United States Court of Appeals For the First Circuit

No. 19-1152

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN CARLOS CASTILLO-VAZQUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Fernando O. Zambrana Avilés and Colon Serrano Zambrana, LLC on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

April 16, 2021 LYNCH, Circuit Judge. Juan Carlos Castillo-Vazquez was

caught 39 nautical miles south of Puerto Rico smuggling 900

kilograms of cocaine into the United States on a 30-foot vessel.

The district court sentenced him to 135 months' imprisonment.

Castillo appeals his sentence on the grounds that the district

court erred in refusing to grant a two-level reduction to his

offense level based on his allegedly minor role in the offense or

a departure based on Castillo's family ties and responsibilities.

We affirm.

I.

On March 1, 2018, a Caribbean Air Marine Branch Maritime

Patrol Aircraft observed a thirty-foot vessel loaded with packages

travelling at high speed south of Ponce, Puerto Rico. The U.S.

Coast Guard intercepted the vessel, seized thirty packages of

cocaine weighing approximately 900 kilograms, and arrested the

three men on the vessel. Castillo was one of these crew members.

On March 7, 2018, Castillo was charged with conspiracy

to possess with intent to distribute five kilograms or more of

cocaine on board a vessel subject to the jurisdiction of the United

States in violation of

, 70503, and 70506, aiding

and abetting in the possession with intent to distribute five

kilograms or more of cocaine in violation of

,

70503, and 70506, and conspiracy to possess with intent to

distribute for the purpose of unlawfully importing more than five

- 2 - kilograms of cocaine into the United States in violation of

, 960, and 963. Castillo pled guilty on all

charges.

The Probation office filed an initial Presentence Report

("PSR") which calculated Castillo's advisory guidelines range to

be 168 to 210 months' imprisonment and did not identify any grounds

for a departure. The PSR was amended after Castillo participated

in a safety-valve debriefing, which earned him a two-level

reduction resulting in a guidelines range of 135 to 168 months.

See

(f).

On January 14, 2019, Castillo filed a sentencing

memorandum requesting that the court impose the statutory

mandatory minimum sentence of 120 months' imprisonment and arguing

that Castillo should receive a two-level reduction under USSG

§ 3B1.2(b) for his minor role in the offense and a downward

departure from the guidelines range in light of his familial ties

and responsibilities under USSG § 5H1.6. The government did not

file a sentencing memorandum.

At the sentencing hearing on January 24, 2019, Castillo

presented the arguments in his sentencing memorandum and the

government advocated for a middle-of-the-guidelines sentence of

150 months' imprisonment. The district court then confirmed that

it had read Castillo's sentencing memorandum and explained its

calculation of the guidelines sentencing range. It sentenced

- 3 - Castillo to 135 months' imprisonment -- the bottom of the

guidelines range -- on each count, to be served concurrently, and

five years of supervised release. It stated that "a sentence at

the lower end of the guideline range reflects the seriousness of

the offense, promotes respect for the law, protects the public

from further crimes by Mr. Castillo, and addresses the issues of

deterrence and punishment."

After the sentence was announced, Castillo requested

that the district court explain why it did not grant a reduction

under USSG § 3B1.2(b) for Castillo's minor role in the offense or

a departure under USSG § 5H1.6 based on Castillo's family ties and

responsibilities. As to Castillo's role in the offense, the

district court explained that under the First Circuit decision in

United States v. Arias-Mercedes,

(1st Cir. 2018), "a

minor role shall not apply in cases such as this" and that there

was "no way" that Castillo did not know "that there were 900 kilos

of cocaine on the vessel." As to Castillo's family ties and

responsibilities, the court stated that it "considered that and

didn't think it was sufficient for a reduction." Castillo objected

to these findings and timely appealed.

II.

Castillo argues again on appeal that the district court

procedurally erred by failing to apply an adjustment for his role

- 4 - in the offense and a departure based on his family ties and

responsibilities.1

We review claims of sentencing error for abuse of

discretion. Arias-Mercedes,

. Within that standard,

we review findings of fact for clear error, the interpretation and

application of the sentencing guidelines de novo, and judgment

calls for abuse of discretion. United States v. Reyes-Torres,

(1st Cir. 2020).

A. The Minor Role Adjustment

USSG § 3B1.2(b) authorizes a two-level reduction in a

defendant's offense level if he was a "minor participant in any

criminal activity" for which he is being sentenced. A defendant

must show that he is "substantially less culpable than the average

participant in the criminal activity." Id. § 3B1.2, cmt. n.3(A).

"Role-in-offense determinations are notoriously fact-specific" and

"absent a mistake of law, battles over a defendant's status . . .

will almost always be won or lost in the district court." Arias-

Mercedes,

(citations and internal quotation marks

omitted).

1 Castillo also summarily states that these denials constituted substantive error. He has waived this argument by failing to adequately address the issue. United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

- 5 - Castillo argues that the district court committed

procedural error both by denying the minor role adjustment and by

failing to explain "in a satisfactory manner . . . why it declined

to grant the [] adjustment." These arguments fail.

As to Castillo's first argument, the district court did

not err in denying Castillo a minor role adjustment. Here Castillo

was one of a three-member crew on a small vessel and the amount of

drugs was large. As explained in Arias-Mercedes, "[w]hen a person

undertakes to provide material assistance in transporting a large

quantity of drugs as a member of a tiny crew in a hazardous voyage

at sea, it ordinarily will not be clear error for the sentencing

court to refuse him a mitigating role adjustment."

.

Arias-Mercedes also forecloses Castillo's argument that the

district court should have considered Castillo's role in the larger

drug conspiracy rather than his role in transporting this

particular batch of drugs, and the argument that Castillo was

entitled to a minor role adjustment simply because he was not the

captain of the vessel. See

.

We also reject Castillo's argument that the district

court's explanation was insufficient. There is no requirement

that the district court must list expressly the factors enumerated

in Application Note 3(C) when it denies a defendant a minor role

reduction. See United States v. Mendoza-Maisonet,

, 24-

25 (1st Cir. 2020). The district court's comparison to Arias-

- 6 - Mercedes and the statements that Castillo must have been aware of

the quantity of cocaine on board were sufficient to "allow for

meaningful appellate review" of the denial of the downward

adjustment. Gall v. United States,

(2007).

B. The Family Ties and Circumstances Departure

Castillo next argues that the district court erred in

refusing to grant a departure under USSG § 5H1.6 based on his

"family ties and responsibilities." "As a general rule, a

sentencing court's discretionary refusal to depart is

unreviewable." United States v. Sanchez,

(1st

Cir. 2004). Where, as here, the district court "knew he had the

power to depart but deliberately chose not to do so," "we are

foreclosed from second-guessing the court's discretionary decision

not to depart from the [guidelines range]." United States v.

Teeter,

(1st Cir. 2001); see also United States v.

Louis,

(1st Cir. 2002) ("[A] district court's

decision rejecting a downward departure is largely

unreviewable."). Castillo is not entitled to relief on this

ground.

III.

Affirmed.

- 7 -