Monday, February 15, 2016

Case o' The Week: Guidelines "Steer" Ninth's Decision - Cruz-Mendez and "Captain / Pilot" Enhancement

Michael, row your boat ashore.
Base offense plus two more.
United States v. Cruz-Mendez, 2016 WL 360723 (9th Cir. Jan. 27, 2016), decision available here.
 Players: Decision by visiting District Judge Michael Posner, joined by Judges Rawlinson and Nguyen. Hard-fought appeal by Ass’t Fed. Defender Sara Weinman, Federal Defenders of San Diego, Inc.

Facts: From the air Custom and Border agents saw a panga off of Ensenada, heading north towards the States. Id. at *1. They saw bales of “suspected narcotics” in the open hull – the panga was stopped and searched and agents found thirty-one bales of marijuana. Id. 

Cruz-Mendez was arrested and charged with possession of marijuana with intent to distribute, on a vessel. Id. Cruz-Mendez was on supervised release for transporting undocumented aliens on a vessel. Id. 

He pleaded guilty, and there was a consolidated sentencing hearing for the marijuana charge and the supervised release violation. Over defense objection, the PSR recommended a two-level bump for the “pilot/captain” enhancement because Cruz-Mendez had the skill to pilot the panga. Id. The District Court imposed the “pilot / captain” enhancement and ran the supervised release term consecutive. Id. at *2.

Issue(s): “On appeal, he raises two issues. First, Cruz–Mendez challenges the district court's imposition of a two-level enhancement to his offense level for the marijuana conviction, as contemplated under U.S.S.G. § 2D1.1(b)(3)(C) (the “pilot/captain” enhancement). Second, he contends that the combined sentence of ninety-two months was substantively unreasonable.” Id. at *1.

Held: “The proper application of a “pilot/captain” enhancement is an issue of first impression in this circuit. We agree with every other circuit court to consider this issue—the First, Fifth, Seventh, and Eleventh—and hold that the proper reading of the “pilot/captain” enhancement is not as constrained as Cruz–Mendez suggests. . . . Id. at *2 (citations omitted). “We find no error in the application of the “pilot/captain” enhancement on the facts of this case. By Cruz–Mendez's own account, he was a lifelong fisherman hired to transport marijuana bales, and in so doing he operated a boat laden with substantial cargo in open water by controlling both its speed and direction. Such conduct fully justifies the imposition of the two-point enhancement. . . . Id. at *3 (citations omitted).

Of Note: “A panga boat is an open-bow vessel commonly used for smuggling.” Id. at *1 & n 1. If you’ve traveled south of the border, you’re familiar with these simple boats with attached outboard motors. See generally article here.  
Here, Cruz-Mendez “operated the panga by standing at the tiller of the outboard motor.” Id. at *2. To get hit with the “captain” enhancement for the mundane act of steering a panga seems analogous to the “use of a computer” bump for child porn. See USSG § 2G2.2(b)(6). It’s a frustrating outcome, but now is an effective guideline tax for many of these offenses.

How to Use: The Ninth rejects Cruz-Mendez’s argument that he had no authority over his co-defendant, by countering that the co-defendant did not have any control over him. Id. at *3 n. 3. This enhancement may be avoidable if a crew member steered a boat at the direction of the captain – though a tough needle to thread.  
For Further Reading: Those dedicated to indigent defense lost an often-surprising ally with the passing of Justice Scalia this week. See, e.g., Ring v. Arizona, 536 U.S. 584, 613 (Scalia, J., concurring) (“There is really no way in which JUSTICE BREYER can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, JUSTICE BREYER is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.”)

With Justice Scalia’s passing, will the Western U.S. finally have more of a voice in a Court dominated by Eastern jurists? See article here 

Perhaps – the Ninth’s own Judge Paul Watford is a leading candidate among the pundits. See blog here. 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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