author: MASTROIANNI, District Judge.

text:
    UNITED STATES of America, Appellee, v. James F. FORD, Defendant, Appellant.
    No. 14-2245
    United States Court of Appeals, First Circuit.
    October 14, 2016

      Hunter J. Tzovarras for appellant.
    Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E, Delahanty II, United States Attorney, was on brief, for appellee.
    Before THOMPSON and KAYATTA, Circuit Judges, and MASTROIANNI, District Judge.

       Of the District of Massachusetts, sitting by designation.

   MASTROIANNI, District Judge.

James F. Ford, with assistance from his wife Darlene and his sons Paul and Jim, directed a marijuana-growing operation out of a home in Monroe, Maine. Acting on a tip from Jim’s girlfriend, police executed a search warrant and interviewed James, who openly described the sophisticated operation and discussed his previous marijuana-growing case in Massachusetts. After a trial, a jury convicted him on the four counts charged in the superseding indictment: conspiracy, manufacturing over 100 marijuana plants, maintaining a residence for marijuana manufacturing, and possessing a firearm as a felon. The district court applied a statutory mandatory minimum and sentenced James to 120 months in prison followed by eight years of supervised release. On appeal, James challenges his convictions and his sentence. Finding no reversible error, we affirm.

I. Background

On the evening of November 15, 2011, Maine drug enforcement officers, via loudspeaker, ordered the occupants of James’s and Darlene’s home to exit and executed a search warrant. The officers discovered a large marijuana-growing operation and two disassembled firearms under a makeshift bed outside of one of the cultivation rooms.

Later that evening, James discussed the operation in detail during a recorded interview. He described the intricate set-up, which he was “pretty proud of,” but lamented the chores and expenses required by the operation. For example, James explained he had to empty air-conditioner buckets every morning or else they would “run over.” He also had to collect water from a spring in Dixmont, Maine, using a 150-gallon tank, because the well water at the home was “horrible” and would “kill” the plants. In addition, James’s crop “had bug problems,” but he used hypoaspis miles, a type of mite, to control fungus gnats attracted to the marijuana plants. James told the officers he normally yielded either eight or twelve pounds of marijuana every nine weeks, had produced thirty-seven total harvests, and had sold each pound for approximately $2,000. He deciphered some of the acronyms on a calendar officers found in the home, explaining “HI” referred to harvest one and “H2” meant harvest two.

Notably, James volunteered during the interview “you already know that I got popped in Mass” when explaining his previous growing operation in Wakefield, Massachusetts, which had been uncovered through a confidential informant. James revealed he paid his attorney in Massachusetts over $20,000 yet still “ended up with a frigging ... felony conviction because they forced me to plea bargain.” He further disclosed that he lost a house in connection with the bust, which he thought was unfair because the property was not purchased with “drug money” and his “name wasn’t even on the search warrant.”

On April 23, 2013, the grand jury returned a superseding indictment against members of the Ford family. Count 1 charged James, Darlene, and Paul with conspiring to manufacture 100 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count 2 contained the following language:

On about November 15, 2011, in the District of Maine, defendants
JAMES F. FORD AND PAUL FORD
Did knowingly and intentionally manufacture a Schedule I controlled substance, specifically, 100 or more marijuana plants, and did aid and abet such conduct, in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2.
It is further alleged that the penalty provisions of Title 21, United States Code, Section 841(b)(1)(B) apply to the conduct described herein.

Count 3 charged James and Darlene with maintaining a residence for the purpose of manufacturing marijuana in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. And Count 5 charged James with possessing firearms as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

A three-day jury trial commenced on November 19, 2013. During opening statements, defense counsel acknowledged that James grew marijuana. His attorney instead focused on defending against the conspiracy charge, rebutting the allegation that James grew over 100 marijuana plants, and asserting that the main purpose of the residence was not for growing marijuana. He argued that although Darlene “ke[pt] track of the family finances,” she was not involved in the growing operation. Moreover, defense counsel informed the jury that, while James and Darlene were away, Jim “snuck” his girlfriend into the house and revealed the operation in an attempt to demonstrate he could support her. Jim “wanted to seem like he was part of’ the operation even though he wasn’t, defense counsel insisted.

James Weaver, a retired special agent with the Maine Drug Enforcement Agency, testified that Jim and Paul were covered in “small green flecks” and smelled of marijuana after exiting the home on the day of the search. Twenty-four marijuana plants were found in one room, an additional twenty-four plants in a separate room, and 163 starter plants in yet another room. All the plants had root systems, and the parties stipulated the plants were marijuana. The government also played the recorded interview of James for the jury without objection.

Weaver further testified that officers discovered two rifles in the home, both of which the parties stipulated were firearms under federal law. He also described calendars found in the home which listed various figures next to the words “payday,” “income,” and “Boston.” Moreover, Weaver explained, the “Boston” figures often corresponded to “M” dates on another calendar, which he believed referred to “the market or move date, the date that [James] sold that marijuana.” Notebooks, also seized during the search, listed “$760 J and P payday” on various dates, as well as other figures next to the word “income.” Checkbooks reflected payments of $939 and $831 to the electric company. Weaver testified the handwriting from the calendars, notebooks, and checkbooks all appeared to be the same as the handwriting from DMV records filled out by Darlene.

Photographs, videos, and emails discovered during the search were presented to the jury. The photographs showed James tending marijuana plants and collecting water from the spring in Dixmont. A separate photograph showed Paul collecting water from the same spring. A video depicted James firing the Sig Sauer .229 rifle at a shooting range in Jackson, Maine, with Darlene narrating in the background.

The emails contained what appear to be discussions between members of the Ford family about the growing operation. For example, in one email to Paul, James complained that Paul was “useless at H time.” James told Paul not to come to the house without calling because he had “expropriated way too much material recently, obviously to fund your journey into spaceland.” Nevertheless, James informed Paul: “I am not booting you out of the business.” In response, Paul complained to James that he did not understand “this crap about not being on your property,” since he would “have to be over there at least two or three times a week to get ⅝0 for this place and check on the annex.” Paul continued: “I don’t care if you say the annex is Mom’s. I am still going to be working on it—lights, C02, refill, et cetera, et cetera. I did [a] load of work on the place getting it running while you were in Jamaica, thank you very much.” Paul stated he did not want to hear “any more of this one-man operation bullshit anymore.” In another email, Paul told James that Darlene had been “spending a little too much on these cruises things, but, you know what, she does one hell of a job being a secretarial to this whole conundrum we call business.” Paul insisted that he be given “a little bit more of the responsibility,” because “when it’s just me and you, we run this place like NASA.” Paul also recommended that James keep Jim “away from the actual ops” and instead “[s]et him up doing all of the soil and buckets and fert, cal ni., C02, anything we need.” Weaver testified those materials are used for growing marijuana. In an email to Darlene, James reported Paul’s comment that she was “a great secretary” and informed her that Paul brought “my bugs around 8:00 p.m.” but did not stay long. Weaver testified he understood “bugs” to be a reference to the “hypoaspis miles mites” used to eat fungus growing on marijuana plants, and James conceded this point during his testimony.

Michael Ballback, the asset forfeiture investigator, testified James’s and Darlene’s bank records showed total deposits of $65,277.93 in 2009, $135,397.55 in 2010, and $80,935.44 in 2011, totaling $281,610.92, of which $216,156.45 were cash deposits. Moreover, the deposit dates often corresponded with the “income” dates listed in the notebooks and the “M” dates listed in the calendars seized during the search. James and Darlene paid $25,336.62 for electricity from 2009 to 2011 and $13,097,98 for rental cars from 2010 to 2011.

Jim’s ex-girlfriend, Cassandra Spencer, testified for the government. Prior to her testimony, James renewed his pretrial hearsay objection. Defense counsel argued Spencer’s testimony as to statements made by Jim when he revealed the marijuana operation to her was not admissible under Federal Rule of Evidence 801(d)(2)(E) as statements “in furtherance of the conspiracy.” Based on the government’s proffer and its recollection of Spencer’s testimony during Darlene’s trial, the district court ruled that the statements furthered the conspiracy because

she was told, basically, not to say anything, that she was suspicious about what was going on, and the whole purpose of the blindfolding and the displaying of the alleged operation was to quell her suspicions and to get her to be quiet about them.
So quieting someone who’s suspicious about the conspiracy is in furtherance of the conspiracy from my viewpoint.

Spencer testified she became pregnant shortly after she began dating Jim. Jim told her that he worked with his father and brother “building control systems that students would train on” for a company called Boaleeco, but he “never seemed to ... maintain an actual work schedule.” In particular, the -night before one system was to be delivered, Jim “had- gotten so high that he couldn’t wake up.” That surprised Spencer, so she began to question Jim about what he did for a living. When asked by the prosecutor “what exactly ,.. were your questions,” Spencer testified: “Well, you’re not working like you said you were, you know. And why is it okay that you’re not delivering these systems as you said, you know? I didn’t understand what was going on.” One night, Jim blindfolded Spencer, brought her to his parents’ home while they were away, and showed her the marijuana-growing operation.

When the prosecutor asked about Spencer’s conversation with Jim that night, James renewed his hearsay objection. The district court again overruled the objection, explaining:

[I]f you’re involved in a drug-trafficking conspiracy and you have a serious, intimate relationship with someone and they begin to suspect what you’re doing and you bring them along and you say, this is what we’re doing, but this is the family business, but you—now that you know, you have to keep quiet, that is in furtherance of the conspiracy.

Defense counsel pressed that Spencer “never said she was suspicious that he was doing anything illegal or growing marijuana,” but the court held firm, responding:

That doesn’t matter. He decided to take her in. She was suspicious about what he was doing generally.... Figure that perhaps, over the course of time, she would really begin to suspect and would unearth what exactly he was doing.. So he decided to preempt,- bring her in, show her the family business, and at that point tell her to keep quiet.

