United States v. Oscar Jose Carreno Fernandez

USCA11 Case: 23-12337 Document: 44-1 Date Filed: 02/03/2026 Page: 1 of 21

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12337

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR JOSE CARRENO FERNANDEZ,

a.k.a. Oscar Correno,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cr-20592-BB-3

____________________

____________________

No. 23-12338

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

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2 Opinion of the Court 23-12337

Plaintiff-Appellee,

versus

LUIS JOSE ALFONZO RODRIGUEZ,

a.k.a. Luis Jose Alfonzo,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cr-20592-BB-4

____________________

____________________

No. 23-12376

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS ALBERTO HERNANDEZ OSORIO,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cr-20592-BB-1

____________________

Before JORDAN, KIDD, and MARCUS, Circuit Judges.

PER CURIAM:

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23-12337 Opinion of the Court 3

Jesus Alberto Hernandez Osorio, Oscar Carreno Fernandez,

and Luis Jose Alfonzo Rodriguez were indicted on and pled guilty

to one count of knowingly conspiring to possess with intent to dis-

tribute five or more kilograms of cocaine while on board a vessel

subject to the jurisdiction of the United States, in violation of 46

U.S.C §§ 70503(a)(1), 70506(a) & (b) and 21 U.S.C. § 960(b)(1)(B).

According to their stipulated factual proffers, the defendants had

been found off the coast of Venezuela in a go-fast vessel that was

transporting 955 kilograms, or over a ton, of cocaine, to the United

States. In this consolidated appeal, the defendants argue that their

indictment should have been dismissed because (a) the prosecution

violated due process because (i) the Maritime Drug Law Enforce-

ment Act (“MDLEA”) is void for vagueness, (ii) there was no nexus

between their conduct and the United States, and (iii) they were

not read warnings pursuant to Miranda v. Arizona, 384 U.S. 436

(1966), when officers boarded the vessel; (b) the vessel was inter-

dicted in the Exclusive Economic Zone (“EEZ”) of Venezuela, not

the “high seas” as required by the MDLEA; (c) the Netherlands con-

ducted the enforcement action; and (d) the government failed to

sufficiently establish statutory jurisdiction by showing that the ves-

sel was without nationality. The defendants also challenge the be-

low-guidelines 75-month sentence the district court imposed on

each of them, arguing that they were entitled minor role reduc-

tions. After careful review, we affirm.

I.

While we usually review the denial of a motion to dismiss

an indictment for abuse of discretion, we review it de novo when

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4 Opinion of the Court 23-12337

it involves the district court’s subject matter jurisdiction. United

States v. Alfonso, 104 F.4th 815, 820 (11th Cir. 2024). We review the

district court’s determination of a defendant’s role in his offense for

clear error. United States v. De Varon, 175 F.3d 930, 937 (11th

Cir. 1999) (en banc). The district court has “considerable discre-

tion” in deciding the fact-intensive question of whether a defendant

played a minor role in the offense, United States v. Boyd, 291 F.3d

1274, 1277–78 (11th Cir. 2002), and we will not upend a district

court’s sentencing determination unless we are left with a “‘definite

and firm conviction that a mistake’” was made, United States v.

Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016). If there are “two

permissible views of the evidence as to the defendant’s role in the

offense,” clear error will rarely exist “so long as the basis of the trial

court’s decision is supported by the record and does not involve a

misapplication of a rule of law.” Id. (citation modified).

“[A] prior panel’s holding is binding on all subsequent panels

unless and until it is overruled or undermined to the point of abro-

gation by the Supreme Court or by this [C]ourt sitting en banc.”

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Un-

published decisions are not binding precedent. United States v. Mor-

ris, 131 F.4th 1288, 1293 n.3 (11th Cir. 2025).

A defendant abandons a claim he does not raise in his initial

brief. United States v. Grimon, 923 F.3d 1302, 1308 (11th Cir. 2019).

“If pertinent and significant authorities come to a party’s attention

after the party’s brief has been filed,” the party may advise this

Court by filing a letter with us. Fed. R. App. P. 28(j).

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23-12337 Opinion of the Court 5

II.

First, we are unpersuaded by the defendants’ challenges to

their indictments. The MDLEA makes it a crime to “knowingly or

intentionally . . . possess with intent to manufacture or distribute,

a controlled substance” on board “a [covered] vessel subject to the

jurisdiction of the United States,” and to conspire to do the same.

