdictional inquiry.”

Id. at 1337 (emphasis and quotation marks omitted). “A court’s

task is to determine whether the stipulated facts give rise to

jurisdiction.” Id. (quotation marks omitted).

C. The District Court Had Jurisdiction under the MDLEA

Here, Gruezo stipulated that the vessel had “no indicia of

nationality visible” and that when the master of the vessel was

asked “do you claim a nationality for the vessel and does this vessel

have a nationality,” the master “made no claim of nationality for

the [vessel].” (Quotation marks omitted.) That alone is sufficient

for this Court to affirm the determination that the vessel was

subject to the jurisdiction of the United States. 46 U.S.C.

§ 70502(c)(1)(A), (d)(1)(B).

In any event, we address Gruezo’s three arguments about

jurisdiction, all of which are unpersuasive.

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First, Gruezo argues that the magistrate judge erred when it

relied on his and Caicedo’s silence as evidence that the vessel lacked

nationality. That argument evinces a misunderstanding of the

magistrate judge’s R&R. In its “evidence presented” section, the

magistrate judge wrote: “[Gruezo] and Caicedo were also present

during the questioning and did not say anything nor did they

dispute Estupinan’s claim that the vessel did not have nationality.”

In its analysis, however, the magistrate judge did not mention, rely

on, or assign weight to Gruezo’s and Caicedo’s silence in finding

that the vessel was one without nationality. Instead, the magistrate

judge focused entirely on Estupinan’s actions, and the discrepancy

between the Alpha Report and the Victor Report. Accordingly, the

magistrate judge did not err in this respect.

Second, Gruezo argues that Rivera could not resolve the

conflicts between the Alpha Report and the Victor Report because

his testimony was “rambling and rife with uncertainties.” But the

district court found that Rivera’s testimony was credible, and this

Court “accord[s] great deference to a district court’s credibility

determinations.” United States v. Cavallo, 790 F.3d 1202, 1227

(11th Cir. 2015). “[W]e will not reverse a district court’s factual

finding concerning credibility unless the finding is contrary to the

laws of nature, or is so inconsistent or improbable on its face that

no reasonable factfinder could accept it.” Id. (quotation marks

omitted). Rivera gave a reasonable explanation for the discrepancy

between the two Reports, and his testimony was not so improbable

that no reasonable factfinder could credit and accept it.

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Third, Gruezo argues that the magistrate judge erred in

concluding that § 70502(d)(1)(B) did not require the Coast Guard

to ask the master to make a claim of both nationality and registry

for the vessel. We are unpersuaded.

The plain text of § 70502(d)(1)(B) uses the word “or” to

connect “nationality” and “registry,” 46 U.S.C. § 70502(d)(1)(B),

and “or” is “almost always disjunctive,” United States v. Woods,

571 U.S. 31, 45, 134 S. Ct. 557, 567 (2013). Of course, “statutory

context can overcome the ordinary, disjunctive meaning of ‘or.’”

Encino Motorcars, LLC v. Navarro, --- U.S. ----, 138 S. Ct. 1134,

1141 (2018). But, here, context favors the ordinary disjunctive

meaning of “or.”

To begin with, the MDLEA treats the terms “nationality”

and “registry” as interchangeable throughout § 70502. For

example, § 70502(e) jointly defines “[a] claim of nationality or

registry” to “include[] only”:

(1) possession on board the vessel and production of

documents evidencing the vessel’s nationality as

provided in article 5 of the 1958 Convention on

the High Seas;

(2) flying its nation’s ensign or flag; or

(3) a verbal claim of nationality or registry by the

master or individual in charge of the vessel.

46 U.S.C. § 70502(e). The interchangeability and equivalency of

these two terms in the MDLEA is further evidenced by

§ 70502(d)(1)(C), where the rejection of a master’s claim of registry

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is premised on the named country’s failure to confirm nationality.

See id. § 70502(d)(1)(C).

In addition, this Court previously has read the terms to be

disjunctive. In Iguaran, for example, this Court noted that “the

term vessel without nationality includes a vessel aboard which the

master or individual in charge fails, on request of an officer of the

United States authorized to enforce applicable provisions of United

States law, to make a claim of nationality or registry for that

vessel.” 821 F.3d at 1337 (emphasis added) (quotation marks

omitted). Immediately after setting forth that definition, this Court

explained that, under that definition, if the defendants “failed, on

request of the United States officials who apprehended them, to

make a claim of nationality, their vessel was without nationality

and subject to the jurisdiction of the United States.” Id. (emphases

added) (quotation marks omitted). In other words, the master’s

failure to claim nationality was sufficient for the vessel to be subject

to the jurisdiction of the United States under the MDLEA.