Spencer then testified Jim told her that he and his brother “did most of the day-today work” for the operation, whereas “his dad basically was the overseer.” He stated Darlene “dealt with all the money,” including paying the bills as well as paying the brothers approximately $5CiO each week in cash for their work. Jim also told Spencer that she could not tell anyone this information; even Jim’s “parents and his brother couldn’t know that I was being let in on this secret.” On cross-examination, Spencer explained that she questioned Jim’s employment because she was concerned about his ability to support her and their child. It was after Spencer raised this concern that Jim revealed the operation and told her not to worry because he was growing marijuana with his father. Spencer eventually tipped off the police to the growing operation.

The government’s final witness was James Bruce, a Massachusetts State Trooper. After the government proffered that he would testify as to the prior marijuana-growing operation in Massachusetts, James objected that the testimony was inadmissible under Rules 404(b) and 403 of the Federal Rules of Evidence. Defense counsel argued the testimony was not relevant for any special purpose because James was not disputing that he knowingly grew the marijuana in Maine. The district court disagreed, explaining that, in- the absence of a stipulation, the evidence was relevant to James’s motive, opportunity, intent, preparation, plan, and knowledge, because the government retained the burden of proving each element of the crime, regardless of the defenses raised. In response to defense counsel’s argument that the probative value of the evidence was outweighed by its prejudicial effect, the court offered to provide the jury'a limiting instruction.

Bruce testified that he executed a search warrant at 2 Fellsmere Avenue in Wakefield, Massachusetts on October 11, 2002. He discovered three rooms “devoted entirely to growing marijuana.” The operation was “pretty impressive,” with plants in different stages of maturity and a variety of equipment. During the search, James informed Bruce that he did not reside at the house but .actually lived across the street at 5 Fellsmere Avenue. James consented to a search of that home, where Bruce discovered another grow operation. Bruce testified the operations were consistent with distribution, rather than personal use. The parties stipulated that James was convicted in state court of possession of marijuana with intent to manufacture, distribute, or dispense, a crime punishable by imprisonment for a term exceeding one year under Massachusetts law. Documents showed that 2 Fellsmere Avenue was forfeited to Massachusetts authorities. The district court instructed the jury it could not consider this evidence as proof that James “is a bad person or that ... he is the kind of person who is likely to commit a crime,” but it could use the evidence to evaluate his state of mind, intent, motive, opportunity to commit the charged crimes, or to determine if James acted according to a plan or by accident or mistake.

After the government rested, James took the stand, testifying he moved to Maine because living in Wakefield, Massachusetts became too expensive. James intended to continue his contracting work for Boaleeco, with which his sons helped him, as well as install heating systems. James testified he did not buy the Maine house for the purpose of growing marijuana, but decided to do so when his work for Boalee-co dried up. He insisted his family had no input in the decision and provided no help in the operation. In fact, James testified, his wife had no knowledge of the operation, although his sons did. But James claimed he encouraged his sons to get legal jobs.

James explained that whenever he received a check, he would cash it and give the money to Darlene, who kept track of the family’s finances in the notebooks. James testified, however, that he did not tell Darlene any income was derived from marijuana; rather, he told her it was from contracting work with Boaleeco. James and Darlene rented cars often to visit her parents in New Hampshire and Massachusetts. James also sold marijuana in Massachusetts during the trips, but he maintained Darlene was unaware the vehicles were stocked with marijuana. James agreed the three grow rooms contained over 100 marijuana plants (including “starter plants”) on the day of the search, all with stems, leaves, and root systems.

After the defense rested, James renewed his objection to the verdict form, which asked the jury to make a finding as to the number of plants James was individually responsible for manufacturing. Defense counsel argued that the superseding indictment, by alleging both James and Paul manufactured 100 or more marijuana plants, failed to apprise James that he would be held responsible for that entire amount. The district court disagreed, explaining the indictment put James on notice he would have to defend against possessing 100 or more marijuana plants and, in fact, defense counsel argued during opening statements that James was not responsible for that amount. The court, however, agreed to give the jury the option of finding James responsible for manufacturing 50 or more plants, or 100 or more plants.

During final instructions, the court reiterated its prior limiting instruction regarding prior bad acts. The court also instructed the jury that, if it found James guilty of the manufacturing charge, it would have to decide “the quantity of marijuana that he, and not anyone else, intentionally manufactured.” After closing arguments and deliberations, the jury returned its verdict. It found James guilty on all four counts. Moreover, as to Count 2, the jury found that James manufactured 100 or more marijuana plants.

At sentencing, James objected to application of 21 U.S.C. § 841(b)(l)(B)(vii), which prescribes a ten-year mandatory minimum for manufacturing 100 or more marijuana plants if the individual was previously convicted of a felony drug offense. Defense counsel again argued, relying on Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), that the superseding indictment did not allege at least 100 plants were attributable solely to James. Defense counsel also argued the Eighth Amendment prohibited the mandatory minimum because some states had legalized marijuana and the federal government was not prosecuting its production in those states. The district court rejected both arguments. It did note, however, that in light of the state legaliza-tions “we are in sort of an odd time for purposes of marijuana.” After calculating a Sentencing Guideline range of 97 to 121 months of imprisonment, which produced a range of 120 to 121 months when combined with the statutory minimum, the court sentenced James to 120 months in prison to be followed by eight years of supervised release.

II. Analysis

James raises four arguments on appeal. First, he argues the superseding indictment, in violation of Alleyne, 133 S.Ct. 2151, did not sufficiently notify him that he would be held responsible for manufacturing 100 or more marijuana plants. As a result, James argues, the district court erred in instructing the jury to make a quantity determination and in applying the ten-year mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(l)(B)(vii). Second, James argues the district court improperly admitted Spencer’s hearsay testimony under the exception for statements “in furtherance of a conspiracy.” Fed. R. Evid. 801(d)(2)(E). Third, James challenges the admission of Bruce’s testimony regarding the Massachusetts growing-operation. Lastly, James contends his sentence is prohibited by the Eighth Amendment.

A. Alleyne Claim

We review James’s preserved Al-leyne claim, based on an allegedly deficient indictment, de novo. See United States v. Rose, 802 F.3d 114, 127 (1st Cir. 2015); United States v. Etienne, 772 F.3d 907, 922 (1st Cir. 2014).

In Alleyne, the Supreme Court, extending the logic of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that “any fact that increases the mandatory minimum [penalty for a crime] is an ‘element’ that must be submitted to the jury” and found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155. Both Alleyne and Apprendi also emphasized the necessity of including these penalty-increasing facts in the indictment. See id. at 2159-60; Apprendi, 530 U.S. at 476, 478-80, 120 S.Ct. 2348; See United States v. McIvery, 806 F.3d 645, 648-49 (1st Cir. 2015), cert. denied, 2016 WL 1599830, — U.S.-, 137 S.Ct. 44, 196 L.Ed.2d 51 (Oct. 3, 2016); see also United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). “Defining facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment.” Alleyne, 133 S.Ct. at 2161, This, in turn, allows the defendant to prepare an appropriate defense. Id. at 2160; Apprendi, 530 U.S. at 478, 120 S.Ct. 2348.

James asserts the superseding indictment violated these principles because it alleged James and Paul manufactured 100 or more marijuana plants, which meant James might have produced between one and 99 plants with Paul producing the remainder.

“An indictment is sufficient ‘if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy.’ ” United States v. Parigian, 824 F.3d 5, 9 (1st Cir. 2016) (quoting United States v. Yefsky, 994 F.2d 885, 893 (1st Cir. 1993)). On the other hand, mistaken or omitted indictment language is reversible if “it deprived the appellant of notice or otherwise misled him to his detriment.” United States v. Eirby, 262 F.3d 31, 38 (1st Cir. 2001); see also United States v. Lanza-Vázquez, 799 F.3d 134, 148 (1st Cir. 2015) (discussing related concept of prejudicial variance).

The superseding indictment could have been clearer as to the number of marijuana plants individually attributable to James and Paul. The first clause of Count 2 stated that on November 15, 2011, James and Paul “[d]id knowingly and intentionally manufacture ... 100 or more marijuana plants.” Considering this language in isolation, it is not entirely clear, for example, whether James and Paul separately manufactured 100 or more plants each, or instead together manufactured that amount. Nevertheless, reading the indictment as a whole, we conclude James had adequate notice that he was alleged to be responsible, and thus subject to punishment, for manufacturing 100 or more marijuana plants.

Count 2 also included an aiding and abetting charge under 18 U.S.C. § 2. Specifically, it stated James and Paul “did aid and abet such conduct, in violation of ... Title 18, United States Code, Section 2.” Thus, even under James’s theory, the aiding and abetting language still apprised him that he could be punished for all 100 plants. See 18 U.S.C. § 2(a) (“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”).

Count 2 further stated “the penalty provisions of’ 21 U.S.C. § 841(b)(1)(B) apply. Those provisions set forth, in relevant part, a ten-year mandatory-minimum penalty for manufacturing “100 or more marihuana plants regardless of weight” if the individual was previously convicted of a felony drug offense. 21 U.S.C. § 841(b)(1)(B). This penalty language therefore indicated that James would need to defend against the allegation that he manufactured 100 or more marijuana plants or else risk application of the mandatory minimum.

Moreover, it is clear James had knowledge of this penalty-increasing fact, as defense counsel asserted during opening statements that James “wasn’t manufacturing over a hundred marijuana plants” on the day of the search. See McIvery, 806 F.3d at 652 (“[T]he defendant was on ample notice ... of both the government’s assertion that the statutory mandatory minimum applied and his potential exposure to that mandatory minimum.”).

Accordingly, this was not a case in which a latent ambiguity throughout an indictment lured a defendant to construe it one way, only to be surprised at trial. Rather, this was'a case in which a patent ambiguity in the syntax of a single sentence was resolved by the thrust of the indictment as a whole and read by counsel as placing at issue precisely that which was at issue.

