United States v. Mosquera-Murillo

• Decision Date: 24 August 2018
• Docket Number: No. 16-3096,C/w 16-3097, 16-3098,16-3096
• Parties: UNITED STATES of America, Appellee v. Alfredo MOSQUERA-MURILLO, Also Known as Alfredo Lopez-Gutierrez, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

902 F.3d 285

UNITED STATES of America, Appellee

v.Alfredo MOSQUERA-MURILLO, Also Known as Alfredo Lopez-Gutierrez, Appellant

No. 16-3096

C/w 16-3097, 16-3098

United States Court of Appeals, District of Columbia Circuit.

Argued January 12, 2018

Decided August 24, 2018

Julia Fong Sheketoff, pro bono, argued the cause for appellant. With her on the briefs were Louis K. Fisher and Sparkle L. Sooknanan, pro bono, A.J. Kramer, Federal Public Defender, and Richard K. Glibert and Carmen D. Hernandez, appointed by the court.

John M. Pellettieri, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Trevor N. McFadden, Deputy Assistant Attorney General, and Adrienne L. Rose, Attorney. John Alex Romano, Attorney, and Elizabeth Trosman, Assistant U.S. Attorney, entered appearances.

Before: Srinivasan and Millett, Circuit Judges, and Sentelle, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Srinivasan.

Srinivasan, Circuit Judge:

In June 2012, the United States Coast Guard intercepted a Colombian vessel called the Mistby, which was transporting cocaine and marijuana to Panama. The three defendants in these consolidated cases pleaded guilty to conspiring to distribute, and possess with intent to distribute, the drugs on board the Mistby, in violation of the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. § 70501 et seq., and the Controlled Substances Import and Export Act, 21 U.S.C. § 951 et seq. Each defendant was sentenced to 10 years of imprisonment.

The defendants now appeal on two grounds. First, they argue that the district court lacked subject-matter jurisdiction over their prosecutions because they were not on board the Mistby when it was intercepted. In the defendants’ view, Colombia’s assent to U.S. jurisdiction over individuals associated with the Mistby was limited to persons found on board the vessel. Second, the defendants contend that their offense of conviction is covered by the so-called safety-valve provision, 18 U.S.C. § 3553(f). That provision, in certain circumstances, exempts covered offenses from mandatory-minimum sentences such as the 10-year sentences imposed against the defendants.

We conclude that the district court had subject-matter jurisdiction over the defendants’ prosecutions, but that the defendants’ offense is covered by the safety-valve provision. We therefore vacate the defendants’ sentences and remand for resentencing.

I.

The Coast Guard first spotted the Mistby on the high seas about 70 nautical miles off the coast of Panama. When the Coast Guard approached, the Mistby fled, and its crew began to dump cargo overboard. The cargo turned out to be 22 bales of drugs, containing more than 220 kilograms of cocaine and more than 120 kilograms of marijuana.

The Coast Guard eventually overtook the Mistby and boarded it to determine its nationality, at which point the Mistby’s captain claimed the vessel was registered in Colombia. The United States and Colombia have agreed by treaty to "cooperate in combating illicit traffic by sea." Agreement to Suppress Illicit Traffic by Sea, Colom.-U.S., art. 2, Feb. 20, 1997, T.I.A.S. No. 12,835. Pursuant to that treaty, the Coast Guard asked the Colombian Navy (i) to verify that the Mistby was registered in Colombia, and (ii) to grant the Coast Guard permission to search the vessel. See id. art. 7. The Colombian Navy granted both requests. The Coast Guard then searched the Mistby and arrested the people on board, but the defendants were not among them.

The next day, the Coast Guard asked the Colombian Navy to confirm that, under Article 16 of the treaty, the United States had jurisdiction over the Mistby. The Colombian Navy did so on June 26, stating that, under the "agreement signed by the governments of the United States and Colombia, [the United States could] exercise their jurisdiction." Ardila M. Hector, Colombian Naval Operations Ctr., Response to Request for Interpretation of Article 16(1) of the Maritime Agreement Col.-U.S. (June 26, 2012) (formatting modified).

The Coast Guard memorialized the Colombian Navy’s response in a certification, which reads, in relevant part:

On June 26, 2012, Colombian authorities confirmed and concurred with the United States’ interpretation of Article 16 of the Agreement, thereby waiving objection to the enforcement of United States law by the United States over the go-fast vessel MISTBY, all associated contraband, and persons on board.

Salvatore J. Fazio, U.S. Coast Guard, Certification for the Maritime Drug Law Enforcement Act Case Involving Go-Fast Vessel Mistby (Colombia) ¶ 4.e (Aug. 10, 2012) (hereinafter Coast Guard Certification). "Accordingly," the certification concludes, "the Government of the United States determined the go-fast vessel MISTBY was subject to the jurisdiction of the United States pursuant to 46 U.S.C. § 70502(c)(1)(C)." Id. ¶ 4.f.

