UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4724

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOAQUIN GONZALEZ VICENCIO, a/k/a Joaquin Gonzalez Chairez,

Defendant - Appellant.

No. 14-4746

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOAQUIN BERUMEN CORTES,

Defendant - Appellant.

Appeals from the United States District Court for the Western 

District of Virginia, at Harrisonburg. Glen E. Conrad, Chief 

District Judge; Michael F. Urbanski, District Judge. (5:13-cr00015-GEC-1; 5:13-cr-00015-GEC-2)

Argued: December 8, 2015 Decided: April 26, 2016

Before MOTZ, KING, and KEENAN, Circuit Judges.
2

Affirmed by unpublished per curiam opinion.

ARGUED: Michael Thayer Hemenway, THE LAW OFFICES OF MICHAEL T. 

HEMENWAY, Charlottesville, Virginia; Russell Darren Bostic, 

BOSTIC & BOSTIC, PC, Harrisonburg, Virginia, for Appellants. 

Elizabeth G. Wright, OFFICE OF THE UNITED STATES ATTORNEY, 

Harrisonburg, Virginia, for Appellee. ON BRIEF: Anthony P. 

Giorno, Acting United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

The defendants, Joaquin Gonzalez Vicencio and Joaquin 

Berumen Cortes, were convicted and sentenced in the Western 

District of Virginia for conspiracy, manufacturing marijuana,

and using a hazardous substance on federal land while 

manufacturing marijuana. Berumen Cortes was separately

convicted and sentenced for illegally reentering the United 

States. Gonzalez Vicencio and Berumen Cortes maintain that the 

district court committed error as to Count Three. Specifically, 

they argue — for the first time on appeal — that the government

failed to prove, in connection with their hazardous substance 

convictions, that they knew they were on federal land. 

Additionally, Berumen Cortes challenges the district court’s 

denial of sentencing relief under the safety valve provision of

18 U.S.C. § 3553(f). As explained below, we reject their

contentions and affirm.

I.

A.

On August 1, 2013, the federal grand jury in Harrisonburg, 

Virginia, returned a four-count indictment against Gonzalez 

Vicencio and Berumen Cortes. Count One charged them with

conspiracy to manufacture marijuana, in violation of 21 U.S.C. 

§ 846. Count Two alleged a substantive marijuana manufacturing 
4

offense under 21 U.S.C. § 841(a)(1) and (b)(1)(A). Count Three 

charged the two defendants with using a hazardous substance on 

federal land while manufacturing marijuana and thereby causing 

environmental damage, in contravention of 21 U.S.C. § 841(b)(6). 

Finally, Count Four charged Berumen Cortes with illegally

reentering the United States, in violation of 8 U.S.C. 

§ 1326(a).

B.

In December 2013, the district court conducted the threeday jury trial of Gonzalez Vicencio and Berumen Cortes in 

Harrisonburg. We recite the evidence in the light most 

favorable to the government. See United States v. Perry, 757 

F.3d 166, 175 (4th Cir. 2014).

1.

In June 2013, Agent Willis, an officer of the Virginia 

State Police and supervisor of the Alleghany Highlands Drug Task 

Force, responded to an informant’s report that “somebody had 

been growing something” in the George Washington National Forest 

in Highland County, Virginia (the “National Forest”). See J.A. 

24.1 Willis met with the informant, and they walked together a 

few hundred feet into the National Forest. As they crested a 

 1 Citations herein to “J.A. __” and “S.J.A. __” refer to the 

contents of the Joint Appendix and Supplemental Joint Appendix

filed by the parties in these appeals.
5

small hill, Willis saw a partially cleared area where a plot of

marijuana plants was growing. Although the informant advised

that there were other suspicious plots nearby, Willis decided

that they should withdraw from the area for safety reasons.

Upon leaving the National Forest, Agent Willis reported his 

discovery of marijuana to state and federal law enforcement 

authorities, including the United States Forest Service. A few 

days later, on the morning of July 2, 2013, four officers —

Willis, Agent Mullins of the State Police, and Forest Service

Officers Fisher and Buchanan — went to the marijuana plot to 

install surveillance cameras to gather intelligence. As Fisher 

and Mullins were installing the cameras, Willis spotted a 

strange-looking object up the hill from their location. After 

examining the object through binoculars, Willis determined that 

it was probably a tent or a tarp and decided to investigate

further.

