354 F.3d 1320 (11th Cir. 2003), 02-16208, U.S. v. Rendon

Docket Nº:02-16208
Citation:354 F.3d 1320
Party Name:U.S. v. Rendon
Case Date:December 31, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1320

354 F.3d 1320 (11th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,

v.

Geovanni Quintero RENDON, Defendant-Appellant.

No. 02-16208.

United States Court of Appeals, Eleventh Circuit

December 31, 2003

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[Copyrighted Material Omitted]

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Ronald J. Marzullo (Court-Appointed), Tampa, FL, for Defendant-Appellant.

Todd B. Grandy, Tamra Phipps, Tampa, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, HULL and FAY, Circuit Judges.

OPINION

HULL, Circuit Judge:

This appeal presents the issue of whether a defendant may receive upward adjustments for being a captain of a vessel used for drug importation as well as an organizer and leader of the unlawful conspiracy. The district judge accorded both enhancements. We AFFIRM.

I. BACKGROUND

While patrolling international waters in the Eastern Pacific Ocean on May 11, 2001, the crew of a United States Navy P3 surveillance airplane spotted a "go-fast" vessel traveling at high speed and followed it. 1 Shortly thereafter, the crew observed the occupants of the boat throwing bales overboard. The Navy P3 crew informed the United States Coast Guard Law Enforcement Detachment aboard the USS HALYBURTON of the position of the go-fast boat and also dropped a sonar buoy into the water to mark the location of the discarded bales.

A helicopter was launched from the USS HALYBURTON to investigate the go-fast boat. The helicopter videotaped the floating bales and followed the go-fast boat with a crew of four for several hours as it increased its speed and changed course. After failed attempts to contact the go-fast crew by both the USS HALYBURTON and the helicopter with communications equipment, the USS HALYBURTON launched a rigged hull inflatable boat to intercept the go-fast boat. When Coast Guard personnel boarded the go-fast boat, the four-man crew had their hands raised. Defendant-Appellant, Geovanni Quintero Rendon, identified himself as the captain

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and advised that they had departed from Caballo Beach, Colombia, the previous day to assist some lost fishermen. The other crew members were Julian Pineda Torres, John Caisedo Castro, and Carlos Estupinan Valencia.

Although the vessel flew no flag and contained no identifying markings or registration documents, Rendon stated that the boat was registered in Colombia. Colombian officials, however, were unable to confirm Rendon's claim of registry. Inspection of the boat revealed twenty-three barrels of fuel, fuel filters, containers of oil, a spare engine, and two high frequency radios. Coast Guard personnel found traces of cocaine in the forward compartment of the boat as well as on the port and starboard rails.

Rendon and the other crew members were moved to the USS HALYBURTON and detained. The go-fast boat was destroyed as a navigation hazard. The next morning, the USS HALYBURTON proceeded to the area where the cargo had been jettisoned and recovered forty-eight bales of cocaine. Subsequent analysis revealed a net weight of 1,171 kilograms of cocaine with a seventy-percent purity level. Rendon and the other crew members were taken to Jacksonville, Florida.

A federal grand jury in the Middle District of Florida returned a two-count superseding indictment charging the four-man crew of the go-fast boat with conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine, in violation of §§ 1903(a), (g) and (j) of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. app. §§ 1901-1904; 21 U.S.C. § 841(b)(1)(A)(ii); and 18 U.S.C. § 2. Thereafter, Torres filed two motions to dismiss the indictment that challenged the constitutionality of the MDLEA. The first asserted that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), both the MDLEA and 21 U.S.C. § 960 are unconstitutional. The second motion challenged the jurisdictional provisions of the MDLEA that provide that subject matter jurisdiction is a preliminary question of law to be determined by the trial judge.

Rendon adopted Torres's motions, and filed his own Apprendi-based motion to dismiss the indictment. The district judge denied all these motions to dismiss. At trial, Rendon informed the district judge that he wanted to plead guilty. He pled guilty to both counts of the superseding indictment without a plea agreement.

At the sentencing hearing, Rendon did not object to the facts in the Presentence Investigation Report. Rather, Rendon reiterated his jurisdictional objections, which the district judge overruled, and his objection to enhancements for both being a captain and organizer/leader.

