[00:00:00] Speaker 02: Case number 19-3051 et al, United States of America versus Antonio Moreno-Membachi, the balance. [00:00:08] Speaker 02: Ms. [00:00:08] Speaker 02: Hernandez for the balance, Mr. Pierce for the appellee. [00:00:17] Speaker 03: Good morning, your honor. [00:00:19] Speaker 03: Good morning. [00:00:20] Speaker 03: Good morning, your honor. [00:00:22] Speaker 03: May it please the court, Carmen Hernandez, arguing on behalf of Mr. Moreno, Antonio Moreno-Membachi. [00:00:30] Speaker 03: Your honor, as the court is well aware, more than 97% of cases are resolved by plea agreement. [00:00:39] Speaker 03: And plea agreements have a constitutional component because a defendant waives multiple rights, constitutional rights to a trial, to confront witnesses, to have the government prove its case when he signs a plea agreement. [00:00:52] Speaker 03: In this case, [00:00:55] Speaker 03: The issue of the defendant's eligibility for the safety valve was a major issue in allowing Mr. Moreno-Membache to plead guilty. [00:01:07] Speaker 03: In fact, the government had wired the pleas. [00:01:11] Speaker 03: That is, the government had required that all three defendants plead at the same time or they would have had to go to trial. [00:01:17] Speaker 03: Mr. Moreno-Membache reluctantly agreed to plead guilty [00:01:23] Speaker 03: The original plea agreement was aborted because he refused to plead guilty unless he could argue that he was eligible for the safety valve. [00:01:32] Speaker 03: A provision in the plea agreement states that the government would not seek any enhancements under Chapter 3 of the sentencing guidelines. [00:01:45] Speaker 03: In order to be eligible for the safety valve, a defendant cannot have an aggravating role in the [00:01:53] Speaker 03: in the offense. [00:01:56] Speaker 03: Chapter three is the section of the sentencing guidelines that includes aggravating roles. [00:02:03] Speaker 03: Now the government seems to argue that they weren't below, that they did not seek an enhancement under chapter three, that they merely were arguing that they had role enhancements. [00:02:16] Speaker 03: But that misconstrues the application of the sentencing guidelines, which in order to be [00:02:22] Speaker 03: prohibited from eligibility from the safety valve, there has to be an enhancement under the role adjustment. [00:02:32] Speaker 03: It's not enough that someone be a leader or supervisor. [00:02:35] Speaker 03: If he doesn't get a chapter 3B enhancement, he is eligible for the safety valve. [00:02:42] Speaker 03: It was clear everyone understood that this is what the plea agreement meant and intended. [00:02:51] Speaker 03: It's clear that it's a reasonable interpretation of the plea agreement. [00:02:56] Speaker 03: The government's argument on the plea agreement would invalidate or would give no meaning to the sentence in the plea agreement that said that the government would not seek an enhancement under chapter three. [00:03:10] Speaker 03: The argument that the later sentence that says the government could object to application of the safety valve somehow nullifies that earlier sentence makes no sense because you can challenge eligibility for the safety valve under the four other provisions of the safety valve. [00:03:32] Speaker 03: In order to be eligible for the safety valve, you have five requirements. [00:03:36] Speaker 03: One of them is aggravating rule. [00:03:39] Speaker 03: So the government was free to argue against the safety valve, but not free to argue on the particular provision that said a role enhancement. [00:03:48] Speaker 00: The guideline sentence was well above the mandatory minimum. [00:03:58] Speaker 00: I think it was 262 to 327 months. [00:04:03] Speaker 03: That was not Mr. Moreno-Mimbachi's contention. [00:04:06] Speaker 03: That's not what he argued below. [00:04:08] Speaker 00: Let me just spell this out and you can respond. [00:04:15] Speaker 00: So had the government sought a 3B enhancement, the range would have gone, maybe I have the numbers wrong, but the range would have gone from something well over [00:04:32] Speaker 00: 120 month mandatory minimum to, would have been increased even more. [00:04:40] Speaker 00: And it could have gone up if they had gotten a plus four enhancement, it could have gone up all the way to life. [00:04:47] Speaker 00: So when the government made the commitment not to seek an upward 3B enhancement, that commitment still seems to be doing a lot of work [00:05:01] Speaker 00: even if the government is reserving all of its rights to argue that the sentence should not drop below the mandatory minimum based on the safety valve, based on any ground under the safety valve. [00:05:19] Speaker 03: Your Honor, that's not how you would interpret the plea agreement. [00:05:24] Speaker 03: The plea agreement was a C plea, that means the court had to impose the agreed upon sentence to 120 months. [00:05:34] Speaker 03: Nothing the government argued at sentencing could increase the sentence above 10 years. [00:05:39] Speaker 03: It was a plea pursuant to Rule 11C1C of the Federal Rules of Criminal Procedure. [00:05:46] Speaker 03: So the only meaning that could be [00:05:50] Speaker 03: The only significance of agreeing not to seek a role enhancement under Chapter 3 was if they were eligible for safety valve. [00:06:00] Speaker 03: If they were not eligible for safety valve, there could be 17 enhancements and it would not increase the sentence above 120 months. [00:06:07] Speaker 