USA v. Carlington Cruickshank

Filing

Opinion issued by court as to Appellant Carlington Cruickshank. Decision: Affirmed in part, Vacated and Remanded in part. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13754
________________________
D.C. Docket No. 8:14-cr-00055-SDM-EAJ-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLINGTON CRUICKSHANK,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 20, 2016)
Before MARCUS and WILLIAM PRYOR, Circuit Judges, and DAVIS, * District
Judge.
MARCUS, Circuit Judge:
*

Honorable Brian J. Davis, United States District Judge for the Middle District of Florida, sitting
by designation.

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On February 11, 2014, the U.S. Coast Guard recovered 171 kilograms of
cocaine from a vessel known as the “Venus” in international waters in the
Caribbean Sea. Carlington Cruickshank, one of two men aboard the vessel, was
later convicted and sentenced to 324 months’ imprisonment for one count of
conspiracy to possess with intent to distribute five kilograms or more of cocaine
while aboard a vessel, in violation of 21 U.S.C. § 960(b)(1)(B)(ii) and
46 U.S.C. §§ 70503(a), 70506(a) and (b), and one count of aiding and abetting
possession with intent to distribute five kilograms or more of cocaine while aboard
a vessel, in violation of 18 U.S.C. § 2, 21 U.S.C. § 960(b)(1)(B)(ii), and 46 U.S.C.
§§ 70503(a), 70506(a). On appeal, Cruickshank argues that: (1) jurisdiction did
not exist to prosecute him under the Maritime Drug Law Enforcement Act
(“MDLEA”) and, moreover, the MDLEA is unconstitutional; (2) the district court
erred in denying his motion for judgment of acquittal based on insufficient
evidence of mens rea; (3) the district court erred by establishing jurisdiction under
the MDLEA by relying on a United States Department of State certification, and
by removing from the jury the factual question concerning jurisdiction; and (4) the
district court clearly erred in denying him a minor-role reduction under U.S.S.G.
§ 3B1.2(b). After careful review of the parties’ briefs and the record, and having
had the benefit of oral argument, we affirm in part, and vacate and remand in part.

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I.
First, we reject Cruickshank’s claims that jurisdiction did not exist to
prosecute him under the MDLEA and that the MDLEA is unconstitutional. We
review a district court’s interpretation and application of a statute concerning its
subject-matter jurisdiction de novo, but we review factual findings with respect to
jurisdiction for clear error. United Sates v. Campbell, 743 F.3d 802, 805 (11th
Cir.), cert. denied, 135 S. Ct. 704 (2014). We review the legal question of whether
a statute is constitutional and constitutional objections de novo. Id. Under our
prior precedent rule, we are bound to follow a prior binding precedent unless and
until it is overruled by us sitting en banc or by the Supreme Court. United States v.
Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).
The MDLEA prohibits knowingly or intentionally possessing a controlled
substance, with the intent to distribute, onboard any vessel subject to the
jurisdiction of the United States. 46 U.S.C. § 70503(a)(1) (“While on board a
covered vessel, an individual may not knowingly or intentionally . . . possess with
intent to manufacture or distribute, a controlled substance.”). It was enacted under
Congress’s authority provided by the Felonies Clause, U.S. Const. Art. I, § 8, cl.
10, to define and punish felonies committed on the high seas. Campbell, 743 F.3d
at 805. Pursuant to the MDLEA, “a vessel without nationality” is “subject to the
jurisdiction of the United States” and it defines a stateless vessel as including “a
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vessel aboard which the master or individual in charge makes a claim of registry
that is denied by the nation whose registry is claimed.” 46 U.S.C.
§ 70502(c)(1)(A), (d)(1)(A).
In Campbell, the United States Coast Guard had intercepted the defendant
while aboard a vessel in the international waters off the eastern coast of Jamaica.
743 F.3d at 804. The vessel lacked all indicia of nationality: it displayed no flag,
port, or registration number. Id. Although one of the individuals aboard the vessel
claimed it was registered in Haiti, the government of Haiti told the Coast Guard
that it could neither confirm nor deny the registry. Id. Campbell, the defendant,
argued that Congress had exceeded its authority under the Felonies Clause of the
Constitution when it enacted the MDLEA. We disagreed, recognizing that “we
have always upheld extraterritorial convictions under our drug trafficking laws as
an exercise of power under the Felonies Clause.” Id. at 809-10. As we explained,
a criminal act does not need a nexus to the United States in order to be
criminalized under the MDLEA “because universal and protective principles
support its extraterritorial reach.” Id. at 810. In other words, because the Felonies
Clause empowers Congress to punish crimes committed on the high seas, and
because “the trafficking of narcotics is condemned universally by law-abiding
nations,” we rejected the argument “that it is fundamentally unfair for Congress to
provide for the punishment of persons apprehended with narcotics on the high
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seas.” Id. (quotations omitted). This is especially true, we explained, when vessels
on the high seas “are engaged in conduct that has a potentially adverse effect and is
generally recognized as a crime by nations that have reasonably developed legal
systems.” Id. (quotations omitted).
We also explained in Campbell that the “Due Process Clause of the Fifth
Amendment does not prohibit the trial and conviction of an alien captured on the
high seas while drug trafficking.” Id. at 812 (citing United States v. Rendon,
354 F.3d 1320, 1326 (11th Cir. 2003)). In our view, the MDLEA “provides clear
notice that all nations prohibit and condemn drug trafficking aboard stateless
vessels on the high seas.” Id.
In this case, all of Cruickshank’s arguments concerning the MDLEA are
foreclosed by our prior precedent. In Campbell, we reaffirmed that Congress did
not exceed its authority by enacting the MDLEA; we determined that no
jurisdictional nexus was required under the MDLEA; and we concluded that
convictions under the MDLEA do not violate the Due Process Clause of the
Constitution. See id. at 809-10, 812. Because we are bound by our prior precedent
concerning all of Cruickshank’s challenges to the MDLEA, his arguments
necessarily fail.

