                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2007

USA v. Rodriguez-Rijo
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3223




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                                            NOT PRECEDENTIAL


     IN THE UNITED STATES COURT
              OF APPEALS
         FOR THE THIRD CIRCUIT


                 NO. 05-3223


       UNITED STATES OF AMERICA

                      v.

       BAUTISTA RODRIGUEZ-RIJO,
               Appellant




      On Appeal From the District Court
              of the Virgin Islands,
     Division of St. Thomas and St. John
    (D.C. Crim. Action No. 01-cr-00298-3)
    District Judge: Hon. Raymond L. Finch


Submitted Pursuant to Third Circuit LAR 34.1(a)
                 May 8, 2007

  BEFORE: SLOVITER, STAPLETON and
    VAN ANTWERPEN, Circuit Judges

        (Opinion Filed: May 16, 2007)




         OPINION OF THE COURT
STAPLETON, Circuit Judge:

       Appellant, Bautista Rodriguez-Rijo, appeals his judgment of conviction and

sentence following a jury trial in the District Court of the Virgin Islands. For the reasons

that follow, we will affirm the judgment of the District Court.

                                             I.

       On October 11, 2001, Rodriguez-Rijo was charged in a three-count indictment

with conspiracy to possess with intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and 846; conspiracy to import into the

United States five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952(a),

960(b)(1)(B)(ii), and 963; and conspiracy to possess with intent to distribute five

kilograms or more of cocaine on board a vessel that was subject to the jurisdiction of the

United States, in violation of 46 U.S.C.App. § 1903 and 18 U.S.C. § 371.

       At trial, the government presented evidence that on the night of September 19,

2001, and into the early hours of the following day, the United States Coast Guard, with

the assistance of other law enforcement agencies, apprehended two vessels in the waters

between St. Maarten and St. Thomas. Upon boarding the First Vessel, law enforcement

officials discovered twenty bales of cocaine totaling 498.5 kilograms. They also

discovered a piece of paper bearing a ten-digit number that was later found to match the

telephone number of a cellular phone seized from the Second Vessel. The piece of paper

also listed the coordinates of the location where law enforcement officials would discover


                                             2
the Second Vessel, which was less than one mile away from the First Vessel. Julio

Balbuena-Peru, one of the individuals apprehended on the First Vessel, testified that he

was supposed to be paid $10,000 to transport the cocaine from St. Maarten to a second

vessel, which was coming from St. Thomas, at a predetermined location in the open

water.

         The Second Vessel, a “go-fast vessel” of the type commonly used by drug

smugglers, SA at 16, 25, 29, 119, was occupied by Rodriguez-Rijo and two others. After

a Coast Guard helicopter illuminated the Second Vessel, which had its navigation lights

turned off, the vessel increased its speed and attempted to flee. A high-speed chase

ensued, ending only after warning shots were fired from one of the police vessels in hot

pursuit. In addition to the cellular phone, Coast Guard officials seized two large fuel

containers and a blue tarp from the Second Vessel, but found no drugs aboard. They

determined that Rodriguez-Rijo was the “master,” or captain, of the Second Vessel

because “he was answering all the questions, . . . took charge of the situation, . . . [and]

came forward with everything.” SA at 41.

          Rodriguez-Rijo subsequently waived his rights and agreed to speak with Special

Agent Mark McHugh. Rodriguez-Rijo advised McHugh that, approximately one month

before his arrest, he had transported the Second Vessel from Puerto Rico to St. Thomas

for a fee of $1,500. Rodriguez-Rijo also told McHugh that, on the night the Second

Vessel was apprehended, he was taking the vessel from St. Thomas to St. Maarten to



                                               3
“look for job opportunities,” SA at 116; he was not using the vessel’s navigational lights

because “the people in Tortola were not nice,” SA at 117; and he “decided to give [the

vessel] a little gas” and flee from the police because the vessel “was not [approved] for

[carrying] passengers.” SA at 117-18. According to McHugh, Rodriguez-Rijo had “no

explanation” for why he was traveling in the middle of the night. SA at 116. When asked

by McHugh to explain the Second Vessel’s close proximity to a vessel carrying cocaine,

Rodriguez-Rijo lowered his head, began to cry, and indicated that he felt sorry for his

children.