Even if James could demonstrate an Alleyne error on this theory, it was clearly harmless beyond a reasonable doubt. See McIvery, 806 F.3d at 649-50 (holding that Alleyne errors are subject to harmless-error review). The district court appropriately instructed the jury to decide the quantity of marijuana that James, “and not anyone else, intentionally manufactured,” And in response to James’s Alleyne argument, the court added to the verdict form the option of finding James responsible for manufacturing 50 or more plants, in addition to 100 or more plants. The jury ultimately found James had manufactured 100 or more plants. This finding was fully consistent with the overwhelming and un-controverted evidence at trial. Indeed, James’s defense was that he manufactured the marijuana alone, and, as the district court noted, he testified unequivocally to that effect. Finally, at ‘ oral argument, James’s appellate counsel could not articulate how the trial would have been any different if the indictment had been clearer.

B. Hearsay Claim

James next challenges the admission of Jim’s out-of-court statements to Spencer under Federal Rule of Evidence 801(d)(2)(E). Under that rule, statements made by a defendant’s co-conspirators “during and in furtherance of the conspiracy” do not qualify as hearsay. Fed. R. Evid. 801(d)(2)(E). “The proponent of such a statement must prove, by a preponderance of the evidence, that the declarant and the defendant were members of a conspiracy when the statement was made, and that the statement was made in furtherance of the conspiracy.” United States v. Ciresi, 697 F.3d 19, 25 (1st Cir. 2012). “A district court’s determination ‘as to whether this burden has been met is known in this circuit as a Petrozziello rul-mg,’ after our holding in United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).” Id. (quoting United States v. Mitchell, 596 F.3d 18, 23 (1st Cir. 2010)).

“A court may provisionally admit a statement under Rule 801(d)(2)(E) and defer its final Petrozziello ruling until the close of evidence.” United States v. Paz-Alvarez, 799 F.3d 12, 29 (1st Cir. 2015). “To preserve a challenge to a district court’s Petrozziello ruling, a defendant must object on hearsay grounds when his or her coconspirator’s statement is provisionally admitted and must renew the objection at the close of evidence.” Ciresi, 697 F.3d at 25-26. Preserved challenges are reviewed for clear error, and unpre-served challenges are reviewed for plain error. Id. at 26.

The wrinkle in this case is the district court did not provisionally admit the out-of-court statements but allowed the complete and final admission during Spencer’s testimony. The government contends James still had to renew the hearsay objection at the close of evidence, and his failure to do so renders this challenge un-preserved and subject to plain error review. James asserts he raised the issue before trial, renewed his objection at trial prior to Spencer’s testimony, and renewed the objection yet again during her testimony. As the district court made clear it was not deferring a final ruling on the issue until the close of evidence, James argues he was not required to renew the objection any further. We assume, favorably to James, that in light of this posture, he preserved the hearsay challenge and clear error review applies.

Although “no precise formula” exists, “[generally speaking, ... a cocon-spirator’s statement is considered to be in furtherance of the conspiracy as long as it tends to promote one or more of the objects of the conspiracy.” United States v. Piper, 298 F.3d 47, 54 (1st Cir. 2002); see also United States v. LiCausi, 167 F.3d 36, 50 (1st Cir. 1999) (“The statement is admissible if it ‘tends to advance the objects of the conspiracy as opposed to thwarting its purpose.’” (quoting United States v. Fahey, 769 F.2d 829, 838 (1st Cir. 1985)). The “statement ‘need not be necessary or even important to the conspiracy, or even made to a co-conspirator, as long as it can be said to advance the goals of the conspiracy in some way.’ ” Piper, 298 F.3d at 54 (quoting United States v. Martinez-Medina, 279 F.3d 105, 117 (1st Cir. 2002)). However, “[a] judicial determination that a coconspirator’s statement tended to further the conspiracy must be supported by some plausible basis in the record.” Id. As such, “the ‘in furtherance’ requirement represents a real limitation on the admissibility of coconspirator statements,” and the proponent “is not entitled to a free pass.” Id.

The district court found the “in furtherance” requirement was satisfied, on two related grounds. First, the district court explained that Spencer became suspicious about the growing operation, and Jim’s decision to reveal the operation to her, coupled with his instruction not to tell anyone, was intended “to quell her suspicions and to get her to be quiet about them.” Alternatively, the district court found that Spencer “was suspicious about what [Jim] was doing generally,” and rather than risk that she would eventually “unearth what exactly he was doing,” Jim “decided to preempt, bring her in, show her the family business, and at that point tell her to keep quiet.”

As an initial matter, we assume, since no party has argued otherwise, that one of the main objects of the conspiracy was to keep the growing operation secret. See Grunewald v. United States, 353 U.S. 391, 405, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (discussing acts of concealment in furtherance of a conspiracy). Nevertheless, we conclude the district court erred in finding Jim’s statements were in furtherance of this objective.

As to the first ground, there is no support for the district court’s finding that Spencer harbored suspicions about the growing operation. She testified only to her concern that Jim was not gainfully employed and thus could not provide for their soon-to-be-born child. Jim then revealed the operation to her in response to a legitimate employment concern, telling her not to worry because he was making money growing marijuana. Jim’s revelation under these circumstances—attempting to placate a significant other’s financial worries—cannot reasonably be said to further the goals of the conspiracy. On the contrary, as James asserts, the statements were in furtherance of Jim’s relationship with Spencer. Cf. LiCausi, 167 F.3d at 50 (explaining that the coconspirator’s statement “is more appropriately characterized as made simply to avoid an argument with [the co-conspirator’s] girlfriend” and thus was not admissible under the in furtherance hearsay exception).

The district court’s alternative explanation fares no better. Revealing the operation, in response to a generalized suspicion regarding Jim’s employment status, does not further the goal of concealing the conspiracy. Jim’s statements constituted “the polar opposite of an attempt to conceal the conspiracy.” Piper, 298 F.3d at 56. In fact, his disclosure led directly to the conspiracy’s downfall, as Spencer divulged the operation to the authorities. In this regard, Jim’s statements proved “antithetic to the central object of the charged conspiracy.” Id. at 55. Further, in revealing the operar tion, Jim was not attempting to recruit Spencer or otherwise seek her assistance in the scheme. Rather, he told her the other Ford family members “couldn’t know that [she] was being let in on this secret.” Under these circumstances, we believe the district court’s rationale stretched the in furtherance exception too far.

We conclude, however, that this error does not warrant reversal. “A non-constitutional evidentiary error is harmless (and, therefore, does not require a new trial) so long as it is highly probable that the error did not influence the verdict.” Piper, 298 F.3d at 56.

There is no bright-line rule for divining when particular errors that result in a jury’s exposure to improper evidence are (or are not) harmless. Rather, a harmlessness determination demands a panoramic, case-specific inquiry considering, among other things, the centrality of the tainted material, its uniqueness, its prejudicial impact, the uses to which it was put during the trial, the relative strengths of the parties’ cases, and any telltales that furnish clues to the likelihood that the error affected the factfin-der’s resolution of a material issue.

Id. at 57 (quoting United States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)).

The error here is clearly harmless as to three of the counts. The improperly admitted statements were not relevant to the firearm charge. Moreover, the facts supporting the manufacturing and maintaining a residence for marijuana manufacturing counts were conceded at trial, rendering the hearsay testimony plainly cumulative of other evidence.

Although somewhat of a closer question, we also conclude the district court’s error was harmless as to the conspiracy count. Even without Spencer’s hearsay testimony, there is strong additional evidence pointing to a conspiracy, and we can say “with fair assurance ... that the judgment was not substantially swayed by the error.” United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The conspiracy evidence included admitted emails (described in detail in section I supra), in which James and Paul indicate, in their own words, that the operation was a family affair. In addition to the emails, James admitted during his testimony that the notebooks and calendars, which contained various notations and figures corresponding to the production and sale of marijuana, were maintained by Darlene.

Given the “overwhelming” evidence of a family-wide conspiracy, United States v. Tejeda, 974 F.2d 210, 215 (1st Cir. 1992), we conclude “it is ‘highly .probable’ that the result would have been the same” in the absence of Spencer’s hearsay testimony. United States v. Colon-Munoz, 192 F.3d 210, 229 (1st Cir. 1999) (quoting United States v. Vigneau, 187 F.3d 82, 85-86 (1st Cir. 1999)).

C. Admissibility of Bruce’s Testimony

James additionally challenges the admission of Bruce’s testimony, in which he described the prior Massachusetts growing operation, under Rules 404(b) and 403. As James raised this objection at trial, we review the district court’s determination for abuse of discretion. United States v. Pelletier, 666 F.3d 1, 5 (1st Cir. 2011).

Under Rule 404(b), ‘“[evidence of a crime, wrong, or other act is not admissible to prove- á person’s character in order to show that on a particular occasion the person acted in accordance with the character,’ i.e., as propensity evidence.” United States v. Appolon, 715 F.3d 362, 372 (1st Cir. 2013) (quoting Fed. R. Evid. 404(b)(1)). “Evidence of other acts may be admissible, however, if it has ‘special relevance,’ such as proving ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,’ Fed. R. Evid. 404(b)(2).” Id. at 372-73 (internal citation omitted). We utilize a two-part test in evaluating admissibility under Rule 404(b). First, we ask whether the evidence has “special relevance”; then, we apply Rule 403 and consider whether its probative value is substantially outweighed by -,the danger of unfair prejudice. Pelletier, 666 E.3d at 5.

Even assuming Bruce’s testimony was specially relevant for one or more non-propensity purposes, its admissibility under Rule 403 is questionable. To be sure, even though James did not contest the allegation that he intentionally grew the marijuana in Maine, the government still retained the burden to prove each element of the charges beyond a reasonable doubt and, as a general matter, was “entitled to prove its case by evidence of its own choice.” Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); see United States v. Varoudakis, 233 F.3d 113, 121 (1st Cir. 2000) (“[W]e have held that evidence of prior bad acts may be probative even when it is relevant to an issue that the defendant does not contest,” because “the fact that the defendant does not contest the issue for which the prior bad act evidence is offered does not, ‘by itself, remove those issues from the case.’ ” (quoting United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990)).

