                                                 [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT
                  ________________________           FILED
                                            U.S. COURT OF APPEALS
                         No. 10-12719         ELEVENTH CIRCUIT
                                                   APR 8, 2011
                     Non-Argument Calendar
                                                   JOHN LEY
                   ________________________          CLERK

               D.C. Docket No. 4:09-cr-10010-JEM-5

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                             versus

ADELIO TORRES-COBAS,

                                                     Defendant-Appellant.


                   ________________________

                         No. 10-13526
                     Non-Argument Calendar
                   ________________________

               D.C. Docket No. 4:09-cr-10010-JEM-4

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                             versus
PEDRO LUIS HERNANDEZ-SANCHEZ,

                                                                    Defendant-Appellant.
                             ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                            ________________________

                                     (April 8, 2011)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:

       Adelio Torres Cobas and Pedro Luis Hernandez-Sanchez appeal their

convictions and sentences for one count of conspiracy to encourage and induce

aliens to enter the United States illegally, 8 U.S.C. § 1324(a)(1)(A)(v)(I), and three

counts of bringing aliens to a place other than a designated port of entry, 8 U.S.C.

§ 1324(a)(2)(B)(iii). On appeal, Torres Cobas and Hernandez-Sanchez argue that

the district court plainly erred by accepting their guilty pleas for violating

§ 1324(a)(2)(B)(iii) because their pleas were not supported by a sufficient factual

basis.1 Specifically, they contend that the government failed to establish that they

knew that the Cuban aliens that they smuggled did not have prior authorization to

reside in the United States. They explain that the federal government’s “wet-foot,


       1
        Hernandez-Sanchez and Torres Cobas do not challenge their conspiracy convictions
under 8 U.S.C. § 1324(a)(1)(A)(v)(I).

                                             2
dry-foot” policy permits Cuban aliens who reach the United States to reside here.

In light of that policy, they assert, they did not have fair notice that the smuggled

aliens could not reside in the United States. Torres Cobas and Hernandez-Sanchez

also argue that their five-year mandatory minimum sentences under § 1324(a)(2)

are unconstitutional. For the reasons stated below, we affirm.

                                          I.

      A grand jury returned a superseding indictment charging

Hernandez-Sanchez and Torres Cobas with: (1) 1 count of conspiracy to induce

aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I)

(Count 1); (2) 25 counts of knowingly encouraging an inducing an alien to

illegally enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and

18 U.S.C. § 2 (Counts 2 through 26); and (3) 24 counts of bringing aliens to a

place other than a designated port of entry, in violation of 8 U.S.C.

§ 1324(a)(2)(B)(iii) and 18 U.S.C. § 2 (Counts 27 through 50).

Hernandez-Sanchez and Torres Cobas agreed to plead guilty to Count 1 and

Counts 27 through 29.

      At the change-of-plea hearing, the government asserted that it would be able

to prove the following facts if the case were to proceed to trial. In late August

2008, Torres Cobas and Hernandez-Sanchez approached Seidel Guzman about a

                                           3
potential alien smuggling trip to Cuba to pick up certain members of their family.

Guzman agreed, and eventually Yamil Moreno and Osvaldo Rodriguez also joined

in the planning of the trip. On the evening of September 13, 2008, the

conspirators went to Dinner Key Marina in Miami to launch a 32-foot Concept

vessel owned by Rodriguez. Guzman used the Concept vessel to travel to Cuba

while the other defendants waited in Florida. On September 14, Guzman arrived

in Cuba and picked up 25 migrants, including several family members of Torres

Cobas and Hernandez-Sanchez. The following day, Guzman landed the migrants

at mile marker 88 in the Florida Keys.

      As Guzman was returning to Miami, he ran out of gasoline.

Hernandez-Sanchez, Torres Cobas, and Moreno proceeded to Guzman’s location

in a back-up vessel and refueled the Concept vessel. Guzman got into the backup

vessel, and Hernandez-Sanchez and Torres Cobas boarded the Concept vessel and

piloted it back to Miami. All of the conspirators were apprehended by the Coast

Guard upon their arrival in Miami. According to the government, none of the

smuggled migrants had permission to come to, enter, or reside in the United

States.

      Torres Cobas and Hernandez-Sanchez acknowledged that the government

would be able to establish all of those facts in a trial. The district court concluded

                                          4
that Torres Cobas and Hernandez-Sanchez were pleading guilty knowingly and

voluntarily, and that their pleas were supported by a sufficient factual basis.

Therefore, the court accepted the defendants’ pleas.

