United States v. Alexander Rafael Santos-Santana

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10367

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEXANDER RAFAEL SANTOS-SANTANA,

PAULINO VASQUEZ-RIJO,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cr-20384-BB-2

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2 Opinion of the Court 22-10367

____________________

Before NEWSOM, GRANT, and LAGOA, Circuit Judges.

PER CURIAM:

In this consolidated appeal, Alexander Santos-Santana and

Paulino Vasquez-Rijo (collectively, “Defendants”) challenge their

convictions and sentences of 120 months’ imprisonment for con-

spiracy to possess cocaine while on board a vessel subject to the

jurisdiction of the United States. On appeal, Defendants make sev-

eral arguments.

First, they argue that 46 U.S.C. § 70502(d)(1)(C) of the Mari-

time Drug Law Enforcement Act (“MDLEA”) is facially invalid un-

der the Felonies Clause, U.S. Const. art. I, § 8, cl. 10, because the

MDLEA expands jurisdiction to vessels that make a verbal claim of

nationality without any corroboration by the named nation. They

contend that, under customary international law, a verbal claim of

nationality without corroboration constitutes proof of the vessel’s

nationality, and that the Felonies Clause should be read in conjunc-

tion with customary international law because the clause contains

international law terms. Santos-Santana also asks us to adopt the

First Circuit’s decision in United States v. Davila-Reyes, 23 F.4th

153 (1st Cir. 2022), reh’g en banc granted, op. withdrawn, 38 F.4th

288 (1st Cir. 2022), which held that Congress exceeded its power

by defining a “vessel without nationality” to include vessels for

which the crew claimed a nationality but the nation neither con-

firmed nor denied. They also argue that the MDLEA is

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22-10367 Opinion of the Court 3

unconstitutional as applied to them because the vessel was in the

Dominican Republic’s Exclusive Economic Zone (“EEZ”), which

customary international law excludes from the high seas.

Second, Defendants contend that the district court clearly

erred in determining that they did not qualify for safety-valve relief.

While the United States Coast Guard (“USCG”) found a firearm on

board the boat Defendants were on, Defendants argue that there

was no evidence that they possessed that firearm, as the firearm

was found in a plastic bag underneath an unused engine in the rear

of the boat and unloaded with no ammunition present on the boat.

They argue that the district court applied the incorrect standard

because it confused the safety valve with the firearm enhancement,

pursuant to U.S.S.G. § 2D1.1. Third, Santos-Santana argues that

the district court clearly erred in determining that he did not qualify

for a minor-role reduction because he testified that Vasquez-Rijo

had greater responsibility on the vessel than he did.

For the reasons discussed below, we affirm.

I. BACKGROUND

A. Factual Background Common to Both Defendants

In 2021, a federal grand jury charged Defendants each with

one count of conspiracy to possess a controlled substance aboard a

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

of 46 U.S.C. § 70506(b) (Count One), and one count of possession

with intent to distribute a controlled substance aboard a vessel sub-

ject to the jurisdiction of the United States, in violation of 46 U.S.C.

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4 Opinion of the Court 22-10367

§ 70506(a)(1) (Count Two). Both Defendants pleaded guilty, with-

out a plea agreement, to Count One, with the understanding that

the government would move to dismiss Count Two at the time of

sentencing.

According to the stipulated factual proffers each signed by

Defendants, on July 5, 2021, “a maritime patrol aircraft (MPA) de-

tected a go-fast vessel (GFV) approximately 80 miles southwest of

Mona Island, Puerto Rico, in international waters and upon the

high seas.” The MPA observed two people and multiple packages

on board the GFV with no flag or any other indicia of nationality.

The USCG arrived on the scene and found Defendants on board

the GFV. While neither identified themselves as the master of the

GFV, Vasquez-Rijo made a verbal claim of Dominican nationality

for the vessel. USCG contacted the Dominican Republic’s govern-

ment, which could neither confirm nor deny the nationality of the

GFV. The USCG boarding team recovered 12 bales consisting of

approximately 357 kilograms of cocaine, and a shotgun. The par-

ties stipulated that the vessel “was a vessel without nationality” and

subject to United States jurisdiction, pursuant to 46 U.S.C.

§ 70502(c).

At the change of plea hearing, both Defendants were sworn.

