     Case: 17-40584   Document: 00514574396        Page: 1   Date Filed: 07/27/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                    No. 17-40584                     July 27, 2018
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff - Appellee

v.

ROGER ALFREDO ANCHUNDIA-ESPINOZA,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Roger Alfredo Anchundia-Espinoza pleaded guilty to conspiracy to
possess, with the intent to distribute, cocaine while aboard a vessel subject to
the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1),
70506(a) & (b) and 21 U.S.C. § 960. The district court denied Anchundia-
Espinoza’s requests for safety-valve and minor participant reductions.
Anchundia-Espinoza appeals those denials. For the reasons set forth below, we
AFFIRM.
                                         I.
      Roger Alfredo Anchundia-Espinoza, a citizen of Ecuador, and three
others were contracted by an unknown individual to transport cocaine. They
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                                 No. 17-40584
were each paid $1,000 up front for the service. They were also promised an
additional $9,000 and a plane ticket once they reached their destination. On
December 10, 2015, the group left the Esmeraldas area of Ecuador on a small
boat. After traveling a number of miles in open waters and being provided
additional fuel by two other boats, they met a larger boat, which contained the
shipment of cocaine and two occupants. Anchundia-Espinoza and the three
other men boarded the larger boat, and the two men on the larger boat took
their smaller one (presumably back to Ecuador, although it is unclear). The
four men traveled for five days, and each drove the boat at different times.
      On December 15, 2015, the group met up with a boat named Imemsa and
transferred the shipment of cocaine and their equipment to it. They
intentionally sank the boat they had been traveling on and drove the Imemsa
toward Mexico at a high rate of speed. There was a total of seven occupants on
the Imemsa. Within two hours, a U.S. Marine Patrol Aircraft detected the
Imemsa, and the U.S. Coast Guard sought to intercept it. The boat failed to
comply with numerous demands to stop; after two warning shots, however, it
finally   stopped    approximately   95       nautical   miles    southwest     of   the
Mexico/Guatemala boarder. The driver of the boat made no claim of nationality
for the vessel, so it was treated as without nationality, and U.S. officials
boarded the boat. They found 35 bales of cocaine on board and another bail
floating in the water attached to a line over the side of the boat. A later
laboratory report prepared by the DEA revealed that the cocaine weighed 681.6
kilograms.
      In January 2016, Anchundia-Espinoza and the six other men were
indicted for conspiring to possess, with intent to distribute, five or more
kilograms of cocaine while aboard a vessel subject to the jurisdiction of the
United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) & (b), and 21
U.S.C. § 960. Anchundia-Espinoza pleaded guilty without a plea agreement.
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The punishment guidelines for § 70503 are provided at 21 U.S.C.
§ 960(b)(1)(B)(ii); the offense carries a statutory minimum sentence of 10 years’
imprisonment and a maximum of life.
      Using the 2016 Sentencing Guidelines, the Pre-sentence Report (“PSR”)
determined that Anchundia-Espinoza had a base offense level of 38 because he
was responsible for 681.6 kilograms of cocaine—well above the 450 kilogram
minimum in U.S.S.G. § 2D1.1, the provision providing the base offense levels
for conspiracies. The offense level was increased by two levels under U.S.S.G.
§ 2D1.1(b)(3), which provides for an adjustment when the defendant acted as
a captain or navigator aboard a vessel carrying a controlled substance. The
defendant was then lowered to an offense level of 37 for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b). Finally, he had a
criminal history category of I, and faced an advisory sentencing range of 210
to 262 months of imprisonment. And relevant to this appeal, the PSR provided
that, “[s]ince the defendant was convicted of a 46 U.S.C. § 70503(a)(1) offense,
the safety valve does not apply.”
      Anchundia-Espinoza filed two objections to the PSR. First, he objected
to the denial of the safety valve reduction. Second, he objected to the denial of
the “minor participant” reduction under U.S.S.G. § 3B1.2. The probation office
disagreed with both objections.
      The district court denied Anchundia-Espinoza’s first objection because
the safety valve provision applies only to the five offenses specified in 18 U.S.C.
§ 3553(f), and 46 U.S.C. § 70503 is not one of those offenses. The district court
similarly denied Anchundia-Espinoza’s request for the “minor participant”
adjustment. The district court concluded that the average participants in this
offense were Anchundia-Espinoza and his co-defendants, rather than the
unknown number of unidentified and uncharged participants in the