46 U.S.C. §§ 70503(a)(1), (e)(1), 70506(b). A “vessel subject to the

jurisdiction of the United States” includes “a vessel without nation-

ality,” such as “a vessel aboard which the master or individual in

charge fails, on request of an officer of the United States authorized

to enforce applicable provisions of United States law, to make a

claim of nationality or registry for that vessel.” Id. § 70502(c)(1)(A),

(d)(1)(B). “A claim of nationality or registry . . . includes only” the

possession and production of documents evidencing the vessel’s

nationality, the flying of its nation’s flag, or “a verbal claim of na-

tionality or registry by the master or individual in charge of the

vessel.” § 70502(e). “‘The government bears the burden of estab-

lishing that the statutory requirements of MDLEA subject-matter

jurisdiction are met.’” Alfonso, 104 F.4th at 820.

In United States v. Cabezas-Montano, the United States Coast

Guard (“USCG”) stopped a go-fast vessel (“GFV”) with three pas-

sengers on board travelling at a high rate of speed about 200 miles

off the coast of Central America. 949 F.3d 567, 577–78 (11th Cir.

2020). A team with a Spanish translator boarded the GFV and be-

gan asking right-of-visit questions to determine the GFV’s nation-

ality. Id. at 579–80. The team asked the passengers twice if anyone

wished to make a claim of nationality, and no one responded. Id.

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6 Opinion of the Court 23-12337

at 580. The team asked if any passenger was the master of the ves-

sel, and while initially silent, when asked a second time, the passen-

gers began pointing to one another as the masters. Id. The team

again asked who the GFV’s master was, and the passengers contin-

ued to point to one another without speaking. Id. The team then

determined that the GFV was without nationality. Id.

On appeal, the defendants argued that the government did

not establish MDLEA jurisdiction by showing that the GFV was

without nationality. Id. at 588–89. We disagreed, noting that when

the boarding team asked each defendant who the master of the

GFV was, the defendants pointed at each other, but otherwise did

not respond. Id. at 589. The boarding team also asked the defend-

ants individually if anyone wished to make a claim of nationality

for the GFV, and again no one responded. Id. We recognized that

the boarding team did not ask who was “in charge” of the GFV, but

that the team’s questions were nevertheless sufficient because they

asked each defendant if anyone wished to make a claim of nation-

ality. Id. at 589 n.14. Thus, any individual who possessed authority

to make a claim of nationality had the opportunity to do so. Id.

Later, in United States v. Nunez, we recognized that, some-

times, vessels may have no master or individual in charge. 1 F.4th

976, 986 (11th Cir. 2021). There, USCG officers intercepted a small

boat on the high seas. Id. at 980. One officer asked the four men

on the boat “who was the master, who was in charge,” and no one

answered. Id. at 981. The officer then asked who piloted the boat,

and one man said that they took turns, and the others appeared to

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23-12337 Opinion of the Court 7

agree by their body language. Id. Ultimately, about 180 kilograms

of cocaine were recovered from the boat, and the four men were

indicted for violating the MDLEA. Id. at 982.

Before trial, the government moved for a ruling that the

United States had jurisdiction because the boat was a stateless ves-

sel, and the defendants moved to dismiss the indictment for lack of

jurisdiction and requested an evidentiary hearing. Id. At a pretrial

hearing, the district court held that it had jurisdiction under the

MDLEA because the boat was stateless, as indicated by the lack of

indica bearing nationality on the boat, lack of paperwork or identi-

fication numbers on the boat, and the fact that “no crew member

claimed nationality or registry of the vessel.” Id. (citation modi-

fied). It further ruled it was not required to hold an evidentiary

hearing on the issue because the defendants did not contest the ju-

risdictional facts, nor had they identified evidence they hoped to

introduce showing a lack of jurisdiction. Id. Following a trial, the

defendants were found guilty. Id. at 983.

On appeal, we ruled that the United States had jurisdiction

over the defendants under the MDLEA. Id. We explained that the

boat “had no master or individual in charge who could make a ver-

bal claim of registry under section 70502(e),” since no one onboard

claimed to be the master or individual in charge and they all ap-

peared to agree that they took turns driving the boat. Id. at 985.