03: So that provision had meaning only in the context of safety valve. [00:06:13] Speaker 00: I understand that, but another [00:06:20] Speaker 00: way of thinking about the overall structure of this plea agreement is that the government was giving up all of the enhancements. [00:06:31] Speaker 00: I mean, the only fight in this case was either 120 months or less under safety valve. [00:06:38] Speaker 03: Correct, but there are five provisions under the safety valve. [00:06:44] Speaker 03: One, criminal history, no gun, [00:06:48] Speaker 03: uh, role enhancement and had to be honest in a debrief. [00:06:53] Speaker 03: So, so there's, and it was 120 months. [00:06:57] Speaker 00: But the government reserved the argument that the defendants don't meet the criteria for safety valve relief and on its face that the criteria, not some of the criteria, the criteria. [00:07:15] Speaker 03: Well, [00:07:19] Speaker 03: Correct, but the only way to give meaning to both provisions, that is to the provision that they waive chapter three enhancements and to the provision that they can argue that they don't meet the criteria is to say, okay, so you're agreeing that as to one of the criteria under the safety valve, we're not challenging that. [00:07:38] Speaker 03: So that gives meaning to the government's view, to the government, [00:07:44] Speaker 03: Sentence that protects what the government wants and it gives meaning to the sentence that protects what the defendant wants if the There is to say just can I just sorry just just to be clear? [00:07:58] Speaker 02: We held that they were eligible for safety valve consideration and the prior case just I want to make sure I clarify I understand exactly your response to one of judge Katz's questions and that is [00:08:10] Speaker 02: Once we got back, if you got through the entitlement, say you got through all the prongs of an entitlement to safety valve, and so now you're gonna argue it should be less and the district court's gonna look at the sentencing guidelines range, but your understanding of this plea agreement was even if we were in that situation where we're now in full safety valve land and we're arguing about whether we should go down, that the government was never gonna pull out of its pocket [00:08:40] Speaker 02: this enhancement and say, it should be more. [00:08:43] Speaker 02: The sentence was absolutely capped at 120 months. [00:08:47] Speaker 03: The sentence was absolutely capped. [00:08:49] Speaker 03: The government never argued otherwise. [00:08:51] Speaker 02: And there was no use for this. [00:08:54] Speaker 02: And I think they said in their brief, they admitted in their brief, that there was no use for this line about the government agrees not to seek any of the adjustments because it was a sea plea. [00:09:03] Speaker 02: Right. [00:09:04] Speaker 02: The brief argued that there was no point to this sentence. [00:09:06] Speaker 02: Correct. [00:09:08] Speaker 03: It only had meaning in the context of safety valve. [00:09:11] Speaker 03: And to say, we're not going to do this for safety valve, but we're going to do it, it would be an illusory promise. [00:09:18] Speaker 03: What exactly would they have given? [00:09:20] Speaker 03: And it certainly was not what the defendant understood. [00:09:24] Speaker 03: And the defendant's understanding is a reasonable understanding of these provisions. [00:09:29] Speaker 03: And therefore, to believe otherwise or to rule otherwise, it just goes against contract law. [00:09:37] Speaker 03: Now, I haven't even started my second argument. [00:09:41] Speaker 04: You can go ahead. [00:09:42] Speaker 04: You take a few minutes on that. [00:09:43] Speaker 04: Go ahead. [00:09:44] Speaker 03: Thank you, Your Honor. [00:09:46] Speaker 03: So as the court knows, there are few safeguards at sentencing for a defendant. [00:09:55] Speaker 03: While there have been cases that this court has decided that maybe you need a burden above preponderance, it seems pretty clear that most courts do not require more than preponderance. [00:10:06] Speaker 03: But here you have, out of court declarants, not confronted criminals who have a lot to gain by reducing their sentence. [00:10:19] Speaker 04: They give the tool. [00:10:22] Speaker 04: Mr. Hernandez, could you [00:10:24] Speaker 04: I don't want to interrupt you, but I do, I guess. [00:10:28] Speaker 03: Yes, sir. [00:10:28] Speaker 04: Could you make your argument in terms of not just that you think the district court's findings were wrong, but that they're clearly erroneous? [00:10:36] Speaker 04: Yes, sir. [00:10:39] Speaker 04: Tell us why they were clearly erroneous. [00:10:41] Speaker 03: Well, for two reasons. [00:10:42] Speaker 03: One, the way the hearing went forward is they allowed an agent who wasn't the case agent to summarize [00:10:51] Speaker 03: the testimony, ignoring all the contradictory statements. [00:10:54] Speaker 03: So that brought defect into the whole hearing, but more specifically [00:11:02] Speaker 03: Each and there's a chart in my summary, which shows it. [00:11:06] Speaker 03: So the government argues and the court found that my client was the logistics manager in charge of hiring the crews and paying the boat crews. [00:11:15] Speaker 03: We have five cooperators. [00:11:17] Speaker 03: They were all each crew members. [00:11:19] Speaker 03: Three of them were on crew members on the Mitsby, which is the case that we're involved in. [00:11:24] Speaker 03: And the other two were crew members