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II.
We are also unpersuaded by Cruickshank’s claim that the district court erred
in denying his motion for judgment of acquittal based on insufficient evidence of
mens rea. We review de novo whether sufficient evidence supports a conviction,
drawing all reasonable factual inferences from the evidence in favor of the verdict.
United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009). Evidence is
sufficient if a reasonable trier of fact could have found that it established guilt
beyond a reasonable doubt. Id. In rebutting the government’s evidence, a
defendant must do more than put forth a reasonable hypothesis of innocence,
because the issue is whether a reasonable jury could have convicted, not whether a
conviction was the only reasonable result. Id. at 840-41.
To establish a conspiracy, the government must prove beyond a reasonable
doubt that two or more persons entered into an unlawful agreement to commit an
offense, that the defendant knew of the agreement, and that he voluntarily became
a part of the conspiracy. United States v. Tinoco, 304 F.3d 1088, 1122 (11th Cir.
2002); United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir. 1988). The
defendant’s presence on a vessel, though not determinative, is a material factor
supporting his participation in a conspiracy relating to that vessel. Tinoco, 304
F.3d at 1122-23. “A defendant’s presence becomes more significant when the
value of the contraband is high, as it is highly improbable that drug smugglers
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would allow an outsider on board a vessel filled with millions of dollars worth of
contraband.” Id. at 1123 (quotation omitted). When we review a conspiracy or a
possession-with-intent-to-distribute conviction involving a vessel laden with
narcotics, we consider, among other things: (1) the probable length of the voyage;
(2) the size of the contraband shipment; (3) the necessarily close relationship
between captain and crew; (4) whether the contraband was in plain view, could be
smelled, or was in a place where a person on a vessel would ordinarily discover it;
and, (5) other factors, including diversionary maneuvers designed to evade
detection and apprehension, attempts to flee, inculpatory and false exculpatory
statements made after apprehension, witnessed participation as a crewman, and the
absence of supplies or equipment necessary to the vessel’s intended use. Id.;
United States v. Cruz-Valdez, 773 F.2d 1541, 1546-47 (11th Cir. 1985).
“In order to convict a defendant for possession with intent to distribute a
controlled substance, the government must prove knowing possession and an intent
to distribute.” United States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000).
The law recognizes that a defendant may constructively possess a controlled
substance if he exercises some measure of control over the contraband, either
exclusively or in association with others. Tinoco, 304 F.3d at 1123. The
defendant’s intent to distribute may be inferred from a variety of factors, including
whether the government seized a large quantity of controlled substances. Id. In
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order to prove that the defendant aided and abetted an offense, the government
must establish that: (1) someone else committed the substantive offense; (2) the
defendant committed an act that contributed to and furthered the offense; and
(3) the defendant intended to aid in the commission of the offense. Camacho,
233 F.3d at 1317.
After thoroughly reviewing this record, we are satisfied that the evidence
was sufficient to establish beyond a reasonable doubt Cruickshank’s criminally
culpable mens rea or state of mind to convict him on both charges -- conspiracy to
possess with intent to distribute five kilograms or more of cocaine while aboard a