In relevant part, the government summarized the factual basis as it

appeared in the stipulated factual proffers, and both Defendants ad-

mitted to the facts as detailed. The district court found that the

United States had jurisdiction over the vessel as a vessel without

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nationality, pursuant to § 70502(c). And the district court accepted

each Defendant’s plea of guilty.

The U.S. Probation Office generated both Defendants’ indi-

vidual presentence investigation reports (“PSI”), describing the of-

fense conduct with the stipulated factual proffer. Each PSI further

provided that the firearm found onboard was unloaded and no am-

munition was located on the GFV. The PSIs stated that neither

Defendant qualified for an aggravating or mitigating role adjust-

ment because the evidence did not suggest that one of the conspira-

tors was the captain or navigator of the vessel. The PSIs also stated

that neither Defendant qualified for safety-valve relief under

U.S.S.G. § 5C1.2 because they possessed a firearm in connection

with the offense.

Pursuant to U.S.S.G. § 2D1.1, their base offense level was 36

because the offense involved at least 150 kilograms but less than

450 kilograms of cocaine. Pursuant to § 2D1.1(b)(1), they each re-

ceived a two-level increase because there was a firearm aboard the

vessel. Pursuant to U.S.S.G. § 3E1.1(a) and (b), they each received

a total 3-level reduction for their acceptance of responsibility, re-

sulting in a total offense level of 35. They each were assigned zero

criminal history points, resulting in a criminal history category of

I. Santos-Santana’s PSI noted that Santos-Santana had been em-

ployed as a boat driver. The statutory maximum term of impris-

onment for each was life imprisonment, and the minimum term

was ten years. Based on their total offense level of 35 and criminal

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history category of I, each of their guideline ranges was 168 to 210

months’ imprisonment.

Santos-Santana objected to the two-level increase for posses-

sion of a firearm because there was no evidence that the firearm

was used to commit the crime, no ammunition on the boat, and no

evidence that he possessed the firearm or intended to possess the

firearm. He objected that he should have received a two-level mi-

nor-role reduction to his offense level, arguing that his role com-

pared to Vasquez-Rijo’s was minor because the evidence showed

that he (1) did not obtain the boat; (2) did not have relationships

with anyone in Colombia related to the conspiracy; (3) had no con-

nection to the firearm; and (4) received instructions from Vasquez-

Rijo as to his role in the conspiracy. He contended that Vasquez-

Rijo’s conduct included planning and organizing the conspiracy

while his conduct included accompanying Vasquez-Rijo. He also

objected that he should have received safety-valve relief, pursuant

to U.S.S.G. § 5C1.2, despite the unloaded firearm found on the

boat. He argued that constructive possession was insufficient to

preclude safety-valve relief and that there was no evidence that he

actually possessed the firearm in connection with the offense.

Vasquez-Rijo objected to the two-level increase pursuant to

§ 2D1.1(b)(1) because the firearm was unloaded, no ammunition

was recovered aboard the vessel, and he did not claim ownership

of the gun. He also argued that he should have received safety-

valve relief, pursuant to § 5C1.2, because he did not actually possess

the firearm, as it was found in a black plastic bag underneath an

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engine on the vessel, and because there was no evidence that he

induced anyone to possess the firearm.

The government responded that the two-level increase was

proper because the firearm was present on the vessel and neither

Defendant had shown that the connection between the firearm and

the offense was clearly improbable. The government contended

that Defendants’ constructive possession of the firearm was suffi-

cient to preclude safety-valve relief. The government argued that

the firearm was connected to the offense because the vessel was

small and contained both the firearm and the cocaine. The gov-

ernment also argued that Santos-Santana did not qualify for a mi-

nor-role reduction because the record did not support his claims

about his role in the conspiracy; the conduct he was being held ac-

countable for was attempting to smuggle 357 kilograms of cocaine

through a vessel, for which his and Vasquez-Rijo’s roles were the

same.

B. Vasquez-Rijo’s Sentencing Hearing

At Vasquez-Rijo’s sentencing hearing, the district court con-

firmed that both the government and Vasquez-Rijo agreed that the

firearm was found in a black plastic trash bag underneath the sec-

ondary engine near the rear of the vessel. The district court asked

the government where the firearm was in relation to the drugs, to

which the government answered that the drugs, firearm, fuel

drums, and spare engine were scattered and distributed through-

out “a very small area of the boat,” which was thirty-feet long with

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approximately twenty-feet of length constituting the vessel’s inte-

rior.