We pointed to the record evidence showing that the defendants

were “equals,” and that there was “no evidence of a hierarchy

among” them. Id. We ruled that § 70502(d)(1)(B)’s requirement

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8 Opinion of the Court 23-12337

“applies only when the master or individual in charge is aboard the

vessel” and that USCG officers are not required to ask the crew to

make a claim of nationality or registry when there is no master or

individual in charge aboard the vessel. Id. at 985–86. We further

ruled that the district court did not abuse its discretion in denying

the defendants’ request for an evidentiary hearing on the issue, be-

cause the MDLEA did not require a hearing to be held, and the

defendants did not identify any facts they would have contested

nor proffer evidence they would have presented at the hearing. Id.

at 988.

As for Congress’s authority under Article I, Section 8, Clause

10 of the Constitution, Congress has “(1) ‘the power to define and

punish piracies,’ (the Piracies Clause); (2) ‘the power to define and

punish felonies committed on the high [S]eas,’ (the Felonies

Clause); and (3) ‘the power to define and punish offenses against

the law of nations’ (the Offences Clause).” Alfonso, 104 F.4th at 820;

see also U.S. Const. art. I, § 8, cl. 10.

In Alfonso, the defendants appealed their convictions under

the MDLEA, arguing that the district court improperly denied their

motion to dismiss their indictment because the MDLEA was un-

constitutional as applied to them under the Felonies Clause. 104

F.4th at 818–19. The defendants claimed that, because they were

seized in the Dominican Republic’s EEZ, their offense did not oc-

cur in the high seas, meaning the court did not have authority to

prosecute them under the MDLEA. Id. As a matter of first impres-

sion, we ruled that a nation’s EEZ is “part of the ‘high seas’ for

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23-12337 Opinion of the Court 9

purposes of the Felonies Clause in Article I of the Constitution,”

and thus, “enforcement of the MDLEA in EEZs is proper.” Id. at

823, 827. We also explained that “international law does not limit

the Felonies Clause.” Id. at 826. We concluded that the district

court appropriately denied the defendants’ motion to dismiss the

indictment. Id. at 827; see also United States v. Canario-Vilomar, 128

F.4th 1374, 1382 (11th Cir. 2025) (reaffirming Alfonso’s holding),

cert. denied, No. 25-5506 (U.S. Oct. 6, 2025).

The Alfonso defendants also argued that the MDLEA prose-

cution against them violated the Due Process Clause and exceeded

Congress’s authority under the Felonies Clause because “the drug

offenses they were charged with and convicted of bore no nexus to

the United States.” 104 F.4th at 818 n.4. In response, we noted

that the argument was foreclosed by binding precedent. Id. (cit-

ing Cabezas-Montano, 949 F.3d at 587 (explaining that “this Court

has held that the MDLEA is a valid exercise of Congress’s power

under the Felonies Clause as applied to drug trafficking crimes

without a ‘nexus’ to the United States”)); see also Canario-Vilomar,

128 F.4th at 1382–83 (reaffirming the holding in Alfonso and prior

precedent that due process does not require that the conduct pro-

hibited under the MDLEA have a nexus to the United States).

We recently rejected a defendant’s void-for-vagueness chal-

lenge against the MDLEA. United States v. Gruezo, 66 F.4th 1284,

1292 (11th Cir.), cert. denied, 144 S. Ct. 178 (2023). There, the de-

fendant argued that the MDLEA was “overly vague and ambigu-

ous” because it did not require the USCG “to explain what it means

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to ‘make a claim of nationality or registry for the vessel.’” Id. We

disagreed, holding that the MDLEA was “sufficiently clear to give

ordinary people notice that, without a claim of nationality or reg-

istry for the vessel upon request, the vessel will be considered state-

less for purposes of jurisdiction under the MDLEA.” Id.

