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No. 14-4724
No. 14-4746
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:
PER CURIAM:
The
Berumen
defendants,
Cortes,
District
and
of
were
Virginia
using
Joaquin
convicted
for
convicted
sentenced
and
Joaquin
the
Western
in
manufacturing
on
Berumen
for
Vicencio
sentenced
substance
marijuana.
States.
and
conspiracy,
hazardous
manufacturing
and
Gonzalez
federal
Cortes
illegally
marijuana,
land
was
reentering
while
separately
the
United
Specifically,
they argue for the first time on appeal that the government
failed to prove, in connection with their hazardous substance
convictions,
that
they
Additionally,
Berumen
knew
Cortes
they
were
challenges
on
the
federal
district
land.
courts
U.S.C.
3553(f).
As
explained
below,
we
reject
their
I.
A.
On August 1, 2013, the federal grand jury in Harrisonburg,
Virginia,
Vicencio
returned
and
Berumen
four-count
Cortes.
indictment
Count
One
against
charged
Gonzalez
them
with
Count Three
Count
reentering
the
Four
charged
United
Berumen
States,
in
Cortes
with
violation
of
illegally
8
U.S.C.
1326(a).
B.
In December 2013, the district court conducted the threeday
jury
trial
Harrisonburg.
of
Gonzalez
We
recite
Vicencio
the
and
evidence
Berumen
in
the
Cortes
light
in
most
June
2013,
Agent
Willis,
an
officer
of
the
Virginia
See J.A.
As they crested a
of
marijuana
to
state
and
federal
law
enforcement
A few
Mullins
were
installing
the
cameras,
Willis
As Fisher
spotted
After
After
Willis
heard
their
identity
movements
5
inside
and
the
presence
tent.
at
the
Willis
In
and
were
arrested.
Agent
Mullins
and
Officer
Fisher
the two suspects with Mullins and Fisher and quickly surveyed
the surrounding area for others, but found no one.
The officers
The
The
officers
also
found
trash
littered
throughout
the
contained
several
empty
containers
for
fertilizer,
Berumen
that Berumen Cortes had planted seeds on May 13 and 14, 2013.
The day planner, found in a plastic bag with Gonzalez Vicencios
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
trial,
the
government
introduced
the
cell
phone
detailed
campsite,
various
and
the
locations
the
entries
trash
from
heap
Berumen
of
the
in
the
marijuana
National
Cortess
notepad
plots,
Forest.
and
the
The
Gonzalez
prosecutors
post-arrest
also
statements,
introduced
which
they
the
defendants
made
during
separate
interviews
interpreter.
In
their
statements,
Gonzalez
on
the
marijuana
plots.
Both
them
in
the
marijuana
growing
men
acknowledged
Berumen
paid for his work by Jesus after harvesting the marijuana yield.
Gonzalez Vicencio also said that he worked for Jesus, whom he
had
met
likewise
two
years
explained
earlier
that
at
he
bar
would
in
North
receive
Carolina,
payment
at
and
the
Berumen
Cortes
drew
maps
of
the
area
where
they
had
been
governments
first
expert,
evidence
DEA
included
special
two
agent,
expert
explained
environmental
conservation
witnesses.
specialist,
that
the
how
the
The
conservation
specialist
explained
that
those
further
of
up
those
the
food
products
chain.
into
Moreover,
streams,
the
according
gradual
to
the
See
J.A. 382.
After the government rested, Gonzalez Vicencio and Berumen
Cortes
Federal
sought
Rules
judgments
of
of
Criminal
acquittal
Procedure.
under
With
Rule
29
respect
of
to
the
Count
was
that
lack
of
evidence
he
knew
the
campsite
the
and
3.
Gonzalez
Vicencio
testified
in
his
own
defense.
He
for
the
week
preceding
their
arrests.
Regarding
the
his
signature
and
White
Post
The ticket
address,
and
Gonzalez
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
Gonzalez
Vicencio
them
asserted
without
that
he
further
and
instructions.
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
that
he
had
plants either.
never
seen
Berumen
Cortes
do
anything
with
the
renewed
29
their
incorporating
Rule
the
motions
arguments
governments evidence.
they
for
judgments
raised
at
of
the
acquittal,
close
of
the
motions.
Following closing arguments by counsel, the district court
instructed the jury.