on two other boats. [00:11:26] Speaker 03: And yet none of these five people had been hired or paid by my client. [00:11:32] Speaker 03: So on issue after issue where the court found my client did this, in fact, these five cooperators, the facts, the undisputed facts contradicted what they claimed. [00:11:45] Speaker 03: And this court has not given a lot of procedural safeguards to findings by the district court, but when there are these [00:11:53] Speaker 03: Internal inconsistencies between the allegations and the facts. [00:11:57] Speaker 03: This court has said, you cannot do this. [00:11:59] Speaker 03: You must go back and resolve these inconsistencies. [00:12:03] Speaker 03: And as I say, there is a listing of all the things. [00:12:08] Speaker 03: They say he was in charge of the launch. [00:12:13] Speaker 03: He wasn't even president. [00:12:14] Speaker 03: At least one of the cooperators says he wasn't at the launch. [00:12:17] Speaker 03: One of the cooperators says he was. [00:12:19] Speaker 03: So that's an internal inconsistency. [00:12:21] Speaker 03: They say he played the role of being in between the owners of the drugs and the people on the boat. [00:12:32] Speaker 03: Yet there's not a single phone call between the owners of the boat, my client, that he then sends that information. [00:12:40] Speaker 03: And there's 100,000 phone calls in this case. [00:12:43] Speaker 03: 100,000. [00:12:44] Speaker 03: And they can't come up with one. [00:12:46] Speaker 03: There are so many inconsistencies in this case, Your Honor. [00:12:50] Speaker 02: They're all set out in the... Can I ask you about the gun possession? [00:12:56] Speaker 02: So the gun. [00:12:57] Speaker 02: Okay. [00:12:58] Speaker 02: So you have, and again, unfortunately, you're up against a very onerous sort of standard of review. [00:13:06] Speaker 02: So tell me your best argument as to why it was clear error for the district court [00:13:11] Speaker 02: to credit the two witnesses that talked about one saw a gun and one saw a silhouette of a gun. [00:13:20] Speaker 03: So yes, silhouette is the agent's word, but in any event, both of these cooperators are interviewed approximately seven or eight times each of them on separate occasions, starting [00:13:33] Speaker 03: days after they get arrested in 2012. [00:13:35] Speaker 03: It is not until 2016 that they first mentioned a gun. [00:13:42] Speaker 03: And they're inconsistent because Paredes, the captain, not only doesn't mention a gun until 2016, I believe that's his seventh interview, but then he says he saw this gun at a meeting. [00:13:57] Speaker 03: Now, for four interviews, he never even mentions my client being present at a meeting. [00:14:03] Speaker 03: and then all of a sudden it's at a meeting. [00:14:05] Speaker 02: Purportedly- Did he talk about meetings in those prior four interviews? [00:14:09] Speaker 03: Yes. [00:14:10] Speaker 03: From the start, he talks about meetings. [00:14:12] Speaker 03: They describe, and both of them, all of them, they describe the location of the meetings. [00:14:17] Speaker 03: The meetings are held at the home of the owner of the drugs. [00:14:21] Speaker 03: They place all of the defendants, all of the named defendants at these meetings, but not my client. [00:14:27] Speaker 02: And then all of a sudden- Had they been asked about a gun earlier as well, or was that not asked until a later date? [00:14:33] Speaker 03: Well, your honor, these proper sessions are agents and the defendant and the defendant's lawyer. [00:14:46] Speaker 03: What's asked, we don't know because all we get is a summary on a 302. [00:14:50] Speaker 03: But if there's a gun, you would expect that that would have been brought up early on. [00:14:56] Speaker 03: And as I say, there are all these, not only does he not mention them, but in the first few, in the first, there are inconsistencies where in one place they will say, my client was a minor person or my client, the other brother was the one who gave instructions and all of a sudden they reverse course altogether. [00:15:15] Speaker 02: And then- I mean, you were able to argue all these points about the belatedness of this information to the district court. [00:15:22] Speaker 02: If you had had a jury trial and argued these same issues to a jury and the jury had found that there was a gun, I think you would agree we would not be able to overturn it on this record? [00:15:35] Speaker 03: Correct. [00:15:36] Speaker 03: So I didn't have the opportunity to confront these witnesses. [00:15:40] Speaker 03: What happened in this hearing? [00:15:41] Speaker 03: This is why the manner in which the information was introduced affected the whole hearing. [00:15:49] Speaker 03: There are eight interviews, say, for one defendant, for one cooperator. [00:15:53] Speaker 03: He gives contradictory statements. [00:15:56] Speaker 03: And at no time is he confronted with his contradictory statements during the proffers. [00:16:03] Speaker 03: And at no time when the law enforcement agent testifies at the evidentiary hearing does he say, oh, he told us x, then he told us not x, then he told us y. No. [00:16:14] Speaker 03: What the law enforcement officer did is he selected the one [00:16:18] Speaker 03: bit of information he wanted without acknowledging it. [00:16:21] Speaker 02: And because the... But you were able to ask the, I think Mr. Suchet, questions about the information in the record that supports your client, correct? [00:16:32] Speaker 03: Right. [00:16:32] Speaker 03: And then the court ignores a lot of that. [00:16:34] Speaker 02: Even the court, like at one point... I'm just saying if a jury had come to the same conclusion with [00:16:41] Speaker 02: you asking the questions in front of, say, the same presentation. [00:16:46] Speaker 02: We would credit that. [00:16:47] Speaker 02: Is our standard for clear error and a district court finding a fact more probing than we would of a jury's resolution of a fact question, or is it essentially the same? [00:16:58] Speaker 03: Well, I would argue it's more, because at least the judge has to give their reasons why, whereas a jury just makes a finding. [00:17:08] Speaker 03: And there's no reason for you to defer to the district court. [00:17:12] Speaker 03: There's no demeanor judgment in this case. [00:17:14] Speaker 03: The judge didn't get to see these cooperators. [00:17:18] Speaker 03: And the judge did not explain why she was accepting this statement in contrast to that statement. [00:17:25] Speaker 02: The judge, in fact, at times- I thought she said she was accepting the things that were corroborated. [00:17:29] Speaker 03: No, she accepted things that were not corroborated. [00:17:33] Speaker 02: Well, just as to this gun. [00:17:34] Speaker 02: As to this gun, there were two people. [00:17:36] Speaker 03: There were two people. [00:17:37] Speaker 03: Supposedly, they were both at the same meetings. [00:17:40] Speaker 03: But yet one sees it at a meeting, the other one doesn't mention seeing at the meeting. [00:17:45] Speaker 03: One says he saw him pull it out. [00:17:47] Speaker 03: The other one says he just saw it in, you know, he saw something under. [00:17:51] Speaker 03: And also more importantly, even if you accept that, neither of them said that the gun was used in connection with the offense. [00:17:59] Speaker 03: So neither of them said he used the gun to intimidate the other people. [00:18:03] Speaker 03: He used the gun to safeguard the drugs. [00:18:06] Speaker 03: The legal finding that it was used in connection with was never addressed or was not addressed adequately, I would argue, to the court. [00:18:17] Speaker 03: Thank you, Your Honor. [00:18:17] Speaker 03: Thank you for letting me go over. [00:18:23] Speaker 04: You're breaking up there. [00:18:25] Speaker 04: OK, we'll hear from the government. [00:18:31] Speaker 01: Good morning. [00:18:32] Speaker 01: May it please the court, James Pierce of the United States. [00:18:35] Speaker 01: The district court did not clearly err in finding that defendant Moreno Mombache was not entitled to safety valve relief, both because he was a manager and supervisor and because he possessed a gun. [00:18:45] Speaker 01: The court below also correctly concluded that the plea agreement did not preclude the government from making the manager supervisor argument. [00:18:53] Speaker 02: So what is that sentence in paragraph 9 of the plea agreement that is the lead in sentence [00:19:01] Speaker 02: what the defendants allowed to argue. [00:19:03] Speaker 02: The government agrees not to seek any of the adjustments set out in the USSG Chapter 3 Part B. You said in your brief that was an empty phrase because it was a C plea for 120 months. [00:19:17] Speaker 02: You were never going to be arguing for adjustments anyhow. [00:19:20] Speaker 02: So I just want to make sure I understand your position is that was sort of a throwaway line. [00:19:24] Speaker 01: And perhaps we should have been more precise. [00:19:29] Speaker 01: What we argued is that it was unnecessary, which was the same conclusion that the district had. [00:19:33] Speaker 02: Yeah, it was entirely unnecessary. [00:19:34] Speaker 02: OK, so had no reason to seek is what you say in your brief, and it was unnecessary. [00:19:38] Speaker 02: So that means, is there a difference between being unnecessary in the plea agreement and a throwaway? [00:19:45] Speaker 01: So I think the plea agreement on this point was not. [00:19:49] Speaker 02: Is there a difference between being unnecessary and a throwaway line in the plea agreement? [00:19:54] Speaker 01: I don't think that it is a throwaway. [00:20:01] Speaker 02: Well, if it's not a throwaway, it must be performing some function, but you told us it was unnecessary twice. [00:20:06] Speaker 01: So I think it is unnecessary if I can just place it in the context of the full paragraph in which it appears. [00:20:12] Speaker 01: It's a C plea. [00:20:14] Speaker 01: So the guidelines calculations are unnecessary. [00:20:17] Speaker 01: However, paragraph nine begins with the statement that recognizes, although it is a C plea, sentencing law requires that there be a guidelines calculation. [00:20:28] Speaker 01: So the following sentences, the following three sentences, the first one about criminal history, the next one about Smith departures, [00:20:36] Speaker 01: which have to do with a removable alien. [00:20:39] Speaker 01: And the third are all addressing guidelines issues that are, and we would concede, not necessary. [00:20:45] Speaker 02: Well, to be clear, it says that the pre-sentence report will include a calculation of the advisory guideline range. [00:20:51] Speaker 02: It's not talking about the government, what the government would be doing in that process. [00:20:56] Speaker 01: Well, sentencing law would include [00:20:59] Speaker 01: I'm sorry, Judge, but you just broke up at the end. [00:21:02] Speaker 02: I apologize. [00:21:03] Speaker 02: What the prosecutors would be