vessel, and aiding and abetting possession with intent to distribute five kilograms
or more of cocaine while aboard a vessel. Among other things, Cruickshank’s codefendant, Carlos Acosta, testified that Cruickshank was one of two individuals
who had been hired to transport drugs on a vessel from Colombia to Jamaica.
Acosta said that, when he met Cruickshank and told him drugs were on the boat,
Cruickshank stated that he was comfortable with that. The other individual who
was supposed to show up to assist with the operation did not, leaving only Acosta
and Cruickshank to transport the drugs. Acosta admitted that Cruickshank arrived
after the cocaine had been loaded onto the Venus, so Cruickshank had nothing to
do with loading the cocaine onto the vessel, reconstructing the Venus to carry the
drugs, fueling, or attending any of the meetings leading up to the trip. Acosta said,
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however, that Cruickshank programmed the vessel’s GPS devices with Acosta’s
help. In so doing, they configured the GPS devices to transport the ship and the
contraband across the Caribbean Sea from Colombia to Jamaica, with waypoints
near Jamaica. According to Acosta, once they reached the waypoint closest to
Jamaica, someone was going to meet them and take the drugs.
As for their capture, Acosta said that he and Cruickshank had become
concerned during the trip when they realized a Coast Guard helicopter was flying
above the Venus. They eventually stopped the vessel when the Coast Guard fired
warning shots. Before a Coast Guard officer from a nearby vessel boarded the
Venus, they threw grocery items, garbage, and clothes overboard in an attempt to
get rid of evidence that they were coming from Colombia, and one of the men took
off articles of clothing and washed. Cruickshank suggested that they tell the Coast
Guard that he and Acosta were searching for another vessel, but they did not
decide who would admit to being in charge.
Ian Groom, a lieutenant with the U.S. Coast Guard, and Andre Trinidad, a
machinery technician specializing in counter-drug enforcement with the Coast
Guard, also testified. Lieutenant Groom explained that in the pre-daylight hours of
February 11, 2014, he had been co-piloting a Coast Guard helicopter when he
acquired visibility of a vessel operating without navigational lights. Groom
noticed the vessel stopping and starting, and, after spotting the helicopter, the
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vessel increased its rate of speed and the two people onboard began throwing
overboard unidentified objects, which appeared to be clothing, a bucket, and a jug
of water. Officer Trinidad, who was aboard a vessel that Lieutenant Groom had
directed to the Venus, testified that he then boarded the Venus to question the
occupants. Trinidad relayed that, in response to his questions, Cruickshank said
that he was in charge and that the vessel was Jamaican. Trinidad asked for
documentation to support that the boat was Jamaican, but there was no supporting
documentation. Cruickshank also told Trinidad that they had left Jamaica to assist
a friend who had run out of gas, and were planning to return to Jamaica.
Cruickshank said that they had not found the friend, and he did not identify the
friend or the name of his vessel. Trinidad contacted his supervisor, and Trinidad
was eventually informed that Jamaica was not accepting the claim of nationality.
At that point, Trinidad’s supervisors made a request to assimilate the vessel
without nationality, which meant U.S. law would be imposed and the vessel would
be subject to all U.S. laws.
Trinidad testified that the captured vessel was the Venus, and that
Cruickshank and Acosta were on board. Trinidad also said that a scan performed
on the Venus tested positive for cocaine, and that he found hidden kilogram-size
packages of cocaine after drilling a hole in a bench on the vessel. Ultimately,