       Hernandez-Sanchez’s presentence investigation report (PSI) determined

that he had a base offense level of 12 under U.S.S.G. § 2L1.1(a)(3). The PSI

increased Hernandez-Sanchez’s offense level by 6 under § 2L1.1(b)(2)(B)

because the offense involved the smuggling or transporting of 25 unlawful aliens.

The PSI also imposed a two-level enhancement under § 2L1.1(b)(6) because

Hernandez-Sanchez had intentionally or recklessly created a substantial risk of

death or serious bodily injury to another person. Hernandez-Sanchez received a

three-level reduction for acceptance of responsibility. These calculations

produced a total offense level of 17, which, when combined with

Hernandez-Sanchez’s criminal history category of I, resulted in a guideline range

of 24 to 30 months’ imprisonment. Because Hernandez-Sanchez faced a

mandatory minimum sentence of 5 years’ imprisonment with respect to Count 29,

his guideline sentence became 60 months. Torres Cobas’s sentencing calculations

were identical to those of Hernandez-Sanchez.

      Hernandez-Sanchez filed a series of objections to the PSI. First, he argued

that he should not have received a 6-level enhancement for smuggling 25 aliens

                                          5
because he only sought to bring his wife and child to the United States.

Hernandez-Sanchez further argued that he should have been given a three-level

reduction under U.S.S.G. § 2L1.1(b)(1) because he participated in the conspiracy

“other than for profit.” He asserted that imposing a five-year sentence in his case

would produce an unwarranted sentencing disparity, in violation of 18 U.S.C.

§ 3553.

      Hernandez-Sanchez also raised a series of constitutional challenges to the

five-year mandatory minimum sentence in § 1324(a)(2). First, he argued that the

penalty provisions of the statute were unconstitutionally vague or ambiguous.

Second, he contended that imposing a five-year sentence in his case would result

in cruel and unusual punishment, in violation of the Eighth Amendment. Third,

Hernandez-Sanchez asserted that a 60-month sentence would violate his right to

substantive due process because he was a first-time offender and the mandatory

minimum was much greater than the sentence called for by the Guidelines.

Finally, he argued that the sentencing scheme under § 1324(a)(2) violated

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)

because it created an enhanced penalty based on the number of counts charged,

rather than the elements of the offense. Torres Cobas offered the same objections

to his PSI.

                                         6
      At the defendants’ respective sentencing hearings, the district court

overruled all of their objections. The district court sentenced Torres Cobas to

concurrent terms of 60 months’ imprisonment with respect to all 4 counts. The

district court sentenced Hernandez-Sanchez to 24 months’ imprisonment with

respect to Counts 1, 27, and 28, and 60 months’ imprisonment with respect to

Count 29, with all 4 sentences to run concurrently.

                                          II.

      Torres Cobas and Hernandez-Sanchez did not move to withdraw their guilty

pleas for Counts 27, 28, and 29 before the district court, nor did they argue that

their pleas to those counts were not supported by a sufficient factual basis.

Therefore, we are reviewing for plain error. See United States v. Moriarty, 429

F.3d 1012, 1019 (11th Cir. 2005) (noting that, when a defendant fails to object to a

Fed.R.Crim.P. 11 violation, this Court reviews for plain error). Under the

plain-error standard, the defendant must show: “(1) error, (2) that is plain, and (3)

that affects substantial rights.” Id. If the defendant is able to establish all three

elements, we then have discretion to correct an error that “seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)

(quotation omitted) (alteration in original). An error is “plain” for purposes of

                                           7
plain-error review if it is “‘clear under current law.’” United States v. Chau, 426

F.3d 1318, 1322 (11th Cir. 2005) (quoting Olano, 507 U.S. at 734, 113 S.Ct. at

1777). If neither this Court nor the Supreme Court has ruled on an issue, and the

statutory language does not clearly resolve the question, there cannot be plain

error with respect to that issue. Id.

      In relevant part, 8 U.S.C. § 1324(a)(2) provides:

      Any person who, knowing or in reckless disregard of the fact that an
      alien has not received prior official authorization to come to, enter, or
      reside in the United States, brings to or attempts to bring to the
      United States in any manner whatsoever, such alien, regardless of any
      official action which may later be taken with respect to such alien
      shall, for each alien [smuggled] . . . be fined under Title 18 and shall
      be imprisoned, in the case of a first or second violation . . . not more
      than 10 years . . . and for any other violation, not less than 5 nor more
      than 15 years.

      In this case, Hernandez-Sanchez and Torres Cobas cannot establish that the

district court plainly erred by accepting their pleas to Counts 27, 28, and 29.

Neither this Court nor the Supreme Court has considered the relationship between

the wet-foot, dry-foot policy and 8 U.S.C. § 1324(a)(2), and both sides offer

facially plausible interpretations of the statute. Therefore, the district court did not

commit plain error in finding that the smuggled aliens in this case did not have

permission to remain in the United States. See Chau, 426 F.3d at 1322.