As to his objections, Vasquez-Rijo argued that there was no

evidence that he owned or brought the firearm on board the vessel

nor evidence of who initially possessed the firearm, who brought

the firearm on board, or the condition of the firearm when it was

placed on the vessel. He argued that the firearm was unloaded,

that he lacked access to ammunition, and that the firearm was not

easily accessible because it was wrapped in a bag underneath an

engine. He reiterated there was no evidence that he possessed the

firearm or evidence to link the possession of the firearm to anyone

involved in the instant offense conduct. As to safety-valve relief,

he argued that he did not actually possess the firearm and that there

was a difference between his two objections, i.e., the lower burden

for safety-valve relief and the fact that a defendant may receive the

firearm enhancement while still being eligible for safety-valve re-

lief. In response, the government argued that: it had satisfied its

burden to show a firearm was present because it was undisputed a

firearm was found on the vessel; Vasquez-Rijo failed to establish

that it was not connected to drugs; and he was not eligible for

safety-valve relief because he physically and constructively pos-

sessed the firearm by having dominion and control over the area of

the vehicle in which it was found, given that there were only two

people aboard the vessel.

The district court found the government satisfied its burden

pursuant to § 2D1.1(b)(1) in showing that the firearm was present.

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While considering the fact that the firearm was unloaded and

within a plastic bag, the district court noted that it was close in

proximity to the drugs because it was in a small, 30-foot vessel and

underneath an unconnected motor within the belly of the vessel,

The district court concluded that “to find that the connection is

clearly improbable would be to ignore the facts in this case.” The

district court overruled the objections, finding that the government

met its burden by the greater weight of the evidence of proving the

firearm enhancement applied. After confirming there were no fur-

ther objections, the district court found that, with a total offense

level of 35 and a criminal history category of I, Vasquez-Rijo’s total

Guideline range was 168 to 210 months’ imprisonment. The dis-

trict court imposed the mandatory minimum sentence of 120

months’ imprisonment, followed by 5 years of supervised release.

And the government moved to dismiss Count Two, which the dis-

trict court granted.

C. Santos-Santana’s Sentencing Hearing

As to Santos-Santana, he testified to the following at his sen-

tencing hearing. Vasquez-Rijo was involved in organizing the drug

trip and obtaining the vessel, not Santos-Santana. Vasquez-Rijo

had prior relationships with the individuals in Colombia because

he had made two previous trips to Colombia for drugs, and he

managed and supervised Santos-Santana on the trip. Vasquez-Rijo

owned the firearm and never disclosed its purpose, and Santos-San-

tana never touched it. The firearm was never displayed or used

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10 Opinion of the Court 22-10367

during the offense conduct, and Santos-Santana did not try to in-

duce Vasquez-Rijo into using or bringing it.

On cross-examination, Santos testified to the following. He

first met Vasquez-Rijo when getting on the boat and only found

out they were transporting cocaine, and not marijuana, when the

drugs were placed on the vessel in Colombia. He worked before

on boats as a sailor, acting as an aid to the captain, but did not have

sufficient experience to drive a boat from the Dominican Republic

to Colombia. He, however, drove the vessel at times during the

offense conduct; but he did not drive the boat after it left Colombia.

His role was to provide gasoline to the engines, hold the GPS, and

look out for law enforcement.

As to minor-role reduction, Santos-Santana argued that the

relevant conduct for sentencing was transporting the cocaine be-

cause he was not involved in acquiring the vessel, did not having

any relationships with regards to organizing and executing the trip,

and had no connection to the firearm found on the vessel, unlike

Vasquez-Rijo. He contended that Vasquez-Rijo had a better un-

derstanding of the scope and structure of the criminal activity, par-

ticipated in the planning or organizing of the criminal activity, and

exercised decision-making authority as captain of the vessel. As to

safety-valve relief, he asserted that the firearm was not connected

to the offense because he testified that he was not involved with

the firearm. He contended that nothing in the record about his

own conduct established possession of the firearm. And he

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informed the court he would not argue against § 2D1.1(b)(1) en-

hancement.