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authorities found a handheld GPS device, a handheld two-way radio, and
approximately 171 kilograms of cocaine on the Venus.
As the evidence at trial showed, while Cruickshank was on the Venus, it was
operated without lights, it attempted evasive maneuvers when the Coast Guard
helicopter was overhead, and the occupants threw items overboard to conceal their
starting point. Evidence also revealed that Cruickshank had said he was
comfortable with the drugs being on the boat, he programmed the vessel’s GPS
devices, he came up with a cover story for the authorities, and he ultimately told
the Coast Guard that he was in charge and gave the false statement about why they
were at sea. There was more than sufficient evidence to establish Cruickshank’s
guilt beyond a reasonable doubt on both charges.
III.
We are also unpersuaded by Cruickshank’s claims that the district court
erred by establishing jurisdiction under the MDLEA in two respects: (1) by relying
on a United States Department of State certification, in violation of the
Confrontation Clause of the Constitution; and (2) by removing from the jury the
question of fact concerning jurisdiction, in violation of Alleyne v. United States,
570 U.S. ___, 133 S. Ct. 2151 (2013). Normally, we review whether hearsay
statements are testimonial de novo. United States v. Caraballo, 595 F.3d 1214,
1226 (11th Cir. 2010). But if a defendant (like Cruickshank) did not raise an
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objection based on his confrontation right at trial, we review a confrontation claim
for plain error. United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013). To
show plain error, the defendant must establish (1) an error, (2) that is plain or
obvious, and (3) that affected his substantial rights. United States v. Turner,
474 F.3d 1265, 1276 (11th Cir. 2007). And, if a defendant satisfies these three
conditions, we may exercise our discretion to recognize the error only if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. An error is plain when it contradicts precedent from the
Supreme Court or our Court directly resolving the issue. See United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). “Errors [] affect a substantial
right of a party if they have a ‘substantial influence’ on the outcome of a case or
leave ‘grave doubt’ as to whether they affected the outcome of a case.” Turner,
474 F.3d at 1276 (quotation omitted). But “where the effect of an error on the
result in the district court is uncertain or indeterminate,” the defendant has not met
his burden of demonstrating prejudice for purposes of plain error review. United
States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005). And, finally, as we
said earlier, we review constitutional issues de novo. Campbell, 743 F.3d at 805.
The Sixth Amendment’s Confrontation Clause prevents the admission of a
witness’s testimonial statement when the witness does not appear at trial, unless he
is unavailable to testify and the defendant had a prior opportunity to cross-examine
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him. Id. at 806. However, a United States State Department certification of
jurisdiction under the MDLEA does not implicate the Confrontation Clause
because it does not affect the guilt or innocence of a defendant. See id. at 806-09.
In Alleyne, the Supreme Court revisited two of its prior cases: (1) Apprendi
v. New Jersey, 530 U.S. 466 (2000), which requires that, other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum be submitted to a jury and proved beyond a
reasonable doubt; and (2) Harris v. United States, 536 U.S. 545, 567-68 (2002),
which held that judicial factfinding that increased the applicable statutory
mandatory-minimum sentence was permissible under the Sixth Amendment.
Alleyne, 133 S. Ct. at 2157-58. In Alleyne, the Supreme Court expressly
overturned Harris because it was inconsistent with its decision in Apprendi, and
held that any facts that increase the applicable statutory mandatory-minimum
sentence for a crime must be submitted to a jury and found beyond a reasonable
doubt. Id. at 2155, 2163.
The MDLEA expressly provides that the United States’s jurisdiction over a
vessel is not an element of the offense, and that jurisdiction is a preliminary
question of law to be resolved by the district court. 46 U.S.C. § 70504(a)
(“Jurisdiction of the United States with respect to a vessel subject to this chapter is
not an element of an offense. Jurisdictional issues arising under this chapter are
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preliminary questions of law to be determined solely by the trial judge.”). In
Tinoco, we asked whether the MDLEA jurisdictional requirement raised “factual
questions that traditionally would have been treated as elements of an offense
under the common law, thereby triggering the constitutional safeguards provided
by the Due Process Clause and the Sixth Amendment right to a jury trial.” 304
F.3d at 1107-08. Analyzing the common law, we held that the MDLEA’s
jurisdictional requirement does not raise a factual issue that, under the common
law, would have been considered an element of the offense. Id. at 1108. This is
because the jurisdictional requirement is intended to act as a diplomatic courtesy,
and does not bear on the individual defendant’s guilt. Id. at 1108-09. Therefore,
because the jurisdictional requirement under the MDLEA is not an element of the
offense, neither the Due Process Clause nor the Sixth Amendment to the
Constitution are implicated when the jurisdictional requirement under the MDLEA
is not proven to the satisfaction of a jury. Id. at 1111-12.
As an initial matter, we review Cruickshank’s Confrontation Clause
argument for plain error because he failed to raise it at any time before the district
court, although we review his Alleyne argument de novo, since he raised that one
in the district court. But under any standard of review, plain or otherwise, there