doing at the sentencing hearing is different from what your first line is about what the pre sentence report would do. [00:21:10] Speaker 02: We're talking here about what the government was doing at the sentencing hearing. [00:21:16] Speaker 01: Yes, but the point is a sentencing hearing would nonetheless, through a PSR and ultimately at the sentencing hearing, would require a guidelines calculation even if... Right, who does the guidelines calculation in a pre-sentence report? [00:21:32] Speaker 02: I thought that was the probation office. [00:21:34] Speaker 01: Is that right? [00:21:34] Speaker 01: That's correct. [00:21:35] Speaker 01: The probation office does that independently. [00:21:37] Speaker 01: It hears from both parties. [00:21:38] Speaker 02: Independently. [00:21:39] Speaker 02: Okay, so when you say the government agrees not to seek any of the adjustments [00:21:46] Speaker 02: That's separate from what the probation department could have said, whatever it wanted in its pre-sentence report about whether it thought there was a managerial supervisory role. [00:21:57] Speaker 02: But this was a promise for, when I see the government, I'm assuming that means the prosecution, not to seek any of these adjustments. [00:22:06] Speaker 01: Indeed. [00:22:06] Speaker 01: And when the government made its sentencing submission, [00:22:09] Speaker 01: it said quite clearly when addressing the pre-sentence report, we agree that there are facts that support the determination that the defendant is a manager and supervisor, but consistent with the plea agreement and specifically paragraph nine, we are not advocating for any such adjustment. [00:22:28] Speaker 01: The point being that that advocacy is to the manager and supervisor [00:22:33] Speaker 01: applied not for a guidelines purpose, but as the final sentence in paragraph 9 makes clear, just to contest the defendant's eligibility for safety valve. [00:22:47] Speaker 02: But the difficulty is that to get the safety valve ineligibility on this ground, the pronged force ineligibility, [00:22:58] Speaker 02: They have to qualify as a manager or supervisor, quote, as determined under the sentencing guidelines. [00:23:07] Speaker 02: And so you'd have to find and you'd have to advocate to arguing eligibility that under the sentencing guidelines, under USSG Chapter 3 Part B, they are manager or supervisor. [00:23:22] Speaker 02: And so you couldn't, consistent with that promise in paragraph 9, argue [00:23:27] Speaker 02: that they are ineligible under four. [00:23:31] Speaker 02: And it gets, I think, harder if we look at 5C1.2, which is a sentencing guideline that governs a safety valve. [00:23:38] Speaker 02: And it says to fall within that chapter four ineligibility, you must be a defendant who receives an adjustment for an aggravating role under 3B1.1. [00:23:50] Speaker 02: That's note five. [00:23:52] Speaker 02: And so I just don't understand how you can have that promise in the plea and yet still be allowed to argue that under that very sentencing guideline provision flagged in the plea agreement, they are a manager or supervisor, which is what you had to do under the sentencing guidelines. [00:24:12] Speaker 02: They had to receive that to be ineligible for the safety valve. [00:24:17] Speaker 02: That's my difficulty. [00:24:19] Speaker 01: And again, I'm sorry, Judge, you cut out a couple of times, but I think I get the thrust of your question. [00:24:26] Speaker 02: Sorry, am I cutting out for other people? [00:24:29] Speaker 01: No, I've had this problem. [00:24:30] Speaker 01: I think it may be on my end, even though I'm in the government office. [00:24:34] Speaker 01: So I apologize. [00:24:36] Speaker 01: Again, I think it is inelegantly drafted. [00:24:41] Speaker 04: But I do not think that is an understatement. [00:24:45] Speaker 04: I mean, excuse me. [00:24:48] Speaker 04: We're talking about two sentences. [00:24:50] Speaker 04: I can't believe that the lawyers who negotiate these things can't come up with clear language that avoids these kinds of disputes. [00:24:58] Speaker 04: Inelegant is an understatement. [00:25:01] Speaker 04: In fact, doesn't that, in essence, kind of concede the point? [00:25:07] Speaker 04: Because under USC Henry and other cases, if there is ambiguity in this, we construe it in the defendant's favor. [00:25:15] Speaker 04: So half hour we've had here about debating what this means that whatever this means is at least ambiguous and therefore we should construe it in favor of the defendant. [00:25:27] Speaker 01: I do not think here that inelegance raises to the level of ambiguity. [00:25:32] Speaker 01: I think as the district court found below that final sentence makes quite clear that we are talking about two separate [00:25:41] Speaker 01: analyses. [00:25:42] Speaker 01: One is enhancements for purposes of the guidelines and Judge Katz has talked about the potential exposure that a guidelines determination would subject the defendants here, Defendant Moreno-Mombache to and the safety- I'm sorry, can I ask you to follow up on that? [00:25:59] Speaker 02: I still don't understand that exposure. [00:26:01] Speaker 02: And in fact, I think your statement that it was an unnecessary sentence and the plea agreement says there is no exposure because you weren't going to argue it for the pre-sentence report. [00:26:10] Speaker 02: You didn't. [00:26:12] Speaker 02: And even if they had been able to argue to the district court, you know, we were all eligible for