In that same case, we also rejected the defendant’s argument

that the MDLEA violated his Miranda rights because it did not re-

quire law enforcement to inform the master of vessel the conse-

quences of failing to make a claim of nationality. Id. We analyzed

the issue as an as-applied and facial challenge. Id. Under the as-

applied standard, we ruled that the defendant’s argument was

waived by his guilty plea, because a valid guilty plea rendered the

issue irrelevant. Id. To the facial challenge, we ruled that prior

precedent foreclosed the argument, since we’ve long recognized

that a USCG’s routine stop, boarding, and inspection of an Ameri-

can vessel on the high seas did not qualify as a custodial detention

triggering Miranda protections. Id. (citing United States v. Rioseco,

845 F.2d 299, 302–03 (11th Cir. 1988)).

We add that foreign countries regularly cooperate with the

United States in MDLEA prosecutions. For instance, in United

States v. Hurtado, a British vessel with a United States law enforce-

ment detachment stopped a vessel in international waters, the Brit-

ish vessel engaged in the right-of-approach questioning, and the

United States law enforcement personnel aboard the British vessel

reported the answers to those questions to a nearby USCG district

responsible for coordinating and commanding actions in that area.

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89 F.4th 881, 886–87 (11th Cir. 2023); see also Canario-Vilomar, 128

F.4th at 1377–78 (MDLEA prosecution initiated by a Dutch Mari-

time Patrol Aircraft spotting a GFV near Colombia, with a helicop-

ter and USCG boat dispatched to make contact with the GFV). We

recognized that right-of-approach questioning to ascertain the na-

tionality of a vessel in international waters was allowed under in-

ternational laws, and “can be conducted by a law enforcement ves-

sel in international waters as a matter of course.” Hurtado, 89 F.4th

at 886–87. These principles take into account “treaties, the

MLDEA, and international law.” Id. at 893 (citation modified).

As for treaties and international law, the United States is a

signatory to the United Nations Convention Against Illicit Traffic

in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988,

1582 U.N.T.S. 95. In that treaty, the United States and 105 United

Nation States, including Denmark, agree to cooperate with one an-

other in ending the illicit international trafficking of narcotics. The

United States, Netherlands, and other countries also are part of the

Agreement Concerning Co-Operation in Suppressing Illicit Mari-

time and Air Trafficking in Narcotic Drugs and Psychotropic Sub-

stances in the Caribbean Area, which aims to further expand the

U.N. Convention Against Illicit Traffic in the Caribbean Region.

Here, most of the defendants’ arguments are foreclosed by

our binding precedent. This includes their arguments that: (1) the

MDLEA is void for vagueness, see Gruezo, 66 F.4th at 1292; (2) the

lack of a nexus between their offense conduct and the United States

warrants dismissal, see Alfonso, 104 F.4th at 818 n.4; Cabezas-

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12 Opinion of the Court 23-12337

Montano, 949 F.3d at 587; Canario-Vilomar, 128 F.4th at 1380, 1382–

82; (3) the offense conduct did not occur in the high seas because

their offense conduct occurred in Venezuela’s EEZ, see Alfonso, 104

F.4th at 823, 827; and (4) the MDLEA violates Miranda, see Gruezo,

66 F.4th at 1292. We are bound by this precedent unless and until

the Supreme Court, or this Court sitting en banc, holds otherwise,

and that has not occurred. See Archer, 531 F.3d at 1352.

The defendants’ remaining arguments similarly have no

merit. As for their argument that the government failed to prove

that the vessel was without nationality, we disagree. As the record

reflects, the USCG officers who conducted the right-of-approach

questioning asked each defendant if he was the master or captain

of the vessel, and each refused to answer. Under our binding case

law, because no one answered and the record evidence otherwise

indicated that the defendants were equals on the vessel, the USCG

officers were not then required to ask the defendants to make a

claim of nationality. See Nunez, 1 F.4th at 986. Nunez is our binding

precedent on this issue; United States v. Guerro, 789 F. App’x 742,

744 (11th Cir. 2019), an unpublished decision, is not. Moreover, to

the extent the defendants argue the district court was required to

hold an evidentiary hearing on the issue, Nunez expressly rejected

this claim, especially since the defendants did not identify any facts

they would have contested at the hearing nor proffer evidence they

would have presented. See Nunez, 1 F.4th at 986.

The defendants’ reliance on Cabezas-Montano is misplaced.

There, unlike here, the defendants were attempting to paint each

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other as the GFV’s master, so the USCG officer did not ask for the

individual in charge; instead, the officer asked if anyone wished to

make a claim of nationality. 949 F.3d at 580, 589 n.14. Nunez made

it clear that, in instances like the one before us -- where the passen-

gers aboard the GFV do not answer who is the master or individual

in charge of the vessel, and the circumstances show that they are

equals in their role on the GFV -- the USCG is not required to ask

the defendants to make a claim of nationality. 1 F.4th at 986.

