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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11471
Non-Argument Calendar
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D.C. Docket No. 0:17-cr-60246-WPD-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAIME QUIJIJE-NAPA,
Defendant - Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
________________________
(June 4, 2019)
Before WILSON, JILL PRYOR and HULL, Circuit Judges.
PER CURIAM:
Jaime Quijije-Napa, a citizen of Ecuador, pled guilty to one count of
conspiracy to possess with intent to distribute five or more kilograms of cocaine, in
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violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C.
§§ 70501-70508, and was sentenced to a mandatory minimum of 120 months’
imprisonment and five years’ supervised release. He appeals his sentence on the
basis that he is eligible for relief under the safety valve statute, 18 U.S.C.
§ 3553(f), and entitled to a two-level reduction in his offense level for his minor
role in the crime. After careful review, we conclude that our precedents foreclose
his first challenge and that any error by the district court regarding his second
challenge was harmless. We therefore affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The U.S. Coast Guard detained Quijije-Napa and two other crewmembers
when it intercepted in international waters about 315 nautical miles south of
Guatemala a stateless vessel carrying the crew and 467 kilograms of cocaine. The
three crewmembers were held at sea and then presented to a U.S. magistrate judge
after entering the United States.
Quijije-Napa pled guilty to conspiring to possess with intent to distribute
five or more kilograms of cocaine, in violation of 46 U.S.C. §§ 70503(a)(1) and
70506(b) and 21 U.S.C. § 960(b)(1)(B). Neither his guilty plea nor the factual
proffer supporting his plea provided any facts demonstrating that he had a plan or
intent to bring the cocaine to the United States.
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At sentencing, Quijije-Napa argued that he was eligible for safety valve
relief under the version of 18 U.S.C. § 3553(f) then in place, which would permit
the court to sentence him below the statutory mandatory minimum of 120 months’
imprisonment and five years’ supervised release prescribed in 21 U.S.C.
§ 960(b)(1)(B)(ii). He also argued that he should receive a two-level reduction in
his offense level for his minor role in the crime. See U.S.S.G. § 3B1.2(b). The
district court determined, however, that he was ineligible for the safety valve and
not entitled to the two-level minor-role reduction and imposed the mandatory
minimum. Quijije-Napa appealed.
II. STANDARDS OF REVIEW
We review de novo a district court’s interpretation of a statute, United States
v. Pertuz-Pertuz, 679 F.3d 1327, 1328 (11th Cir. 2012), and whether a statute is
constitutional, United States v. Castillo, 899 F.3d 1208, 1212 (11th Cir. 2018),
cert. denied, 139 S. Ct. 796 (2019). Although we review only for clear error the
district court’s factual findings as to the defendant’s role in the offense, we review
de novo the district court’s application of the U.S. Sentencing Guidelines to those
facts. United States v. Delgado, 56 F.3d 1357, 1363 (11th Cir. 1995).
III. DISCUSSION
Precedent compels us to reject Quijije-Napa’s argument that he is eligible
for relief under the safety valve statute and that any ineligibility is unconstitutional.
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We also reject his argument that he is entitled to a two-level minor-role reduction
in his offense level because any error by the district court was harmless.
A. Quijije-Napa’s Offense Does Not Qualify for Safety Valve Relief, and the
Different Treatment of Territorial Versus Extraterritorial Drug
Trafficking Does Not Violate Equal Protection.
1. Quijije-Napa’s Statutory Argument
While Quijije-Napa’s appeal was pending, Congress added MDLEA
offenses to the safety valve statute, 18 U.S.C. § 3553(f). See First Step Act of
2018, Pub. L. No. 115-391, § 402(a)(1)(A)(ii), 132 Stat. 5194, 5221 (adding
46 U.S.C. §§ 70503 and 70506 to 18 U.S.C. § 3553(f)). Congress made the
amendment applicable to convictions entered only on and after the date of
enactment, id. § 402(b), however, which means that Quijije-Napa may not benefit
from the amendment.
When Quijije-Napa was convicted, the safety valve statute permitted district
courts to sentence a defendant under the Sentencing Guidelines “without regard to”
a statutory mandatory minimum only for “offense[s] under” 21 U.S.C. §§ 841, 844,
846, 960, or 963. 18 U.S.C. § 3553(f) (amended December 21, 2018, after Quijije-
Napa’s conviction). Quijije-Napa pled guilty to conspiring to possess with intent
to distribute five or more kilograms of cocaine in violation of 46 U.S.C.
§§ 70503(a)(1) and 70506(b) and 21 U.S.C. § 960(b)(1)(B). Section 70503(a)(1)
provides, “While on board a covered vessel [e.g., a “vessel subject to the
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jurisdiction of the United States,” 46 U.S.C. § 70503(e)(1), which includes any
stateless vessel, id. § 70502(c)(1)(A)], an individual may not knowingly or
intentionally . . . possess with intent to . . . distribute[] a controlled substance.”
Section 70506(b) provides, “A person . . . conspiring to violate section 70503 of
this title is subject to the same penalties as provided for violating section 70503.”
Section 70506(a) provides, “A person violating paragraph (1) of section 70503(a)
of this title shall be punished as provided in . . . 21 U.S.C. [§] 960 . . . .” Section
960(b)(1)(B)(ii) prescribes a mandatory minimum of 120 months’ imprisonment
and five years’ supervised release and a maximum of life imprisonment for first-
time offenses involving five or more kilograms of a “mixture or substance
containing a detectable amount” of cocaine.
Quijije-Napa points us to a recent pre-First Step Act case in which the D.C.