The government largely adopted the arguments it made in

Vasquez-Rijo’s sentencing hearing. It also argued that Santos-San-

tana was not credible and that he knew the purpose of the voyage,

willingly participated in it, and knew of the existence of the firearm.

The government argued he constructively possessed the firearm,

noting that he was an experienced mariner, knew the conduct was

illegal by looking out for law enforcement, and helped operate the

GPS. And the government contended there was no distinction be-

tween him and his codefendant because they were both equally

culpable.

As to the minor-role reduction, the district court found that

Santos-Santana did not meet his burden and overruled his objec-

tion. The district court found that, based on the testimony,

Vasquez-Rijo did not supervise the drug trip; rather, Defendants

were coequal participants regarding the conspiracy, despite the fact

they played different roles at times. The district court noted San-

tos-Santana testified that they were a team and that he was aware

of the firearm before boarding the vessel and was aware there were

drugs.

As to safety-valve relief, the district court found that the fire-

arm, even though unloaded and in a bag, was in close proximity to

the drugs, as it was inside the small vessel. The district court fur-

ther found that the firearm was within Santos-Santana’s dominion

and control during the offense conduct. As to the relevant conduct,

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12 Opinion of the Court 22-10367

the district court explained that he was on the vessel for a long pe-

riod of time, operated the vessel, served as the lookout, operated

the GPS at night, and was aware of the amount of drugs on board.

Thus, the district court overruled his objection because Santos-San-

tana had not met his burden to prove that the firearm was not pos-

sessed in connection with the offense.

The district court found that, with a total offense level of 35

and a criminal history category of I, Santos-Santana’s total Guide-

line range was 168 to 210 months’ imprisonment. The district

court imposed the mandatory minimum sentence of 120 months’

imprisonment, followed by 5 years of supervised release. The gov-

ernment filed a motion to dismiss Count Two, which the district

court granted.

****

This consolidated appeal ensued.

II. ANALYSIS

Our analysis is divided into three parts. First, we address

Defendants’ arguments about the MDLEA. Second, we address

Defendants’ safety-valve relief arguments. Last, we address Santos-

Santana’s minor-role reduction arguments.

A. MDLEA

A district court’s subject-matter jurisdiction “is a question of

law that we review de novo even when it is raised for the first time

on appeal.” United States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir.

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22-10367 Opinion of the Court 13

2016). We review for clear error the district court’s factual findings

relevant to jurisdiction. Id. While parties may not stipulate to ju-

risdiction, they may “stipulate to facts that bear on our jurisdic-

tional inquiry.” Id. at 1337 (emphasis in original) (quoting Eng’g

Contractors Ass’n of S. Fla. v. Metro Dade County, 122 F.3d 895,

905 (11h Cir. 1997)). Further, arguments as to subject matter juris-

diction may not be waived. United States v. De La Garza, 516 F.3d

1266, 1271 (11th Cir. 2008).

Likewise, we review de novo the constitutionality of a crim-

inal statute. United States v. Wright, 607 F.3d 708, 715 (11th Cir.

2010). Although a guilty plea generally waives a defendant’s right

to appeal his conviction, it does not waive the right to challenge

the constitutionality of the statute underlying the conviction. See

Class v. United States, 138 S. Ct. 798, 803 (2018). But when a non-

jurisdictional constitutional challenge is raised for the first time on

appeal, our review is only for plain error. Wright, 607 F.3d at 715;

United States v. Vereen, 920 F.3d 1300, 1312 (11th Cir. 2019). Plain

error occurs when “(1) there was error, (2) that was plain, (3) that

affected the defendant’s substantial rights, and (4) that seriously af-

fected the ‘fairness, integrity, or public reputation of judicial pro-

ceedings.’” Wright, 607 F.3d at 715 (quoting United States v. Jones,

289 F.3d 1260, 1265 (11th Cir. 2002)). “When neither this Court

nor the Supreme Court have resolved an issue, there can be no

plain error in regard to that issue.” Vereen, 920 F.3d at 1312.