As for the defendants’ argument that the involvement of the

Netherlands in the interdiction stripped the government of juris-

diction, we also are unpersuaded. For one thing, the defendants

have not cited any authority disallowing foreign countries other

than the United States to assist in interdicting a vessel in interna-

tional waters. Instead, the use of other foreign countries’ vessels

or crew is commonplace. See Hurtado, 89 F.4th at 886–87; Canario-

Vilomar, 128 F.4th at 1277–78. Moreover, the United States is party

to at least two agreements with other countries, including the

Netherlands, to assist one another in curbing illicit international

drug trafficking. See U.N. Convention Against Illicit Traffic at 2–3,

11; see also Caribbean Regional Agreement. Further, we’ve recog-

nized the authority that other countries have to conduct right-of-

approach questioning on vessels in MDLEA prosecutions. See Hur-

tado, 89 F.4th at 886–87. Thus, the district court did not err in deny-

ing the defendants’ motions to dismiss the indictment on this basis

or the others we’ve discussed, and we affirm.

III.

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We also find no merit to the defendants’ claim that the dis-

trict court clearly erred in denying them minor role adjustments at

sentencing. The Sentencing Guidelines provide that a defendant is

entitled to a two-level decrease in his offense level if he was a minor

participant in the criminal activity. U.S.S.G. § 3B1.2(b) (2021). Un-

der the Guidelines, a minor participant role reduction applies to a

defendant who is substantially less culpable than the average par-

ticipant in the criminal activity and less culpable than most other

participants in the criminal activity “but whose role could not be

described as minimal.” Id. § 3B1.2, cmt. n.3(A), 5. 1 Defendants bear

the burden of establishing by a preponderance of the evidence that

they are entitled to minor role reductions. United States v. Valois,

915 F.3d 717, 731 (11th Cir. 2019).

Determining whether a defendant is entitled to a minor role

reduction is a fact intensive inquiry based on the totality of the cir-

cumstances. U.S.S.G. § 3B1.2, cmt. n. 3(C); Cruickshank, 837 F.3d

at 1195. Two principles guide the determination of whether a de-

fendant played a minor role in the criminal scheme: (1) “the de-

fendant’s role in the relevant conduct for which [he] has been held

accountable at sentencing,” and (2) his “role as compared to that of

1 If “‘uncertainty does not exist’” in a Sentencing Guideline, courts “may not

defer” to the commentary to that Guideline. United States v. Dupree, 57 F.4th

1269, 1275 (11th Cir. 2023) (en banc). However, we’ve relied on commentary

where “[n]o party contest[ed] the commentary’s validity . . . or the propriety

of its interpretation of [the Guideline’s] text.” United States v. Jews, 74 F.4th

1325, 1327 n.2, 1328 (11th Cir. 2023). Here, both parties rely on the commen-

tary and do not dispute its validity, so we may consider and defer to it.

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other participants in [his] relevant conduct.” De Varon, 175 F.3d at

940. Under De Varon’s first principle, “the inquiry is whether the

defendant ‘played a relatively minor role in the conduct for which

[he] has already been held accountable -- not a minor role in any

larger criminal conspiracy.’” Valois, 915 F.3d at 732. “[W]hen a

drug courier’s relevant conduct is limited to [his] own act of impor-

tation, a district court may legitimately conclude that the courier

played an important or essential role in the importation of those

drugs.” De Varon, 175 F.3d at 942–43. Additionally, “the amount

of drugs imported is a material consideration in assessing a defend-

ant’s role in [his] relevant conduct.” Id. at 943. In fact, the amount

of drugs in a defendant’s possession “may be dispositive” in “ex-

treme” cases. Id.

Under De Varon’s second prong, in comparing the defend-

ant’s role to that of other participants, only those participants who

were involved in the relevant conduct attributed to the defendant

are relevant. United States v. Martin, 803 F.3d 581, 591 (11th Cir.

2015). “Even if a defendant played a lesser role than the other par-

ticipants, that fact does not entitle [him] to a role reduction ‘since

it is possible that none are minor or minimal participants.’” Id. A

defendant “may not prove he is entitled to a minor-role reduc-

tion by pointing to a broader criminal scheme in which he was a

minor participant but for which he was not charged.” United States

v. Gruezo, 66 F.4th 1284, 1294 (11th Cir. 2023).

