United States v. Sarmiento-Palacios , 885 F.3d 1 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 15-2025
UNITED STATES OF AMERICA,
Appellee,
v.
JOHNNY SARMIENTO-PALACIOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Julia Pamela Heit for appellant.
John A. Mathews, II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United
States Attorney, were on brief, for appellee.
March 16, 2018
HOWARD, Chief Judge. Johnny Sarmiento-Palacios pleaded
guilty to two cocaine-related charges under the Maritime Drug Law
Enforcement Act ("MDLEA"). On appeal, Sarmiento claims that (1)
Congress exceeded its constitutional authority in promulgating the
MDLEA; (2) Amendment 794 to the U.S. Sentencing Commission
Guidelines ("the Guidelines") is retroactive, so he should be re-
sentenced under the Sentencing Commission's amended guidance; or,
in the alternative, (3) section 3B1.2 of the Sentencing Guidelines
is void for vagueness. Although we find Sarmiento's constitutional
challenges to MDLEA and section 3B1.2 meritless, because we agree
that Amendment 794 is retroactive, we vacate his sentence and
remand for re-sentencing.
I. Background
A. Facts and Procedural History
In August 2013, United States Coast Guard personnel
stationed aboard a Dutch warship encountered a "go-fast" vessel1
dead in the Caribbean Sea's international waters. Because the
vessel bore no indicia of nationality, the Coast Guard conducted
a right-of-visit2 approach. The Coast Guard found Sarmiento and
1 "This is a small boat, customized with additional engines
and fuel tanks for added speed and range. Experience tells us
that such boats play a large role in the drug trade." United
States v. González, 311 F.3d 440, 444 n.3 (1st Cir. 2002).
2 This "doctrine of international maritime common law . . .
bestows a nation's warship with the authority to hail and board an
unidentified vessel to ascertain its nationality." United States
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two codefendants -- as well as over 600 kilograms of cocaine in
plain view -- on the vessel. The Coast Guard arrested the three
men and seized the contraband.
In March 2015, Sarmiento entered a straight plea of
guilty (that is, without a plea agreement) for (1) conspiracy to
possess cocaine with the intent to distribute; and (2) aiding and
abetting the same, all on a vessel subject to United States
jurisdiction. See 46 U.S.C. §§ 70501 et seq.; 18 U.S.C. § 2. At
his sentencing hearing in August 2015, Sarmiento argued for a
two-level reduction because he was a "minor participant" in the
offense and was "substantially less culpable than the average
participant." See U.S.S.G. § 3B1.2(b) & cmt. n.3(A) (2014).
Sarmiento emphasized that he had no criminal record prior to his
arrest and that he was almost entirely blind. As such, he argued
that he was both too inexperienced and too ill-suited to play more
than a minor role in the charged crimes.
The district court rejected this argument, citing the
"substantial amount of drugs" at issue. It sentenced Sarmiento to
135 months' imprisonment on each count -- at the bottom of the
guidelines sentencing range -- to run concurrently. This timely
appeal followed.
v. Matos-Luchi, 627 F.3d 1, 21 (1st Cir. 2010) (Lipez, J.,
dissenting) (citation omitted).
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II. Analysis
A. Sarmiento's MDLEA Challenge
Sarmiento briefly suggests that because Congress
exceeded its constitutional authority under Article I when it
promulgated the MDLEA, the United States lacked jurisdiction to
prosecute him. See United States v. Cardales-Luna, 632 F.3d 731,
739-51 (1st Cir. 2011) (Torruella, J., dissenting). But even if
this skeletal challenge has been properly presented to us, see
United States v. Zannino, 895 F.3d 1, 17, it is unavailing.
At his change of plea hearing, Sarmiento admitted that
he was apprehended on "a vessel without nationality," and he makes
no effort to contest that admission on appeal. Further, Sarmiento
concedes that the MDLEA is a valid exercise of Congress's Article
I powers, at least in cases of "piracy, slave trading, and
stateless vessels." See United States v. Matos-Luchi, 627 F.3d 1,
6 (1st Cir. 2010) ("[A] refusal to claim nationality renders [an]
unflagged vessel stateless and so within federal jurisdiction.");
see also Cardales-Luna, 632 F.3d at 751 (Torruella, J.,
dissenting). Because Sarmiento's "valid guilty plea relinquishes
any claim that would contradict the 'admissions necessarily made
upon entry of a voluntary plea of guilty,'" Class v. United States,
No. 16-424, slip op. at 8 (U.S. Feb. 21, 2018) (quoting United
States v. Broce, 488 U.S. 563, 573-74 (1989)), his challenge to
the MDLEA must fail.
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B. Guidelines Amendment 794
"Normally, the sentencing judge is to apply the
guidelines version in effect at the time of sentencing." United
States v. Crudup, 375 F.3d 5, 8 (1st Cir. 2004). The district
court did just that when rejecting Sarmiento's argument for a
reduction under U.S.S.G. § 3B1.2(b) (2014). But "a reviewing court
may give effect to post-sentencing guideline amendments that
clarify, without purporting substantive change, the pertinent
guideline provision." Crudup, 375 F.3d at 8.