Circuit concluded that MDLEA offenses qualify as “offense[s] under” 21 U.S.C.
§ 960. United States v. Mosquera-Murillo, 902 F.3d 285, 292 (D.C. Cir. 2018).
The D.C. Circuit observed that Ҥ 960 supplies the offense elements of drug-type
and drug-quantity—5 or more kilograms of cocaine . . . —[that] bear on the degree
of culpability and determine the statutory sentencing range.” Id. at 293 (citing
21 U.S.C. § 960(b)(1)(B)). Thus, the D.C. Circuit held, “the defendants’ crime
[wa]s ‘an offense under’ both the MDLEA and § 960, drawing offense elements
from each.” Id. The D.C. Circuit found further support for its conclusion in
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Apprendi v. New Jersey, in which the Supreme Court held that “any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury[] and proved beyond a reasonable doubt.” 530 U.S. 466,
490 (2000); see Mosquera-Murillo, 902 F.3d at 293. “The drug-type and drug-
quantity elements set out in § 960(b) qualify as elements for purposes of Apprendi
because they establish the maximum sentence,” the D.C. Circuit held, and so the
defendants’ convictions “involve[d] ‘an offense under’ § 960 for purposes of
safety-valve eligibility.” Mosquera-Murillo, 902 F.3d at 293.
As a panel, we may not consider the D.C. Circuit’s analysis in determining
whether Quijije-Napa is entitled to safety valve relief because we are bound by the
prior panel opinions of this Court “unless and until [they are] overruled or
undermined to the point of abrogation by the Supreme Court or by this [C]ourt
sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008);
see also Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (rejecting an
“‘overlooked reason’ exception” to the “prior panel precedent rule”). Prior to the
enactment of the First Step Act of 2018, this Court held that “[a]lthough 46 U.S.C.
§ 70506(a) references section 960 as the penalty provision for violations of
46 U.S.C. § 70503, section 960 does not incorporate section 70503 by reference as
an ‘offense under’ section 960.” Pertuz-Pertuz, 679 F.3d at 1329. “Therefore, the
plain text of the statutes shows that convictions under Title 46 of the U.S. Code—
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like Defendant’s—entitle a defendant to no safety-valve sentencing relief.” Id. 1
Quijije-Napa’s statutory safety valve argument based on the pre-First Step Act
version of 18 U.S.C. § 3553(f) therefore fails.
2. Quijije-Napa’s Constitutional Argument
Quijije-Napa observes that our pre-First Step Act caselaw excluding
46 U.S.C. § 70503 offenses from 18 U.S.C. § 3553(f)’s safety valve means that
people convicted of trafficking drugs extraterritorially prior to the First Step Act’s
enactment receive harsher sentences than people convicted of trafficking drugs
inside the United States. This distinction, he argues, lacks a rational basis and
therefore violates the equal protection component of the Fifth Amendment’s Due
Process Clause. 2
Again, though, our precedent requires us to reject his argument. This Court
has held that “Congress has legitimate reasons to craft strict sentences for
1
Quijije-Napa has abandoned his argument that the Supreme Court’s decision in Alleyne
v. United States, 570 U.S. 99 (2013), abrogated this Court’s decision in Pertuz-Pertuz. He
waited until his reply brief on appeal to make this argument, having failed to make it to the
district court or make anything more than a single passing reference to Alleyne in his opening
brief on appeal. He therefore has waived this argument. See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 682 (11th Cir. 2014) (holding that appellants abandoned arguments after
making only passing references to them in their opening brief on appeal); Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held that an
issue not raised in the district court and raised for the first time in an appeal will not be
considered by this [C]ourt.” (internal quotation marks omitted)).
2
Quijije-Napa concedes that rational basis review applies because the distinction he has
identified “does not infringe fundamental rights or concern a suspect class.” Castillo, 899 F.3d
at 1213 (alterations adopted) (internal quotation marks omitted).
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violations of the Act. In contrast with domestic drug offenses, international drug
trafficking raises pressing concerns about foreign relations and global obligations.”
Castillo, 899 F.3d at 1213 (citing article 17(1) of the United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20,
1988, 1582 U.N.T.S. 95, which obligates the United States to “co-operate to the
fullest extent possible to suppress illicit traffic by sea”). “Moreover, the inherent
difficulties of policing drug trafficking on the vast expanses of international waters
suggest that Congress could have rationally concluded that harsh penalties are
needed to deter would-be offenders.” Id. The pre-First Step Act safety valve’s
distinction between domestic versus extraterritorial drug trafficking therefore does
not violate equal protection.
B. Any Error by the District Court in Denying Quijije-Napa a Two-Level
Reduction for His Minor Role Was Harmless.
Quijije-Napa argues that the district court erred in denying him a two-level
reduction in the offense level for his minor role in the crime. See U.S.S.G.
§ 3B1.2(b). We need not decide, however, whether the district court erred in
denying Quijije-Napa the minor-role reduction because the district court sentenced
him to the statutory mandatory minimum of 120 months’ imprisonment and five
years’ supervised release, 21 U.S.C. § 960(b)(1)(B)(ii), making any such error
harmless. See United States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir. 2005)
(“Because we conclude that the district court correctly imposed the statutory
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mandatory minimum sentence, any error in the guidelines calculations is harmless
. . . .”).
IV. CONCLUSION
Our precedents foreclose Quijije-Napa’s argument that he is eligible for
sentencing relief under the safety valve statute, and any error by the district court
in denying a two-level minor-role reduction was harmless. We therefore affirm his
sentence.
AFFIRMED.
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