The district court should also consider the following factors:

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16 Opinion of the Court 23-12337

(i) the degree to which the defendant understood the

scope and structure of the criminal activity;

(ii) the degree to which the defendant participated in

planning or organizing the criminal activity;

(iii) the degree to which the defendant exercised deci-

sion-making authority or influenced the exercise of

decision-making authority;

(iv) the nature and extent of the defendant’s partici-

pation in the commission of the criminal activity, in-

cluding the acts the defendant performed and the re-

sponsibility and discretion the defendant had in per-

forming those acts;

(v) the degree to which the defendant stood to benefit

from the criminal activity.

U.S.S.G. § 3B1.2, cmt. n.3(C) (2021).

The Commentary further instructs that “a defendant who

does not have a proprietary interest in the criminal activity and

who is simply being paid to perform certain tasks should be consid-

ered for an adjustment under this guideline.” Id. Likewise, “a de-

fendant who is convicted of a drug trafficking offense, whose par-

ticipation in that offense was limited to transporting . . . drugs and

who is accountable under § 1B1.3 only for the quantity of drugs the

defendant personally transported . . . may receive an adjustment

under this guideline.” Id. § 3B1.2, cmt. n.3(A). Essentially, “[t]he

court must consider all of [the § 3B1.2] factors to the extent

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23-12337 Opinion of the Court 17

applicable, and it commits ‘legal error in making a minor role deci-

sion based solely on one factor.’” Valois, 915 F.3d at 732; see also

Cruickshank, 837 F.3d at 1195 (concluding that, “although nothing .

. . precludes a district court from considering the drug quantity

with which the defendant was involved as an indicator of his role,

we think it was legal error for the district court to say that this is

the only factor to be considered”).

We’ve repeatedly affirmed district court decisions denying

minor role reductions in MDLEA prosecutions where the defend-

ants were merely transporting large quantities of drugs. See, e.g.,

Valois, 915 F.3d at 731–33. So, for example, in Valois, we affirmed

where the record showed “that all three defendants knowingly par-

ticipated in the illegal transportation of a large quantity of cocaine,

they were important to that scheme, and they were held responsi-

ble only for that conduct.” Id. We explained that while those facts

did not render the defendants ineligible for minor role reductions,

they supported the court’s denial of them. Id. at 732.

Recently, the Sentencing Commission amended the Sen-

tencing Guidelines. U.S.S.G. § 2D1.1(e)(2) (2025). Nevertheless,

the Commission did not make the 2025 amendment retroactively

applicable. Id. § 1B1.10(d) (2025). Instead, the amendment is effec-

tive November 1, 2025. Id.; U.S.S.G. App. C, Amend. 833 (eff. Nov.

1, 2025). Generally, in reviewing a district court’s application of the

Sentencing Guidelines, we apply the version of the Guidelines in

effect at the time of the defendants’ sentencing. United States v. Jer-

chower, 631 F.3d 1181, 1184 (11th Cir. 2011). New amendments

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18 Opinion of the Court 23-12337

should be considered on appeal regardless of this general principle

only if the new amendment is considered “clarifying” instead of

“substantive.” Id. While clarifying amendments are given retroac-

tive application on appeal, substantive amendments are not. Id.

We’ve developed a multi-factored analysis to determine whether

an amendment is clarifying or substantive. Id. at 1185.

Here, the district court did not clearly err in denying the de-

fendants minor role reductions. First, as for the defendants’ argu-

ment that the district court failed to adequately compare their ac-

tions in comparison to the others in the overall drug trafficking

scheme, the district court was not required to make these compar-

isons. See Gruezo, 66 F.4th at 1294; see also Martin, 803 F.3d at 591.

While there very likely are unidentified and uncharged individuals

in the overarching drug trafficking scheme, including those who

manufactured the cocaine and those who waited in the United

States to obtain the cocaine and distribute it, those individuals were

not charged in the current case. This means that they are irrelevant

to the minor role evaluation, so the court did not clearly err in fail-

ing to consider these other unknown and unnamed individuals

when it properly considered the defendants’ roles in the smaller

conspiracy scheme to possess with intent to distribute while on

board a vessel.

