United States v. Moreno-Membache

• Decision Date: 27 April 2021
• Docket Number: No. 19-3051,19-3051
• Citation: 995 F.3d 249
• Parties: UNITED STATES of America, Appellee v. Antonio MORENO-MEMBACHE, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

995 F.3d 249

UNITED STATES of America, Appellee

v.Antonio MORENO-MEMBACHE, Appellant

No. 19-3051

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2020

Decided: April 27, 2021

Carmen D. Hernandez, Highland, MD, 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.

Dissenting opinion filed by Circuit Judge Katsas.

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, 90 S.Ct. 1463, 25 L.Ed.2d 747 (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, 92 S.Ct. 495, 30 L.Ed.2d 427 (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 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 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 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, 131 S.Ct. 2685, 180 L.Ed.2d 519 (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 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. 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...