was no Confrontation Clause violation. A United States Department of State
certification of jurisdiction under the MDLEA does not implicate the
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Confrontation Clause because it does not affect the guilt or innocence of a
defendant. Campbell, 743 F.3d at 809. Nor did the district court err by rejecting
Cruickshank’s Alleyne argument, since we’ve squarely held the jurisdictional
requirement is not an element of the offense, need not be determined by a jury, and
does not violate the Due Process Clause or the Sixth Amendment. 46 U.S.C.
§ 70504(a); Tinoco, 304 F.3d at 1108, 1111-12. These claims are without merit.
IV.
As for Cruickshank’s last claim, however -- that the district court erred in
denying him a minor-role reduction under U.S.S.G. § 3B1.2(b) -- we are compelled
to vacate and remand for resentencing. We review a district court’s denial of a role
reduction for clear error. United States v. Bernal-Benitez, 594 F.3d 1303, 1320
(11th Cir. 2010). Clear error review is deferential, and “we will not disturb a
district court’s findings unless we are left with a definite and firm conviction that a
mistake has been committed.” United States v. Ghertler, 605 F.3d 1256, 1267
(11th Cir. 2010) (quotations omitted). The district court’s “choice between two
permissible views of the evidence” as to the defendant’s role in the offense will
rarely constitute clear error “[s]o long as the basis of the trial court’s decision is
supported by the record and does not involve a misapplication of a rule of law.”
United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en banc) (emphasis
and quotation omitted). The defendant bears the burden of establishing his minor
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role in the offense by a preponderance of the evidence. Bernal-Benitez, 594 F.3d
at 1320.
The Sentencing Guidelines provide for a two-level decrease to a base
offense level if a defendant was a minor participant in the criminal activity.
U.S.S.G § 3B1.2(b). A minor participant is one “who is less culpable than most
other participants in the criminal activity, but whose role could not be described as
minimal.” Id., cmt. n.5. Our leading case concerning the minor-role reduction -De Varon -- has long instructed sentencing courts analyzing a claim for a minorrole reduction to consider “first, the defendant’s role in the relevant conduct for
which [he] has been held accountable at sentencing, and, second, [his] role as
compared to that of other participants in [his] relevant conduct.” 175 F.3d at 940.
As the en banc Court explained in De Varon, “[t]hese principles advance both the
directives of the Guidelines and our case precedent by recognizing the factintensive nature of this inquiry and by maximizing the discretion of the trial court
in determining the defendant’s role in the offense.” Id. at 934.
In De Varon, the defendant was a drug courier -- she had ingested and
smuggled 70 heroin-filled pellets into the United States from Colombia. Id. We
recognized that “when a drug courier’s relevant conduct is limited to her own act
of importation, a district court may legitimately conclude that the courier played an
important or essential role in the importation of those drugs.” Id. at 942-43.
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However, we declined to “create a presumption that drug couriers are never minor
or minimal participants, any more than that they are always minor or minimal”;
rather, we held that “the district court must assess all of the facts probative of the
defendant’s role in her relevant conduct in evaluating the defendant’s role in the
offense.” Id. at 943. We offered examples of relevant factors for the court to
consider, including the “amount of drugs, fair market value of drugs, amount of
money to be paid to the courier, equity interest in the drugs, role in planning the
criminal scheme, and role in the distribution.” Id. at 945. We stressed that this is
“not an exhaustive list,” nor is “any one factor . . . more important than another,”
especially since the determination is highly fact-intensive and “falls within the
sound discretion of the trial court.” Id. The en banc Court in De Varon ultimately
concluded that it was well within the sentencing court’s discretion to deny the
minor-role adjustment to the defendant, after it determined that De Varon was
central to the importation scheme, that she had carried a substantial amount of
high-purity heroin on her person, that it was unclear from the record that she was
less culpable than the other described participant in the scheme, and that De Varon
had furnished $1,000 of her own money to finance the smuggling enterprise.
Id. at 945-46.
The Sentencing Commission, through Amendment 635 to the Sentencing
Guidelines, adopted our approach in De Varon that Ҥ 3B1.2 does not
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automatically preclude a defendant from being considered for a mitigating role
adjustment in a case in which the defendant is held accountable under § 1B1.3
solely for the amount of drugs the defendant personally handled.” See U.S.S.G.
App. C, Amend. 635, Reason for Amendment. As the Commission explained,
“[i]n considering a § 3B1.2 adjustment, a court must measure the defendant’s role
against the relevant conduct for which the defendant is held accountable at
sentencing, whether or not other defendants are charged.” Id.
More recent amendments to the Sentencing Guidelines -- that went into
effect after the sentencing hearing in this case -- further clarify the factors for a
court to consider for a minor-role adjustment, and still continue to embrace the
approach we took in De Varon. In November 2015, the Commission added the
following language to Application Note 3(C) for § 3B1.2:
In determining whether [a defendant warrants a minimal or minor
participant] or an intermediate adjustment, the court should consider
the following non-exhaustive list of factors:
(i)

