[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 22-11243

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

DIOGENES ARIAS, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cr-20546-PCH-1

____________________

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2 Opinion of the Court 22-11243

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No. 22-11245

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee-Cross Appellant,

versus

KAISI PRESINAL, 

Defendant-Appellant-Cross Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cr-20546-PCH-2

____________________

Before JORDAN, BRANCH, and BRASHER, Circuit Judges.

PER CURIAM:

Diogenes Arias and Kaisi Presinal appeal their convictions

under the Maritime Drug Law Enforcement Act. They argue the 

MDLEA is unconstitutional as applied to them because they were 

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22-11243 Opinion of the Court 3

apprehended outside U.S. “high seas” jurisdiction. Arias also argues 

he should have received a minor role reduction and his sentence 

was substantively unreasonable. The government cross-appeals 

Presinal’s sentence, arguing the district court erred in finding Presinal did not possess a gun. We affirm the convictions and Arias’s 

sentence because we have already resolved the constitutional issues raised and are not persuaded by the defendants’ sentencing arguments. Because the district court’s finding as to possession of the 

gun was clearly erroneous, we vacate Presinal’s sentence and remand to the district court for resentencing.

I.

In 2021, Arias and Presinal were caught on a small boat carrying 370 kilograms of cocaine. A Colombian drug cartel had recruited the two, both originally from the Dominican Republic, to 

smuggle the drugs for around the equivalent of $60,000 each. The 

two had been present at the loading of the boat, where one of the 

Colombians gave Presinal a handgun. Arias was unaware of this 

gun. The U.S. Coast Guard captured the boat about 69 nautical 

miles south of the Dominican Republic, outside the Dominican Republic’s territorial waters but inside their exclusive economic zone 

as defined in United Nations Convention on the Law of the Seas. 

See 21 I.L.M. 1245.

Arias and Presinal pleaded guilty to conspiracy to possess 

five or more kilograms of cocaine with intent to distribute in violation of the MDLEA. The district court ruled the MDLEA was constitutional as applied. At sentencing, the district court denied Arias 

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a minor role reduction, finding Arias had “the same” role as Presinal and refusing to compare Arias to the broader Colombian conspiracy. 

The gun complicated sentencing, as whoever possessed it 

would be ineligible for safety-valve relief and thus get a harsher 

mandatory minimum sentence. Presinal admitted to having received a gun on the beach but argued he was coerced. The district 

court flatly rejected any coercion arguments, finding “there’s no 

evidence of that . . . . That just doesn’t make any sense to me. He 

had the firearm.” Dist. Ct. Doc. 78 at 8-9. The district court 

acknowledged this finding required a “minimum mandatory of 120 

months” because of “the legal issues about safety valve.” Dist. Ct. 

Doc. 78 at 23-24.

The district court then contemplated the unfairness of giving Presinal a harsher sentence than Arias, reasoning Presinal had 

only ended up with the gun because of bad luck. After the government reminded the court Presinal was ineligible for safety-valve relief, the court vowed to apply it anyway. See Dist. Ct. Doc. 78 at 26-

27 (“And you can appeal me, if you want . . . . I’m just not going to 

treat these two people differently.”). Because the district court 

wanted to avoid sentencing Presinal to a mandatory minimum, the 

district court reversed its finding that Presinal had possessed the 

gun. See Dist. Ct. Doc. 78 at 29-30. (“I find he didn’t actually possess 

the gun . . . . So now we don’t have a minimum mandatory.”).

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II.

The defendants raise three arguments on appeal, and the 

government raises one on cross-appeal. We address each in turn.

A.

The defendants argue the MDLEA was unconstitutional as 

applied to them, meaning the district court lacked subject-matter 

jurisdiction. We review de novo subject-matter jurisdiction and the 

constitutionality of criminal statutes. United States v. Iguaran, 821 

F.3d 1335, 1336 (11th Cir. 2016); United States v. Wright, 607 F.3d 

708, 715 (11th Cir. 2010). 

The MDLEA prohibits intentional possession of a controlled 

substance with intent to distribute while onboard a covered vessel. 

46 U.S.C. § 70503(a)(1). The MDLEA is constitutional as applied to 

vessels on the “high seas” under the Felonies Clause. United States 

v. Cabezas-Montano, 949 F.3d 567, 587 (11th Cir. 2020); see also U.S. 

Const. art. I, § 8, cl. 10; United States v. Bellaizac-Hurtado, 700 F.3d 

1245, 1248 (11th Cir. 2012).

On appeal, Arias and Presinal argue they were not apprehended on the “high seas” because he was in the Dominican Republic’s exclusive economic zone. See 21 I.L.M. 1245. However, 

this Court has recently ruled that an “EEZ is part of the ‘high seas’ 

and thus within Congress’s authority under the Felonies Clause.” 