During Rendon's sentencing, two of his codefendants, Castro and Torres, testified that Rendon had recruited them to participate in the conspiracy and paid them each 10,000,000 pesos. Both further testified that Rendon had been the captain of their vessel and had directed their efforts throughout the duration of the voyage. Castro testified that they met two boats with two people on each boat who placed the cocaine in Rendon's boat. Even when Torres was operating the boat, it was under Rendon's direction because Torres did not know where the cocaine was to be delivered. Torres also testified that Rendon ordered the codefendants to throw the cocaine overboard when he saw the Navy plane flying overhead.

Rendon was subject to a mandatory minimum imprisonment term of ten years

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and a maximum term of life as to each indictment count. 21 U.S.C.§ 960(b)(1)(B). He was given upward adjustments for being both the captain of the go-fast boat and being an organizer or leader of the conspiracy. Rendon was sentenced to concurrent terms of 360 months of imprisonment, sixty months of supervised release, and a $200 fine.

On appeal, Rendon raises three issues. He first argues that the district court erred in failing to dismiss the indictment because it lacked subject matter jurisdiction and, consequently, was without jurisdiction to sentence him. Second, he contends that the MDLEA violates Apprendi by incorporating the penalty provisions of 21 U.S.C. § 960. Third, he argues that the district court erred in giving him upward adjustments for being the captain of the go-fast boat as well as being an organizer and leader of the conspiracy. Fourth, he asserts that the district court erred in not granting him "safety valve" relief.

II. DISCUSSION

A. Subject Matter Jurisdiction Under the MDLEA

Rendon contends that the indictment under the MDLEA, should have been dismissed based on lack of subject matter jurisdiction because no nexus with the United States was proved. Consequently, he argues that there was no personal jurisdiction over him for sentencing because his seizure was neither in the territorial waters of the United States nor in United States Customs waters. He further challenges the constitutionality of 46 U.S.C. app. § 1903 facially and as applied because it allows prosecutions and punishment under conditions where allegedly there is no jurisdiction. He specifically argues that § 1903(f) removes the determination of jurisdiction as an element of the offense from the jury and places it solely on the trial judge, thereby violating Rendon's Fifth and Sixth Amendment rights based on United States v. Gaudin, 515 U.S. 506, 509, 115 S.Ct. 2310, 2313, 132 L.Ed.2d 444 (1995).

Our review of a district court's determination of subject matter jurisdiction as well as statutory interpretation is de novo. Asociacion De Empleados Del Area Canalera (ASEDAC) v. Panama Canal Comm'n, 329 F.3d 1235, 1237-38 (11th Cir. 2003). "In interpreting the meaning of a statute, it is axiomatic that a court must begin with the plain language of the statute." United States v. Prather, 205 F.3d 1265, 1269 (11th Cir. 2000). Under the MDLEA, "a 'vessel subject to the jurisdiction of the United States' includes ... a vessel without nationality." 46 U.S.C. app. § 1903(c)(1)(A). Additionally, "a 'vessel without nationality' includes ... a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed" or "a vessel aboard which the master or person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality." Id. at § 1903(c)(2)(A), (C).

Under the plain statutory language, Rendon's argument that the district court lacked subject matter jurisdiction is unavailing. We addressed the jurisdictional and constitutional challenges to the MDLEA that Rendon raises in United States v. Tinoco, 304 F.3d 1088 (11th Cir. 2002), cert. denied, 538 U.S. 909, 123 S.Ct. 1484,

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155 L.Ed.2d 231 (2003), which is factually analogous. In Tinoco, a vessel was intercepted in international waters, flew no flag, contained no registration documentation or identifying markings, and Colombian officials were unable to confirm its registration. See id. at 1092-94. This Court concluded that the vessel in Tinoco comported with the "vessel without nationality" under § 1903(c)(2)(C), and, consequently, was stateless. See id. at 1116. "Because stateless vessels do not fall within the veil of another sovereign's territorial protection, all nations can treat them as their own territory and subject them to their laws." United States v. Caicedo, 47 F.3d 370, 373 (9th Cir. 1995).

Significantly, "[s]ection 1903(c)(1)(A) states that 'a vessel without nationality' is included within the definition of a vessel subject to the jurisdiction of the United States." Tinoco, 304 F.3d at 1112 (quoting 46 U.S.C. app. § 1903(c)(1)(A)). Additionally, "we noted that Congress, under the...

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