the degree to which the defendant understood the scope and
structure of the criminal activity;

(ii)

the degree to which the defendant participated in planning or
organizing the criminal activity;

(iii)

the degree to which the defendant exercised decisionmaking authority or influenced the exercise of decisionmaking authority;

(iv)

the nature and extent of the defendant’s participation in the
commission of the criminal activity, including the acts the
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defendant performed and the responsibility and discretion
the defendant had in performing those acts;
(v)

the degree to which the defendant stood to benefit from the
criminal activity.

For example, a defendant who does not have a proprietary interest in
the criminal activity and who is simply being paid to perform certain
tasks should be considered for an adjustment under this guideline.
The fact that a defendant performs an essential or indispensable role
in the criminal activity is not determinative. Such a defendant may
receive an adjustment under this guideline if he or she is substantially
less culpable than the average participant in the criminal activity.
U.S.S.G. Supp. App. C, Amend. 794. Not surprisingly, this non-exhaustive list of
factors includes many of the same factors we delineated in De Varon, including the
defendant’s role in planning and carrying out the scheme, as well as the amount the
defendant stood to be paid. De Varon, 175 F.3d at 945.
Although this Court applies the version of the Guidelines in effect on the
date of sentencing, when reviewing the district court’s application of the
Guidelines, we consider clarifying amendments retroactively on appeal regardless
of the date of sentencing. United States v. Jerchower, 631 F.3d 1181, 1184
(11th Cir. 2011). As we’ve explained, an amendment to the commentary, and not
the text, of the Guidelines “suggest[s] that it clarifies” the guideline “rather than
substantively alters it.” Id. at 1187. Thus, the government in this case argues
correctly that Amendment 794 merely clarified the factors to consider for a minorrole adjustment, and did not substantively change § 31B.2. Accord United States
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v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016) (holding Amendment 794
was intended as a clarifying amendment and it therefore applies retroactively on
direct appeal). The Sentencing Commission, moreover, did not describe
Amendment 794 as making a substantive change, but stated that it provides
“additional guidance to sentencing courts.” See U.S.S.G. Supp. App. C, Amend.
794, Reason for Amendment. In other words, Amendment 794 merely explains the
meaning of the terms in the original guideline. See Jerchower, 631 F.3d at 1184.
Our task, therefore, is to review the district court’s ruling in light of the
Guidelines, our case law, and clarifying Amendment 794. For starters, we note
that the evidence at trial painted a fairly full picture of the role that Cruickshank
took in the offense -- among other things, he was involved in programming the
vessel’s route, in evading authorities, and in obstructing the Coast Guard’s inquiry.
Moreover, the record makes clear that the district court discussed many of the
factors our Court and the Sentencing Commission have laid out as important to the
minor-role determination. These factors included the quantity of drugs
Cruickshank transported, Cruickshank’s expectation of “premium pay,”
Cruickshank’s role as one of only two people on board to take the vessel from
Colombia to Jamaica, and the dangerousness of the offense of “transport[ing] a
large cargo of contraband in a transoceanic voyage from one continent to another”
-- a “voyage [that] necessitate[d] the intervention of the United States military to
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defeat it,” and that intentionally or unintentionally endangered many lives. DE101