Agent Willis and Officer Buchanan soon found a well-worn 

path leading up the hill, which they followed from the marijuana 

plot toward the object. In less than a minute, they arrived at

a campsite, which consisted of a tent covered by a tarp and

enclosed within a small corral, plus a kitchen area covered by a 

second tarp. They also saw various gardening tools scattered 

about. After announcing their identity and presence at the 

campsite, Willis heard movements inside the tent. Willis
6

advised the tent’s occupants — first in English and then in 

Spanish — to come out and surrender with their hands up. In 

response, Gonzalez Vicencio and Berumen Cortes emerged from the 

tent and were arrested. Agent Mullins and Officer Fisher 

promptly joined their colleagues at the campsite, having heard 

Willis’s commands from down the hill. Willis and Buchanan left 

the two suspects with Mullins and Fisher and quickly surveyed 

the surrounding area for others, but found no one. The officers

then returned to their vehicles — with Gonzalez Vicencio and 

Berumen Cortes in tow — and sought backup support to gather the 

marijuana and other evidence.

Further investigation of the area near the campsite led to 

the discovery of three additional marijuana plots, all within 

the National Forest and connected to the campsite by walking 

paths.2 The four plots were located on land cleared of natural 

underbrush, and each plot consisted of hundreds of mounds of 

store-bought topsoil where marijuana plants were growing. The 

officers ultimately seized nearly 5,000 marijuana plants from 

the four plots.

 2 More specifically, in terms of geography, the marijuana 

plots were located less than two miles east of the West 

Virginia-Virginia line, in the watershed of the northern branch 

of Scaffold Run. Formed on the eastern slope of the continental 

divide, Scaffold Run flows east to Back Creek, the Jackson 

River, and then to the James River and the Chesapeake Bay.
7

The officers also found trash littered throughout the 

campsite and marijuana plots, including candy wrappers, empty 

topsoil bags, and plastic cups that had been used for marijuana 

seedlings. One trash heap, located within a few feet of a 

stream, contained several empty containers for fertilizer, 

insecticide, pesticide, rat poison, and other animal repellants. 

Some of the empty containers bore the marks of animal teeth.

Back at the campsite, the officers found and seized the 

defendants’ cell phones, a notepad, and a day planner. Berumen 

Cortes’s cell phone contained a photograph of himself at the 

campsite, plus various photographs of the marijuana plots and 

seedlings growing in plastic cups. The notepad, labeled with 

Berumen Cortes’s name, documented prior work by the defendants

at the site and contained notations such as “we watered” and 

“threw fertilizer.” See J.A. 474-75. One notation indicated 

that Berumen Cortes had planted seeds on May 13 and 14, 2013. 

The day planner, found in a plastic bag with Gonzalez Vicencio’s 

cell phone, had dates crossed out from June 2 through July 1, 

2013, and contained notations about work completed during that 

thirty-day period, including spreading fertilizer, removing 

seeds, and fumigating the plots.

2.

At trial, the government introduced the cell phone 

photographs, Berumen Cortes’s notepad, and Gonzalez Vicencio’s
8

day planner, as well as maps, photographs, and video footage 

that detailed the locations of the marijuana plots, the 

campsite, and the trash heap in the National Forest. The 

various entries from Berumen Cortes’s notepad and Gonzalez 

Vicencio’s day planner were translated from Spanish into English 

and introduced into evidence.

The prosecutors also introduced the defendants’ separate 

post-arrest statements, which they made during interviews 

conducted by Forest Service officers with the assistance of a 

Spanish-language interpreter. In their statements, Gonzalez 

Vicencio and Berumen Cortes each admitted planting approximately 

600 to 700 marijuana plants, watering the plants, and spreading

fertilizer on the marijuana plots. Both men acknowledged 

knowing that growing marijuana was illegal. When asked who had 

assisted them in the marijuana growing operations, Berumen 

Cortes explained that he had agreed to tend to the marijuana

plots after meeting a man named “Jesus” earlier that year at a 

bar in Harrisonburg. According to Berumen Cortes, he was to be 

paid for his work by Jesus after harvesting the marijuana yield. 

