             Case: 19-11404   Date Filed: 02/25/2020   Page: 1 of 5


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                          No. 19-11404; 19-11406
                          Non-Argument Calendar
                        ________________________

         D.C. Docket Nos. 1:18-cr-20912-CMA-2; 1:18-cr-20912-CMA-4



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

versus

EDWIN DANIEL GONGORA BALTAN,
MIGUEL SALAS VALLECILLA,

                                           Defendants-Appellants.
                        ________________________

                 Appeals from the United States District Court
                     for the Southern District of Florida
                        ________________________

                              (February 25, 2020)

Before WILLIAM PRYOR, MARTIN and BRANCH, Circuit Judges.

PER CURIAM:
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      Edwin Gongora Baltan and Miguel Salas Vallecilla appeal their respective

below-guideline sentences of 96 months and 92 months of imprisonment for

conspiring to possess with intent to distribute five kilograms or more of cocaine on

a vessel subject to the jurisdiction of the United States. 46 U.S.C. § 70506(b).

Gongora and Salas challenge the enhancement of their sentences for exporting

cocaine, United States Sentencing Guideline Manual § 2D1.1(b)(3)(B) (Nov.

2018), and, for the first time, argue that the district court sua sponte should have

both invoked the doctrine of judicial estoppel and applied the rule of lenity to bar

application of the enhancement. Gongora and Salas also each argue that they are

entitled to a reduction for their minor role. Id. § 3B1.2. We affirm Gongora’s and

Salas’s sentences.

      The district court did not clearly err by enhancing Gongora’s and Salas’s

sentences for exporting cocaine. The Guidelines provide for a two-level increase in

a base offense level “[i]f the defendant unlawfully imported or exported a

controlled substance under circumstances in which . . . a submersible vessel or

semi-submersible vessel was used . . . .” U.S.S.G. § 2D1.1(b)(3)(B). That provision

plainly applies to Gongora and Salas. United States v. Gordillo, 920 F.3d 1292,

1297 (11th Cir.) (“When interpreting the Guidelines, a ‘guideline's meaning is

derived first from its plain language . . . .”), cert. denied, 140 S. Ct. 294 (2019).

Gongora and Salas testified that they received large sums of money to perform


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specific jobs on a semi-submersible low-profile vessel that departed from

Columbia loaded with cocaine to deliver to Guatemala. The Oxford English

Dictionary defines “export” as “[t]o carry (things or persons) out of a place; to take

away, carry off.” Export, The Oxford English Dictionary (online ed.). The two men

exported or transported cocaine out of Columbia when the United States Coast

Guard intercepted their vessel in international waters south of Guatemala. See

United States v. Chastain, 198 F.3d 1338, 1353 (11th Cir. 1999) (“the language [in

former section 2D1.1(b)(2)] of the guideline clearly contemplates a completed

event”). Gongora’s and Salas’s exportation of cocaine in furtherance of the

conspiracy constituted relevant conduct that the district court could consider in

determining their sentences. See U.S.S.G. § 1B1.3(a). The district court did not

clearly err when it applied the two-level enhancement.

      The district court did not plainly err by failing sua sponte to invoke the

doctrine of judicial estoppel to bar the government from requesting an exportation

enhancement for Gongora and Salas. A district court may apply judicial estoppel to

prevent a party from assuming contrary positions in different proceedings. New

Hampshire v. Maine, 532 U.S. 742, 749–50 (2001). Gongora and Salas argue that

judicial estoppel applied because, in an unrelated criminal case, the government

had joined initially, but later disavowed, a defendant’s objection to applying the

import/export enhancement to his sentence for conspiring to distribute cocaine on


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the ground that no importation actually occurred. United States v. Renteria

Granados, No. 1:13-cr-20801 (S.D. Fla.). Because the government reversed course

in Renteria Granados and the district court “construe[d] the Government’s position

to be that in any future sentencings, U.S.S.G. § 2D1.1(b)(3), may be applicable,”

no “clear inconsistency” existed to apply the doctrine of judicial estoppel, see New

Hampshire, 532 U.S. at 750. Gongora and Salas fail to prove that the district court

committed an “error that . . . [is] clear and obvious” by applying the enhancement

to them. See United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019).

      The district court also did not err by failing to apply the rule of lenity when

interpreting section 2D1.1(b)(3). Even if we were to assume that the rule of lenity

applies to the advisory Sentencing Guidelines, it does not apply to section

2D1.1(b)(3). See United States v. Watts, 896 F.3d 1245, 1255 (11th Cir. 2018)

(“Whether the rule of lenity can be applied to the non-statutory advisory

Sentencing Guidelines is an open question upon which this Court has cast doubt

. . . .”). “The rule of lenity is a canon of statutory construction that requires courts

to construe ambiguous criminal statutes narrowly in favor of the accused.” Id.

(quoting United States v. Wright, 607 F.3d 708, 716 (11th Cir. 2010) (William

Pryor, J., joined by Fay, J., concurring)). Because section 2D1.1(b)(3) is

unambiguous, Gongora and Salas cannot establish that the district court erred.




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      The district court did not clearly err by denying Gongora a two-level

reduction for a minor role. For the reduction to apply, Gongora had to prove he

was “less culpable than most other participants in the criminal activity, but [his]

role could not be described as minimal,” U.S.S.G. § 3B1.2 cmt. n.5, by being

“among the least culpable of those involved in the conduct of a group,” id. § 3B1.2

cmt. n.4. During a five-hour sentencing hearing, the district court received

testimony from the four conspirators on the vessel. Gongora testified that he

oversaw the service of and repairs to the vessel and navigated it when the captain

required rest. That Gongora did not organize the conspiracy or plan the details of

the trip does not mean his role was minor. His ability to perform essential functions

on the vessel established that he served an indispensable role in the conspiracy.

      The district court also did not clearly err by denying Salas a minor role

reduction. See id. § 3B1.2 cmt. n.4 & 5. Salas served as lookout for law

enforcement and pirates, assisted with repairing and maintaining the engine on the

vessel, and periodically assumed Gongora’s role as supervising mechanic. Salas

served a key role to ensure that the conspiracy delivered the cocaine.

      We AFFIRM Gongora’s and Salas’s sentences.




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