# United Sta tes Co urt of A ppea ls

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T



## No. 21-3056 September Term, 2021
F I L E D O N : M A

Y 6, 2022 U N I TE D S TA TE S O F A M E R I C A , A P P E L L E E

v.

A N TO N I O M O R

E N O -M E M B A C H E , A P P E L L A N T

Appea l from the United States District Court for the D istrict of Columbia (No. 1:13-c r-00134- 5)

Be fore : W I L K

I N S and W A L K

E R , Circuit Judges , and R A N D O L P H , Senior Circuit Judge

.

J U D G M E N T

This is an appea l from a sentenc e imposed by the United States District Court for the District of Columbi a. The court has acc orded the issues full consideration and has deter mined that they do
not warr ant a published opinion. See D.C. C I R

. R. 36(d).

We AF F IRM the district court’s se ntence

.

* * *

Moreno- Membac he pleade d g uilty to violating the Maritime Drug L aw Enforc ement Act, 46 U.S.C. §§ 70503, 70506(b), and the Controlled Substances I mport and E x p o rt Act, 21 U.S.C. § 960(b)( 1)(B ), (b)( 2)(G)

. He was ch ar ged wi th conspiring to “knowing ly and intentionally distribute, and possess with intent to distribute” five kilogr ams or more of coca ine and 100 kilogr ams

or m ore of marijuana “on board a vessel subject t o the j urisdiction of t he United States.” R. Doc. 191, at 1 ¶ 1.

The U.S. Coast Guar d seized the vessel – the Mitsby – o ff t h e coast of Panama in 2012. Although Moreno- Membach e wa s n o t a member of the Mistby ’s cre w, “he was arr ested and extradited to the United States afte r a joint in v es t i gat i o n of the Colombi an and United Statesg overnme n t s co ncluded that he was involved in the conspirac y that ultimately resulted in the

Mistby ’s failed journey .” United States v. Moreno- Mem bache
, 995 F.3d 249, 252 (D.C. Cir. 2021).

Moreno- Membac he’s offe nse car ried a mandatory minimum ten-y ear sentenc e. See 46 U.S.C. § 70506(a)
, (b); 21 U.S.C. § 960(b)( 1)(B ). A statutory provision known as the “saf ety valve” provides that when imposing sentenc es for violations of 46 U.S.C. § 70506 and 21 U.S.C. § 960

– among other offe nses – district courts “shall impose a sentenc e pursuant to [t he sentenc ing] g uidelines

. . . without reg ard to any statutory minimum sentenc e, if the court finds at sentenc ing

. . . that” five fac tors are met. 18 U.S.C. § 3553(f)

. One fac tor is that “the defe ndant did not

. . . possess

a firea rm

. . . in connec tion with the offe nse.” Id. § 3 5 5 3 (f )( 2 ); see also U.S.S.G. § 5C1.2(a)( 2). Another is that the defe ndant was not a “super visor of others in the offe nse.” 18 U.S.C. § 3553(f) (4); see also U.S.S.G. § 5C1.2(a)(4)

.

I n 2 019, the district court found Moreno- Membac he ineligible for safe ty -valve relief beca use he possessed a wea

pon in connec tion with his offe nse and beca use he wa s a s u p er v i sor. See Moreno- Mem bache
, 995 F.3d at 254. On Moreno- Membac he’s appea l, we ruled that the g overnme nt brea ched its plea ag ree ment by arg uing at sentenc ing that Moreno- Membac he had a supervisory

role in the conspirac y

. See id. at 257. Be cause the district court “spe cifica lly tied” its deter mination that Moreno- Membac he possessed a wea pon in connec tion with the offe nse “to its

. . . fin d ing that [he] acte d as a manag er or supervisor,” we “vacate[d] Moreno- Membac he’s sentence and rema nd[ed] for a new sentenc ing proce eding
, untainted and uninfluence d by the g overnme nt’s brea ch of the plea a g ree ment and the e vidence it introduced in the proc ess.” Id. at 251, 257.

On rema nd, the district court ag ain found that Moreno- Membac he “possess[ed] a firea rm

. . . in connec tion with the offe nse,” 18 U.S.C. § 3553(f) (2). As a result, the court sentenc ed him to the 1 same ten-y ear

mandatory minimum term of imprisonment. The dist rict court based its finding on th e s t at ements of two of Moreno- Membac he’s co-c onspirators, as rec ounted by Special Ag ent Souchet of the N a

v a l I n v e s ti g a ti v e Se r v ic e d u r in g M o r e n o

- M e mb a c he’s 2019 sentenc ing proce eding

. Souchet testified that L

uis Parede s, the Mitsby ’s ca p t ai n, said that he saw Moreno- Membac he loading and unloading a pistol and placing it in his waistband at a Mistby planning meeting

. Souchet also testified that I van Campaz-Riascos, a Mitsby cre wmember
, said that he saw Moreno- Membac he with what looked like a pistol tucked into his waistband a t the Mitsby ’s launch site.