Under our prior-panel-precedent rule, “a prior panel’s hold-

ing is binding on all subsequent panels unless and until it is

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overruled or undermined to the point of abrogation by the Su-

preme Court or by [us] sitting en banc.” United States v. Archer,

531 F.3d 1347, 1352 (11th Cir. 2008). “[A] prior panel prece-

dent cannot be circumvented or ignored on the basis of argu-

ments not made to or considered by the prior panel.” In re Lam-

brix, 776 F.3d 789, 794 (11th Cir. 2015) (quoting Tippitt v. Reliance

Standard Life Ins. Co., 357 F.3d 1227, 1234 (11th Cir. 2006)). How-

ever, we are bound only by explicit jurisdictional holdings, and

where a jurisdictional issue was not presented and explicitly ad-

dressed by the prior precedent, we will not be bound by a prior

implicit jurisdictional holding. In re Bradford, 830 F.3d 1273, 1278

(11th Cir. 2016).

Article I of the Constitution empowers Congress “[t]o define

and punish Piracies and Felonies committed on the high Seas, and

Offences against the Law of Nations.” U.S. Const. art. I, § 8, cl. 10.

This Clause contains three distinct grants of power: (1) “the power

to define and punish piracies”; (2) “the power to define and punish

felonies committed on the high seas”; and (3) “the power to define

and punish offenses against the law of nations.” United States v.

Bellaizac-Hurtado, 700 F.3d 1245, 1248 (11th Cir. 2012). The Felo-

nies Clause represents the second of the three grants of power. See

id.

Pursuant to the Felonies Clause, Congress enacted the

MDLEA to prohibit knowing and intentional possession with in-

tent to distribute a controlled substance onboard a vessel subject to

the jurisdiction of the United States. United States v. Campbell,

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743 F.3d 802, 805 (11th Cir. 2014); 46 U.S.C. § 70503(a)(1). The

MDLEA describes several circumstances in which a vessel is sub-

ject to the jurisdiction of the United States, including when it is “a

vessel without nationality.” 46 U.S.C. § 70502(c)(1)(A), (C). A ves-

sel without nationality includes “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.” Id. § 70502(d)(1)(C). A

claim of nationality or registry may be made, in relevant part, by

“a verbal claim of nationality or registry by the master or individual

in charge of the vessel.” Id. § 70502(e). “[W]hether a vessel is sub-

ject to the jurisdiction of the United States is not an element of [an

MDLEA] offense, but instead is solely an issue of subject matter

jurisdiction that should be treated as a preliminary question of law

for the court’s determination.” United States v. Tinoco, 304 F.3d

1088, 1105 (11th Cir. 2002); accord Campbell, 743 F.3d at 805. We

have construed the “‘on board a vessel subject to the jurisdiction of

the United States’ portion of the MDLEA as a congressionally im-

posed limit on courts’ subject-matter jurisdiction.” De La Garza,

516 F.3d at 1271. The government must show that the statutory

requirements of MDLEA subject-matter jurisdiction are met.

Tinoco, 304 F.3d at 1114.

A person charged with a violation of the MDLEA “does not

have standing to raise a claim of failure to comply with interna-

tional law as a basis for a defense.” 46 U.S.C. § 70505; accord United

States v. Hernandez, 864 F.3d 1292, 1301 (11th Cir. 2017). Such a

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16 Opinion of the Court 22-10367

claim “may be made only by a foreign nation” and “does not divest

a court of jurisdiction.” § 70505. Accordingly, “any battle over the

United States’ compliance with international law in obtaining

MDLEA jurisdiction should be resolved nation-to-nation in the in-

ternational arena, not between criminal defendants and the United

States in the U.S. criminal justice system.” Hernandez, 864 F.3d at

1302.

We have held that Congress did not exceed its power under

the Felonies Clause in enacting the MDLEA. Id. at 1303 (holding

that the argument that the MDLEA was unconstitutional under the

Felonies Clause as to stateless vessels on the high seas without a

proven nexus to the United States was foreclosed by precedent);

Campbell, 743 F.3d at 810–12 (holding that the MDLEA was con-

stitutional under the Felonies Clause as to stateless vessels lacking

any nexus to the United States and committing drug trafficking of-

fenses); United States v. Estupinan, 453 F.3d 1336, 1338–39 (11th

Cir. 2006) (holding that the MDLEA was constitutional under the

Felonies Clause to punish drug trafficking). Notably, “[w]e have

always upheld extraterritorial convictions under our drug traffick-

ing laws as an exercise of power under the Felonies Clause.”