Here, about three months after Sarmiento's sentencing,
the Sentencing Commission enacted Amendment 794, which altered
section 3B1.2's commentary. See U.S.S.G. supp. to App. C, amend.
794, at 116-18 (2015) [hereinafter Amendment 794]. The amendment
added language to the commentary notes that, among other things,
explained that the mitigating-role reduction should apply to
defendants who are "substantially less culpable than the average
participant in the criminal activity" and listed five "non-
exhaustive . . . factors" that courts "should consider" when
determining whether a defendant qualifies for the reduction. Id.
at 116 (emphasis added). Sarmiento argues that, under this new
guidance, he would have received the two-level reduction that the
sentencing court denied.
Amendment 794 must be "clarifying" in order to apply
retroactively to Sarmiento -- that is, it must "change[] nothing
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concerning the legal effect of the guidelines, but merely clarif[y]
what the Commission deems the guidelines to have already meant."
Crudup, 375 F.3d at 8 (quoting United States v. Smaw, 22 F.3d 330,
333 (D.C. Cir. 1994)). All of the other circuits that have
considered this question have determined that Amendment 794 is
clarifying, and therefore retroactive.3 We agree.
An amendment's retroactivity is a "case-specific
inquiry" because "a clear-cut demarcation rarely can be drawn
between an amendment which is a mere clarification and one which
effects a substantive change. . . . [O]ften we must weigh various
factors and any conflicting indicia of the Commission's intent."
Id. at 9. Our caselaw suggests four such factors: (1) whether the
amendment is listed in U.S.S.G § 1B1.10; (2) the Commission's
characterization of the amendment; (3) whether the amendment
conflicts with our circuit precedent; and (4) whether the
Commission takes sides in a circuit split -- and if so, how.
Crudup, 375 F.3d at 9-10 (citing cases). We next examine these
factors, keeping in mind that a "guideline amendment is either
substantive or it is not," and that we are ultimately seeking the
"significance of the amendment as a whole." United States v.
Cabrera-Polo, 376 F.3d 29, 32 (1st Cir. 2004) (citation omitted).
3 See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th
Cir. 2016); United States v. Carter, 662 F. App'x 342, 349 (6th
Cir. 2016); United States v. Casas, 632 F. App'x 1003, 1005 (11th
Cir. 2015) (per curiam).
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1. Section 1B1.10(d)
Section 1B1.10(d) lists amendments that the Commission
designates as retroactive. See Crudup, 375 F.3d at 9. The
Commission did not include Amendment 794 in section 1B1.10(d)'s
2015 version (the first published after Amendment 794), which is
"some evidence" that the Commission considered the amendment to be
substantive, not clarifying. Id. But whether an amendment is
listed in section 1B1.10(d) is not dispositive, as "courts may
ascribe retroactive effect to an amendment not listed . . . if
other evidence independently suggests that the Commission intended
it as a clarification." Id. Such evidence exists here.
2. The Commission's characterization
Amendment 794 does not contain the words "clarify" or
"clarification," and the government suggests that the Commission's
failure to use these words shows that the Commission intended the
amendment to be substantive. But our caselaw is not this
formalistic. Rather than requiring the Commission to use any
specific language when drafting guidelines amendments, the inquiry
is more holistic: we care about whether the Commission "expressed
[or] implied that [the amendment] is a clarification." Crudup,
375 F.3d at 9. Indeed, even if the Commission expressly designated
Amendment 794 as either "clarifying" or "substantive" (which it
did not), we would consider that label worthy of "considerable
weight" but "not controlling." Id.- 7 -
We agree with our sister circuits that Amendment 794's
language "indicates that the Commission intended it to be a
clarifying amendment." Quintero-Leyva, 823 F.3d at 523. The
amendment's stated purpose is to "provide[] additional guidance to
sentencing courts in determining whether a mitigating role
adjustment applies" because the Commission determined that
sentencing courts were applying section 3B1.2 "more sparingly than
the Commission intended." Amendment 794 at 117. Besides providing
a "non-exhaustive list of factors" for courts to consider when
applying the mitigating-role reduction, id., the amendment
eliminated prior commentary language that "may have had the
unintended effect of discouraging courts from applying" the
adjustment when appropriate. Id. at 118. By using this language,
the Commission implied that Amendment 794 was a clarification of
section 3B1.2, and the fact that the Commission never expressly
used the word "clarify" does not change the amendment's overall
intent.
3. Conflict with our circuit precedent
We have considered an amendment's conflict with our
circuit precedent as a "factor . . . [that] would weigh in favor
of characterizing [the amendment] as substantive." Crudup, 375
F.3d at 10. Amendment 794 clearly conflicts with our precedent.