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                                     No. 17-40584
conspiracy. It found that he was not substantially less culpable than those co-
defendants.
      The district court ultimately varied downward from the 210-month
advisory minimum and sentenced Anchundia-Espinoza to 175 months in
prison. 1
                                            II.
      On appeal, Anchundia-Espinoza challenges the district court’s denial of
two sentencing reductions by erring in its application of two relevant statutes.
The district court’s legal interpretation of a statutory provision is reviewed de
novo. United States v. Flanagan, 80 F.3d 143, 145 (5th Cir. 1996). Factual
findings made during sentencing, however, are reviewed for clear error. United
States v. Kiekow, 872 F.3d 236, 247 (5th Cir. 2017). “Whether a defendant ‘was
a minor or minimal participant is a factual determination that we review for
clear error.’” United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir.
2016) (quoting United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016)).
“If the district court’s account of the evidence is plausible in light of the record
viewed in its entirety, this court may not reverse, even if, had we been sitting
as trier of fact, we might have weighed the evidence differently.” Kiekow, 872
F.3d at 247 (quoting United States v. Harris, 740 F.3d 956, 967 (5th Cir. 2014)).
                                           III.
       Anchundia-Espinoza first appeals the district court’s denial of “safety
valve” relief. The safety valve provision of U.S.S.G. § 5C1.2 allows a court to
sentence a defendant below the statutory minimum sentence in certain
instances. United States v. Treft, 447 F.3d 421, 426 (5th Cir. 2006). A defendant
may qualify for a sentence below the statutory minimum if he meets the five


      1  The court expressed that it wanted to give him the same 168-month sentence that
his co-defendants got, but it felt he should receive more time because he rejected the plea
offer that his co-defendants accepted.
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criteria set forth in 18 U.S.C. § 3553(f) (and also provided at § 5C1.2). See
United States v. Lopez, 264 F.3d 527, 529–30 (5th Cir. 2001). In these
circumstances, the defendant is also entitled to a two-level reduction in his
offense level. See id. at 530; U.S.S.G. § 2D1.1(b)(17). The defendant bears the
burden of establishing eligibility for the safety valve reduction. Flanagan, 80
F.3d at 146–47.
      The safety valve provision set forth in 18 U.S.C. § 3553(f) provides:
              Notwithstanding any other provision of law, in the case of
       an offense under section 401, 404, or 406 of the Controlled
       Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013
       of the Controlled Substances Import and Export Act (21 U.S.C.
       960, 963), the court shall impose a sentence pursuant to
       guidelines promulgated by the United States Sentencing
       Commission under section 994 of title 28 without regard to any
       statutory minimum sentence, if the court finds at sentencing,
       after the Government has been afforded the opportunity to make
       a recommendation, that —
              (1) the defendant does not have more than 1 criminal
       history point, as determined under the sentencing guidelines;
            (2) the defendant did not use violence or credible threats of
       violence or possess a firearm or other dangerous weapon (or
       induce another participant to do so) in connection with the
       offense;
            (3) the offense did not result in death or serious bodily
       injury to any person;
            (4) the defendant was not an organizer, leader, manager, or
       supervisor of others in the offense, as determined under the
       sentencing guidelines and was not engaged in a continuing
       criminal enterprise, as defined in section 408 of the Controlled
       Substances Act; and
            (5) not later than the time of the sentencing hearing, the
       defendant has truthfully provided 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, but the fact that the defendant
       has no relevant or useful other information to provide or that
       the Government is already aware of the information shall not

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                                  No. 17-40584
       preclude a determination by the court that the defendant has
       complied with this requirement.