Gonzalez Vicencio also said that he worked for Jesus, whom he 

had met two years earlier at a bar in North Carolina, and

likewise explained that he would receive payment at the 

conclusion of his work. Finally, both Gonzalez Vicencio and 
9

Berumen Cortes drew maps of the area where they had been 

apprehended, which showed the campsite and the marijuana plots.

The government’s evidence included two expert witnesses. 

The first expert, a DEA special agent, explained that the 

marijuana plants were four to six weeks old. The second expert, 

an environmental conservation specialist, described how the 

substances found in the trash heap degrade the National Forest’s 

ecosystem. The conservation specialist explained that those 

chemicals and pesticides posed significant hazards to wildlife. 

Indeed, they kill insects and small animals and poison larger 

organisms further up the food chain. Moreover, the gradual 

leaching of those products into streams, according to the 

expert, “would cause continual damage” to the environment. See

J.A. 382.

After the government rested, Gonzalez Vicencio and Berumen 

Cortes sought judgments of acquittal under Rule 29 of the 

Federal Rules of Criminal Procedure. With respect to Count 

Three, they each contended that there was insufficient evidence 

that they had used the hazardous substances found in the trash 

heap near the campsite. Neither asserted, however, that there 

was a lack of evidence that he knew the campsite and the 

marijuana plots were on federal land. The prosecutors opposed 

the Rule 29 motions, and the district court denied them.
10

3.

Gonzalez Vicencio testified in his own defense. He 

admitted having been at the campsite with Berumen Cortes, but 

only for the week preceding their arrests. Regarding the

previous three months, Gonzalez Vicencio claimed he had been 

living in White Post, Virginia, a town approximately 150 miles 

from the marijuana plots. Indeed, he produced a traffic ticket 

issued on April 15, 2013, in Manassas, Virginia. The ticket 

bore his signature and a White Post address, and Gonzalez 

Vicencio explained that he had responded to the ticket in court 

in June 2013. Gonzalez Vicencio also said that Jesus had 

offered him work, but had not explained what the work would be. 

Jesus had driven Gonzalez Vicencio and Berumen Cortes to the 

campsite and abandoned them without further instructions. 

Gonzalez Vicencio asserted that he and Berumen Cortes did 

nothing during the week they were at the campsite, and were 

awaiting the return of Jesus when they were arrested.

Gonzalez Vicencio acknowledged that the officers had

interviewed him after his arrest, but said that he told them he 

did not know how many plants were at the site. Only after an 

officer “insisted” that Gonzalez Vicencio provide an estimate 

did he state that “there would be about 650 to 700” marijuana 

plants. See J.A. 395. Nevertheless, Gonzalez Vicencio denied 

planting, watering, or fertilizing any of the plants, and said
11

that he had never seen Berumen Cortes do anything with the 

plants either. Gonzalez Vicencio explained that he drew the map

of the campsite area because one of the officers told him to do 

so. 

Berumen Cortes did not testify, and the defendants called 

no other witnesses. Gonzalez Vicencio and Berumen Cortes then 

renewed their Rule 29 motions for judgments of acquittal, 

incorporating the arguments they raised at the close of the 

government’s evidence. The district court denied the renewed 

motions.

Following closing arguments by counsel, the district court 

instructed the jury. As pertinent here, the prosecutors and 

defense counsel had agreed to instructions on Count Three that 

tracked the statutory language of 21 U.S.C. § 841(b)(6). As to 

that count, the court instructed:

For you to find a defendant guilty of Count Three 

. . . , you must be convinced that the government has 

proven each of the following elements beyond a 

reasonable doubt . . . :

First, that the defendant manufactured or

attempted to manufacture marijuana, a 

controlled substance;

Second, that the defendant knowingly or 

intentionally used a poison, chemical, or 

other hazardous substance on federal land;

Third, that such use either (a) created a 

serious hazard[] to humans, wildlife, or 

domestic animals; or (b) degraded or harmed 

the environment or natural resources; or (c) 
12

polluted an aquifer, spring, stream, river, 

or body of water.