As for the argument that the court failed to adequately com-

pare each defendant to another, the record does not support it. At

each of the defendants’ sentencing hearings, the court found that

the defendant engaged in the “same” or “equal” offense conduct as

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23-12337 Opinion of the Court 19

the others. The court noted that “it was a jointly undertaken activ-

ity in which to travel aboard this vessel in order to transport these

38 bales of cocaine”; that all “of the individuals navigated the vessel

together”; and that “there’s no evidence otherwise.” These find-

ings were consistent with the defendants’ identical factual proffers

and presentence investigation reports (PSIs), which specified that

none of the individuals on the GFV had identified himself, or been

identified as the master of vessel. While Hernandez Osorio

claimed in his objections to the PSI that another defendant was the

“boat’s captain,” he did not identify the defendant or offer evidence

in support. And even if one defendant played a smaller role than

another, this circumstance alone would not entitle that defendant

to a role reduction. Martin, 803 F.3d at 591. Thus, the district court

did not clearly err in comparing each defendant’s role to the others

in the smaller conspiracy scheme to possess with intent to distrib-

ute while on board a vessel.

Further, the record reflects that the court appropriately con-

sidered the De Varon factors in addition to the factors found in the

Commentary and did not focus solely on drug quantity. Among

other things, as we’ve noted, the district court made it clear that

these defendants were “certainly not being held accountable for

those who might have owned or manufactured the cocaine, or

those that ultimately would have a financial interest on the other

end, even those who may have been the mastermind of the

transport across navigable waters,” or those “who acquired the ves-

sel” or were involved “in the planning and in the control.” Instead,

the court found, Hernandez Osorio, Carreno Fernandez and

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20 Opinion of the Court 23-12337

Alfonzo Rodriguez were being held accountable for possessing 955

kilograms of cocaine and for attempting to transport that cocaine

for distribution, which consisted of them manning a vessel holding

over a ton of cocaine that was headed to the United States. See

U.S.S.G. § 3B1.2, cmt. n. 3(C). The court added that these defend-

ants followed the plan given to them and executed it. On this rec-

ord, the district court did not clearly err in finding that each of these

defendants -- who jointly navigated a go-fast vessel transporting

over a ton of cocaine from South America to the United States --

was integral to the conspiracy-to-possess-with-intent scheme, and

that they were not entitled to a minor role reduction. See De Varon,

175 F.3d at 942–43. This is especially the case since the district

court imposed a substantial downward variance from their advi-

sory guideline range of 108 to 135 months’ imprisonment to 75

months’ imprisonment. See Valois, 915 F.3d at 733. 2

2 Notably, the defendants do not argue on appeal that the recent amendments

to the Sentencing Guidelines concerning minor-role reductions should retro-

actively apply to them. Nor have they moved our Court to allow them to

amend their initial briefs to include this argument since the publication of the

2025 Amendment, nor have they filed a Rule 28(j) letter to inform us of this

update in the law in support of their sentencing argument. See Fed. R. App. P.

28(j). As a result, the defendants have abandoned the issue of retroactivity by

failing to raise it and we need not consider whether the 2025 Amendment ap-

plies retroactively here. See Grimon, 923 F.3d at 1308.

But, in any event, our analysis would not have been affected by any

argument concerning the retroactive application of the 2025 Amendment.

The 2025 Amendment provides that a minor-role reduction is “generally war-

ranted” for a defendant performing the “lowest level of drug trafficking func-

tions,” acting as “a courier, running errands, sending or receiving phone calls

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23-12337 Opinion of the Court 21

Accordingly, we affirm.

AFFIRMED.

or messages, or acting as a lookout,” or involved with “user-level quantities

for little or no monetary compensation.” U.S.S.G. § 2D1.1(e)(2) (2025). How-

ever, the defendants in this case were not acting as “lowest level” couriers, nor

were they distributing “user-level quantities for little or no monetary compen-

sation”; rather, they were found to have jointly navigated a go-fast vessel

transporting over a ton of cocaine (a very large quantity of cocaine when

measured by any metric) off the coast of Venezuela to the United States.

What’s more, they engaged in the offense conduct for the purpose of obtain-

ing a large sum of money, regardless of whether they actually received the full

amount of a promised $25,000.