But the fact that James did not dispute (and explicitly conceded) this ■ central allegation renders the probative value of Bruce’s testimony significantly reduced. See Varoudakis, 233 F.3d at 121-24. Given the other evidence presented and defense counsel’s concession during opening statements that James grew the marijuana, the government arguably did not need the testimony regarding the Massachusetts growing operation. See id. at 122 (under Rule 403, courts should weigh the risk of unfair prejudice against “the government’s need for the evidence,” among other factors (citing Old Chief, 519 U.S. at 184, 117 S.Ct. 644)); cf. United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982) (“[T]here was so much other evidence of guilt in the case that it is difficult to believe the prior conviction was needed.”). Also weighing against the probative value of the prior growing operation is its remoteness in time, as the Massachusetts bust occurred nine years before the search in Maine. See United States v. Mare, 668 F.3d 35, 41 (1st Cir. 2012).

Moreover, the risk of unfair prejudice stemming from Bruce’s testimony was high. Although this evidence “is not particularly shocking” and “[tjhere is little danger that it swayed the jury toward a conviction on an emotional basis,” the risk is that the jury used it to infer criminal propensity. Varoudakis, 233 F.3d at 122. That risk is especially pronounced where, as here, the prior conduct is identical to the charged crime. See id. at 123; see also Old Chief, 519 U.S. at 185, 191, 117 S.Ct. 644. In fact, the grow operations were extremely similar; they were both large and highly sophisticated, with plants in different stages of growth and a variety of equipment.

Furthermore, in view of the negligible probative value of the evidence, it is not clear the district court’s limiting instructions were sufficient to curb its prejudicial effect. See United States v. Garcia-Rosa, 876 F.2d 209, 222 (1st Cir. 1989) (“But the prejudice in this case was so severe and unfair that it cannot be remedied merely through a limiting instruction. In fact, if limiting instructions could remedy all such errors, the government would easily be able to circumvent Rules 404(b) and 403.”), vacated on other ground sub nom., Rivera-Feliciano v. United States, 498 U.S. 954, 111 S.Ct. 377, 112 L.Ed.2d 391 (1990).

At the same time, however, the nature of James’s defense and the overwhelming evidence of guilt render any error harmless. James conceded throughout the trial that he grew the marijuana in Maine. Moreover, the jury had already heard, without objection, the recorded interview of James, in which he discussed the Massachusetts growing operation. Under these circumstances, therefore, we are confident the verdict would not have been different if the district court had excluded Bruce’s testimony. See United States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009).

D. Eighth Amendment Claim

Lastly, James contends his ten-year mandatory-minimum sentence for manufacturing marijuana is grossly disproportionate to the offense and, therefore, violates the Eighth Amendment. He points to the public’s evolving views on marijuana, including state-law decriminalization and legalization (medicinal and recreational) measures. He also cites the federal government’s general policy of not prosecuting cultivation and distribution activities that are in compliance with “strong and effective [state marijuana] regulatory and enforcement systems.” Memorandum from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, for All U.S. Att’ys 2 (Aug. 29, 2013), available at https://www.justice. gov/iso/opa/resources/3052013829132756857 467.pdf. We review this Eighth Amendment challenge de novo. United States v. Raymond, 697 F.3d 32, 40 (1st Cir. 2012).

“The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality opinion) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)). This principle, however, “‘does not require strict proportionality between crime and sentence’ but rather ‘forbids only extreme sentences that are grossly disproportionate to the crime.’ ” Graham v. Florida, 560 U.S. 48, 60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (quoting Harmelin, 501 U.S. at 997, 1000-01, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in judgment)). In determining whether a sentence is grossly disproportionate, we first undertake a threshold comparison between “the gravity of the offense and the severity of the sentence.” Id. at 60, 130 S.Ct. 2011. If, after making this threshold comparison, “we conclude there is no ‘gross disproportionality ... the inquiry ends there.’ ” United States v. Lyons, 740 F.3d 702, 731 (1st Cir. 2014) (quoting Raymond, 697 F.3d at 40).

We also must be mindful of our “substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). After all, “the Constitution ‘does not mandate adoption of any one penological theory.’ ” Ewing, 538 U.S. at 25, 123 S.Ct. 1179 (quoting Harmelin, 501 U.S. at 999, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in judgment)). In light of this deference and the rigorous standard for demonstrating gross disproportionality, “a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” Solem, 463 U.S. at 290 n.16, 103 S.Ct. 3001. Indeed, “‘[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.’ ” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)); see id. at 19-20, 123 S.Ct. 1179 (upholding California’s “three strikes” law and the imposition of a 25 years to life sentence for stealing golf clubs); Harmelin, 501 U.S. at 996, 111 S.Ct. 2680 (upholding a sentence of life in prison without parole for possession of more than 650 grams of cocaine); Hutto v. Davis, 454 U.S. 370, 374-75, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (upholding a sentence of forty years for possession and distribution of nine ounces of marijuana).

James’s challenge fails at the threshold inquiry. We recognize that, for Eighth Amendment purposes, “courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Graham, 560 U.S. at 58, 130 S.Ct. 2011 (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Those evolving standards certainly now point towards a markedly different level of acceptance of marijuana than in the past. “But within extremely broad limits, Congress—which unlike the judiciary is popularly elected—sets both sentencing policy and the prescribed range of sentences for federal drug crimes_” United States v. Jones, 674 F.3d 88, 96 (1st Cir. 2012). And, despite the evolving consensus on marijuana policy, manufacturing marijuana remains a serious crime under federal law, subject to the penalties set forth in 21 U.S.C. § 841(b). See United States v. Ford, 625 Fed.Appx. 4, 7 (1st Cir. 2015) (unpublished opinion).

In the end, James’s arguments as to federal marijuana sentencing policy are more appropriately directed at the Executive and Legislative branches. “Relief in cases such as this—if there is any—must come, in the first instance, in the exercise of restraint and wisdom in the charging decision of the prosecutor, or in the exercise of the clemency power; both are executive not judicial functions and leave us powerless to intercede to grant relief.” Paladin, 748 F.3d at 454.

III. Conclusion

For the reasons given, we affirm.

      . To avoid confusion, we refer to the members of the Ford family by their given names. Moreover, as we did in Darlene's appeal, we refer to the defendant as "James” and to his son as "Jim." See United States v. Ford, 821 F.3d 63, 65 n.1 (1st Cir. 2016).

      . James initially stated he grew eight pounds every six months but later in the interview clarified that each harvest cycle was nine weeks.

      . Another government witness, Michael Ball-back, an asset forfeiture investigator for the Bureau of Alcohol, Tobáceo, and Firearms, testified the handwriting from checks written by Darlene appeared to be the same as that in the notebooks and bank deposit slips. James neither objected to this handwriting testimony at trial, nor has he challenged it on appeal.

      . James testified that he built training benches for trade schools on a contract basis for Boaleeco while living in Maine. James also testified his sons helped him with the contract work "quite often” and he would pay them.

      . Although the statute is written in the disjunctive ("or aids, abets ... ”) and the indictment was in the conjunctive ("and did aid and abet ... ”), this type of discrepancy is generally considered permissible. See, e.g., United States v. Farish, 535 F.3d 815, 823-24 (8th Cir. 2008); cf. United States v. Torres-Colón, 790 F.3d 26, 34 (1st Cir. 2015) ("[I]t is well-established that where an indictment charges in the conjunctive (using ‘and’) but the statute is framed in the disjunctive (using ‘or’), the government need only prove one of the charged acts at trial.”). In any event, this issue has not been raised on appeal, nor would it change the result in this case.

      . Section 841(b)(1)(B) also prescribes a five-year mandatory minimum penalty for manufacturing 100 or more plants if the individual had not been previously convicted of a felony drug offense,

      . Although defense counsel asserted during opening statements that James “wasn’t manufacturing over a hundred marijuana plants” on the day of the search, James testified that his house contained over 100 plants, all of which had stems, leaves, and root systems, on that day. His trial strategy instead was that the jury should not consider the “starter plants” to be marijuana plants-. Consistent with that strategy, defense counsel objected' to the government's proposed instruction defining “plant” and sought to leave the term undefined. The district court ultimately sided with James, and the issue has not been raised on appeal.

      . Indeed, when James renewed his hearsay objection during Spencer’s testimony, the district court stated: "Well, that’s a—that ruling I’ve already addressed, and I reject.”

      . This assumption may be overly generous in light of this circuit’s precedents requiring that the Petrozziello determination be made at the end of all the evidence and placing the onus on the defendant to request such an express trial-end finding. See United States v. Mangual-Garcia, 505 F.3d 1, 8-9 (1st Cir. 2007); United States v. Flemmi, 402 F.3d 79, 94 (1st Cir. 2005); United States v. Perez-Ruiz, 353 F.3d 1, 12 (1st Cir. 2003); see also United States v. Richardson, 14 F.3d 666, 669 (1st Cir. 1994) (district court made final Petroz-ziello determination at the close of the government’s case rather than at the close of all the evidence, but defendant’s failure to object to this procedure rendered hearsay challenge unpreserved); United States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992) (despite district court’s promise to make a trial-end determination and failure to do so, that error did not “obviated the need for the defendants to lodge an objection at the proper time”). But see United States v. Sepulveda, 15 F.3d 1161, 1180 (1st Cir. 1993) ("The party at whom the evidence is aimed must object to the statement when it is offered; and, if the district court accepts the evidence de bene, must then ask the court at the close of all the relevant evidence to strike the statement _” (emphasis added)). Nevertheless, as we explain below, the district court's error in admitting Spencer’s hearsay testimony was harmless even under the more defendant-friendly clear error standard of review. Accordingly, we need not definitively resolve the preservation issue in this case.

      . In fact, consistent with Jim's explanation to Spencer, James testified that Paul and Jim helped with his contracting work for Boalee-co.