As to
or
a
convicting
Gonzalez
Vicencio
and
Berumen
Cortes
on
September
10,
2014,
Vicencio
and
Berumen
Gonzalez
presentence
range
of
97
Guidelines,
criminal
report
to
(PSR)
121
premised
history
category
district
Cortes.
initially
months
on
the
in
total
of
I.
court
Berumen
calculated
prison
sentenced
under
offense
level
Because
Cortess
an
the
of
advisory
Sentencing
30
Berumen
and
Cortess
minimum
sentences,
however,
the
PSR
arrived
at
an
First, he
of
responsibility,
pursuant
to
Guidelines
section
12
scheme
disclosure.
or
plan,
i.e.,
complete
and
truthful
both objections.
In opposing Berumen Cortess request for 3553(f) relief,
the prosecutors explained that Berumen Cortes had not made the
required
disclosure.
Specifically,
when
the
prosecutors
met
After several
The prosecutors
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.
counsel
acknowledged
that
the
session
was
fruitless,
questions.
See
id.
at
569.
The
lawyer
maintained,
See id.
Moreover, Berumen
the
probation
prosecutors
were
officer.
simply
According
speculating
to
the
that
lawyer,
Berumen
the
Cortes
found
required
by
that
Berumen
3553(f),
forthcoming
about
acceptance
of
his
In so ruling, the
Cortes
had
not
made
because
he
had
not
criminal
responsibility
activities.
adjustment,
In
the
disclosure
been
light
Berumen
entirely
of
the
Cortess
14
Gonzalez
appeals,
Vicencio
which
we
and
Berumen
Cortes
consolidated.
We
timely
possess
noted
these
jurisdiction
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).
(B)
(C)
humans,
environment
or
stream,
15
See
21
U.S.C.
Gonzalez
841(b)(6)
Vicencio
requirements
and
extend
(emphasis
Berumen
beyond
added).
Cortes,
knowing
According
841(b)(6)s
or
mens
intentional
use
to
rea
of
substances
to
manufacture
marijuana.
Because
that
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
exercise
our
if
those
discretion
requirements
to
correct
are
a
satisfied,
plain
error
we
will
only
when
the
fairness,
integrity
proceedings.
marks
or
public
reputation
of
judicial
omitted).
We
have
recognized
that
the
plain
error
197,
213
(4th
Cir.
2011)
(internal
quotation
marks
omitted).
The stringent requirements of plain error review flow from
the fundamental
principle
that
right
may
be
forfeited
in
and
opportunity
United
objections,
which
to
and
States,
consider
556
U.S.
gives
resolve
129,
134
the
district
them.
(2009).
See
court
Puckett
That
the
v.
inducement
In contrast,
review
afterthoughts.
discourages
That
is,
both
mousetrapping
arguments
and
As such, plain
and
objections
convenient
that
are
the trial court has ruled, will not prevail unless the rigorous
plain error standard is satisfied.
Importantly,
an
unpreserved
error
will
constitute
plain
we
have
directly
on
district
court
recognized
legal
does
that
issue
not
and
other
commit
plain
F.3d
176,
omitted).
plain
181
(4th
when
Cir.
we
In that
have
yet
to
circuits
are
split,
error
by
speak
following
the
(internal
quotation
marks
error
review
are
more
difficult
to
satisfy
when
the
the
context
of
these
proceedings,
we
are
content
to
assume that an error occurred and that the first prong of Olano
has been satisfied.
F.3d 659, 679 (4th Cir. 2001) (Without belaboring the point, we
simply
assume
analysis.).
trial
error
and
proceed
with
the
Olano
Put succinctly,
841(b)(6).
of
Berumen
his
Cortes
request
for
challenges
relief
the
under
district
the
courts
safety
valve
sentence
below
the
120-month
statutory
minimum.
The
See United
The
(1) he has
had
concerning
the
offense
or
offenses
comprising
the
same
F.3d at 292-93.
As our good Chief Judge recently explained in United States
v. Aidoo, [t]he defendants burden under the safety valve is a
true
burden
defendant.
3553(f)
is
of
proof
that
rests,
at
all
times,
tell-all
provision,
and
on
the
Section
requires
the
disclosure
of
information
required
by
the
safety
See id. at
been present at the campsite for only one week, but the evidence
was strong that Berumen Cortes had been there growing marijuana
much longer.
he had planted seeds as early as May 13, 2013, nearly two months
before his arrest.
to
safety
contention
valve
that
relief,
he
had
Berumen
not
been
Cortes
failed
entirely
to
rebut
forthcoming
to
the
the
III.
Pursuant
to
the
foregoing,
we
reject
the
defendants
21