See Amendment 794 at 117 (discussing United States v. Santos, 357
F.3d 136, 142 (1st Cir. 2004)). But in Crudup, we recognized that
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this interpretive principle was idiosyncratic to our circuit and
applied it in a situation where "there [was] no other evidence
that the Commission intended [for the amendment] to be a
clarification." 375 F.3d at 10 n.3. Here, on the other hand, the
evidence indicates the amendment's clarifying purpose, so we give
this factor less weight.
4. Taking sides in a circuit split
When, as here, the Commission weighs in on a circuit
split by "intimat[ing] that [some] circuits correctly apprehended
the Commission's original intent underlying the pre-amendment
guideline" and that circuits on the other side of the split "had
misinterpreted that original intent," the amendment's likely
purpose is clarification, not substantive change. Id. at 10.
Amendment 794 addressed a circuit split over section
3B1.2's pre-amendment guideline commentary, which allowed a
sentencing court to apply the mitigating-role reduction when the
defendant was "substantially less culpable than the average
participant." U.S.S.G. § 3B1.2, cmt. n.3(A) (2014). Some circuits
evaluated the "average participant" by looking only at the other
participants in the defendant's actual activity; other circuits,
including ours, looked also to the "universe of persons
participating in similar crimes" to define the average
participant. Amendment 794 at 117 (describing the circuit split
and citing cases). The amendment "generally adopt[ed]" the former
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approach by revising the application note to read: "substantially
less culpable than the average participant in the criminal
activity." Id. (emphasis added).
This factor weighs in Sarmiento's favor because the
Commission did not merely "assert[] that it follow[ed]" the winning
circuits' holdings. Crudup, 375 F.3d at 10 (second alteration in
original) (internal quotation marks omitted). Rather, the
Commission determined that the "mitigating role [was] applied
inconsistently and more sparingly than the Commission intended,"
so it promulgated the amendment to "promote consistency" in section
3B1.2's application. Amendment 794 at 117-18 (emphasis added).
In other words, the Commission did not resolve the circuit split
by creating "a new blanket rule . . . going beyond any circuit's
reading of the previous rule," but instead issued a "clarification
in favor of one view or the other." United States v. Godin, 522
F.3d 133, 135 (1st Cir. 2008) (describing such a resolution of a
circuit split as clarifying).
Having considered these factors, and looking at the
"significance of the amendment as a whole," Cabrera-Polo, 376 F.3d
at 32 (quotation omitted), we agree with Sarmiento that Amendment
794 clarifies the Commission's original intent regarding section
3B1.2 and therefore applies retroactively.
The government argues in the alternative that Sarmiento
would have been denied the minor-role reduction even in light of
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Amendment 794, but we think it prudent to leave that determination
in the hands of the able district court judge. Accordingly, a
remand is justified to allow the sentencing court the opportunity
to consider the "Commission's current policy position[,] . . .
[which] may have some influence on the judge's ultimate
discretionary choice of sentence." United States v. Ahrendt, 560
F.3d 69, 79 (1st Cir. 2009) (quoting Godin, 522 F.3d at 136).4
III. Conclusion
Although Sarmiento's MDLEA contention is unavailing, we
agree that because Amendment 794 is clarifying, not substantive,
it is retroactively applicable. We therefore vacate the district
court's sentence and remand for resentencing under the
Commission's clarified guidance, as reflected in Amendment 794.
-Concurring Opinion Follows-
4 Because we remand on the basis of Sarmiento's argument about
the retroactivity of Amendment 794, we need not address his
argument in the alternative that section 3B1.2 is void for
vagueness. See United States v. Vidal-Reyes, 562 F.3d 43, 48 (1st
Cir. 2009).
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TORRUELLA, Circuit Judge (concurring). I write
separately to highlight that I join the majority opinion's holding
that the United States had jurisdiction to prosecute Sarmiento
solely because Sarmiento has conceded that he was aboard "a vessel
without nationality" when the Coast Guard apprehended him. As I
have previously explained, Congress exceeded its authority under
Article I of the Constitution in attempting to extend criminal
jurisdiction via the MDLEA to conduct outside of the United States
lacking any nexus to the United States and over which the United
States does not enjoy universal jurisdiction. See United States
v. Cardales-Luna, 632 F.3d 731, 739-42 (Torruella, J., dissenting)
(1st Cir. 2011). And while the United States (like all nations)
does have universal jurisdiction over stateless vessels, I also
reiterate that "the MDLEA's definition of 'statelessness' goes far
beyond what is recognized by international customs or convention."
Id. at 747 (citing Eugene Kontorovich, Beyond the Article I
Horizon: Congress's Enumerated Powers and Universal Jurisdiction
over Drug Crimes, 93 Minn. L. Rev. 1191, 1228 (2009)).
Thus, it is only by virtue of Sarmiento's concession
that he was aboard a stateless vessel that I am able to join the
panel in concluding that the United States has jurisdiction over
crimes taking place aboard a vessel crewed by Dominican and
Venezuelan nationals that was stopped by a Dutch warship in
international waters in the middle of the Caribbean Sea.
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