safety valve, please depart, you wouldn't have been able to argue it there either. [00:26:24] Speaker 02: So I don't know how I'm back to, I don't know how you can tell me in your brief, it's unnecessary. [00:26:30] Speaker 02: And then still tell me it was serving this function in calculating the guidelines range. [00:26:38] Speaker 02: Again, I'm really I'm confused. [00:26:41] Speaker 01: So the function of the sentence in paragraph nine was addressing the guideline. [00:26:57] Speaker 01: Following sentence was addressed, recognize that there is [00:27:04] Speaker 01: Under a C plea, not the need to address these guideline factors, but also it's not necessary to address the criminal history. [00:27:12] Speaker 01: It's not necessary to address whether the Smith departures, which, which is that third sentence there. [00:27:18] Speaker 01: I'm sorry. [00:27:18] Speaker 02: No, it didn't say you don't address it. [00:27:20] Speaker 02: It says it's been factored in [00:27:21] Speaker 01: No, my point is not that the Smith factors haven't been addressed. [00:27:25] Speaker 01: There would be no reason to have a sentence addressing the Smith factors at all under a C plea because the guidelines determinations are ultimately unnecessary. [00:27:36] Speaker 01: But what the plea agreement does there is recognize a handful of things about the guidelines determinations that ultimately are not relevant because this is a C plea. [00:27:49] Speaker 02: Well, the criminal history is relevant, because they have to be category one to have safety valve. [00:27:54] Speaker 01: That's true. [00:27:56] Speaker 01: But the Smith departures is not. [00:27:59] Speaker 01: And so I think the view there is. [00:28:02] Speaker 02: Because that's sort of generally, as I understand it, a downward adjustment in the sense. [00:28:09] Speaker 02: I mean this in a colloquial sense, not in a formal sentencing guideline sense, but because people when they are here as immigrants will [00:28:17] Speaker 02: be deported, all these folks were brought in, they didn't come in. [00:28:23] Speaker 02: So I assume that's why that was there, just as an assurance of the district court. [00:28:27] Speaker 02: Also, it might have meant that if they got safety valve and were able to argue to the district court apart from mandatory minimum, they wouldn't be able to say one reason to do so is the Smith rationale, because that had already been baked in. [00:28:43] Speaker 02: And it seems to me that [00:28:45] Speaker 02: There's five different factors as to what it takes to qualify for safety valve. [00:28:52] Speaker 02: And so the plea agreement, when it says you can still argue eligibility, certainly left you free to argue all the other grounds, including the firearm ground that you did argue here, right? [00:29:03] Speaker 01: It's true. [00:29:05] Speaker 01: I won't concede that it didn't allow us also the supervisor manager, precisely because the language refers to all of the criteria [00:29:15] Speaker 01: does not meet the criteria. [00:29:17] Speaker 01: That's all five. [00:29:18] Speaker 01: It doesn't say excluding the supervisor manager piece of it. [00:29:23] Speaker 01: Although Judge Millett, I do think you touched on something important just in what you just mentioned. [00:29:28] Speaker 01: I recognize this is not helpful as [00:29:35] Speaker 01: regarding the other defendant. [00:29:37] Speaker 01: This court were persuaded on the plea agreements that the plea agreement doesn't allow the government to argue supervisor manager at all. [00:29:45] Speaker 01: That doesn't matter for Mr. Moreno Mombache's case, because the district court did not clearly err in finding that his gun possession was in connection with the offense. [00:29:57] Speaker 01: We've already mentioned that Luis Perez, the Mississippi captain, saw the defendant [00:30:05] Speaker 01: pull out a 9-millimeter pistol at a MISP planning meeting, examine the magazine, replace it in his... I'm sorry. [00:30:13] Speaker 02: You could clarify one thing I was a little confused about. [00:30:16] Speaker 02: When Mr. Paredes, or Captain Paredes, says he saw the gun pulled out and it was... I thought the record said it was at a meeting that was somewhere near the MISP launch area, but I wasn't clear whether he had said it was at a MISP meeting. [00:30:34] Speaker 02: The guy who talked about the silhouette, I think, said it was a MISB meeting or near the MISB. [00:30:39] Speaker 02: But am I wrong? [00:30:40] Speaker 02: Is there something in the record? [00:30:42] Speaker 02: I wasn't clear where Parade saw this. [00:30:46] Speaker 02: Where and when he saw this? [00:30:48] Speaker 02: Which meeting? [00:30:49] Speaker 01: Certainly. [00:30:50] Speaker 01: So my understanding of the record, and just one record clarification point. [00:30:55] Speaker 01: Mr. Netos refers to a number of things like the various proffer agreements. [00:31:00] Speaker 01: The district court commented below that those reports weren't lodged, many of them weren't fully lodged before the district court and a part of the record. [00:31:09] Speaker 01: And so the record that we're looking at is Suchet's testimony. [00:31:12] Speaker 01: And that's the record that the district court in its 38 page opinion ultimately relied upon. [00:31:18] Speaker 01: But to answer your question more directly, Paredes said he saw that at a misdemeanor planning meeting. [00:31:26] Speaker 02: Okay, I did not. [00:31:27] Speaker 02: I did not get that. [00:31:28] Speaker 