United States v. Alfonso, 104 F.4th 815 (11th Cir. 2024). Because “a 

prior panel’s holding is binding on all subsequent panels unless and 

until it is overruled or undermined to the point of abrogation by 

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the Supreme Court or by this court sitting en banc,” United States v. 

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008), Alfonso resolves this 

issue in the government’s favor.

B.

Arias argues the district court erred in two ways in denying 

his minor role reduction. We review the district court’s determination of a defendant’s role for clear error, United States v. De Varon, 

175 F.3d 930, 937 (11th Cir. 1999) (en banc), meaning the district 

court’s finding will stand if it was a “permissible” view of the evidence, Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (citations omitted). We may affirm on any basis supported by the record, regardless of whether the district court decided the case on 

that basis. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 

2008).

Arias first argues the district court erred by comparing

Arias’s culpability only to Presinal and not to the Colombian cartel 

who recruited them. The district court ignored the latter because 

Arias and Presinal “are not being held responsible for the overall 

drug organization’s activities; they’re only being held responsible 

for one shipment of 370 kilograms . . . and they were an integral 

part of the attempt to transport that.” Dist. Ct. Doc. 78 at 16. “[W]e 

have unambiguously held that a defendant's role in the offense may 

not be determined on the basis of criminal conduct for which the 

defendant was not held accountable at sentencing.” De Varon, 175 

F.3d at 941. Even so, Arias argues the Colombian cartel who employed him were also participants in his activity in shipping this 

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amount of drugs, meaning the district court clearly erred by ignoring them.

This argument fails. Even if the Colombian cartel members 

were “participants” in the relevant conduct due to their planning, 

the district court’s finding on Arias’s role was still “permissible.”

Anderson, 470 U.S. at 574 (citations omitted). The mere existence of 

bigger fish does not mandate a role reduction for a defendant, as “it 

is possible that none [of the participants] are minor or minimal participants.” De Varon, 175 F.3d at 944-45. Here, only Arias and Presinal transported the large quantity of cocaine, and both stood to 

gain financially. Arias chose to take the job and was essential to the 

plan. We cannot say that the district court clearly erred in concluding from this evidence that Arias’s role was not minor compared to 

those who planned but did not participate in his voyage. See also De 

Varon, 175 F.3d at 945 (“[O]ne who, say, points a gun at a bank teller 

and seizes the money is not entitled to a downward adjustment 

simply because someone else in the gang supervised his activities.” 

(quotation marks omitted) (quoting United States v. Rotolo, 950 F.2d 

70, 71 (1st Cir. 1991) (Breyer, C.J.))).

Arias also argues the district court erred by refusing to consider all the Section 3B1.2 factors in determining his role. These 

factors include the defendant’s understanding of the “scope and 

structure” of the criminal activity, whether the defendant planned 

or organized the activity or exercised decision-making authority,

the “nature and extent of the defendant’s involvement,” and “the 

degree to which the defendant stood to benefit from the criminal 

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activity.” U.S.S.G. 3B1.2, comment. (n.3(C)). We have held that a 

sentencing court “must consider all of the § 3B1.2 factors to the extent applicable, and it commits legal error in making a minor role 

decision based solely on one factor.” Cabezas-Montano, 949 F.3d at 

606 (brackets omitted).

But here, too, the record amply supports the district court’s 

finding. Arias was a principal courier of a large shipment of drugs

and stood to gain $60,000 from it. He chose to take the job, and his 

participation was integral to the overall enterprise. Although the 

district court most heavily relied on the fact that Arias was only 

being held responsible for the drugs in the shipment, it also heard 

arguments that Presinal and Arias were the “little guys” in the operation and found that they were an integral part in transporting a 

large amount of cocaine. We are unconvinced that the district 

court clearly erred. See United States v. Al-Arian, 514 F.3d 1184, 1189 

(11th Cir. 2008); see also Cabezas-Montano, 949 F.3d at 606-07 (upholding district court’s refusal to grant a minor role reduction in 

case with similar facts).

C.

Next, Arias argues his within-guidelines range sentence was 

substantively unreasonable because the “district court did not focus on individualized, specific facts when sentencing Mr. Arias, but 

instead repeatedly insisted that Mr. Arias and Mr. Presinal were 

‘the same.’” Aplt. Br. at 48 (citing Dist. Ct. Doc. 26 at 13-14).