Campbell, 743 F.3d at 810 (quoting Bellaizac-Hurtado, 700 F.3d at

1257). Congress “may assert extraterritorial jurisdiction over ves-

sels in the high seas that are engaged in conduct that ‘has a poten-

tially adverse effect and is generally recognized as a crime by na-

tions that have reasonably developed legal systems.’” Id. (quoting

Tinoco, 304 F.3d at 1108). Moreover, because narcotics trafficking

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is condemned universally by law-abiding nations, there is “no rea-

son to conclude that it is ‘fundamentally unfair’ for Congress to

provide for the punishment of persons apprehended with narcotics

on the high seas.” Estupinan, 453 F.3d at 1339 (quoting United

States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d. Cir. 1993)).

“Prior to giving extraterritorial effect to a penal statute, we

consider whether doing so would violate general principles of in-

ternational law.” United States v. MacAllister, 160 F.3d 1304, 1308

(11th Cir. 1998). The law of nations permits the exercise of crimi-

nal jurisdiction by a nation, in relevant part, under the “protective”

principle. Id. at 1308 n.9. The protective principle permits the

United States to assert jurisdiction over a person whose conduct

outside the country threatens its security or the operation of its

governmental functions. United States v. Ibarguen-Mosquera, 634

F.3d 1370, 1379 n.5 (11th Cir. 2011). We held in Campbell that “the

conduct proscribed by the [MDLEA] need not have a nexus to the

United States because universal and protective principles support

its extraterritorial reach.” Campbell, 743 F.3d at 810; see also

United States v. Cruickshank, 837 F.3d 1182, 1188 (11th Cir. 2016)

(holding that the lack of a nexus requirement does not render the

MDLEA unconstitutional).

We have held that the MDLEA is constitutional as applied

to vessels on the high seas under the Piracies and Felonies Clause.

United States v. Cabezas-Montano, 949 F.3d 567, 587 (11th Cir.

2020). That said, Congress lacks the power to proscribe drug traf-

ficking in the territorial waters of another state. United States v.

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18 Opinion of the Court 22-10367

Bellaizac-Hurtado, 700 F.3d 1245, 1258 (11th Cir. 2012). The

United Nations Convention on the Law of the Sea provides that

“[e]very State has the right to establish the breadth of its territorial

sea up to a limit not exceeding 12 nautical miles.” 21 I.L.M. 1245,

1272, pt. II, § 2, art. 3. Accordingly, the United States “generally

recognizes the territorial seas of foreign nations up to twelve nau-

tical miles adjacent to recognized foreign coasts.” United States v.

McPhee, 336 F.3d 1269, 1273 (11th Cir. 2003).

According to regulations, the territorial sea extends up to 12

nautical miles adjacent to the coast of a nation for territorial juris-

diction purposes. 33 C.F.R. § 2.22. The territorial sea baseline is

the line defining the shoreward extent of the territorial sea of a na-

tion. Id. § 2.20. For territorial jurisdiction purposes, high seas refer

to “all waters seaward of the territorial sea baseline.” Id. § 2.32(a).

Under customary international law, high seas refer to all waters

that are not included in the EEZ, territorial sea, or internal water

of a nation. Id. § 2.32(d).

Here, because Defendants failed to raise the constitutional

argument before the district court, plain-error review is appropri-

ate. Because there is no binding precedent from us or the Supreme

Court that directly addresses the specific issue of whether

§ 70502(d)(1)(C) is constitutional under the Felonies Clause, San-

tos-Santana and Vasquez-Rijo cannot show that any error was

plain. Likewise, even if we deem their argument relates to the dis-

trict court’s subject-matter jurisdiction and review it de novo, it still

fails, as we have consistently found that the MDLEA is a

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permissible exercise of congressional power under the Felonies

Clause. See, e.g., Hernandez, 864 F.3d at 1303; Campbell, 743 F.3d

at 810–12; Estupinan, 453 F.3d at 1338. And we decline to adopt

the holding of the First Circuit’s now-withdrawn opinion in Davila-

Reyes given our precedent concluding that other provisions of the

MDLEA are constitutional under the Felonies Clause.

Defendants also cannot show that § 70502(d)(1)(C) was un-

constitutional as applied to them. While they argue that they are

not subject to jurisdiction under the stipulated facts, jurisdiction

was proper because the USCG located their vessel in the high seas.