(Emphasis added). U.S.S.G. § 5C1.2(a) similarly explains that § 3553(f) applies
to specific offenses, including 21 U.S.C. § 960. The crux of the issue here is
whether § 70503 falls under the safety valve relief because 21 U.S.C. § 960—
which provides the penalties for § 70503—is enumerated in § 3553(f).
Importantly, § 70503 is not an “offense under” § 960; section 960 merely
provides the penalties for § 70503.
      This issue presents a case of first impression for this circuit. As a general
matter, however, this court has strictly limited the safety valve’s application
to the statutes listed in § 3553(f). See, e.g., United States v. Phillips, 382 F.3d
489, 499–500 (5th Cir. 2004). Notably, the Eleventh and Ninth Circuits have
addressed the issue presented here, and both courts held that the safety valve
does not apply to violations of § 70503. See United States v. Pertuz-Pertuz, 679
F.3d 1327, 1328–29 (11th Cir. 2012); United States v. Gamboa-Cardenas, 508
F.3d 491, 496–97 (9th Cir. 2007). Anchundia-Espinoza argues that § 3553(f) is
ambiguous, and he relies on the dissenting opinion in Gamboa-Cardenas,
which reasoned that a plausible reading of § 3553(f) is that all of the crimes
punishable under § 960 are subject to the safety valve. See Gamboa-Cardenas,
508 F.3d at 506–08 (Fisher, J., concurring in part and dissenting in part). The
Eleventh Circuit rejected Anchundia-Espinoza’s argument by explaining that
the safety valve applies only to an “offense under” § 960 and not to a “sentence
under” § 960. Pertuz-Pertuz, 679 F.3d at 1329.
      The Supreme Court has instructed that “courts must presume that a
legislature says in a statute what it means and means in a statute what it says
there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992). Our court,
and other circuits, have confirmed “that there is no ‘ambiguity concerning the

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ambit of’ § 3553(f).” Phillips, 382 F.3d at 500 (quoting United States v. Kakatin,
214 F.3d 1049, 1052 (9th Cir. 2000)). This court addressed a similar issue in
United States v. Phillips. There, the defendant was convicted under 21 U.S.C.
§ 860. Id. at 492–93. Phillips urged that he was entitled to the safety valve
reduction because his violation under § 860, although not enumerated in
§ 3553(f), was “merely a ‘sentence enhancement,’” and § 21 U.S.C. § 841, which
is specifically enumerated, is a lesser-included offense of § 860. Id. at 499. This
court, similar to other circuits, rejected the argument. Id. at 499–500. It
reasoned that it was “clear that § 841 and § 860 are separate substantive
offenses, and that there is no ambiguity concerning the ambit of § 3553(f).” Id.
at 500 (internal quotations omitted); see also United States v. Anderson, 200
F.3d 1344, 1348 (11th Cir. 2000) (reasoning that “[t]he selection of these five
[enumerated] statutes reflects [a Congressional] intent to exclude others,
including 21 U.S.C. § 860”).
      The Ninth Circuit, relying in part on this court’s Phillips decision,
addressed whether a conviction under § 70503 2 was entitled to the safety valve
reduction. Gamboa-Cardenas, 508 F.3d at 496–99. It held that the statutes
enumerated in § 3553(f) presented an exhaustive list. Id. at 498. Moreover, it
explained that § 3553(f) was codified after the statute in question, so “Congress
could have included [§ 70503] as easily as it included the other statutes
specifically listed in § 3553(f). The timing of Congress’s actions indicates that
it consciously chose not to include [§ 70503] offenses on the safety valve list.”
Id. at 497–98. Finally, § 3553(f) applies to offenses under the enumerated
statutes. See id. at 497. Section 70503 is an offense penalized by an enumerated
statute, and therefore it is not subject to the safety valve provision. See id.