We review the substantive reasonableness of a sentence for 

abuse of discretion. Gall v. United States, 552 U.S. 28, 51 (2007). A 

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sentence is substantively unreasonable when the district court “(1) 

fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering 

the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th 

Cir. 2010) (en banc) (quotation marks omitted). The proper factors 

include the criminal history of the defendant, the seriousness of the 

crime, promotion of respect for the law, just punishment, adequate 

deterrence, and avoiding unwarranted sentencing disparities. 18 

U.S.C. § 3553(a). 

The district court considered the parties’ arguments and recommendations, the presentence investigation report, the Guidelines, and the 18 U.S.C. § 3553(a) factors to impose a sentence of 

110 months, near the bottom of the guideline range. See Dist. Ct. 

Doc. 33. We ordinarily expect a sentence falling within the guidelines range to be reasonable. See United States v. Stanley, 739 F.3d 

633, 656 (11th Cir. 2014). The record also reflects the district court’s 

consideration of specific Section 3553(a) factors. See Dist. Ct. Doc. 

26 (noting disparate sentencing between Arias and Presinal would 

give the former an unwarranted “free pass”); id. at 27 (noting the 

“very bad” severity of the crime); id. at 27-29 (considering effect of 

defendants’ pending deportation on deterrence and incapacitation 

concerns). The court did not give weight to any improper or irrelevant factor.

Arias argues the district court did not give due weight to the 

fact that Presinal had a gun while he did not. But, as explained 

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below, the district court’s effort to equalize sentences between 

Presinal and Arias resulted in the erroneous reduction of Presinal’s 

sentence below the mandatory minimum. The district court did

not increase Arias’s sentence to match Presinal; it lowered Presinal’s 

sentence to match Arias.

D.

The government cross-appeals Presinal’s sentence, arguing 

the district court clearly erred when it found Presinal did not possess the gun to make Presinal eligible for safety-valve relief. When 

reviewing a safety-valve decision, we review the district court’s factual determinations for clear error and its legal conclusions de novo. 

United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006). A 

factual finding is clearly erroneous if it leaves us “with the definite 

and firm conviction that a mistake has been committed.” United 

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

A district court cannot give a sentence below a mandatory 

minimum unless an explicit statutory exception applies. See United 

States v. Castaing-Sosa, 430 F.3d 1358, 1360 (11th Cir. 2008) (citations omitted). Both defendants were subject to mandatory minimums here, and the only relevant statutory exception is safetyvalve relief. Safety-valve relief allows a district court to give a sentence below the mandatory minimum for certain drug offenses 

where, among other things, the defendant did not “possess a firearm . . . in connection with the offense.” 18 U.S.C. § 3553(f). “[A] 

defendant possesses a firearm in connection with a drug offense if 

the firearm is in proximity to drugs or if the firearm facilitates the 

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drug offense . . . by instilling confidence in others who relied on the 

defendant.” United States v. Carillo-Ayala, 713 F.3d 82, 96 (11th Cir. 

2013).

The facts unequivocally establish that Presinal possessed a 

gun. Presinal admitted to accepting the gun and keeping it in his 

knapsack on the boat. Both sides and the PSI report acknowledged 

this fact. There was no evidence that Presinal was coerced into receiving or keeping the gun beyond some conclusory assertions 

from Presinal’s lawyers. As the district court correctly noted, Presinal could have tossed the gun off the boat after his departure. And 

there is no meaningful dispute that Presinal had the gun “in connection with the offense;” the Colombian cartel would not have 

given Presinal a gun for no reason, and the gun was in proximity 

to the drugs, both kept on the same small boat.

The district court acknowledged that the evidence established that Presinal possessed a firearm in connection with the offense, and only found otherwise because it believed that imposing 

a mandatory minimum sentence on Presinal would cause a sentencing disparity between Presinal and Arias. Because Arias did not 

possess the gun, he was eligible for a safety-valve sentence, and his 

guideline range reflected that lower sentence. When it recognized 

that Presinal would not be eligible for the same sentence, the district court explicitly changed its finding to reduce the perceived disparity without any other explanation.

We note that a district court has discretion to deny safetyvalve relief even if a defendant is eligible, United States v. Quirante, 

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486 F.3d 1273, 1275-76 (11th Cir. 2007), but a district court has no 

discretion to grant it where a defendant is ineligible. Because Presinal clearly possessed the gun and the district court found otherwise 

merely to make him eligible for the safety valve, we are left with a 

“definite and firm conviction” that the district court erred in doing 

so. U.S. Gypsum Co., 333 U.S. at 395. Thus, we vacate Presinal’s sentence and remand to the district court for further proceedings consistent with Presinal’s possession of the gun.

III.

We AFFIRM Arias’s conviction and sentence. We AFFIRM 

Presinal’s conviction. We VACATE Presinal’s sentence and

REMAND for further proceedings consistent with this opinion.

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