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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13819
Non-Argument Calendar
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D.C. Docket No. 0:17-cr-60071-BB-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AQUILINO GUIZAMANO-CORTES,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
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(April 12, 2018)
Before TJOFLAT, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Aquilino Guizamano-Cortes appeals his 120-month statutory mandatory
minimum sentence for conspiracy to possess with intent to distribute cocaine while
on board a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. § 70506(b). On appeal, he argues that the inapplicability of 18 U.S.C. §
3553(f) safety-valve relief for offenses in violation of the Maritime Drug Law
Enforcement Act (Title 46) violates the Fourteenth Amendment’s guarantee of
equal protection.
I.
Section 3553(f)’s “safety valve” provision allows a district court to sentence
a defendant below a statutory minimum if the court finds that certain factors have
been met, but only if the defendant was convicted of an offense under certain
statutes, including sections 1010 and 1013 of the Controlled Substances Import and
Export Act, 21 U.S.C. §§ 960, 963. 18 U.S.C. § 3553(f). We have determined that
defendants convicted of violations of Title 46 are not eligible for safety valve relief
under § 3553(f). United States v. Pertuz-Pertuz,
679 F.3d 1327, 1329 (11th Cir.
2012).
Preserved constitutional challenges to a district court’s application of the
sentencing guidelines are reviewed de novo. United States v. Wetherald,
636 F.3d
1315, 1320 (11th Cir. 2011). However, in order to preserve a claim of error, the
defendant must make a timely constitutional objection. United States v. McKinley,
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732 F.3d 1291, 1295 (11th Cir. 2013). The failure to make a timely constitutional
objection results in our application of plain error review.
McKinley, 732 F.3d at
1296 (11th Cir. 2013). Under plain error review, a party must show that an error
occurred, the error was plain, the error affected substantial rights, and the failure to
correct the error would seriously affect the fairness of the judicial proceeding.
United States v. Lange,
862 F.3d 1290, 1293 (11th Cir. 2017), cert. denied, 138 S.
Ct. 488 (2017). Where the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error where there is no
precedent from this Court or the Supreme Court directly resolving it. United States
v. Hesser,
800 F.3d 1310, 1325 (11th Cir. 2015).
Here, Guizamano-Cortes’s objection to his sentence was neither timely nor
sufficient; thus, he did not preserve his claim of error on appeal. He did not object
to the PSI orally or in writing and did not raise his equal-protection-based
objection until after the District Court sentenced him. When he did, he did not
argue that imposition of the mandatory minimum violated the Equal Protection
Clause. He stated only that he was aware that “that’s not the law at this time,” but
wanted “to put that on the record and preserve it in case something changes in the
future.” This objection did not provide the District Court with any support for his
equal protection argument, did not suggest the Court made a sentencing error, and
did not signal the Court to rule on the issue.
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Accordingly, we apply plain error review to Guizamano-Cortes’s equal
protection claims. Because neither this Court nor the Supreme Court has ruled on
whether Congress’s decision to exclude offenses under Title 46 from the safety-
valve statute violates equal protection, the District Court did not commit plain
error. See
Hesser, 800 F.3d at 1325.
Further, were we to review Guizamano-Cortes’s equal protection claims de
novo under the rational-basis standard, Guizamano-Cortes has failed to provide
persuasive evidence that Congress had no reasonable basis for distinguishing
between offenses of Title 21 and Title 46, especially given Congress’ presumption
of validity.
Byse, 28 F.3d at 1170. Where an equal protection challenge does not
allege that the challenged statute either singles out a protected class of individuals
or impinges on a fundamental right, the provision is subject to rational-basis
review. United States v. Campos-Diaz,
472 F.3d 1278, 1280 (11th Cir. 2006).
Under the rational-basis test, a law does not violate equal protection so long as it is
rationally related to a legitimate government interest.
Id. A legislative
classification subject to rational-basis review is presumed to be valid. United
States v. Byse,
28 F.3d 1165, 1170 (11th Cir. 1994). Congress’ judgment will be
sustained in the absence of persuasive evidence that Congress had no reasonable
basis for drawing the lines that it did. United States v. Holmes,
838 F.2d 1175,
1177 (11th Cir. 1988).
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Here, the Government has identified a number of legitimate reasons why
Congress may have viewed transnational drug trafficking as a more serious threat
than domestic drug trafficking. These reasons include transnational drug
trafficking’s potential to facilitate and fund transnational crime and terrorism,
destabilize and spread violence throughout the international community, proliferate
and stimulate domestic drug trafficking, and bypass and undercut domestic drug
crime prevention efforts.
Accordingly, the District Court did not err in denying safety valve relief to
Guizamano-Cortes.
AFFIRMED.
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