      2 The court actually considered whether § 70503’s predecessor, 46 U.S.C. § 1903, was
applicable.
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                                  No. 17-40584
        Likewise, the Eleventh Circuit held that, because the defendant was not
convicted under a statute appearing in § 3553(f), the defendant was not
entitled to its relief. Pertuz-Pertuz, 679 F.3d at 1328. It reiterated that the
safety valve statute was to apply only to those statutes specifically provided in
§ 3553(f). Id. “The safety valve statute . . . refers to an ‘offense under’ section
960—not to an ‘offense penalized under’ section 960 and not to a ‘sentence
under’ section 960.” Id. at 1329. Accordingly, it concluded § 3553(f) was
unambiguous and applied only to the statutes enumerated.
        We decline to accept Anchundia-Espinoza’s invitation to steer away from
this court’s strict interpretation of the statute—and the lead of circuits that
have addressed this issue. Instead, we follow this court’s precedent in strictly
construing the safety valve provision. To hold otherwise would run afoul of this
court’s decision that § 3553(f) is unambiguous. Not only is § 70503 not
specifically provided for under § 3553(f), but it is also not an “offense under”
§ 960, which does, in fact, list other statutes. See 21 U.S.C. § 960(a). As the
Eleventh Circuit explained, § 3553(f) applies to “offenses under”, not “offense[s]
penalized under” and not “sentence[s] under.” See Pertuz-Pertuz, 679 F.3d at
1329.
                                       IV.
        Anchundia-Espinoza also contends that he should have received a two-
level reduction in his offense level for playing a minor role in the conspiracy.
He argues, as he did in the district court, that the district court erred by
comparing him only to the co-defendants who played the same role he did,
rather than comparing him to all of the other participants in the conspiracy.
He asserts that the district court committed, “at the very least, a legal error in
the interpretation” of the Guidelines such that remand is required. Generally,
the factual determination of whether a defendant played a minor role in the
offense is reviewed for clear error. See Torres-Hernandez, 843 F.3d at 207.
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                                 No. 17-40584
      The defendant bears “the burden of proving by a preponderance of the
evidence that the adjustment [was] warranted.” United States v. Castro, 843
F.3d 608, 612 (5th Cir. 2016) (quoting United States v. Miranda, 248 F.3d 434,
446 (5th Cir. 2001)). “A minor participant adjustment is not appropriate simply
because a defendant does less than other participants; in order to qualify as a
minor participant, a defendant must have been peripheral to the advancement
of the illicit activity.” Miranda, 248 F.3d at 446–47.
      Determining     minor    participation    is   a     “sophisticated   factual
determination[]” to be made by the sentencing judge. United States v. Gallegos,
868 F.2d 711, 713 (5th Cir. 1989). Here, the district court meticulously
compared Anchundia-Espinoza’s participation to that of his co-defendants—
the only members of the conspiracy about whom the district court had concrete
knowledge. Indeed, the only reference to unindicted co-conspirators was
defense counsel’s statement and the government’s acknowledgement that
there presumably were other participants in this conspiracy. The district court
determined that Anchundia-Espinoza and his co-defendants all played similar
roles by accepting money to complete a portion of this drug transaction and by
captaining multiple boats to transport very substantial amounts of cocaine.
None was the “mastermind” behind the operation, and all seemed to
participate for the same amount of time and held the same type of
responsibilities. Accordingly, there appears to be no clear error in the district
court’s fact-finding that Anchundia-Espinoza was not a minor participant. In
fact, he appears to have been a part of the conspiracy for even longer than some
of his co-defendants. As this court has explained, “[e]ven if [the defendant]
played a relatively smaller role in the offense as compared to his other co-
defendants, viewing the record[] as a whole[,] the district court did not commit
clear error in finding that” Anchundia-Espinoza was “not deserving of a
downward adjustment.” United States v. Angeles-Mendoza, 407 F.3d 742, 754
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                                No. 17-40584
(5th Cir. 2005). Even if the district court misspoke that the minor-participant
inquiry permits comparisons only among co-defendants, Anchundia-Espinoza
did not meet his burden to prove his minor role because his participation was
so substantial—captaining multiple boats to transport such substantial
quantities of drugs—and because he failed to present any evidence challenging
the government’s denominator of co-conspirators. As such, Anchundia-
Espinoza certainly has not met his burden to prove by a preponderance of the
evidence that he should have received the minor participant reduction.
      Accordingly, the judgment of the district court is AFFIRMED.




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