Accordingly, Estupinan’s failure to claim nationality when

asked by the Coast Guard is sufficient to show the vessel was

without nationality and subject to the jurisdiction of the United

States. 46 U.S.C. § 70502(d)(1)(B).

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III. CONSTITUTIONALITY OF THE MDLEA

Next, Gruezo argues the MDLEA is unconstitutional for

three reasons: (1) it is overly vague; (2) it violates his Miranda1

rights because it does not require law enforcement to inform the

master of the vessel of the consequences of failing to make a claim

of nationality or registry; and (3) due process prohibits the

prosecution of foreign nationals who (i) do not have “minimum

contacts” with the United States and (ii) committed offenses that

do not have a “nexus” to the United States.

We review de novo the constitutionality of a criminal

statute. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).

A. Vagueness

Gruezo argues that the MDLEA is overly vague and

ambiguous because it does not require the Coast Guard to explain

what it means to “make a claim of nationality or registry for the

vessel.”

This challenge is unpersuasive, as the text of § 70502(d)(1)(B)

is sufficiently clear to give ordinary people notice that, without a

claim of nationality or registry for the vessel upon request, the

vessel will be considered stateless for purposes of jurisdiction under

the MDLEA. 46 U.S.C. § 70502(d)(1)(B).

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

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In addition, this Court repeatedly has rejected constitutional

vagueness challenges to the jurisdictional provisions in the

MDLEA’s predecessors. See, e.g., United States v. Mena, 863 F.2d

1522, 1527 (11th Cir. 1989) (rejecting a vagueness challenge to a

jurisdictional provision of the MDLEA’s predecessor statute

because “[t]hose embarking on voyages with holds laden with illicit

narcotics, conduct which is contrary to the laws of all reasonably

developed legal systems, do so with the awareness of the risk that

their government may consent to enforcement of the United

States’ laws against the vessel” (quotation marks omitted)); United

States v. Marino-Garcia, 679 F.2d 1373, 1384 (11th Cir. 1982)

(rejecting a vagueness challenge to a jurisdictional provision of the

MDLEA’s predecessor statute and explaining that even though the

phrase “vessel without nationality” was undefined in the statute, it

“obviously encompasse[d] vessels not operating under the flag and

authority of any sovereign nation”).

B. Miranda

Gruezo contends that the MDLEA violates his Miranda

rights because it does not require law enforcement to inform the

master of the vessel of the consequences of failing to make a claim

of nationality or registry.

To the extent Gruezo asserts that § 70502(d)(1)(B) is

unconstitutional as applied to the facts of his case, his claim is

waived by his guilty plea. See United States v. Castillo, 899 F.3d

1208, 1214 (11th Cir. 2018) (“A valid guilty plea renders irrelevant—

and thereby prevents a defendant from appealing—the

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constitutionality of case-related government conduct that takes

place before the plea is entered.” (cleaned up)).

To the extent Gruezo asserts that § 70502(d)(1)(B) is facially

unconstitutional, our prior precedent forecloses his facial

challenge. “This [C]ircuit has long recognized that the Coast

Guard’s routine stop, boarding[,] and inspection of an American

vessel on the high seas does not normally rise to the level of

custodial detention thus requiring Miranda warnings.” United

States v. Rioseco, 845 F.2d 299, 302–03 (11th Cir. 1988). This Court

in Rioseco, for example, concluded that the defendant was not in

custody for Miranda purposes when five Coast Guard officers,

having probable cause, boarded the vessel and ordered the crew

members to remain in a particular area of the vessel. Id. at 303. It

determined that an ordinary man would not believe that he was in

custody because (1) the officers did not tell the defendant he was in

custody or under arrest and (2) the officers’ conduct “was simply

routine procedure in a usual boarding action.” Id.

C. Due Process Clause

Gruezo also challenges the constitutionality of the MDLEA

under the Due Process Clause. “The Due Process Clause prohibits

the exercise of extraterritorial jurisdiction over a defendant when

it would be arbitrary or fundamentally unfair.” United States v.

Baston, 818 F.3d 651, 669 (11th Cir. 2016) (quotation marks

omitted). A defendant challenging the facial validity of a statute

must show that “no set of circumstances exists under which the

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[statute] would be valid.” United States v. Salerno, 481 U.S. 739,

745, 107 S. Ct. 2095, 2100 (1987).

