           Case: 17-13819   Date Filed: 04/12/2018   Page: 1 of 5


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13819
                        Non-Argument Calendar
                      ________________________

                  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
                     _________________________

                             (April 12, 2018)

Before TJOFLAT, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 17-13819      Date Filed: 04/12/2018   Page: 2 of 5


      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,


                                           2
               Case: 17-13819     Date Filed: 04/12/2018    Page: 3 of 5


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.


                                           3
               Case: 17-13819     Date Filed: 04/12/2018   Page: 4 of 5


      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).


                                           4
              Case: 17-13819     Date Filed: 04/12/2018    Page: 5 of 5


      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.




                                           5