See S.J.A. 757. After briefly deliberating, the jury returned

verdicts convicting Gonzalez Vicencio and Berumen Cortes on 

Count Three and all other charges in the indictment. 

C.

On September 10, 2014, the district court sentenced 

Gonzalez Vicencio and Berumen Cortes. Berumen Cortes’s 

presentence report (“PSR”) initially calculated an advisory

range of 97 to 121 months in prison under the Sentencing 

Guidelines, premised on a total offense level of 30 and a 

criminal history category of I. Because Berumen Cortes’s 

convictions on Count One and Count Two each carried 120-month

statutory minimum sentences, however, the PSR arrived at an 

advisory Guidelines range of 120 to 121 months.

Berumen Cortes raised two objections to his PSR. First, he 

objected to the PSR’s failure to afford him a reduction for 

acceptance of responsibility, pursuant to Guidelines section

3E1.1. Second, he claimed eligibility for relief from the 120-

month statutory minimum under the safety valve provision of 18 

U.S.C. § 3553(f), which permits a sentencing court to impose a 

sentence within a Guidelines range below a statutory minimum

when the defendant has truthfully provided “to the government 

all information and evidence [he] has concerning the offense or 
13

offenses that were part of the same course of conduct or of a 

common scheme or plan,” i.e., a complete and truthful

disclosure. See 18 U.S.C. § 3553(f). The prosecutors opposed 

both objections. 

In opposing Berumen Cortes’s request for § 3553(f) relief, 

the prosecutors explained that Berumen Cortes had not made the 

required disclosure. Specifically, when the prosecutors met 

with Berumen Cortes for a presentencing proffer session, the 

“discussion went back and forth” on relatively simple questions

like where Berumen Cortes lived. See J.A. 562. After several 

breaks in the questioning, Berumen Cortes’s counsel ended the 

proffer session, and it was never rescheduled. The prosecutors

were thus unable to ask Berumen Cortes numerous questions about 

various activities relating to the scheme and plan, including 

the origin of the marijuana seeds, the day-to-day operations at

the marijuana plots, the details of how Jesus had recruited 

Berumen Cortes, and how the defendants had obtained the food and 

supplies found at the campsite. In response, Berumen Cortes’s 

counsel acknowledged that the proffer session was fruitless, 

explaining that Berumen Cortes had been “confused about some of 

the questions.” See id. at 569. The lawyer maintained, 

however, that Berumen Cortes “never denied or challenged that he 

was involved with the marijuana.” See id. Moreover, Berumen 

Cortes’s lawyer argued that Berumen Cortes had already disclosed 
14

everything he knew about the marijuana plots in his post-arrest 

statement to the Forest Service officers and in an interview 

with the probation officer. According to the lawyer, the 

prosecutors were simply speculating that Berumen Cortes

possessed more information.

Ultimately, the district court sustained Berumen Cortes’s

objection to the PSR regarding his acceptance of responsibility, 

but overruled his safety valve objection. In so ruling, the 

court found that Berumen Cortes had not made the disclosure

required by § 3553(f), because he had not been entirely 

forthcoming about his criminal activities. In light of the 

acceptance of responsibility adjustment, Berumen Cortes’s

advisory Guidelines sentence was calculated as 120 months in 

prison, and the court imposed that sentence.3

 3 Berumen Cortes’s codefendant, Gonzalez Vicencio, was 

sentenced to 134 months in prison. In the defendants’ joint

opening brief, Gonzalez Vicencio contended that the district 

court erred in applying a two-level Guidelines adjustment for 

obstruction of justice. During the pendency of this appeal, 

however, the court reduced Gonzalez Vicencio’s sentence, 

pursuant to 18 U.S.C. § 3582(c)(2), to the statutory minimum of 

120 months. Gonzalez Vicencio now appropriately concedes that 

any error in the court’s calculation of his advisory Guidelines 

range was harmless, because “there is no legal basis in any 

argument raised on direct appeal for this Court to approve a 

sentence under the mandatory minimum.” See Reply Br. of 

Appellants 12; see also United States v. McManus, 734 F.3d 315, 

318 (4th Cir. 2013) (“Sentencing error is harmless if the 

resulting sentence is not longer than that to which the 

defendant would otherwise be subject.” (internal quotation marks 

omitted)).
15

Gonzalez Vicencio and Berumen Cortes timely noted these

appeals, which we consolidated. We possess jurisdiction 

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).4

II.