       Ramon Ivan Abbott Placencio, a cooperating witness, testified that he was

involved in the plan to smuggle drugs from St. Maarten to St. Thomas. As documented

by undercover surveillance video and the testimony of various law enforcement officers,

Placencio spent ten days in a St. Thomas hotel in August 2001, during which time he was

seen inspecting the Second Vessel, purchasing a cell phone that was later found aboard

the First Vessel, and spending time with various participants in the plan, including

Rodriguez-Rijo. Placencio testified that Rodriguez-Rijo, among other participants in the

conspiracy, stayed at the St. Thomas hotel with him and that he discussed the drug

smuggling scheme with Rodriguez-Rijo. According to Placencio, Rodriguez-Rijo’s role

in the scheme was “to be the captain of the boat, using the boat that we had here . . .

basically to go out and to receive a shipment of drug[s] that was on the way.” SA at 96.

       The jury found Rodriguez-Rijo guilty on all counts. The District Court sentenced



                                              4
Rodriguez-Rijo to a term of imprisonment of 292 months, which was based in part on a

two-point enhancement under USSG § 3B1.3 for use of a “special skill” (viz., piloting the

Second Vessel) in committing the offense. This appeal followed.1

                                              II.

         Rodriguez-Rijo first argues that the District Court committed reversible error in

allowing one of the government’s witnesses to testify concerning a previous drug seizure

from the Second Vessel which did not involve Rodriguez-Rijo. In response to a question

by the government’s counsel concerning the Second Vessel’s registration information,

Special Agent McHugh testified in part that he was “aware that this was the same vessel

that I had observed . . . on previous occasions in St. Thomas, and that approximately one

year earlier was involved in the seizure of 866 kilograms of cocaine in Puerto Rico.” SA

at 121. On appeal, Rodriguez-Rijo challenges the admissibility of this testimony on

several grounds, including relevance. Because Rodriguez-Rijo did not object to the

challenged testimony at trial, however, he properly concedes that plain error review

applies here.

         Under plain error review, “[t]he defendant must show not only that error affected

the outcome of the trial, but that the error was clear or obvious under current law. If these

requirements are met, we may reverse, if the error seriously affect[ed] the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Rivas, 479 F.3d



   1
       We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                               5
259, 263 (3d Cir. 2007) (citations omitted). Even assuming that admission of the

challenged testimony was clearly erroneous, which the government appears to concede

for the sake of argument, we agree with the government that Rodriguez-Rijo has failed to

make a sufficient showing of prejudice to warrant relief from his conviction on this basis.

Putting aside the past use of the Second Vessel by other drug traffickers, there remains a

vast array of evidence that far more persuasively links both Rodriguez-Rijo and the

Second Vessel to the present drug conspiracy, as recounted in detail above. In short, we

have no doubt that any error in admitting the challenged testimony did not affect the

outcome of this case.

                                            III.

       Rodriguez-Rijo next challenges the District Court’s application of a two-point

adjustment under USSG § 3B1.3 for use of a “special skill” in operating the Second

Vessel.2 Rodriguez-Rijo argues that the District Court erred in applying the § 3B1.3

adjustment because he did not, in fact, operate the Second Vessel. In the alternative,

Rodriguez-Rijo contends that the § 3B1.3 enhancement was unwarranted because he did



   2
    USSG § 3B1.3 provides for a two-point enhancement where “the defendant . . . used a
special skill . . . in a manner that significantly facilitated the commission or concealment
of the offense.” The Commentary to § 3B1.3 defines “special skill” as “a skill not
possessed by members of the general public and usually requiring substantial education,
training or licensing. Examples would include pilots, lawyers, doctors, accountants,
chemists, and demolition experts.” USSG § 3B1.3, cmt. 3. “Special skills are not,
however, limited to those obtained through formal education, training, or licensing . . .
[and] may be obtained through life experience and self-study.” United States v. Batista
De La Cruz, 460 F.3d 466, 468 (3d Cir. 2006).

                                             6
not use any “special skill” in operating the Second Vessel. We reject both arguments.3

       Contrary to Rodriguez-Rijo’s suggestion, there is ample evidence from which the

District Court could conclude that he was responsible for piloting the Second Vessel.

Most relevant is Rodriguez-Rijo’s own admission to Special Agent McHugh that it was

he who controlled the vessel’s navigation and accelerated its speed upon detection by law

enforcement authorities.

