United States v. Mosquera-Murillo, Criminal Action No. 13-cr-134 (BAH)

• Decision Date: 11 July 2019
• Docket Number: Criminal Action No. 13-cr-134 (BAH)
• Parties: UNITED STATES OF AMERICA v. ALFREDO MOSQUERA-MURILLO, and ANTONIO MORENO-MEMBACHE, Defendants.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA v. ALFREDO MOSQUERA-MURILLO, andANTONIO MORENO-MEMBACHE, Defendants.

Criminal Action No. 13-cr-134 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 11, 2019

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

On September 14, 2018, the D.C. Circuit's mandate issued remanding this case for resentencing of all three defendants, Alfredo Mosquera-Murillo ("Murillo"), Joaquin Chang-Rendon ("Rendon"), and Antonio Moreno-Membache ("Membache"), see Mandate, ECF No. 266, upon holding that the defendants' convictions for violations of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70503 and 70506(b), did not bar their eligibility for safety-valve relief, under 18 U.S.C. § 3553(f), see United States v. Mosquera-Murillo, 902 F.3d 285, 292, 296 (D.C. Cir. 2018).¹ The D.C. Circuit vacated the defendants' sentences and directed on remand that the Court "consider whether the defendants meet the five remainingsafety-valve requirements." Id. at 296.² The defendants are scheduled to be resentenced on July 18, 2019. Min. Entry (June 6, 2019).

If ineligible for safety-valve relief, each defendant would receive the same sentence previously imposed: 120 months' imprisonment, which is the applicable mandatory minimum sentence that the Court agreed to impose upon acceptance of the defendants' plea agreements, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), on each defendant's guilty plea to one count of conspiring to distribute, and possess with intent to distribute, at least 5 kilograms of cocaine and 100 kilograms of marijuana on board a vessel subject to the jurisdiction of the United States, in violation of the MDLEA, 46 U.S.C. §§ 70503, 70506(b) and 21 U.S.C. §§ 960(b)(1)(B), (b)(2)(G). See Plea Agreements ¶¶ 1, 6, ECF Nos. 185, 191. Upon satisfaction of the five safety-valve requirements, the appropriate sentence to be imposed at or below the mandatory minimum of 120 months' incarceration would be based upon consideration of the factors set out in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3553(f) ("[I]f the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation," that the defendant meets the safety-valve requirements, then "the court shall impose a sentence pursuant to [the] guidelines . . . without regard to any statutory minimum sentence."). The safety-valve thus "permit[s] a narrow class of defendants, those who are the least culpableparticipants in [the] offense[], to receive strictly regulated reductions in prison sentences for mitigating factors currently recognized under the federal sentencing guidelines." H.R. REP. NO. 103-460 (1994).

The parties vigorously dispute the requisite scope of information Murillo and Membache would have to provide to satisfy the fifth requirement for safety valve eligibility, see Jt. Status Rept., dated Mar. 1, 2019 ("Mar. 2019 JSR") at 3-5, ECF No. 273, but resolution of that dispute would be unnecessary if these defendants also fail to satisfy other eligibility requirements. Consequently, an evidentiary hearing was held on June 12 and 13, 2019 to determine whether Murillo or Membache were ineligible for safety-valve relief due to their failure to satisfy other requirements, namely: because they were "organizer[s], leader[s], manager[s], or supervisor[s] of others in the offense," 18 U.S.C. § 3553(f)(4), or because Membache "possess[ed] a firearm or other dangerous weapon . . . in connection with the offense," id. § 3553(f)(2). The evidence presented at that hearing, together with the record in this case, including supplemental memoranda filed after the hearing, demonstrates that neither Murillo nor Membache is eligible for safety-valve relief for the reasons outlined below.³

I. BACKGROUND

The indictment in this case was filed on May 9, 2013 and originally charged five defendants with conspiring, in violation of the MDLEA, to distribute, and possess with intent to distribute, at least 5 kilograms of cocaine and 100 kilograms of marijuana on board a vessel subject to the jurisdiction of the United States. See Indictment at 1-2, ECF No. 1. While Colombia denied the United States' extradition request for two of the defendants, William Obando-Gonzalez ("Obando") and Carlos Ivan Ortega-Tello ("Tello"), see Gov't's Mot. to Dismiss Indictment at 2, ECF No. 26; Order Granting Motion to Dismiss Indictment, ECF No. 28, the three remaining defendants were extradited and entered guilty pleas, on January 20, 2016, reserving their right to contest on appeal their eligibility for relief from the statutory mandatory minimum under the safety-valve provision, 18 U.S.C. § 3553(f). See Plea Agreements ¶¶ 6, 14. As noted, the D.C. Circuit concluded that MDLEA convictions did not preclude eligibility for safety-valve relief. Mosquera-Murillo, 902 F.3d at 292, 296.