      . Perhaps Jim’s instruction to Spencer to ■ keep quiet, in isolation, could be deemed in furtherance of the conspiracy if it had been the only out-of-court statement admitted. Here, however, the "keep quiet” statement came directly after Spencer recounted Jim’s statement as to the family members' roles in the growing operation, and both statements were admitted together as part of the "in furtherance” equation. Under these circumstances, therefore, an overly narrow parsing of the combined statements is not appropriate.

      . Our conclusion also finds support outside of this circuit. See United States v. Manfre, 368 F.3d 832, 838-39 (8th Cir. 2004) (explaining that "[a] statement of a conspirator which conceals the conspiracy without revealing any of the conspirators’ illegal objectives from one who appears suspicious is in furtherance of the conspiracy,” but " '[a] statement that simply informs a listener of the declarant’s criminal activities is not made in furtherance of the conspiracy.’ ” (quoting United States v. Mitchell, 31 F.3d 628, 632 (8th Cir. 1994)); City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 559 (11th Cir. 1998) (“A statement that merely discloses the existence of a conspiracy to a non-conspirator, that merely 'spills the beans,’ with no intention of recruiting the auditor into the conspiracy does not further the conspiracy,”); United States v. Shores, 33 F.3d 438, 444 (4th Cir. 1994) ("Statements made by a co-conspirator to a third party who is not then a member of the conspiracy are considered to be ‘in furtherance’ of the conspiracy if they are designed to induce that parly either to join the conspiracy or to act in a way that will assist it in accomplishing its objectives ... but not if they were intended to be nothing more than idle chatter or casual conversation about past events.” (internal citations omitted)); United States v. Layton, 720 F.2d 548, 556 (9th Cir. 1983) ("Although statements designed to induce a listener to join a conspiracy are admissible, mere 'casual admission[s] of culpability to someone [the declarant has] individually decided to trust' are not admissible.” (quoting United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981)), overruled in part on other grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008). But see United States v. Phillips, 219 F.3d 404, 419 (5th Cir. 2000) ("Because Jean attempted io explain to her daughter the nature of the conspiracy in an effort to exact sympathy so that the scheme could remain a secret, the statements were undoubtedly made 'in furtherance’ of the conspiracy, and as such were properly admitted.”).

      . Accordingly, we need not definitively decide whether the district court abused its discretion in performing the Rule 403 balancing.

      . Not only did James fail to object to the admission of the recording at trial, but he has not challenged it on appeal.

      . Although the Supreme Court’s "precedents in this area have not been a model of clarity,” Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), the Court has since relied on Justice Kennedy's concurrence in Harmelin, calling it "[t]he controlling opinion.” Graham v. Florida, 560 U.S. 48, 60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); see also Ewing, 538 U.S. at 23-24, 123 S.Ct. 1179 (plurality opinion); United States v. Cruz-Fernández, 607 Fed.Appx. 1, 3 (1st Cir. 2015) (unpublished opinion). Moreover, as Justice Kennedy explained in Harme-lin, despite this lack of clarity, the Court’s Eighth Amendment decisions "yield[] some common principles that give content to the uses and limits of proportionality review.” Harmelin, 501 U.S. at 998, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in judgment)).

      . At oral argument, the government sought to deflect its role in the sentence, as if it had no choice in the matter, and place responsibility in the hands of Congress, But see Jones, 674 F.3d at 96-97 ('[T]he prosecution also had discretion in this case to not seek the mandatory sentence.”).


source: Caselaw Access Project

author: BARRON, Circuit Judge. TORRUELLA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Persis TRINIDAD, Defendant, Appellant.
    No. 15-1576
    United States Court of Appeals, First Circuit.
    October 14, 2016

      Juan A, Albino González and Albino & Assoc. Law Office, PC, San Juan, on brief for appellant.
    Rosa Emilia Rodríguez-Yélez, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

Persis Trinidad was convicted of violating the Maritime Drug Law Enforcement Act (“MDLEA”) after his vessel was intercepted by United States authorities. Trinidad appeals the District Court’s application of a sentencing enhancement to him. That enhancement applies if the defendant “acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer” on a vessel carrying controlled substances. U.S.S.G. § 2Dl.l(b)(3)(C). We conclude that the District Court did not err in ruling that Trinidad acted as a “navigator” within the meaning of the enhancement.

I.

On or about September 27, 2014, Trinidad and Algemiro Coar-Peña were intercepted in a 30-foot “go-fast type vessel” by the United States Coast Guard, approximately 80 nautical miles south of Lea Bea-ta, Dominican Republic. The vessel bore no indicia of nationality.

Trinidad and Coa-Peña told the Coast Guard that the vessel was coming from Colombia, and one of the men claimed Colombian nationality for the vessel. After the Government of Colombia indicated that it could neither confirm nor deny registry of the vessel, the Coast Guard determined that the vessel was one without nationality within the meaning of the MDLEA, 46 U.S.C. § 70502(c)(1)(A), and boarded the vessel. The Coast Guard found approximately 144 kilograms of cocaine onboard.

On January 8, 2015, Trinidad pleaded guilty to one count of possession with intent to distribute cocaine, in violation of provisions of the MDLEA. See 46 U.S.C. §§ 70503(a)(1), 70504(b)(1), 70506(a), and 70506(b). In so doing, Trinidad admitted that he and Coa-Peña took turns driving the vessel. Trinidad also admitted that he and Coa-Peña “set sail for the Dominican Republic utilizing Global Positioning Devices that were provided to them.”

The parties agreed to a total offense level of 31, unless Trinidad complied with the requirements set forth in U.S.S.G. § 2Dl.l(b)(17) (the so-called “safety-valve reduction”), in which case the parties agreed that the total offense level would be 29. The agreed-upon offense level did not include the two-level sentencing enhancement for Trinidad’s “act[ing] as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel.” U.S.S.G. § 2Dl.l(b)(3)(C).

The pre-sentence report (“PSR”) put together by the probation office calculated a total offense level of 33. The PSR calculated that level by taking into account the parties’ stipulated base offense level and by adding the two-level “pilot-navigator enhancement” set forth in U.S.S.G. § 2Dl.l(b)(3)(C). The PSR did not account for the two-level safety-valve reduction. The PSR added the enhancement because the probation officer determined that Trinidad “acted as a navigator” in the course of committing the underlying offense. Trinidad objected to the enhancement on the grounds that he was neither the captain nor the navigator of the vessel, as Trinidad only took turns steering the vessel and did not himself handle the vessel’s GPS system.

The District Court calculated a total offense level of 31 and sentenced Trinidad to a term of imprisonment of 108 months, at the low end of the applicable Guidelines range. In so doing, the District Court adopted both the two-level safety-valve reduction and the two-level pilot-navigator enhancement. The District Court applied the enhancement because it found that Trinidad navigated the vessel under the circumstances.

Trinidad appeals the application of the pilot-navigator sentencing enhancement to him.

II.

We review the District Court’s interpretation and application of this sentencing enhancement de novo and the District Court’s underlying “factual findings, which must be supported by a preponderance of the evidence, for clear error.” United States v. Lopez, 299 F.3d 84, 87 (1st Cir. 2002). The government’s sole argument to us is that the District Court did not err in finding that the enhancement applies because Trinidad acted as a navigator. We agree.

The undisputed record shows that Trinidad took turns steering the vessel with Coa-Peña, the only other passenger on board; that the vessel was traveling from Colombia to the Dominican Republic; that he and Coa-Peña “set sail ... utilizing Global Positioning Devices”; and that the vessel was intercepted after twenty-four hours on the high seas. Given these facts, the District Court reasonably concluded that Trinidad must have been responsible for ensuring that the boat stayed on course for some not insubstantial portion of the trip.

Trinidad does contend that he did not “use” the GPS, and that he therefore cannot be said to have been navigating. But the District Court reasonably concluded that Trinidad must have relied on the GPS to keep the boat on course. Unlike on land, the District Court noted, Trinidad could not have been instructed to “[j]ust keep going straight.” Thus, the District Court did not clearly err in determining that, even if Trinidad did not himself set or calibrate the GPS device, it was impossible to conclude that he “[got] on a boat,” was told “that way,” and went. “That’s not the way it goes. You will end up God knows where. It’s a big ocean up there.”

Further supporting the District Court’s assessment of Trinidad’s onboard role— and reliance on instrumentation in guiding the boat’s course—is the portion of the colloquy at sentencing in which Trinidad’s counsel did not contest the notion that Trinidad had relied on the GPS to keep the boat on course. In that exchange, Trinidad’s counsel, in trying to .explain that Trinidad’s role was too minimal to make him a navigator, remarked, “If you tell him look at the GPS or the (Remarks in Spanish)—we’re going 280 east for example.” At that point, the District Court stated: “You have given it in. The moment that you use the compass, if you will, or you’re using the GPS as you mention, you are navigating.” So, while Trinidad contends that, in order to be deemed a navigator, he must have been, at points, “in charge of navigating the vessel and directing it to its ultimate destination,” we conclude that the District Court reasonably found Trinidad was in charge of doing just that during some not insubstantial portions of the trip.

We therefore agree that, on this record, Trinidad, who was an experienced fisherman, acted as a navigator during the journey from Colombia to the Dominican Republic. See The Oxford English Dictionary 259 (2d ed. 1989) (defining “navigate” to mean, among other things, “to sail, direct, or manage (a ship)” and “to plot and supervise the course of (an aircraft or spacecraft)”); The Random House Dictionary of the English Language 1282 (2d ed. 1987) (defining “navigate” to mean, among other things, “to direct or manage (a ship ...) on its course”); Webster’s Third New Int’l Dictionary 1509 (1981) (defining “navigate” to mean, among other things, “to steer, direct, or manage in sailing: conduct (a boat) upon the water by the art or skill of seamen”).

