[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 10177 Non

- Argument Calendar

________________________ D.C. Docket No. 8:18

- cr - 00343

- SDM

- CPT

- 3

UNITED STATES OF AMERICA, Plaintiff

– Appellee,

versus EULOGIO RAMIRO YOZA TIGUA, Defendant

– Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ Case: 19-10213 Date Filed: 06/26/2020 Page: 1 of 132 ____________ ____________ No. 19

- 10213 Non

- Argument Calendar

________________________ D.C. Docket No. 8:18

- cr - 00343

- SDM

- CPT

- 4
UNITED STATES OF AMERICA, Plaintiff

– Appellee,

versus FREDDY OSWALDO TORRES CASTRO, Defendant

– Appellant.

________________________ Appeal from the United Stat es District Court for the Middle District of Florida

________________________ (June 26, 2020) Before WILLIAM PRYOR , Chief Judge, JORDAN and NEWSOM , Circuit Judges. WILLIAM PRYOR, C hief Judge : Th e key issue in th e s e separate appeal s is wh e ther defendant s adjudicated guilty before but s entenced after the e ffective date of the First Step Act of 2018
may qualify for relief under the amend ed statutory safety

- valve provision

. Pub. L. No. 115

- 391, § 402 (a) , 132 Stat. 5194 , 5221

. Eulogio Ramiro Yoza Tigua and Freddy Oswaldo Torres Castro a ppeal the ir mandatory minimum sentences of 120 Case: 19-10213 Date Filed: 06/26/2020 Page: 2 of 133 months of imprisonment imposed fo llowing t heir pleas of guilty to violating the Maritime Drug Law Enforcement Act

. 46 U.S.C. §§ 70503(a), 70506(a) , 7 0506 (b) ; 21 U.S.C. § 960(b)(1)(B)(ii) ; 18 U.S.C. § 2

. T he First Step Act states that its amendment of the statutory safety

- valve provision “ shall appl y only to a conviction entered on or after the date of [its] enactment” on December 21, 2018

. First Step Act § 40 2 ( b )

. Be cause Tigua and Castro had their “conviction [s] entered” when the district court accepted their pleas of guilty before December 21, 2018 , they a re ineligible for relief from the statutory mandatory

- minimum sentence under the amended statutory safety

- valve provision

. Castro also argues for a reduction of his
sentence for his minor role, but any error the district court might have committed in denying the reduction is harml ess . We affirm Tigua’s and Castro’s sentences. I. BACKGROUND Tigua and Castro s erved in a three

- man crew on a go - fast boat transport ing multiple bales of cocaine. On July 13, 2018, t he U nited S tates Coast Guard intercepted the boat in international waters , a bout 267 miles west of the Galapagos
I slands

. The crew members jettisoned the ir cargo , but a fter a helicopter dispatched by the Coast Guard disabled the boat , o fficers re covered 846 kilograms of cocaine from the water

. A lthough a n Ec uadorian flag was painted o n the hull of the boat , Ecuador ian officials refused to confirm or den y its registry

.

Case: 19-10213 Date Filed: 06/26/2020 Page: 3 of 134 After indictment, both men pleaded guilty in separate proceedings

. In September 2018 , Castro pleaded guilty to conspiring to distribute and to possessing with intent to distribute 5 kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States. 46 U.S.C. §§ 70503(a), 70506(a) , 70506 (b) ; 18 U.S.C. § 2

. T he district court accepted Castro’s plea in October 2018. That same month , Tigua agreed to plea d guilty only to the conspiracy offense

. 46 U.S.C. §§ 70503(a), 70506 (b)

. The presentence investigation reports stat ed that Tigua and Castro qualified for a two

- level reduction of their offense level s , s ee United States Sentencing Guidelines Manual § 2D1.1(b)(18) (Nov. 2018) (cross

- referencing U.S.S. G

. § 5C1.2(a)) , bu t that they were not entitled to be sentence d below the statutory mandatory

- minimum sentence f or first

- time offenders whose crimes involved five kilograms or more of a mixture or substance containing a detectable amount of cocaine , 21 U.S.C. § 960(b)(l)(B)(ii) ; 18 U.S.C. § 3553(f) (amended December 21, 2018)

. Neither Tigua nor Castro object ed to the factual statements in the presentence reports , but Tigua objected to the calculation of his offense level

. He argued that he was eligible for relief from the mandatory

- minimum sentence under the statutory safety valve notwithstanding precedent hold ing that the provision did not apply to maritime drug trafficker s .