While they argue that the EEZ is excluded from the high seas, reg-

ulations provide that the territorial definition of the high seas in-

cludes all waters seaward of the territorial sea baseline, which can

extend no farther than twelve nautical miles adjacent to the coast

of a nation. Further, prior panel precedent compels us to hold that

their vessel was in the high seas, as it was not within the twelve

nautical miles of a nation’s coast. See Cabezas-Montano, 949 F.3d

at 587; McPhee, 336 F.3d at 1273; Archer, 531 F.3d at 1352. Accord-

ingly, we affirm as to this issue.

B. Safety-Valve Relief

We review a district court’s factual findings and subsequent

denial of safety-valve relief for clear error. United States v. Cruz,

106 F.3d 1553, 1557 (11th Cir. 1997).

The safety-valve provisions of 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2(a) enable a district court to disregard the statutory

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20 Opinion of the Court 22-10367

minimum sentence if five requirements are met. Relevant here,

the second requirement for safety-valve relief is that the defendant

did not possess a gun “in connection with the offense.” 18 U.S.C.

§ 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). The defendant has the burden

of showing that he meets the factors for relief by a preponderance

of the evidence, including it is more likely than not that he did not

possess a firearm in connection with the offense. United States v.

Carillo-Ayala, 713 F.3d 82, 90 (11th Cir. 2013). The term “defend-

ant,” as used in § 5C1.2(a)(2), “limits the accountability of the de-

fendant to his own conduct and conduct that he aided or abetted,

counseled, commanded, induced, procured, or willfully caused.”

U.S.S.G. § 5C1.2 cmt. n.4.

“Our cases interpreting guidelines that require a ‘connec-

tion’ have consistently recognized that a firearm which facilitates

or has the potential to facilitate an offense is possessed ‘in connec-

tion with’ that offense.” Carillo-Ayala, 713 F.3d at 93. Additionally,

in considering the safety-valve, we have held that “[a] firearm

found in close proximity to drugs or drug-related items simply

‘has’—without any requirement for additional evidence—the po-

tential to facilitate the drug offense.” Id. at 92 (emphasis in origi-

nal). We explained that “[a] defendant seeking relief under the

safety valve, despite his possession of a weapon found in proximity

to drug-related items, will have a difficult task in showing that,

even so, there is no connection with the drug offense so the safety

valve applies.” Id. We also explained that:

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22-10367 Opinion of the Court 21

[w]hile other facts, such as whether the firearm is

loaded, or inside a locked container, might be rele-

vant to negate a connection, there is a strong pre-

sumption that a defendant aware of the weapon’s

presence will think of using it if his illegal activities are

threatened. The firearm’s potential use is critical.

The Sentencing Commission gives special status to

guns found in proximity to drugs.

Id. (emphasis in original). A firearm can facilitate a drug offense by

emboldening the defendant who could display or discharge the

weapon. Id. at 96.

The Guidelines provide for a two-level increase if the de-

fendant is convicted of a crime involving drug trafficking and “‘a

dangerous weapon (including a firearm) was possessed’ in connec-

tion with” that offense. United States v. Delgado, 981 F.3d 889, 902

(11th Cir. 2020) (quoting U.S.S.G. § 2D1.1(b)(1)). The enhance-

ment applies if the government shows by a preponderance of the

evidence that “the weapon was present, unless it is clearly improb-

able that the weapon was connected to the offense.” U.S.S.G.

§ 2D1.1(b)(1) cmt. n.11(A); accord United States v. Hall, 46 F.3d 62,

63–64 (11th Cir. 1995).

“[N]ot all defendants who receive the enhancement under

§ 2D1.1(b)(1) are precluded from” safety-valve relief. Carillo-

Ayala, 713 F.3d at 91. If the enhancement applies but the defendant

also seeks safety-valve relief, “the district court must determine

whether the facts of the case show that a ‘connection’ between the

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22 Opinion of the Court 22-10367

firearm and the offense, though possible, is not probable.” Id.

“The number of defendants who meet both guidelines will un-

doubtedly be rare.” Id. This determination is “consistent with

Congress’s intention that the safety valve [would] apply only to a

‘narrow class of defendants, those who are the least culpable par-

ticipants in such offenses.’” Id.

As an initial matter, the district court did not apply the

wrong standard when determining whether the firearm barred

safety-valve relief because the court articulated the correct burden.