at 17-19.
However, one portion of the district court’s decision gives us pause -- its
suggestion that the quantity of cocaine being transported on the Venus was so large
that no participant in the scheme could ever have been eligible for a minor-role
reduction. At one point the court said that the quantity of drugs was “so large that
any participant in [the case] can’t be said to be engaged in minor activity.” DE101
at 14. Later, it reiterated that “171 kilograms of high-quality cocaine, almost pure
cocaine in this circumstance, that will be, as the druggies say, stepped on two or
three or four times is not even available for a minor role under the language of
Rodriguez De Varon.” DE101 at 18 (emphasis added). But De Varon stressed the
fact-intensive nature of the inquiry, and the sentencing court’s role in assessing the
totality of the circumstances, where no one factor is “more important than
another.” 175 F.3d at 945; id. at 943 (“[T]he district court must assess all of the
facts probative of the defendant’s role in her relevant conduct in evaluating the
defendant’s role in the offense.”) (emphasis added).1 Moreover, Amendment 794

1

While the Court indicated in De Varon that we would not “foreclose the possibility” in a
drug courier case “that amount of drugs may be dispositive -- in and of itself -- in the extreme
case,” we allowed for that possibility because “the amount of drugs in a courier’s possession -whether very large or very small -- may be the best indication of the magnitude of the courier’s
participation in the criminal enterprise.” 175 F.3d at 943. De Varon involved a defendant who
had swallowed the contraband to transport it, so the amount in her possession was actually on her
person and perhaps was more likely to be indicative of her relative role in the offense. But this is
not that kind of case. Here, there is nothing in the record to suggest that the amount of drugs was
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clarified that a defendant could be considered for a minor-role adjustment in many
circumstances, none of which turn on drug quantity. See, e.g., Amendment 794 (A
defendant who does not have a proprietary interest in the criminal activity and who
is simply being paid to perform certain tasks “should be considered for an
adjustment under this guideline.”) (emphasis added); id. (A defendant who
performed an essential or indispensable role in the criminal activity “may receive
an adjustment under this guideline if he or she is substantially less culpable than
the average participant in the criminal activity.”) (emphasis added).
Indeed, although nothing in De Varon or Amendment 794 precludes a
district court from considering the drug quantity with which the defendant was
involved as an indicator of his role, we think it was legal error for the district court
to say that this is the only factor to be considered in a case like this one. While it is
possible that the district court did not rely solely on drug quantity in making its
minor-role determination, the consequences for Cruickshank’s advisory sentencing
range could be significant -- a potential six-level reduction to his offense level,
see U.S.S.G. §§ 2D1.1(a)(5), 3B1.2(b). Thus, we think the wisest course of action
is to vacate the district court’s decision and remand for resentencing. On remand,
the district court should perform an inquiry based on the totality of circumstances,
indicative of the magnitude of Cruickshank’s participation in the crime -- to the contrary, he did
not load the drugs on the vessel, reconstruct the vessel, fuel the vessel, attend the planning
meetings for the trip, or otherwise appear to have any role concerning the quantity of drugs
aboard.
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taking into account the variety of factors laid out in De Varon and
Amendment 794.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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