In so concluding, we reject Trinidad’s contention that a person can only qualify as a navigator if he or she knows how to program or adjust a GPS—or other navigational device—and not if he merely relies on it to keep the boat on course. Nothing in the text or commentary of the enhancement supports such a restricted definition of the term “navigator.” Cf. United States v. Cruz-Mendez, 811 F.3d 1172, 1176 (9th Cir. 2016) (explaining that appropriate application of the “pilot” portion of the enhancement is “not dependent on a finding of any particular formal training”); United States v. Cartwright, 413 F.3d 1295, 1296-99 (11th Cir. 2005) (per curiam) (reviewing the defendant’s actions on board the vessel, rather than the extent of his knowledge or training, in applying the “captain” portion of the enhancement).

We also reject Trinidad’s contention that he did not act as a-navigator because he was a subordinate to the other man on the vessel. By its own terms, the enhancement reaches anyone who “act[s] as a navigator,” just as it reaches captains and copilots alike. U.S.S.G. § 2Dl.l(b)(3)(C) (emphasis added). Thus, even assuming that Trinidad did not bear “ultimate responsibility” for the vessel’s safe passage, as he contends, that fact would not preclude the conclusion that he “act[ed] as a navigator.” Id. And to the extent Trinidad contends that the enhancement can only be applied to persons with special authority, he is also wrong. See United States v. Guerrero, 114 F.3d 332, 346 & n.16 (1st Cir. 1997), cert. denied 522 U.S. 870, 118 S.Ct. 184, 139 L.Ed.2d 124 & 522 U.S. 924, 118 S.Ct. 320, 139 L.Ed.2d 248 (1997).

III.

For the reasons given, we affirm.

TORRUELLA, Circuit Judge.

(Dissenting).

The sole issue raised by appellant’s counsel before the trial court, and now before this court,, is an objection to the sentencing court’s enhancement of appellant’s sentence pursuant to its finding that he was a “navigator” within the meaning of U.S.S.G. § 2D.l(b)(3)(C). Because I disagree with the majority opinion’s overly-broad reading of this term, I must respectfully dissent.

If I did not feel bound by my prior decision in United States v. Bravo, 489 F.3d 1 (1st Cir. 2007), however, there would be additional grounds which would lead me to further part from my brethren in affirming appellant’s conviction. I can no longer support the approach taken by this and our sister circuits in embracing the sweeping powers asserted by Congress and the. Executive under the Maritime Drug Law Enforcement Act (“MDLEA”), and I am of the view that the district court acted without jurisdiction over appellant.

My concerns are of a fundamental nature and deal with the power of this court, or rather the lack of power of this court, to penalize appellant for the crimes which he allegedly committed against the United States. That is, first, whether the United States has the power to arrest appellant under the circumstances of this case and involuntarily render him into the territory of the United States. Second, whether the United States has the power to retroactively apply to him the criminal laws of the United States for conduct which previous to his arrest and rendition was not subject to those laws, and which only comes into play by the actions of the United States in arresting appellant in international waters and rendering him into United States territory.

L

To fully consider the issues raised by appellant’s conviction, a more detailed fleshing of the record is required than appears in the majority opinion.

Appellant Persis Trinidad was, at the time of the alleged violations, a 46-year-old native and citizen of the Dominican Republic, who lived in the seaside vi|lage of Playa Las Galeras, Samana, in the northern part of the island, where he eked out a living as a fisherman earning about $150 a month. Although his record shows that he had a sixth-grade education, Trinidad nevertheless expressed being illiterate,-a fact that can be confirmed from his “signature” on the plea agreement and other court documents. Furthermore, his primary language is Spanish and he has no fluency in English. Sometime in August, 2014, Trinidad was approached by a Colombian who went bv the first name of Andrés, who bought some fish from him. The following day, Anjdrés hired him for a fishing trip, during which he asked Trinidad if he was interested in another job, earning more money. Upon inquiring as to the nature of the job, Trinidad was told it would require his going to Colombia and bringing back narcotics by sea to Santo Domingo, Dominican Republic, for which he would be paid $20,000. Andrés informed Trinidad that he would help him get his Dominican Republic passport- and would pay for his airfare to Colombia. Thereafter, Trinidad accepted the offer.

On September 16, 2014, Andrés picked up Trinidad at Playa Las Galeras and drove him to Santo Domingo where he gave him 2,600 Dominican pesos (RD$) for passport fees, and approximately RD$1,500 more for government processing, Andrés then helped Trinidad with the passport process and subsequently went with him to the Avianca Airline’s office where Andrés paid for Trinidad’s airline ticket to Barranquilla, Colombia and then gave the ticket to Trinidad. Andrés then gave Trinidad RD$3,600 for his transportation to Punta Cana International Airport and $500 to cover miscellaneous expenses. On that same day Trinidad went to the airport, took the Avianca flight to Bogotá, Colombia, and there connected to a flight to Barranquilla, Colombia. ■

Upon his arrival .at the Barranquilla airport, Trinidad was met by a Colombian couple, who took him to. a hotel (at an unknown location) in Barranquilla, where he stayed until September 23, 2014. On this date another Colombian picked him up and transported him to a second hotel in Barranquilla (also at an unknown location), where he sojourned for one more night. While at this second hotel, Trinidad met Algemiro Coa-Peña (“Coa-Peña”), who was to be his companion on the return sea voyage to the Dominican Republic, as well as his eventual co-defendant in this case. Coa-Peña is a native of Cartagena, Colombia and a citizen of the Republic of Colombia.

At some time on the 24th, Andrés picked up Trinidad and took him to' a store to purchase two pairs of pants for him. Later that night took him to a small pier near the hotel where a so-called “go-fast” boat was docked. Andrés told Trinidad that the narcotics would be transported to the Dominican Republic aboard that vessel. Trinidad observed that the boat had twelve blue fuel drums aboard, and saw unidentified Colombian personnel load the boat with six bales, which were placed in the forward part of the vessel. At some point, Coa-Peña arrived at the pier, whereupon two unidentified individuals showed up and handed two. Global Positioning System (“GPS”) handheld instruments to Coa-Peña and Trinidad, and proceeded to program the instruments with the coordinates of the destination .in the Dominican Republic where the drugs were to be delivered. Although they attempted to instruct Trinidad and Coa-Peña on the use of the GPS’s, it was Coa-Peña who eventually handled them because of Trinidad’s apparent inability to familiarize himself with their use at that time.

Soon thereafter, Coa-Peña and Trinidad left from Barranquilla, Colombia destined for Santo Domingo, Dominican Republic. During the trip towards the Dominican Republic, both took turns steering the vessel, with Coa-Peña “handling” the GPS. On September 26, 2014, the voyage was proceeding normally until the boat reached an area approximately 80 miles south of Isla Beata, Dominican Republic. At this point, while the vessel was still in international waters, the vessel’s engines experienced trouble and the boat came to a stop. Shortly after, the disabled vessel was approached by a U.S. Coast Guard cutter, which, with the aid of a marine patrol aircraft, had for some time been tracking the vessel Trinidad and Coa-Peña were travelling on, as well as another “suspicious” boat, as they headed .in a northerly course towards the Dominican Republic. A boarding team from the cutter soon approached the disabled vessel, which as previously indicated, was dead in the water. The other “suspicious vessel” was nowhere in sight, having disappeared into the expanse of the sea.

The boarding team reported coming upon a 30-foot “go-fast” boat, with no markings or indicia of nationality, and aboard which were two persons later identified as Trinidad and Coa-Peña. Neither claimed to be the master of the vessel, but one of them orally claimed Colombian nationality for the vessel. Both indicated that their last port of call was in Colombia, and that their next port of call was Santo Domingo. Several bales of cargo could be observed in the forward section of the boat.

The Coast Guard put in effect their protocol under the U|S.-Colombia bilateral agreement on njaritime smuggling, whereby the government of Colombia was contacted to request confirmation or denial of the registry of the suspect vessel in Colombia. On the next day, September 27, the Colombian government responded that it could neither confirm nor deny registry of the vessel in Colombia (unsurprisingly, given the dearth of information available at that point), whereupon the Coast Guard’s Seventh District Commander granted permission to the cutter’s boarding crew to consider the vessel as one without nationality, and to conduct a boarding under U.S. law. The boarding party then conducted a field test of the substances found in the bales located on the bow section of the intercepted vessel, which yielded a positive result for the presence of cocaine. Upon this discovery, Trinidad and Coa-Peña were formally detained.

On board the intercepted vessel were found 144.9 kilograms of cocaine packed in bricks inside six bales, which were moved to the Coast Guard cutter as the detained boat could not be safely towed and had to be purposely sunk to prevent it from becoming a hazard to navigation. Trinidad and Coa-Peña were brought aboard the U.S. Coast Guard cutter and then transported aboard the cutter to Mayaguez, Puerto Rico, which, according to the Government’s euphemistic statement in the indictment, “was where the defendants first entered the United States after commission of the ... offense” (emphasis added), a contention which in itself raises some interesting issues, which will be presently discussed.

Appellant pled guilty to Count One of the Indictment which charged possession with the intent to distribute more than five kilograms of cocaine on board a vessel subject to the jurisdiction of the United States, that is, a vessel without nationality, for which he was sentenced to imprisonment for a period of 108 months.

II.

The majority opinion argues that because Trinidad admitted as part of his plea agreement that he took turns “conning the vessel” with Coa-Peña, that he therefore meets the definition of a “navigator.” In making this argument the majority cites English dictionaries that equate “navigate” with “to steer,” Supra at 115.

I take issue with what in my view is an obviously unjust result. The majority’s opinion relies on an overly broad way of reading this term. To be a navigator contains its own particular subset of skills that are more easily summarized by the term “navigator” than merely driving a boat. Although the majority cites common dictionaries of the English language to equate “navigate” with “steer,” much more telling, in my view, is the definition of “navigate” found in nautical dictionaries. Here the definition is “[t]o safely operate a vessel employing the elements of position, course and speed” and “[t]o, determine position, course and speed using instruments.” Definition of “Navigate”, Sea Talk Nautical Dictionary, http://www.seatalk.info/ (last visited Oct, 6, 2016). This definition embraces the notion that in nautical terms “to navigate” actually requires extra abilities to determine “position, course and speed using instruments.” Yet the facts recited above suggest that the very opposite was true of Trinidad. He specifically did not understand how to use the GPS. It had to be set up for him and it is undisputed that Coa-Peña managed those instruments throughout the trip.