Case: 19-10213 Date Filed: 06/26/2020 Page: 4 of 135 In January 2019, Tigua and Casto each argued in s eparate sentencing hearings that he qualified for relief from the mandatory

- minimum sentence, under section 402 of the First Step Act, which extended the statutory safety valve to maritime drug traffickers

. First Step Act § 40 2 ( a )

. The government conceded that Tigua was eligible for safety

- v alve relief and did not o bject to Castro’s request to reduce his sentence. T he district court ruled that Tigua and Castro were ineligible for safety

- valve relief

. Th e district court concluded that section 402 applies to a defendant who ha s his “conviction entered” on or after the effective date of the First Step Act , which refer s to t he date a defendant is adjudged guilty by a court or a jury, not to the date j udgment i s entered a f ter sentencing . The district court rule d that section 402 did not apply to T igua and Castro because the district court accepted the ir pleas of guilty before the effective date of the Act

. The district court also denied Castro ’s motion for a two

- level reduction in his offense level for serving a minor role

. See U.S.S.G. § 3B1.2(b). Castro admitted in hi s presentence report and the district court found that “ three people were put at sea with tens of millions of dollars of cocaine ”; they shared responsibi lity to navigate the vessel and made a collective decision to flee and jettison the cargo; Castro “ participated in the execution of

. . . the ocean

- going
voyage . . . [by] getting together his personal effects and planning and organizing

Case: 19-10213 Date Filed: 06/26/2020 Page: 5 of 136 that part of it ” ; and he had “ seen to it the vessel was [fueled], etc. ” Based on those f

act s and Castro’s admission that he was promised $40,000 on delivery of the cocaine, the district court ruled that Castro failed to establish he was less culpable than an average participant. T he district court determin ed that Tigua had a n adjusted total offense level of 26 and a criminal history category of I, which yield ed an advisory guideline range of 63 to 78 months of imprisonment. The district court determin ed that Castro ha d a n adjusted total offense level of 31 an d a criminal history category of I, which yielded an advisory guideline range of 108 to 135 months of imprisonment. The district court sentenced Tigua and Castro each to the statutory mandatory

- minimum sentence of 120 months of imprisonment. II. STANDARDS OF REVIEW We review de novo an issue of statutory interpretation

. United States v. Johnson , 375 F.3d 1300, 1301 (11th Cir. 2004) . “ When reviewing the denial of safety

- valve relief, we review for clear error a distr ict court ’ s factual determinations .” Id. We also review for clear error the factual findings about a defendant’s role in an offense. United States v. Rodriguez De Varon , 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

Case: 19-10213 Date Filed: 06/26/2020 Page: 6 of 137 III. DISCUSSION We divide our discussion in two parts. First, we address whether Tigua and Castro are eligible for safety

- valve relief under s ection 402(b) of the First Step Act. Second, we address Castro’s request for a reduction for minor role. A. Tigua and Castro Are Ineligible for Safety

- Valve Relief Under the First Step Act

. Section 402 of the First Step Act broaden ed the circumstances in which defendant s may receive a sentence below the otherwise statutory mandatory

minimum sentence for their crimes. Be fore the Act, the safety

- valve provision allow ed district courts to sentence a defendant in accordance with the range recommended under the Sentencing Guidelines “without regard to” a statutory mandatory

- minimum penalty for specified offense s , 21 U.S.C. §§ 841, 844, 846, 960, 963. 18 U.S.C. § 3553(f) (201 2 ). Because section 3553(f) did not apply to violations of the Maritime Drug Act, a first

- time offender whose crime involved five kilograms or more of a mixture or substance containing a detect able amount of cocaine was subject to a mandatory

- minimum sentence of 120 months of imprisonment

. United States v. Castillo , 899 F.3d 1208, 1212 (11th Cir. 2018) ( citing 21 U.S.C. § 960(b)(1)(B) and 46 U.S.C. § 70506(a)) , cert. denied , 139 S. Ct. 796 (2019 ). The First Step Act amended section 3553(f) to apply to more crim inal offens es , including “ section [s] 70503 or 70506 of title 46 ,” which punish defendants who conspir e to distribute and who possess with intent to distribute

Case: 19-10213 Date Filed: 06/26/2020 Page: 7 of 138 controlled substances while on board a vessel subject to the jurisdiction of the United States. First Step Act § 40 2 ( a )

. By its terms, t he amendment to section 3553(f) “ appl [ies] only to a conviction entered on or after the date of enactment of [t he First Step] Act

. ” I d. § 402(b)