The district court did not clearly err in finding that Santos-Santana

and Vasquez-Rijo did not qualify for the safety valve because the

appellants failed to show that the firearm was not connected to the

offense. The record shows that the firearm was found in close

proximity to the drugs because the vessel that held the firearm and

the drugs was small and confined, as depicted in the photograph

submitted by the government. We therefore affirm as to this issue.

C. Minor-Role Reduction

We review the district court’s determination of a defend-

ant’s role for clear error. United States v. Rodriguez De Varon, 175

F.3d 930, 937 (11th Cir. 1999) (en banc). “[T]he district court has

considerable discretion in making this fact-intensive determina-

tion.” United States v. Boyd, 291 F.3d 1274, 1277–78 (11th Cir.

2002). As long as the “court’s decision is supported by the record

and does not involve a misapplication of law,” the “‘choice be-

tween two permissible views of the evidence’ as to the defendant’s

role in the offense will rarely constitute clear error.” Cruickshank,

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22-10367 Opinion of the Court 23

837 F.3d at 1192 (quoting Rodriguez De Varon, 175 F.3d at 945).

Any potential sentencing error that the district court may have

committed is harmless when the defendant received the statutory

minimum sentence. United States v. Tigua, 963 F.3d 1138, 1144

(11th Cir. 2020).

U.S.S.G. § 3B1.2 directs the sentencing court to decrease a

defendant’s offense level by two levels “[i]f the defendant was a mi-

nor participant in any criminal activity.” A minor participant is one

“who is less culpable than most other participants in the criminal

activity, but whose role could not be described as minimal.” Id.

§ 3B1.2 cmt. n.5. In determining whether to apply an adjustment,

courts consider the totality of the circumstances and the following

non-exhaustive list of factors:

(i) the degree to which the defendant understood the

scope and structure of the criminal activity;

(ii) the degree to which the defendant participated in

planning or organizing the criminal activity;

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

sion-making authority or influenced the exercise of

decision-making authority;

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

tion 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;

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24 Opinion of the Court 22-10367

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

from the criminal activity.

Id. § 3B1.2 cmt. n.3(C). The defendant has the burden of proving

his minor role in the offense by a preponderance of the evidence.

Rodriguez De Varon, 175 F.3d at 939. Determining whether a de-

fendant played a minor role in the offense is a fact-intensive inquiry

“where no one factor ‘is more important than another.’” Cruick-

shank, 837 F.3d at 1195 (quoting Rodriguez De Varon, 175 F.3d at

945). “[A] district court is not required to make any specific find-

ings other than the ultimate determination of the defendant’s role

in the offense.” De Varon, 175 F.3d at 940.

Additionally, the district court must consider: (1) the defend-

ant’s role in the relevant conduct for which he has been held ac-

countable at sentencing; and (2) his role compared to that of the

other participants in his relevant conduct. Cruickshank, 837 F.3d

at 1192. “[W]here the relevant conduct attributed to a defendant

is identical to [his] actual conduct,” he cannot prove that he is “en-

titled to a minor role adjustment simply by pointing to some

broader criminal scheme” in which he “was a minor participant but

for which [he] was not held accountable.” Rodriguez De Varon,

175 F.3d at 941. In determining the defendant’s role compared to

that of other participants, it is only those participants who were in-

volved in the relevant conduct attributed to the defendant who are

relevant to this inquiry. United States v. Martin, 803 F.3d 581, 591

(11th Cir. 2015). “Even if a defendant played a lesser role than the

other participants, that fact does not entitle [him] to a role

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22-10367 Opinion of the Court 25

reduction ‘since it is possible that none are minor or minimal par-

ticipants.’” Id. (quoting United States v. Stanley, 739 F.3d 633, 654

(11th Cir. 2014)).

The district court did not clearly err in declining to apply the

minor-role reduction because Santos-Santana was not a minor par-

ticipant in the conspiracy to possess cocaine on a vessel, as he and

Vasquez-Rijo knowingly participated in the transportation of a

large quantity of cocaine on a vessel and were important to that

scheme. And, in any event, any potential sentencing error as to the

minor-role reduction here was harmless, as Santos-Santana re-

ceived the statutory minimum sentence. See Tigua, 963 F.3d at

1144.

III. CONCLUSION

For all these reasons, we affirm both Defendants’ sentences.

AFFIRMED.