02: Do you have a site for that? [00:31:30] Speaker 02: I just must have misput two and two together here. [00:31:33] Speaker 02: So I spent too much time searching around for that. [00:31:35] Speaker 02: I know he said at a meeting, he might have said near the launch site, but they may have launched other things from the site. [00:31:40] Speaker 02: That may not mean a whole lot. [00:31:42] Speaker 01: So I have the 214 to 224 of the appendix. [00:31:47] Speaker 01: I don't have a more specific pin site, which I certainly could get for the court. [00:31:52] Speaker 01: But my understanding of where the [00:31:55] Speaker 01: the viewing of the gun at the launch site was the other individual, Ivan Campos-Riascos, who says that he saw the silhouette of the gun, and that's indeed Suchet's characterization, at the MISPE launch site. [00:32:13] Speaker 01: So one is the MISPE planning meeting, that's Paredes, the other is Campos, which says the launch site. [00:32:20] Speaker 01: And those two facts also address the second piece of the gun analysis, which is its connection to the offense. [00:32:31] Speaker 01: If you have a gun at the launch site or at the planning meeting of a go-fast vessel, our position would be that is by its very nature facilitating the offense. [00:32:44] Speaker 01: is to ensure the transportation of cocaine, and in this case, marijuana, in the MISB's case, from Columbia to Panama. [00:32:57] Speaker 01: So necessarily that gun is being used to facilitate the drug trafficking events. [00:33:07] Speaker 04: Do you have any further questions, judgment? [00:33:13] Speaker 02: When you argue that he was responsible for moving drugs from different sites, pre-getting to the boat, was there evidence that in that moving process he was supervising people or he was just exercising sort of authority over the drugs? [00:33:35] Speaker 01: The statements from Paredes [00:33:39] Speaker 01: And post, you know, who was involved with the march 2012 go fast vessel and Jimmy Gonzalez, who is a random about his cousin indicated that he was not only involved in specifically [00:33:56] Speaker 01: I'm sorry, you cut out for a second. [00:34:01] Speaker 02: Could you come back where you, sorry. [00:34:03] Speaker 02: He was not only was where I last heard you, sorry. [00:34:05] Speaker 01: I'm so sorry. [00:34:07] Speaker 01: I'm frustrated by this connection. [00:34:08] Speaker 01: But that he hired and supervised his two brothers. [00:34:14] Speaker 01: This is separate from Andres. [00:34:16] Speaker 01: I believe their names were Faver and maybe Ronario or Romario. [00:34:21] Speaker 01: These were the ones who moved the drugs from Buenaventura to Choco. [00:34:27] Speaker 01: Gonzalez specifically said hired and paid. [00:34:30] Speaker 01: And Posmino, I don't necessarily, I don't believe he said paid, but certainly said supervised and was responsible for. [00:34:37] Speaker 01: Of course, the Andres, the other brother, the brother who was apprehended on board the MISB, in his first statement to law enforcement [00:34:48] Speaker 01: said that Moreno Mombache, the defendant here, had recruited him. [00:34:54] Speaker 01: Now, of course, Andres later recanted that. [00:34:56] Speaker 01: A couple of months later, a recantation the district court found, quote, simply not credible. [00:35:02] Speaker 01: And Andres also then went on to say- Is being a big brother a supervisor? [00:35:08] Speaker 01: Is being a big brother a supervisor? [00:35:10] Speaker 02: Is being a big brother a supervisor, a manager? [00:35:12] Speaker 01: I mean, as a big brother myself, I might try to argue that, but that's not the argument on which we're relying. [00:35:19] Speaker 02: It sounds like it was all younger brothers here that he was ordering around. [00:35:25] Speaker 01: Well, I don't think it was all younger brothers. [00:35:27] Speaker 01: It does sound as though he had a number of brothers, but [00:35:31] Speaker 01: It's clear, again, from the phone call as well, there's a phone call between Moreno Mombache, the defendant, and his brother in which Moreno Mombache says one of these two brothers who context suggests have been apprehended by police needs to take the fall for this. [00:35:49] Speaker 01: Again, he's making managerial-type decisions about this organization. [00:35:55] Speaker 01: And when we're here on a clear-air standard, [00:35:58] Speaker 01: that this court does owe deference to the findings of the district court. [00:36:03] Speaker 01: Not only the findings, but I think it's instructive in viewing the transcript below. [00:36:09] Speaker 01: The district court was not, Judge Howard was not sort of passively just [00:36:14] Speaker 01: accepting all of the evidence. [00:36:16] Speaker 01: She was, in fact, quite active in interjecting and saying, you know, I need more clarity from from Suchet, you know, if this is just simply your speculative opinion, I'm not interested in it. [00:36:28] Speaker 01: If you are telling me what the witnesses said, that's fine. [00:36:33] Speaker 01: And that's reflected again in her 38 page [00:36:36] Speaker 01: opinion where she lays out that information, which is corroborated by multiple of the cooperators involved here, and then information that she finds either not particularly useful or otherwise uncorroborated. [00:36:52] Speaker 01: And so as to both the manager director and the gun, we think there's no clear error. [00:37:01] Speaker 04: OK, thank you. [00:37:02] Speaker 01: Thank you, Your Honor. [00:37:04] Speaker 