Months later, the three defendants—Alfredo Mosquera-Murillo, Antonio Moreno-Membache, and Joaquin Chang-Rendon—were charged with conspiring to distribute, and possess with intent to distribute, the drugs transported on board the Mistby, in violation of 46 U.S.C. §§ 70503 and 70506(b), and 21 U.S.C. § 960(b)(1)(B) and (b)(2)(G). The government’s theory as to each defendant’s involvement was as follows: that Chang-Rendon (a civilian employee of the Colombian Navy) knew the patrol routes of Colombian and American law-enforcement vessels and passed that information along to Mosquera-Murillo; that Mosquera-Murillo in turn conveyed the information to the people transporting the drugs; and that Moreno-Membache helped move the drugs to the Colombian coast and then load them onto the Mistby. At the time the defendants were charged, all three of them were still in Colombia. The United States thus requested extradition, which Colombia granted.

Chang-Rendon and Mosquera-Murillo moved to dismiss the indictment on the ground that the district court lacked subject-matter jurisdiction over their prosecutions. The government claimed that the district court had jurisdiction under 46 U.S.C. § 70502(c)(1)(C), which applies if the vessel on which an MDLEA offense was committed is "a vessel registered in a foreign nation [and] that nation has consented or waived objection to the enforcement of United States law by the United States." The defendants responded that, as shown by the Coast Guard’s certification, Colombia waived objection to the United States exercising jurisdiction over the "MISTBY, all associated contraband, and persons on board"—but not persons like the defendants who never set foot on the vessel. Coast Guard Certification ¶ 4.e.

The district court rejected that argument. The court held that "a foreign government’s waiver of jurisdiction over a particular vessel ... establish[es a district] court’s subject-matter jurisdiction over a subsequent prosecution of any land-based co-conspirators." United States v. Mosquera-Murillo , 153 F.Supp.3d 130, 158 (D.D.C. 2015). And in any event, the court explained, the notion that Colombia had not consented to the defendants’ prosecutions was difficult to square "with the Colombian government’s subsequent extradition of the defendants to the United States." Id. at 159.

The defendants then pleaded guilty. In their plea agreements, they acknowledged that, given the quantity of cocaine involved, the district court ordinarily would be required to impose a mandatory-minimum sentence of 10 years of imprisonment. See 21 U.S.C. § 960(b)(1)(B). But the defendants reserved their rights (i) to argue they were eligible for relief from that mandatory-minimum sentence under the safety-valve provision, 18 U.S.C. § 3553(f), and (ii) to appeal any contrary determination by the district court.

The safety-valve provision states that sentencing relief is available only "in the case of an offense under" 21 U.S.C. §§ 841, 844, 846, 960 or 963. 18 U.S.C. § 3553(f). The government argued that, because that list does not include any provision of the MDLEA, the defendants’ offense was not covered. The defendants responded that, because 21 U.S.C. § 960(b) supplied the penalties for their MDLEA violation, the violation qualified as "an offense under" § 960.

The district court agreed with the government, holding that the defendants were ineligible for safety-valve relief. United States v. Mosquera-Murillo , 172 F.Supp.3d 24, 38 (D.D.C. 2016). The court thus sentenced each defendant to the mandatory-minimum sentence of 10 years. This appeal followed.

II.

In this appeal, the defendants renew two arguments they pressed unsuccessfully in the district court: that the district court lacked subject-matter jurisdiction over their prosecutions, and that they were eligible for safety-valve relief from the 10-year mandatory-minimum.

Despite the defendants’ guilty pleas, they have not waived or forfeited either argument. Challenges to a district court’s subject-matter jurisdiction can never be waived by plea. United States v. Miranda , 780 F.3d 1185, 1188 (D.C. Cir. 2015). Nor can such challenges be forfeited, so Moreno-Membache’s failure to contest subject-matter jurisdiction in the district court does not preclude him from raising the challenge now. And although sentencing challenges can be waived, all three defendants entered conditional pleas reserving their right to appeal the district court’s determination that they were ineligible for safety-valve relief. See id. (citing Fed. R. Crim. P. 11(a)(2) ). We therefore consider both the district court’s subject-matter jurisdiction and the defendants’ safety-valve eligibility.

A.

The defendants initially argue that the district court lacked subject-matter jurisdiction over their prosecutions. The MDLEA criminalizes certain drug-related acts committed "on board a covered vessel," 46 U.S.C. § 70503(a), as well as conspiracies to commit those acts, id. § 70506(b). We have held that a defendant can violate the Act’s conspiracy provision without personally setting foot "on board a covered...