M o r e n o

- M embac he contends that by rely ing on evidenc e prese nte d a t h is p r e v io u s s e n te n c in g proce eding
, the district court failed to follow this court’s mandate in Moreno- Mem bache
, 995 F.3d 249. Acc ording to Moreno- Memb ache, his “re -sentenc ing could only be ‘untainted and uninfluence d’ by the ear lier evidenc e if

. . . the district court considere d only evidenc e prese nted at the new hear ing.” Appellant Br

. 12 (quoting Moreno- Mem bache
, 995 F.3d at 251). Howeve r, our

T he gov er nm ent con te nds tha t the dis t r i c t c o u r t e r ron eou sl y pla ced the bur den of pro of on the 1
gov er nm ent and tha t “i t was Mo re no- Me m bac he who bor e the bu r d e n to pro ve b y a pre pond er anc e of the eviden ce tha t he did not pos ses s a fi re ar m in con nec ti on wit h the ins ta nt off ens e.” Appel le e Br. 12 n.2. We

nee d not re so l ve w h o b o re the bur den

. Wh oever had the bur den
, the dis tr ic t cou rt did not cl ear ly er r in fi ndi ng that Mo re no- Me m bac he p oss ess ed a fi re ar m in con nec ti on wi th his of fe nse

.
2court did not require the district co u rt to hold a new evidentiar y hear ing on rema

nd. I nstead we direc ted t he dis trict court to “make an i n d ep en d en t deter mination reg arding the firearm criterion” without considering evidenc e that Moreno- Membac he play ed a supervisory or manag eria l role in the offe nse. Id. at 258. The district court followed that command. At M o re n o -M embac he’s latest
sentenc ing proce eding
, the co u rt found that reg ardle ss whether Moreno- Membac he play ed a supervisory or m anag eria l role in the offe nse, the testimony of hi s co-c onspirators showed that he “wa s responsible for moving, storing, and protec ting coca ine,” and his possession of the firea rm helped him fulfill that role. J.A. 134–35.

The district court’s finding is not clea rly err oneous. See United States v. Eraz o , 628 F.3d 608, 611 (D.C. C ir. 2011). To support a finding that a firear m is possessed in connec tion with an offe nse, “the firearm need only fac ilitate, or have the potential of fac ilitating, the drug traff icking offe nse.” Id. (interna l quotation marks omitted). The district court did not clea rly err in concluding that Moreno- Membac he’s possession of a firea rm “f ac i litate[d] ” his drug traff icking based on his

co-c onspirators’ statements. See id. Moreno- Membac he challeng es the cre dibilit y of those hear say statements. Howeve r, the district court did not abuse its discretion in finding the statements cre dible. See United States v. L eyv a , 916 F.3d 14, 26 (D.C. C ir. 2019). The statements h av e an “indicia of reliability ” beca

use they wer e “mutually corr oborative” of the fac t that Moreno- Membac he car ried

a firea rm while fulfilling his drug -traf ficking duties. Id. at 25–26 (interna l quotation marks omitted).

Moreno- Membac he next contends that the g overnm en t violated its disclosure obliga tions

u n d er B r a d

y v. Maryland
, 373 U.S. 83 (1963), by failing to disclose Parede s’s 2018

coca ine-tra fficking co n v i ct i on prior to the 2019 sentenc ing. But Moreno- Membac he’s appea l involves his latest sentenc ing, not the 2019 one. He admits that the g overnme nt disclosed Parede s’s conviction “appr ox imately one wee k befor e” the latest sentenc ing proce eding

. Appellant Br

. 23. Thus, the g overnme nt did not suppress any exculpatory evidenc e that co u l d h av e impacted Moreno- Membac he’s sentenc e. See United States v. Emor
, 573 F.3d 778, 782 (D.C. Cir. 2009). I n fac t, the district court expli citly considere d the eff ect of Parede s’s 2018 fede ra l d rug traff icking conviction on the cr edibility of his statement. See J .A. 131–34.

Moreno- Membac he also arg ues t hat under Santabello v. N ew Y ork
, 404 U.S. 2 5 7
, 262–63 (1971), “the interests of justice require d that [hi s] rese ntencing should take place befor e a differ ent judge ” afte r this court “dete rmined that the g overnme nt had brea ched the plea ag ree ment.” App ellant Br

. 15. There is no such require ment: “ Santobello does not require rema nd upon a brea ched plea ag ree ment to be rea ssigne d to a differ ent judge .” United States v. W olff
, 127 F.3d 84, 88 (D.C. C ir. 1997). I ndeed, we noted in W olff that rea ssignment is only require d “in the unusual

case .” Id. Moreno- Membac he has not de monstrated that such a n “unusual c ase” is present he re.

For the re asons stated a

bove, More no-Membac he’s se ntence is affirme d.

* * *

3This dispositi on is unpublished. See D.C. C I R

. R. 36(d). We direc t the Clerk to withhold the

mandate until seven day s afte r any timely petition for rehe aring or rehe aring en banc is resolved. See F E D

. R. A P P

. P. 41(b); D.C. C I R

. R. 41(a) (1).

P er C uriam

F OR THE COURT:

Mark J. L ang er, Cler

k

BY : /s/ Daniel J. Reidy Deputy Clerk

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