04: Yeah. [00:37:06] Speaker 04: Ms. [00:37:07] Speaker 04: Fernandez, you are out of time, but you can have a minute. [00:37:10] Speaker 03: Thank you, Your Honor. [00:37:10] Speaker 03: I have to correct the record. [00:37:12] Speaker 03: The government says that the gentleman who claimed that he saw the silhouette said that he saw it at the launch of the Mitsby. [00:37:20] Speaker 03: That gentleman said that my client was not at the launch of the Mitsby. [00:37:24] Speaker 03: And his statement as to the silhouette does not refer to the launch of the Mitsby. [00:37:31] Speaker 03: So if he says, [00:37:32] Speaker 03: So he explicitly said, my client was not at the launch of the Mitsby. [00:37:38] Speaker 03: These two other people were in jail in March of 2012. [00:37:43] Speaker 03: One of them gets arrested. [00:37:45] Speaker 03: My client had nothing to do with that boat. [00:37:47] Speaker 03: The government never alleged that with respect to Pasmino, that my client had anything to do with that. [00:37:53] Speaker 03: So whatever that person is saying about my client's role, he couldn't possibly have known. [00:37:58] Speaker 03: He was in jail in March. [00:38:00] Speaker 03: The Mitsvi launches in June. [00:38:02] Speaker 03: The other defendant. [00:38:03] Speaker 02: Sorry, that's the guy who saw the silhouette was in jail at the time he saw the silhouette? [00:38:09] Speaker ?: No. [00:38:09] Speaker 03: No, the guy who saw the silhouette was one of the crew members on the Mitsby. [00:38:14] Speaker 03: But he also claimed that my client was not at the launch of the Mitsby. [00:38:20] Speaker 03: The government talks about two other qualities that my client was transporting drugs. [00:38:27] Speaker 03: They were both in jail when the Mitsby was going down. [00:38:32] Speaker 03: So they couldn't possibly, I mean, they say a lot of stuff, but it's just, [00:38:38] Speaker 03: With the courts and indulgers, it's just garbage. [00:38:49] Speaker 03: As I said, [00:38:52] Speaker 03: The gun, Your Honor, two things on the gun. [00:38:54] Speaker 03: The one who says the silhouette did not identify when he saw it. [00:38:58] Speaker 03: And it was not at the launch of the Mitsmi because he claimed he was not, he claimed that Moreno Menbachi was not at the launch of the Mitsmi. [00:39:06] Speaker 03: The other gentleman, Paredes, who claims that he saw my client pull out a gun during a meeting, [00:39:12] Speaker 03: had on five previous occasions talked about meetings, the dates of the meetings, the locations of the meetings, the people present at the meetings and never identified my client as being at any of the meetings. [00:39:25] Speaker 03: So he just says at a meeting he sees this and he says this four years and seven interviews [00:39:31] Speaker 03: into these things. [00:39:33] Speaker 03: That makes no sense. [00:39:34] Speaker 03: The other thing is the district court gives credence to what these guys say because they say they're making statements against penal interest. [00:39:44] Speaker 03: These statements are not against penal interest. [00:39:46] Speaker 03: They're testifying. [00:39:47] Speaker 03: They're providing proper agreement, pursuant to proper agreements. [00:39:53] Speaker 03: The other thing, the government just said that [00:39:55] Speaker 03: The record. [00:39:56] Speaker 03: Excuse me, Ms. [00:39:57] Speaker 03: Hernandez, what did you just say? [00:40:00] Speaker 03: Would you just repeat what you just said? [00:40:01] Speaker 03: Yes, sir. [00:40:02] Speaker 03: The district court gave credence to what these cooperators said. [00:40:08] Speaker 03: Because she claimed they were making statements against penal interest when they admitted that they had, like Paredes, who's been involved in, since 1995, he's a former army. [00:40:21] Speaker 04: And why is she wrong about that? [00:40:23] Speaker 03: Because these statements made by these cooperators were being made after they pleaded guilty, before they pleaded guilty, pursuant to proffer agreements in order to enter into plea agreements. [00:40:38] Speaker 03: When you give proffers pursuant to proffer agreements, what you say cannot be used directly against you. [00:40:43] Speaker 03: And these are statements about things they did years ago in Colombia. [00:40:47] Speaker 03: It isn't like it isn't a local case where you can just add charges, but cooperators are never charged for additional statements they make. [00:40:58] Speaker 03: So one last thing the government made about the record being only the evidence at the hearing, I filed a post-hearing memo, which is attached in the SEAL supplemental joint appendix, [00:41:18] Speaker 03: which the court states it took into account in making its decision. [00:41:22] Speaker 03: And that post-hearing memo includes a whole lot of references to different statements from the record. [00:41:30] Speaker 03: And by the way, the government never sought to introduce any of these 302s. [00:41:36] Speaker 03: It wasn't that the defendants didn't introduce them. [00:41:38] Speaker 03: I was OK with the government with the introduction. [00:41:41] Speaker 03: The co-defendants said he didn't want to, but the government never sought to introduce them. [00:41:45] Speaker 03: So they can't stand here and stand. [00:41:48] Speaker 03: Thank you, Your Honor, and thank you for all the time. [00:41:51] Speaker 04: Thank you both very much. [00:41:52] Speaker 04: The case is submitted. [00:41:54] Speaker 03: Thank you.