                                           8
      In addition, on this record, the district court did not commit plain error by

finding that the defendants acted with the necessary scienter. At the

change-of-plea hearing, both defendants agreed that the government could prove

that the Cuban aliens did not have official authorization to reside in the United

States. This admission contradicts the defendants’ assertion that they were

confused by the wet-foot, dry-foot policy and were not aware that the aliens did

not have permission to reside in the United States. Given the defendants’

acknowledgment of their guilt, any error that the district court made in finding that

they acted with the necessary scienter was not plain. Accordingly,

Hernandez-Sanchez and Torres Cobas have not established that the district court

plainly erred by accepting their guilty pleas on Counts 27, 28, and 29.

                                          III.

      We review constitutional issues concerning sentencing de novo. United

States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008). We review a sentence

imposed by a district court for reasonableness, using an abuse-of-discretion

standard. United States v. Livesay, 587 F.3d 1274, 1278 (11th Cir. 2009). We

review a district court’s factual findings at sentencing for clear error, and its

application of the Sentencing Guidelines to those facts de novo. United States v.

Caraballo, 595 F.3d 1214, 1230 (11th Cir. 2010).

                                           9
      In this case, Torres Cobas and Hernandez-Sanchez raise a number of

separate arguments with respect to their sentences. In United States v.

Ortega-Torres, 174 F.3d 1199, 1201-02 (11th Cir. 1999), we rejected the

defendants’ first argument, that the penalty provisions of 8 U.S.C. § 1324(a)(2) is

unconstitutionally vague. The defendants’ second contention, that their five-year

sentences constitute cruel and unusual punishment under the Eighth Amendment,

is foreclosed by our decision in United States v. Raad, 406 F.3d 1322 (11th Cir.

2005). In Raad, we held that a five-year mandatory minimum sentence under

§ 1324(a)(2) was not disproportionate to a defendant’s convictions for smuggling

three aliens. Id. at 1324.

      We also reject the defendants’ third argument, that their mandatory

minimum sentences deprive them of substantive due process. Congress could

reasonably have decided to impose an enhanced penalty on defendants who

smuggle three or more aliens because such an enhanced penalty will deter

individuals from attempting to smuggle large groups of aliens. Thus, § 1324(a)(2)

does not violate substantive due process. See United States v. Osburn, 955 F.2d

1500, 1505 (11th Cir. 1992) (explaining that a statute that does not discriminate

against a suspect class does not violate substantive due process unless Congress

had no reasonable basis for enacting it).

                                            10
      Torres Cobas and Hernandez-Sanchez also contend that their enhanced

mandatory minimum sentences are contrary to the Supreme Court’s decision in

Apprendi. In Apprendi, the Supreme Court interpreted the jury-trial requirement

of the Sixth Amendment to mean that any fact, other than a prior conviction, used

to enhance a defendant’s sentence beyond a prescribed statutory maximum penalty

must be found by a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490,

120 S.Ct. at 2362-63. The statutory maximum for purposes of Apprendi is “the

maximum sentence a judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S.

296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004) (emphasis omitted).

      No Apprendi violation occurred in this case. Torres Cobas and

Hernandez-Sanchez admitted to smuggling three aliens when they pled guilty to

Counts 27, 28, and 29. Thus, their enhanced mandatory minimum sentence was

based on their own admissions, not on factual findings made by the district court.

See Blakely, 542 U.S. at 303, 124 S.Ct. at 2537.

      Torres Cobas’s and Hernandez-Sanchez’s remaining sentencing arguments

are also meritless. They cannot challenge the reasonableness of their sentences

because the district court sentenced them to the minimum term required by statute.

See United States v. Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008)

                                        11
(holding that a district court must sentence a defendant in accordance with any

applicable statutory minimum sentence, even after the Supreme Court’s decision

in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).

Moreover, neither defendant was entitled to a guideline reduction under U.S.S.G.

§ 2L1.1(b)(1). That section provides for a three-level reduction if “the offense

was committed other than for profit,” or if it involved the smuggling “only of the

defendant’s spouse or child.” U.S.S.G. § 2L1.1(b)(1). In this case, the overall

conspiracy was committed for profit, even if Torres Cobas and

Hernandez-Sanchez personally did not receive any financial compensation for

their involvement. In addition, the smuggling venture involved a total of 25

aliens, most of whom were not the spouse or child of either defendant. Thus, the

district court properly concluded that § 2L1.1(b)(1) did not apply.

      Accordingly, after review of the record and consideration of the parties’

briefs, we affirm.

      AFFIRMED.




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