On remand, the parties raised a myriad of issues regarding the quantity of drugs at issue, the applicability of various specific offense characteristics for bribery of a law enforcement officer and involvement of a minor in the charged conspiracy, under U.S.S.G. §§ 2D1.1(b)(1), (11), (15)(B), the scope of relevant conduct pertinent to resentencing, Murillo and Membache's roles in the offense, and the extent to which the plea agreement terms barred the government from making a recommendation as to any of these issues. See generally Jt. Status Rept., dated Nov. 19, 2018 ("2018 JSR"), ECF No. 271. A number of these issues had either been resolved or were extraneous to the single issue required by the mandate to be resolved at resentencing, prompting the Court to issue a Memorandum and Order "[t]o re-focus the parties" on the "single issue" to be addressed on remand: "whether any defendant meets the five safety-valverequirements, listed in 18 U.S.C. § 3553(f) and incorporated verbatim into the U.S. Sentencing Guidelines, U.S.S.G. § 5C1.2(a)," and "the only means by which any defendant may obtain a different sentence than that already imposed." Mem. & Order, dated Nov. 30, 2018, at 2-3, ECF No. 272.

The parties initially focused on resolving whether any defendant met the fifth requirement for safety-valve relief by "truthfully provid[ing] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan," 18 U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5) (incorporating statutory safety-valve requirements, as they existed prior to the First Step Act, verbatim into the U.S. Sentencing Guidelines Manual), and the defendants sought clarification regarding the requisite scope of any proffer, Mar. 2019 JSR at 3-5. Irrespective of the truthfulness or completeness of any proffer, however, the government contended that Murillo and Membache were ineligible for safety-valve relief because they failed to satisfy other safety-valve requirements. 2018 JSR at 2, 6; Mar. 2019 JSR at 6; Rough Transcript of Hearing (Mar. 8, 2019) ("Mar. 8 H'rg Tr. (Rough)") at 18:10-23:3.⁴ Specifically, the government contended that these two defendants played a managerial or supervisory role with respect to the charged conspiracy involving the interdicted vessel, the Mistby, see 18 U.S.C. § 3553(f)(4); U.S.S.G. § 5C1.2(a)(4), and that Membache possessed a dangerous weapon in connection with this charged conspiracy, see 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). The parties were therefore directed to prepare for an evidentiary hearing solely focused on those two eligibility requirements under § 3553(f)(2) and (4), deferring further argument on the requisite scope of any proffer. Mar. 8 H'rg Tr. (Rough) at 18:10-23:3; id. at 24:12-25 (Court directing the parties "tofocus on expeditiously and efficiently resolving this case, beginning with the single issue in front of me: are these defendants safety valve eligible? And if the government has evidence that meets its burden by a preponderance of the evidence that they were managers or supervisors in the Mistby operation . . . they are just not eligible"); id. at 39:17-25 (Membache's counsel agreeing that it makes sense to hold a limited evidentiary hearing on these two requirements); id. at 40:10-20 (Murillo's counsel indicating he "absolutely understand[s]" why the Court wants to hold an evidentiary hearing as to the two requirements and indicating that he "think[s] it's a good idea").⁵

To further focus the parties on the issues at stake in any resentencing, they were directed to submit a Joint Status Report providing "for each defendant, the parties' calculations of the applicable advisory Guidelines range, assuming the defendant is deemed eligible for safety-valve relief and is sentenced based on the 220 kilograms of cocaine and 235 kilograms of marijuana recovered from the Mistby . . . with no other special offense characteristics." Min. Order (Mar. 8, 2019). The government estimated that the applicable advisory Guidelines range for each defendant would be 121 to 151 months' imprisonment, slightly above the 120-month-sentence imposed under their plea agreements. See May 2019 JSR at 3. While Murillo accepted the government's calculation as accurate based on the Court's prior rulings as to the effect of theplea agreement, see id. at 1 n.1, Rendon argued that he would be eligible for a mitigating role downward adjustment, putting him in an advisory Guidelines range of 57 to 71 months' imprisonment, id. at 3-4, and Membache argued, in direct contravention of prior rulings as to the effect of his plea agreement, that he should not be held responsible for all of the drugs on the Mistby and that he should receive a mitigating role downward adjustment, which would result in an advisory Guidelines range of 41 to 51 months' imprisonment, id. at 4-6.

At the outset, the D.C. Circuit has observed that "the safety valve's basic purpose [is to] spare certain minor participants in drug trafficking enterprises from mandatory...