A.

Gonzalez Vicencio and Berumen Cortes now contend — for the 

first time on appeal — that 21 U.S.C. § 841(b)(6) requires the 

government to prove that a defendant knows he is on federal land 

when he uses a hazardous substance in violation of 21 U.S.C. 

§ 841(a). Section 841(b)(6) provides:

Any person who violates [21 U.S.C. § 841(a)], or 

attempts to do so, and knowingly or intentionally uses 

a poison, chemical, or other hazardous substance on 

Federal land, and, by such use

(A) creates a serious hazard to humans, 

wildlife, or domestic animals,

(B) degrades or harms the environment or 

natural resources, or

(C) pollutes an aquifer, spring, stream, 

river, or body of water,

shall be [punished as provided by law].

 4 Gonzalez Vicencio and Berumen Cortes have not appealed 

their convictions on Counts One and Two — the conspiracy and 

marijuana manufacturing offenses — nor does Berumen Cortes

contest his conviction on Count Four for illegally reentering 

the United States.
16

See 21 U.S.C. § 841(b)(6) (emphasis added). According to 

Gonzalez Vicencio and Berumen Cortes, § 841(b)(6)’s mens rea 

requirements extend beyond knowing or intentional use of a 

hazardous substance to knowledge that such substance is being 

used on federal land.

Gonzalez Vicencio and Berumen Cortes frame their contention 

as one of evidence sufficiency, arguing that the prosecutors 

failed to present any evidence from which the jury could find 

that either of them knew he was on federal land when he used 

hazardous substances to manufacture marijuana. Because that 

argument was never presented to or addressed by the district 

court, we cannot grant relief unless the plain error standard is

satisfied. See United States v. Olano, 507 U.S. 725, 732 

(1993).5

To satisfy the Olano plain error standard, a defendant must 

first show: “(1) that an error was made; (2) that the error was 

plain; and (3) that the error affected his substantial rights.” 

See United States v. Carthorne, 726 F.3d 503, 510 (4th Cir. 

2013). Even if those requirements are satisfied, we will 

exercise our discretion to correct a plain error only when 

necessary to prevent “a miscarriage of justice” or to ensure 

 5 Contrary to the defendants’ contention, the government 

maintains that the issue they raise regarding § 841(b)(6) is one 

of instructional error. However framed, the issue was never 

presented to or addressed by the district court.
17

“the fairness, integrity or public reputation of judicial 

proceedings.” See Olano, 507 U.S. at 736 (internal quotation 

marks omitted). We have recognized that the plain error 

standard “is strictly circumscribed and meeting all four prongs 

is difficult, as it should be.” See United States v. Byers, 649 

F.3d 197, 213 (4th Cir. 2011) (internal quotation marks 

omitted). 

The stringent requirements of plain error review flow from

the fundamental principle that a right “may be forfeited in 

criminal as well as civil cases by the failure to make timely 

assertion of the right” in the trial court. See Olano, 507 U.S. 

at 731 (internal quotation marks omitted). Our strict adherence 

to the Olano standard “serves to induce the timely raising of 

claims and objections, which gives the district court the 

opportunity to consider and resolve them.” See Puckett v. 

United States, 556 U.S. 129, 134 (2009). That inducement 

engenders judicial efficiency, because the trial court is better

suited to address an issue in the first instance. In contrast, 

a court of appeals sits as “a court of review, not of first 

view.” Cf. Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 

1335 (2013) (internal quotation marks omitted). As such, plain 

error review discourages both mousetrapping and convenient 

afterthoughts. That is, arguments and objections that are 

strategically withheld until appeal, or identified only after 
18

the trial court has ruled, will not prevail unless the rigorous

plain error standard is satisfied.