       Furthermore, we believe that the District Court properly found that Rodriguez-Rijo

used a “special skill” in piloting the Second Vessel as part of the drug conspiracy.

Although Rodriguez-Rijo urges us to follow our recent decision in United States v.

Batista De La Cruz, 460 F.3d 466 (3d Cir. 2006), we believe that case is factually

distinguishable. In Batista De La Cruz, we reversed the trial court’s application of the

“special skill” enhancement where the defendant, who had been apprehended while

transporting drugs in a powerboat, “employed simple line-of-sight navigation to reach St.

Thomas [from Puerto Rico]”; “[t]he authorities found no charts, compasses or other

navigational devices on his boat”; he “operated his boat during day light hours”; and

“[t]he record fail[ed] to reflect that he had any licensing, or even any special skill

obtained through education, self-study, or experience.” Id. at 469.




   3
    Although neither party has raised the issue, it does not appear from our review of the
record that Rodriguez-Rijo ever raised an objection to the § 3B1.3 adjustment before the
District Court. Because we conclude that the District Court did not err in applying the §
3B1.3 enhancement, however, there is no need to conduct a plain error analysis.

                                               7
       In this case, by contrast, Rodriguez-Rijo piloted a high-speed vessel, in the

darkness of night and without using navigation lights, to a predetermined location in the

open ocean. Once detected, Rodriguez-Rijo attempted to elude apprehension by leading

law enforcement authorities on a high-speed chase across the dark sea. The record also

reveals that Rodriguez-Rijo had prior experience piloting this very vessel, for which he

received substantial compensation.

       In our view, these facts and circumstances are far more analogous to those at issue

in United States v. Calderon, 127 F.3d 1314 (11th Cir. 1997), a case we favorably

discussed, but ultimately found to be factually distinguishable, in Batista De La Cruz. In

Calderon, the Eleventh Circuit expressed its disbelief that “an average person off the

street would possess the requisite skills to captain a cocaine laden boat on the high seas

from the Bahamas to a predetermined specific location in Southern Florida using a chart

and compass at night without lights while taking care to elude detection,” as the

defendants had done in that case. Id. at 1339-40. We believe that members of the general

public would lack the skills necessary to successfully perform the nearly identical task

entrusted to Rodriguez-Rijo in this case. We conclude, therefore, that the District Court

did not err in applying the two-level “special skill” enhancement pursuant to § 3B1.3.

                                            IV.

       Rodriguez-Rijo finally argues that the sentence imposed upon him by the District

Court is unreasonable under United States v. Booker, 543 U.S. 220 (2005), because the



                                             8
District Court failed to address his request for a reduced sentence based on his lack of

prior criminal history and did not adequately consider the sentencing factors set forth in

18 U.S.C. § 3553(a).4

       Under our post-Booker precedent, district courts must give “meaningful

consideration to the relevant § 3553(a) factors” in imposing sentence. United States v.

Charles, 467 F.3d 828, 831 (3d Cir. 2006) (citation and internal brackets omitted). The

district court is not required to “discuss and make findings as to each of the § 3553(a)



   4
    Those factors are:
       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;
       (2) the need for the sentence imposed –
                (A) to reflect the seriousness of the offense, to promote respect for
                the law, and to provide just punishment for the offense;
                (B) to afford adequate deterrence to criminal conduct;
                (C) to protect the public from further crimes of the defendant; and
                (D) to provide the defendant with needed educational or vocational
                training, medical care, or other correctional treatment in the most
                effective manner;
       (3) the kinds of sentences available;
       (4) the applicable category of offense committed by the applicable category
       of defendant as set forth in the guidelines . . . ;
       (5) any pertinent policy statement . . . issued by the Sentencing Commission
       . . . that . . . is in effect on the date the defendant is sentenced[;]
       (6) the need to avoid unwarranted sentencing disparities among defendants
       with similar records who have been found guilty of similar conduct; and
       (7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
       Because the absence of prior criminal history is not a recognized basis for
departing downward under the Guidelines, we interpret Rodriguez-Rijo’s sentencing
argument as a request for a “variance” under § 3553(a). See United States v. Vampire
Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006) (characterizing “post-Booker discretionary
sentences not based on a specific Guidelines departure provision as ‘variances’”).