To assume a broader definition of “navigator” suggests that the sheer act of driving somehow enhances the individual’s criminal conduct. But would we ever suggest that suburban or rural drug dealers should receive an enhanced sentence simply because they drive a car to the location of their drug transactions rather than walk or take public transportation as their more urban counterparts might? Persis Trinidad was a fisherman who knew how to engage in his trade, which was coastal fishing on a yola (a small open skiff propelled by oars or an outboard motor). See United States v. Matos-Luchi, 627 F.3d 1, 2 (1st Cir. 2010). He was offered more money than he could make in ten years of fishing to help manage the boat between Colombia and the Dominican Republic. During the voyage he may have periodically looked at the screen of the handheld GPS he was provided with by his Colombian cohorts, but this is no more an exceptional skill or action than if he had been driving most modern cars which have GPS in their dashboard. Id. Nothing in this behavior suggests extra-culpability or a justifiable basis for enhancement. If the truth be said he was a water borne “mule,” nothing more than the common “mules” that sit in commercial airlines, transporting contraband in and on their bodies, for which they are not penalized additionally as has been done with Trinidad.

III.

My departure from the majority’s opinion is not limited to their reading of the term “navigator,” however. The Maritime Drug Enforcement Act (MDLEA), codified as amended at 46 U.S.C. §§ 70501-08, has been used to expand United States criminal jurisdiction well beyond U.S. borders to include people and acts that have no connection whatsoever with the United States. This extraterritorial exercise is far in excess of any powers either permitted by international law or granted by Congress to the Executive branch.

Considering that Trinidad is an illiterate, non-English speaking Dominican citizen, with no record of his having ever resided or even visited the United States, without any prior criminal past and unaware of U.S. criminal law until he was captured in the high seas, the question arises whether he can be charged with retroactively violating U.S. law upon his forced rendition into U.S. territory. When and where did Trinidad commit this alleged U.S. crime? Can it be said that there was any U.S. crime committed by Trinidad, before the vessel he was navigating was intercepted? That would be a stretch that would be difficult to swallow. Thus we must assume, that if there was a U.S. crime committed, it was only after he was physically apprehended in the high seas. Prior to that Trinidad could not have infringed any U.S. law, and if he did commit any crime for which he could be charged, it would have been against the laws of Colombia and/or the Dominican Republic. This raises the question of how Trinidad’s conduct before he was apprehended (which conduct could not then have been a U.S. crime) can become a U.S. crime by the United States Government capturing Trinidad at a time when he had committed no crime against the United States. This enigma is at the heart of the attempt by the United States to exercise universal criminal jurisdiction through means repeatedly and soundly rejected pursuant to customary international law.

This conundrum arises because of the expansive definition Congress has given to statelessness. There are two problems with the MDLEA’s treatment of stateless vessels. First, its definition of when a vessel is actually stateless far exceeds anything that exists or is allowed by international law. Second, the degree and type of proof the MDLEA accepts for statelessness risks violating international and domestic law. The MDLEA uses the statelessness of a vessel as the hook by which it allegedly acquires jurisdiction over a vessel and its crew, allowing it to retroactively apply U.S. criminal laws to said persons irrespective of their nationality, the place where the alleged crimes were committed, or the lack of any U.S. connection or impact of the charged conduct.

A. Defining when a Vessel is Stateless

According to the MDLEA a vessel without nationality is one “aboard which the master or individual in charge” either “makes a claim of. registry that is denied by the nation whose registry is claimed,” “fails ... to make a claim of nationality or registry for that vessel,” or “makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.” 46 U.S.C. § 70502(d)(l)(A)-(C). It is this last provision that is at issue here.

When Trinidad’s boat was' intercepted by the U.S. Coast Guard, Trinidad and Coa-Peña were questioned as to the nationality of the boat and Coar-Peña answered that the ship was Colombian. Nevertheless, the vessel in question was deemed stateless by the United States after Colombian authorities responded to the inquiry by U.S. authorities to the effect that Colombian registry could be “neither confirmfed] nor denfied].” On the basis of this noncommittal statement, based upon the flimsy information available at the time, the Coast Guard was authorized pursuant to the U.S.’s self-promoting legislation to assumé jurisdiction over the vessel and its crew, and to apply U.S. criminal laws to them. 46 U.S.C. § 70502(d)(1)(C). Of course, we do not know what information was actually provided by the Coast Guard to the Colombian authorities, nor do we know what Colombia’s answer would have been had all the circumstantial evidence described previously, pointing to a non-U.S. nationality of the vessel and its crew, been available and provided to Colombia.

Under international law, however, the acquisition of jurisdiction in this case on the basis of “statelessness” because of Colombia’s failure to make an unequivocal assertion of nationality within the twenty-four hours or so given is a gross overstepping of jurisdictional boundaries. In international maritime law there is the long-established concept of the law of the flag, a principle of customary international law that is adhered to by the United States. Under the law of the flag principle, a ship has the nationality of the country whose flag it is entitled to fly. Central to this entire regime is the principle that

[ejach state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it.... The United States has firmly and successfully maintained that the regularity and validity of a registration can be questioned only by the registering state.

Lauritzen, 345 U.S. at 584, 73 S.Ct. 921 (emphasis added).

This means that once a claim of Colombian nationality was made, it was up to Colombia to definitively decide whether the boat was in fact Colombian, not for the United States to unilaterally make that decision in a conclusive manner with the scarcity of information available to it at the time of interception and arrest. It should be noted that under the MDLEA it is contemplated that nationality can be asserted orally. 46 U.S.C. § 70502(e)(3) (“A claim of nationality or registry” includes “a verbal claim of nationality or registry by the master or individual in charge of the vessel”). This is particularly relevant when considering smaller boats of the type found here because “[mjany states ... do not issue documents to ships with a tonnage below a given figure” and “a State may not require, or permit, the registration of ships below a certain size ... but may nonetheless regard such ships as having its nationality if they are owned by its nationals.” Matos-Luchi, 627 F.3d at 18 (Lipez, J., dissenting) (quoting H. Meyers, The Nationality of Ships 160 (1967) and R.R. Churchill & A.V. Lowe, The Law of the Sea 213 n.19 (3d ed. 1999)). Indeed, the United States is an example of a nation that extends its nationality to otherwise unregistered ships that are owned, in whole or part, by one of its citizens. 46 U.S.C. § 70502(b)(2) (defining a vessel of the United States in part as one “owned in any part by an individual who is a citizen of the United States,” unless said vessel has been granted nationality by another nation).

Given the facts of this case, I am unaware of anything preventing further inquiry into such a crucial factor as was the nationality of the vessel. . There is no apparent reason why this matter was not raised or pursued once dry land and legal representation were reached. Cf. United States v. Greer, 285 F.3d 158, 175 (2d Cir. 2002) (jurisdictional element of the MDLEA may be inquired into any time before trial); United States v. Bustos-Useche, 273 F.3d 622, 627 (5th Cir. 2001) (identifying legitimate deadline to consent to U.S. law any time before trial). The jurisdictional issue was not cast in stone based only on the flimsy information available in situs at the time of the interception. Considering the undisputed circumstantial evidence surrounding this sea voyage (i.e., the place where the vessel departed from, the nationality of the personnel that dealt with this enterprise, the nationality of half of the crew that by all appearances was the leading actor aboard the vessel, and the specific claim of the vessel’s Colombian nationality), it is difficult to deny the vessel’s Colombian connection and nationality, which if it had been properly raised and established, should have deprived the court of jurisdiction and led to dismissal of the charges against Trinidad.

Nothing in the' MDLEA dictates a contrary result. Although the MDLEA does define as a “vessel without nationality” one “aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality,” there is no indication of a timeline according to which the claimed nation of registry must “affirmatively and unequivocally” assert that nationality. 46 U.S.C. § 70502(d) (1)(C). Moreover, although the MDLEA provides an evidentiary mechanism for the government to demonstrate “[t]he response of a foreign nation to a claim of registry,” this provision again does not specify a timeline for the inquiry. 46 U.S.C. § 70502(d)(2) (stating that the response “may be made by radio, telephone, or similar oral or electronic means, and is proved conclusively by certification of the Secretary of State or the Secretary’s des-ignee”). Given the complex issues of international and municipal law that may be at issue, the costs associated with maintaining a registry, and the small size of the boat in question in this case, how can it be expected that an “unequivocal” assertion of nationality could be made by Colombia in twenty-four hours? We have examples in this circuit of countries taking up to five days to provide a definitive response, so imposing an arbitrary timeline of twenty-four hours is something not required by the MDLEA and increases the likelihood of a grave violation of international law. United States v. Cardales, 168 F.3d 548, 551-52 (1st Cir. 1999) (On May 31, Venezuela was unable to say if a boat that claimed Venezuelan registry was Venezuelan, but on June 5 “the Venezuelan government notified the State Department that the [boat] was indeed of Venezuelan registry.”).

This court is directed to avoid interpreting the MDLEA in a way that would result in a violation of international law. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18, 2 L.Ed. 208 (1804). Reading the MDLEA to permit the halfhearted attempt to establish nationality that was made here to establish statelessness in violation of international law is in direct contradiction to this longstanding notion of statutory construction. Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982) (applying Schooner Charming Betsy as a “maxim of statutory construction.”). Because nothing in the statute denied the government or Trinidad’s attorney the ability to conduct further inquiry into the nationality of the vessel, it is incumbent on us to avoid reading into the statute a requirement that the described verification was legally sufficient to establish the statelessness of Trinidad’s boat.

Trinidad’s shipmate invoked Colombian nationality for the vessel, and Colombia could not confirm or deny this assertion within the short time provided. Colombia did not grant U.S. authorities permission to subject the boat to U.S. jurisdiction, and so the United States unilaterally decided that, pursuant to its laws, the vessel was stateless and therefore subject to U.S. criminal laws. I cannot read the MDLEA as permitting such a brazen expansion of U.S. jurisdiction at the expense of international law.