Importantly, an unpreserved error will constitute plain

error “only if it contravenes the law of the Supreme Court or 

this circuit.” See United States v. King, 628 F.3d 693, 700 

(4th Cir. 2011) (internal quotation marks omitted). In that 

regard, we have recognized that “when we have yet to speak 

directly on a legal issue and other circuits are split, a 

district court does not commit plain error by following the 

reasoning of another circuit.” See United States v. Shepperson, 

739 F.3d 176, 181 (4th Cir. 2014) (internal quotation marks 

omitted). As a corollary to that principle, the requirements of 

plain error review are more difficult to satisfy when the 

unpreserved issue has not been addressed by a court of appeals. 

In the context of these proceedings, we are content to 

assume that an error occurred and that the first prong of Olano

has been satisfied. See, e.g., United States v. Godwin, 272 

F.3d 659, 679 (4th Cir. 2001) (“Without belaboring the point, we 

simply assume trial error and proceed with the Olano

analysis.”). Turning to Olano’s second prong, however, it is 

apparent that Gonzalez Vicencio and Berumen Cortes have failed

to demonstrate that the assumed error is plain. Put succinctly, 

the defendants have not referred us to any authorities — and 

there are none — that delineate the mens rea requirements of 
19

§ 841(b)(6). We therefore conclude that Gonzalez Vicencio and 

Berumen Cortes fail to satisfy the requirements of plain error 

review.

B.

Finally, Berumen Cortes challenges the district court’s 

denial of his request for relief under the safety valve 

provision, 18 U.S.C. § 3553(f). Had the court granted safety 

valve relief to Berumen Cortes, he would have been eligible for 

a sentence below the 120-month statutory minimum. The 

government counters that the court properly found that Berumen 

Cortes had not made a complete and truthful disclosure to the 

authorities. We review for clear error a sentencing court’s 

decision to deny a defendant safety valve relief. See United 

States v. Henry, 673 F.3d 285, 292 (4th Cir. 2012).

The safety valve provision authorizes a sentencing court to 

afford a first-time offender relief from a mandatory minimum 

sentence, if the defendant satisfies five requirements. The

defendant must shoulder the burden by showing that: (1) he has 

no more than one criminal history point under the Guidelines; 

(2) his offense did not involve violence or the possession of a 

firearm; (3) the offense did not result in serious bodily injury 

or death; (4) he did not play a leadership role in the offense; 

and (5) “no later than the time of sentencing, [he] truthfully 

provided the government with all evidence and information [he]
20

had concerning the offense or offenses comprising the same 

course of conduct or a common scheme or plan.” See Henry, 673 

F.3d at 292-93.

As our good Chief Judge recently explained in United States 

v. Aidoo, “[t]he defendant’s burden under the safety valve is a 

true burden of proof that rests, at all times, on the 

defendant.” See 670 F.3d 600, 607 (4th Cir. 2012). Section 

3553(f) is thus a “tell-all provision,” and requires the

defendant to “persuade the district court that he has made full, 

truthful disclosure of information required by the safety 

valve.” See id. at 607, 609. Importantly, if the prosecutors

oppose a request for safety valve relief, the defendant must 

present “some kind of evidence” that shows “he had provided the 

government with complete and truthful disclosure.” See id. at 

609. Here, the district court specifically found that Berumen 

Cortes had not revealed to the government everything he knew 

regarding his criminal activities. It thus denied safety valve

relief to Berumen Cortes under the fifth element of § 3553(f). 

According to the court, Berumen Cortes had “failed miserably” 

when given the opportunity “to be totally forthcoming and to 

volunteer information relevant to the case.” See J.A. 582-83.

The record provides ample support for the district court’s 

finding on the safety valve issue. For example, Berumen Cortes

maintained throughout the district court proceedings that he had 
21

been present at the campsite for only one week, but the evidence 

was strong that Berumen Cortes had been there growing marijuana 

much longer. Specifically, Berumen Cortes’s notepad showed that 

he had planted seeds as early as May 13, 2013, nearly two months 

before his arrest. In the face of the prosecutor’s opposition 

to safety valve relief, Berumen Cortes failed to rebut the 

contention that he had not been entirely forthcoming to the 

government, let alone carry his burden to establish otherwise. 

We are therefore satisfied that the court did not err in denying 

Berumen Cortes’s request for relief under 18 U.S.C. § 3553(f).

III.

Pursuant to the foregoing, we reject the defendants’ 

contentions of error and affirm the judgments.

AFFIRMED