from the United States District Court for the Eastern
District of Texas
CLEMENT, HIGGINSON, and HO, Circuit Judges.
BROWN CLEMENT, CIRCUIT JUDGE
Alfredo Anchundia-Espinoza pleaded guilty to conspiracy to
possess, with the intent to distribute, cocaine while aboard
a vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. §§ 70503(a)(1), 70506(a)
& (b) and 21 U.S.C. § 960. The district court denied
Anchundia-Espinoza's requests for safety-valve and minor
participant reductions. Anchundia-Espinoza appeals those
denials. For the reasons set forth below, we AFFIRM.
Alfredo Anchundia-Espinoza, a citizen of Ecuador, and three
others were contracted by an unknown individual to transport
cocaine. They were each paid $1, 000 up front for the
service. They were also promised an additional $9, 000 and a
plane ticket once they reached their destination. On December
10, 2015, the group left the Esmeraldas area of Ecuador on a
small boat. After traveling a number of miles in open waters
and being provided additional fuel by two other boats, they
met a larger boat, which contained the shipment of cocaine
and two occupants. Anchundia-Espinoza and the three other men
boarded the larger boat, and the two men on the larger boat
took their smaller one (presumably back to Ecuador, although
it is unclear). The four men traveled for five days, and each
drove the boat at different times.
December 15, 2015, the group met up with a boat named
Imemsa and transferred the shipment of cocaine and
their equipment to it. They intentionally sank the boat they
had been traveling on and drove the Imemsa toward
Mexico at a high rate of speed. There was a total of seven
occupants on the Imemsa. Within two hours, a U.S.
Marine Patrol Aircraft detected the Imemsa, and the
U.S. Coast Guard sought to intercept it. The boat failed to
comply with numerous demands to stop; after two warning
shots, however, it finally stopped approximately 95 nautical
miles southwest of the Mexico/Guatemala boarder. The driver
of the boat made no claim of nationality for the vessel, so
it was treated as without nationality, and U.S. officials
boarded the boat. They found 35 bales of cocaine on board and
another bail floating in the water attached to a line over
the side of the boat. A later laboratory report prepared by
the DEA revealed that the cocaine weighed 681.6 kilograms.
January 2016, Anchundia-Espinoza and the six other men were
indicted for conspiring to possess, with intent to
distribute, five or more kilograms of cocaine while aboard a
vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. §§ 70503(a)(1), 70506(a)
& (b), and 21 U.S.C. § 960. Anchundia-Espinoza
pleaded guilty without a plea agreement. The punishment
guidelines for § 70503 are provided at 21 U.S.C. §
960(b)(1)(B)(ii); the offense carries a statutory minimum
sentence of 10 years' imprisonment and a maximum of life.
the 2016 Sentencing Guidelines, the Pre-sentence Report
("PSR") determined that Anchundia-Espinoza had a
base offense level of 38 because he was responsible for 681.6
kilograms of cocaine-well above the 450 kilogram minimum in
U.S.S.G. § 2D1.1, the provision providing the base
offense levels for conspiracies. The offense level was
increased by two levels under U.S.S.G. § 2D1.1(b)(3),
which provides for an adjustment when the defendant acted as
a captain or navigator aboard a vessel carrying a controlled
substance. The defendant was then lowered to an offense level
of 37 for acceptance of responsibility, pursuant to U.S.S.G.
§ 3E1.1(a) and (b). Finally, he had a criminal history
category of I, and faced an advisory sentencing range of 210
to 262 months of imprisonment. And relevant to this appeal,
the PSR provided that, "[s]ince the defendant was
convicted of a 46 U.S.C. § 70503(a)(1) offense, the
safety valve does not apply."
filed two objections to the PSR. First, he objected to the
denial of the safety valve reduction. Second, he objected to
the denial of the "minor participant" reduction
under U.S.S.G. § 3B1.2. The probation office disagreed
with both objections.
district court denied Anchundia-Espinoza's first
objection because the safety valve provision applies only to
the five offenses specified in 18 U.S.C. § 3553(f), and
46 U.S.C. § 70503 is not one of those offenses. The
district court similarly denied Anchundia-Espinoza's
request for the "minor participant" adjustment. The
district court concluded that the average participants in
this offense were Anchundia-Espinoza and his co-defendants,
rather than the unknown number of unidentified and uncharged
participants in the conspiracy. It found that he was not
substantially less culpable than those co-defendants.
district court ultimately varied downward from the 210-month
advisory minimum and sentenced Anchundia-Espinoza to 175
months in prison.
appeal, Anchundia-Espinoza challenges the district
court's denial of two sentencing reductions by erring in
its application of two relevant statutes. The district
court's legal interpretation of a statutory provision is
reviewed de novo. United States v. Flanagan, 80 F.3d
143, 145 (5th Cir. 1996). Factual findings made during
sentencing, however, are reviewed for clear error. United
States v. Kiekow, 872 F.3d 236, 247 (5th Cir. 2017).
"Whether a defendant 'was a minor or minimal
participant is a factual determination that we review for
clear error.'" United States v.
Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016)
(quoting United States v. Gomez-Valle, 828 F.3d 324,
327 (5th Cir. 2016)). "If the district court's
account of the evidence is plausible in light of the record
viewed in its entirety, this court may ...