Congress enacted the MDLEA to define and punish felonies

committed on the high seas. United States v. Campbell, 743 F.3d

802, 805 (11th Cir. 2014). This Court in Campbell held that “the

conduct proscribed by the [MDLEA] need not have a nexus to the

United States because universal and protective principles support

its extraterritorial reach.” Id. at 810. We explained that, given that

trafficking drugs is “condemned universally by law-abiding

nations,” it is not “fundamentally unfair” to punish those who

traffic drugs on the high seas. Id. (quotation marks omitted). We

further determined that the prosecution of a foreign national for

“drug trafficking aboard [a] stateless vessel[] on the high seas” is not

prohibited by the Due Process Clause, as the MDLEA “provides

clear notice that all nations prohibit” such conduct. Id. at 812; see

also Cabezas-Montano, 949 F.3d at 587 (“[T]his Court has held that

the Fifth Amendment’s Due Process Clause does not prohibit the

trial and conviction of aliens captured on the high seas while drug

trafficking because the MDLEA provides clear notice that all

nations prohibit and condemn drug trafficking aboard stateless

vessels on the high seas.”).

Here, Gruezo fails to show that the absence of a “minimum

contacts” or “nexus” requirement in the MDLEA violates the Due

Process Clause. He points to no precedent from this Court or the

Supreme Court applying the “minimum contacts” standard to the

MDLEA, and his “nexus” argument is foreclosed by our precedent.

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Therefore, Gruezo’s MDLEA convictions do not violate the Due

Process Clause.

IV. MINOR-ROLE REDUCTION

Lastly, Gruezo argues that the district court erred by

declining to reduce his offense level by two levels under U.S.S.G.

§ 3B1.2 because he was only a minor participant in the criminal

activity.

We review for clear error a district court’s determination of

a defendant’s role. De Varon, 175 F.3d at 937. The district court

has “considerable discretion in making this fact-intensive

determination.” United States v. Boyd, 291 F.3d 1274, 1277–78

(11th Cir. 2002). As long as the district “court’s decision is

supported by the record and does not involve a misapplication of

the law,” the “choice between two permissible views of the

evidence as to the defendant’s role in the offense will rarely

constitute clear error.” United States v. Cruickshank, 837 F.3d

1182, 1192 (11th Cir. 2016) (quotation marks omitted).

Section 3B1.2 of the Sentencing Guidelines directs the

sentencing court to decrease a defendant’s offense level by two

levels “[i]f the defendant was a minor participant in any criminal

activity.” U.S.S.G. § 3B1.2. A minor participant is one “who is less

culpable than most other participants in the criminal activity, but

whose role could not be described as minimal.” Id. cmt. 5. The

defendant “bears the burden of proving a mitigation role in the

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offense by a preponderance of the evidence.” De Varon, 175 F.3d

at 939.

Here, Gruezo argues that he was entitled to a minor-role

reduction because Estupinan and several uncharged individuals

were directly involved in the planning and execution of the drug

scheme, while he worked only as a crewman for a brief period.

Gruezo criticizes the district court for (1) focusing on a

hypothetical “sub-conspiracy” that included only the crew

members of the vessel and (2) never acknowledging the existence

of other participants in the conspiracy.

Gruezo’s argument is directly foreclosed by our binding

precedent. In De Varon, we “unambiguously held that a

defendant’s role in the offense may not be determined on the basis

of criminal conduct for which the defendant was not held

accountable at sentencing.” 175 F.3d at 941. Gruezo was charged

in an indictment that involved two other people and did not

involve some larger, unspecified conspiracy. United States v.

Martin, 803 F.3d 581, 591 (11th Cir. 2015) (“Only those participants

who were involved in the relevant conduct attributed to the

defendant may be considered.” (quotation marks omitted)).

Gruezo may not prove he is entitled to a minor-role reduction by

pointing to a broader criminal scheme in which he was a minor

participant but for which he was not charged.

Further, as to Estupinan, Gruezo has not shown that the

district court clearly erred in denying him a minor-role reduction.

Gruezo’s involvement—as a crewmember of a vessel that was

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smuggling a large quantity of drugs—was still serious and

important enough to warrant the denial of a minor-role reduction

under § 3B1.2. Gruezo knowingly participated in the illegal

transportation of a large quantity of cocaine, he and his

transportation role were important to that scheme, and he was

held accountable for that conduct only. Cabezas-Montano, 949

F.3d at 607 (considering these same factors in affirming the denial

of a minor-role reduction); see also United States v. Valois, 915 F.3d

717, 732 (11th Cir. 2019) (same).

We conclude that the district court did not err, clearly or

otherwise, in finding that Gruezo did not qualify for a minor-role

reduction.

V. CONCLUSION

For all these reasons, we affirm Gruezo’s convictions and

sentence.

AFFIRMED.