B. The Degree of Proof Necessary to Establish Statelessness

Finally, I further object to this circuit’s treatment of this question as one that may be answered by a preponderance of the evidence. Matos-Luchi, 627 F.3d at 5; see also United States v. Vilches-Navarrete, 523 F.3d 1, 8-10 (1st Cir. 2008) (Torruella, J., dissenting in part). This is done by treating the question of statelessness as one of jurisdiction, but as my analysis above seeks to demonstrate, the status of Trinidad’s boat goes far beyond the question of whether United States courts have jurisdiction. It goes to the very heart of whether there has been any crime committed at all. Matos-Luchi, 627 F.3d at 14 (Lipez, J., dissenting) (“[A] failure to prove that defendants’ conduct, occurred on board a covered vessel amounts to a failure to prove that the defendants violated the MDLEA.”). If Trinidad cannot face any criminal penalty at all in the absence of proof of his vessel’s statelessness, how can proof of his vessel’s statelessness possibly be subjected to a preponderance of the evidence standard? See United States v. Perlaza, 439 F.3d 1149, 1167 (9th Cir. 2006) (holding that when a jurisdictional inquiry into statelessness turns on factual issues, then it “must be . resolved by a jury”).

IV.

With due respect, I cannot join an opinion which validates the blatant violation of international law by the • United States.

      . Apparently content with the "benefit of his bargain,” United States v. Saxena, 229 F.3d 1, 6 (1st Cir. 2000), Trinidad does not challenge the validity of his plea agreement, and so does not challenge the Coast Guard’s determination that his vessel was a "vessel without nationality,” 46 U.S.C. § 70502(c)(1)(A), which the MDLEA defines as a "vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality,” icl at § 70502(d)(1)(C). We thus have no reason to question that determination. Moreover, because Trinidad makes no argument' that his guilty plea is invalid, he also makes no argument that his plea agreement must be vacated because Congress exceeded its constitutional authority under Article I in enacting the MDLEA. As we have made clear that such a challenge would not implicate our subject-matter jurisdiction, we do not address that issue either. E.g,, United States v. Nueci-Peña, 711 F.3d 191, 196-97 (1st Cir. 2013).

      . "Because this appeal follows a guilty plea, we draw the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report ..., and the transcript of the disposition hearing.” United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013).

      . The definition of the term “navigate” found in the Sea Talk Nautical Dictionary is not inconsistent with the District Court's decision to apply the pilot-navigator enhancement. The District Court’s statements during the plea colloquy reflect the District Court’s conclusion that Trinidad must have adjusted the course of the vessel by "employing the elements of position, course, and speed” provided to him by the pre-programmed GPS, and thus that Trinidad must have "determined] [his] position, course, and speed” using the GPS, ‘ and adjusted the course of the vessel accordingly. Sea Talk Nautical Dictionary, http://www.seatalk.info (last visited September 13, 2016).

      . Which applies if the defendant "acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer” on a vessel carrying controlled substances. U.S.S.G. § 2DL 1(b)(3)(c).

      . Cf., United States v. Cardales-Luna, 632 F.3d 731, 739 (1st Cir. 2011) (Torruella, J. dissenting).

      .These are matters that can be raised motu proprio by the court at any stage of the proceedings, and I hereby raise them, See Cardales-Luna, 632 F.3d at 740 (Torruella, J., dissenting) (citing United States v. Madera-López, 190 Fed.Appx. 832, 834 (11th Cir. 2006)). As in Cardales-Luna, I believe that we must address jurisdictional deficiencies as great as this one whenever they present themselves. Id. at 750-51.

      , As with the majority opinion, I take my recount of the relevant facts "from the plea agreement, the change-of plea Colloquy, the unchallenged portions of the presentence investigation report...., and the transcript of the disposition hearing,” supra note 2, at 113, as well as from his co-defendant’s pre-sen-tence report.

      . "This is a small boat, customized with additional engines and fuel tanks for added speed and range. Experience tells us that such boats play a large role in the drug trade.” United States v. González, 311 F.3d 440, 444 n.3 (1st Cir. 2002) (Torruella, J., concurring).

      . Considering that the GPS’s had been already set up, presumably the "handling" would have only required looking at the instrument’s screen, which would indicate the direction to follow, something akin to looking at your watch to see the time or looking at the GPS screens' on the phone or dashboard of an automobile.

      . See Agreement between the Government of the United States of America and the Government of the Republic of Colombia to Suppress Illicit Traffic by Sea, U.S.-Colom., Feb. 20, 1997, T.I.A.S. No. 12,835.

      . Commission of what offense? Against ■whom? And when?

      . The district court calculated that Trinidad had a total offense level of 31. This number was reached by taking the offense level agreed to as part of the plea agreement (31), subtracting two points because Trinidad complied with the requirements for the safety-valve reduction (U.S.S.G. § 2D1.1(b)(17)) and adding two points for the navigator enhancement (U.S.S.G. § 2D1.1(b)(3)(C)). Without the navigator enhancement Trinidad’s total offense level would have been 29, which carried a recommended range of 87-108 months’ imprisonment.

      . Because this statement was agreed to as part of the plea agreement I am setting aside serious concerns that may be raised about the source of this information. Trinidad was interrogated by Homeland Security Agents who "provided Miranda Warnings to the Defendant.” One wonders what meaning Miranda warnings might have to a poor -fisherman from the Dominican Republic. One also wonders if the Dominican consulate in Puerto Rico was contacted and informed that a citizen of the Dominican Republic, who surely may not understand his rights under the U.S. Constitution, was being held and interrogated without counsel being present. See Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77. This is only one of the numerous problems that might arise when foreign nationals are pulled into the United States for criminal prosecution.

      . Because I take issue with whether Trinidad’s boat was actually stateless I am setting aside the question of what type of jurisdiction the Constitution and international law would allow the United States to exercise on stateless vessels. A common view is that ‘‘stateless vessels do not fall within the veil of another sovereign's territorial protection” and therefore “all nations can treat them as their own territory and subject them to their laws.” United States v. Moreno-Morillo, 334 F.3d 819, 828 (9th Cir. 2003) (quoting United States v. Caicedo, 47 F.3d 370, 373 (9th Cir. 1995)). Although this view recognizes that in exercising jurisdiction the United States is not infringing on the rights of another nation to legislate for the boat in question, this still raises due process and jurisdictional concerns regarding the people on the boat. For this reason I agree with those commentators who have found that “[t]he better view appears to be that theré is a need for some jurisdictional nexus in order that a State may extend its laws to those on board a stateless ship and enforce the laws against them.” R.R. Churchill & A.V. Lowe, The Law of the Sea 214 (3d ed. 1999).

      . There are other grounds for allegedly exercising jurisdiction in the legislation, including "a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States.” 46 U.S.C. § 70502(c); but see Cardales-Luna, 632 F.3d at 740 (Torruella, J., dissenting), Those grounds are not at issue here.

      . Customary international law is part of the federal common law. Restatement (Third) of Foreign Relations Law § 111 (Am. Law Inst. 1987); see also Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995) (accepting "the settled proposition that federal common law incorporates international law”).

      . See United Nations Convention on the Law of the Sea art. 91, Dec. 10, 1982, 1833 U.N.T.S. 397 (UNCLOS). Although the United States has not ratified UNCLOS, Article 91 is part of the customary international law codified by UNCLOS, which is recognized by this country. United States v. Alaska, 503 U.S. 569, 588 n.10, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992); see also Lauritzen v. Larsen, 345 U.S. 571, 584, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) ("Perhaps the most venerable and universal rule of maritime law ... is that which gives cardinal importance to the law of the flag.”); see also, United States v. Arra, 630 F.2d 836, 840 (1st Cir. 1980) ("Vessels have the nationality of the nation whose flag they are entitled to fly_” (emphasis added)).

      . In support of this argument the Court cited the example of The Virginius, a boat that claimed U.S. registry and was seized by the Spanish while en route to Cuba. Lauritzen, 345 U.S. at 584 n.17, 73 S.Ct. 921. Although there were questions regarding the validity of the registration, the United States took the position that it was up to the courts of the United States to determine its status. The Attorney General to the Secretary of State, Dec. 17, 1873, Foreign Relations of the United States, 1874 (Washington, DC: GPO, 1874-75), XXXIV: 1113-5. Spain ultimately consented, and paid $80,000 in reparation to the United States. Claims: The Case of the "Virgi-nius," Feb. 27, 1875, 11 U.S.T.I.A. 544 1968.

      .I note that this is a question that does not admit an easy answer. Although a preliminary investigation into Colombian law reveals that "[n]o ship shall have Colombian nationality unless registered under the statute relating to national merchant shipping” the boat at issue in this case is not of a type or size normally associated with "merchant shipping.” U.N. Secretariat, Laws Concerning the Nationality of Ships, U.N. Doc. ST/LEG/SER.B/5 at 25 (1955). It is thus not clear how or when Colombia extends its nationality to recreational vehicles. See United States v. Matos-Luchi, 627 F.3d 1, 18 (1st Cir. 2010) (Lipez, J., dissenting) (arguing that many states do not have formal registries for smaller vessels). In any event, this is a question to be resolved by Colombian courts, not the uniquely unqualified courts of the United States. See Laurit-zen, 345 U.S. at 584, 73 S.Ct. 921.

      . Similarly, under the more recent Drug Trafficking Vessel Interdiction Act of 2008 (DTVIA), which is applicable to submersibles and submersible vessels, a valid claim of the vessel’s nationality can be made verbally by the vessel’s master or individual in charge. 18 U.S.C. § 2285(d)(3).

      . I am unaware of any rule that prohibits the establishment of nationality by the use of circumstantial evidence.

      . The record does not appear to include the required certificate, presumably because Trinidad and Coa-Peña pled guilty and did not challenge the jurisdiction of the court.