                                             9
factors if the record makes clear the court took the factors into account in sentencing,”

United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006), nor must the district court

“discuss every argument made by a litigant if an argument is clearly without merit.” Id.

At bottom, “[t]here are no magic words that a district judge must invoke when sentencing,

but the record should demonstrate that the court considered the § 3553(a) factors and any

sentencing grounds properly raised by the parties which have recognized legal merit and

factual support in the record.” Id. at 332; see also United States v. Dragon, 471 F.3d 501,

506 (3d Cir. 2006) (noting that “we will not elevate form over substance” in conducting

reasonableness review).

       In advance of the sentencing hearing, the Probation Department submitted a

Presentence Investigation Report (“PSI Report”) calculating the advisory Guideline range

as 292 to 365 months, based on a total offense level of 40 5 and a criminal history category

of I. At the sentencing hearing, defense counsel asked the District Court to impose a

reduced sentence based on the fact that “this is [Rodriguez-Rijo’s] first conviction.” SA

at 150. In response, the government recommended a sentence of 292 months

imprisonment, arguing that Rodriguez-Rijo’s role as the “boat captain” made him “more

culpable” than the other conspirators aboard the Second Vessel. SA at 151. After




   5
    The base offense level for a drug crime involving at least 150 kilograms of cocaine is
38. See USSG § 2D1.1. Adding the two-point special skills adjustment under § 3B1.1
results in a total offense level of 40. While Rodriguez-Rijo challenged the drug quantity
calculation before the District Court, he does not press this argument on appeal.

                                             10
considering the “the statements of [Rodriguez-Rijo’s] lawyer, . . . the probation report,

and the arguments of the government,” and “find[ing] that the sentencing guidelines are

advisory in this case,” the District Court “accepted the recommendations of the [PSI

Report]” and sentenced Rodriguez-Rijo to a prison term of 292 months, at the bottom end

of applicable advisory Guidelines range. SA at 152. The District Court stated that

Rodriguez-Rijo’s sentence was based on the “same justification” cited by the Court in

sentencing co-defendant Rufino Rodriguez-Sanchez to a prison sentence of 250 months,6

“except that [this case] is a little bit more egregious in that [Rodriguez-Rijo was] the

captain of the vessel . . . [a]nd I think this fact should be reflected in the sentence.” SA at

152.

       Although the District Court did not expressly reference the individual sentencing

factors of § 3553(a) in the course of imposing sentence on Rodriguez-Rijo, the Court’s

sentencing analysis is nevertheless “consistent with the relevant provisions of § 3553(a),”

which is all our post-Booker precedent requires. Dragon, 471 F.3d at 506. It is clear

from the record that the District Court found a prison sentence of 292 months to be

appropriate based not only on its consideration of the applicable advisory Guidelines



   6
    The District Court provided the following explanation for the sentence imposed upon
co-defendant Rodriguez-Sanchez, whose sentencing hearing was held immediately prior
to Rodriguez-Rijo’s hearing: “If this shipment of drugs had not been intercepted, it would
have been a large quantity of drugs arriving at somebody’s territory or state. The activity
in which you were involved suggests that you deliberately set out to infuse drugs
someplace, some community, and I think you knew what you were doing, and you
deliberately took a chance, and you d[id] so at considerable risk to yourself.” SA at 149.

                                              11
range, which the District Court properly acknowledged to be “advisory” in nature, but

also in light of the serious nature of the drug conspiracy and Rodriguez-Rijo’s extensive

involvement therein, and the pressing need to promote respect for the law, provide just

punishment, and protect the public from such crimes. The District Court was also careful

to explain that the minor disparity between Rodriguez-Rijo’s sentence and the lesser

sentence imposed upon co-defendant Rodriguez-Sanchez was warranted in view of their

respective roles in the drug smuggling plan. Furthermore, we can readily infer from the

District Court’s reasoned analysis that it did not believe Rodriguez-Rijo’s lack of prior

criminal history, which was expressly considered in computing the advisory Guidelines

range, supported a reduced sentence when weighed against the other relevant § 3553(a)

factors discussed above. In short, we conclude that the sentencing procedure employed

by the District Court here was reasonable under Booker.

                                             V.

       For the foregoing reasons, the judgment of the District Court will be affirmed.




                                             12
