Opinion
NOT FOR PUBLICATION
Argued and Submitted February 15, 2007 Pasadena, California
Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding D.C. Nos. CR-03-02744-4-BTM, CR-03-02744-1-BTM, CR-03-02744-3-BTM, CR-03-02744-6-BTM, CR-03-02744-BTM, CR-03-02744-BTM
Before: CANBY and THOMAS, Circuit Judges, and CONLON, District Judge.
The Honorable Suzanne B. Conlon, Senior United States District Judge for the Northern District of Illinois, sitting by designation.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Olave-Valencia, Chavarin-Carrillo, Bonilla-Torres, Mosquera, Rebodello-Estupinan, and Riascos-Riascos appeal their convictions of conspiracy to possess cocaine with intent to distribute aboard a vessel and possession of cocaine with intent to distribute aboard a vessel, and the sentences imposed thereon. We affirm the convictions and the sentences, with the exception of the sentence imposed on Riascos-Riascos. Because the parties are familiar with the factual and procedural background of this case, we will not recount it here.
I
The district court did not fail to submit to the jury the question of whether the §go-fast§ vessel was §without nationality, § as required by United States v. Perlaza, 439 F.3d 1149 (9th Cir. 2006). Although the district court made some initial statements indicating it might consider statelessness a question for the court, it ultimately submitted the question of statelessness to the jury as required by Perlaza . The prior pronouncements of the court concerning statelessness comported with the requirement that the court make a preliminary determination of in personam jurisdiction before submitting the question to the jury. United States v. Moreno-Morillo, 334 F.3d 819 (9th Cir. 2003). Any confusion caused by the preliminary statements was harmless and cured by the ultimate submission of the question to the jury.
II
The district court did not violate the requirement that a jury make a unanimous finding as to jurisdiction. The court properly instructed the jury that it need not be unanimous as to how it found the vessel was without nationality, so long as it unanimously agreed that the vessel was without nationality. Even though unanimity is necessary as to the elements of the crime, §there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.§ Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring)).
III
The district court did not clearly err in denying minor role adjustments sought by the defendants. The district court properly found that persons assisting in the transportation of a large quantity of cocaine, especially by sea, generally do not play a minor role. United States v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006).
The district court did not clearly err in denying the downward adjustment sought by Bonilla-Torres for acceptance of responsibility. Because of the district court's unique position, its determination regarding acceptance of responsibility is not to be disturbed §unless it is without foundation. § United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993) (emphasis in original). Here, although Bonilla-Torres initially confessed, he chose later to retract portions of his confession at his suppression hearing. Therefore, the decision of the district court to reject the requested adjustment was not clearly erroneous.
The district court did not clearly err in not granting Chavarin-Carrillo a safety valve reduction pursuant to 18 U.S.C. § 3553(f). A sentencing judge§s determination regarding safety valve eligibility is §entitled to great deference and should not be disturbed on review unless without foundation.§ United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996). Here, the district court relied on the implausibility of Chavarin-Carrillo§s story and ultimately found that he did not truthfully provide the government with all the information he had about the offense as required by section 3553(f). This determination was not clearly erroneous.
To the extent Mosquera joined in Bonilla-Torres§s acceptance of responsibility argument and Chavarin-Carrillo§s safety valve argument, his contentions are also without merit.
Finally, upon careful review of the record, we conclude that the district court adequately addressed the statutory sentencing factors, and did not place excessive weight on the Sentencing Guidelines as to all defendants except Riascos-Riascos. Because it does not appear from the record that the district court addressed the statutory sentencing factors in imposing sentence on Riascos-Riascos, we vacate his sentence and remand for resentencing.
AFFIRMED, EXCEPTING THE SENTENCE IMPOSED ON RIASCOS-RIASCOS, WHICH IS VACATED AND REMANDED