. We have yet to interpret the meaning of “conviction entered” in section 402 in a published opinion. In United States v. Cabezas

- Montano , the defendants conceded that they wer e in eligible for safety

- valve relief when “convicted in 2017” of maritime drug trafficking. 949 F.3d 567, 604 & n.36 (11th Cir. 2020)

. Because t he Act does not define the phrase “ conviction entered , ” we begin with its ordinary meaning. See Taniguchi v. Kan Pac. Saipan, Ltd. , 566 U.S. 560, 566 (2012)

. “ As in all cases involving statutory construction, our starting point must be the language employed by Congress, and we assume that the legislative purpose is expressed by the ordinary meaning of the words used. ” United States v. Fisher , 289 F.3d 1329, 1338 (11th Cir. 2002) (quoting Am. Tobacco Co. v. Patterson , 456 U.S. 63, 68 (1982) ) ; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 2, at 56 (2012) (“[T]he purpose must b e derived from the text

. . . .”)

. Tigua and Castro argue that the term “conviction” in section 402(b) means “judgment of conviction , ” which is a legal term of art that includes “ the plea, the verdict or findings, the adjudication, and the sentence.” Judgment of Conviction ,

Case: 19-10213 Date Filed: 06/26/2020 Page: 8 of 139 Black’s Law Dictionary (11th ed. 2019) (emphasis added) ; see also Fed. R. Crim. P. 32(k)(1) (stating that “the court must set forth the plea, the jury verdict o r the court’s findings, the adjudication, and the sentence” in the “ judgment of conviction ” ). Because the district court had not sentenced them before December 21, 2018, Tigua and Castro contend that they are entitled to safety

- valve relief. We disagree. W e understand the term “conviction” in section 402 to convey its ordinary meaning

. See Scalia & Garner, Reading Law § 6, at 69 (“Words are to be understood in their ordinary, everyday meanings . . . .”). Conviction means “the judgment of a jury or judge that a person is guilty of a crime as charged.” Conviction , American Heritage Dictionary (5th ed. 2015); accord Conviction , Webster’s Third New International Dictionary (1993) (“ [T] he act of proving, findi ng, or adjudging a person guilty of an offense or crime

. ”). The legal meaning of conviction is the same. See Conviction , Black’s Law Dictionary , supra (“The act or process of judicially finding someone guilty of a crime

. . . . ”). I n this context, the term “ c onviction” conveys its ordinary meaning a s distinct from the term

“ sentence

. ” And to date, all other courts that have interpreted section 402 have reached the same conclusion

. See, e.g. , United States v. White , 413 F.Supp.3d 15, 40 (D.D .C. 2019); United States v. Havens , 374 F.Supp.3d 628, 634 (E.D. Ky. 2019 )

. Case: 19-10213 Date Filed: 06/26/2020 Page: 9 of 1310 T he provisions surrounding section 402 support our reading

. See Scalia & Garner, Reading Law § 24, at 1 67 (“The text must be construed as a whole.”) ; id. § 39, at 252 (“Statutes in pari materia are to be interpreted together, as though they were one law.”)

. Section 401 of the First Step Act , which amend s the requirements
to enhance sentenc es for repeat offenders with prior convictions for felony drug offenses, appli es “to any offense that was committed before the date of enactment of this Act, if a sentence for the offense ha[d] not been imposed as of such date of enactment.” § 401(c). Likewise, section 403, which amend s the sentencing provisions for armed career cri minals, applies if the defendant’s “sentence for the offense has not been imposed” by the effective date of the Act

. Id. § 403(b). “[W]e must presume that Congress said what it meant and meant what it said” in the Act, United States v. Steele , 147 F.3d 131 6, 1318 (11th Cir.1998) (en banc) , and “ use [d] different language in similar sections . . . [to convey] different meanings , ” Iraola & CIA, SA v. Kimberly

– Clark Corp. , 232 F.3d 854, 859 (11th Cir. 2000) ; see also Scalia & Garner, Reading Law § 25 , at 170 (“[W]here [a] document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea.”). So the use of “conviction” in section 402 and “sentence” in surrounding provi sions

— sections 401 and 403

— necessarily means that “conviction entered” does not re fer to the date of sentencing. Case: 19-10213 Date Filed: 06/26/2020 Page: 10 of 1311 Tigua, Castro, and the government argue that Deal v. United States , 508 U.S. 129 (1993), supports their argument that “ conviction entered” i s s yno ny mous with “ judgment of conviction , ” but we disagree

. In Deal , the Supreme Court interpret ed the phrase “second or subsequent conviction” in the Armed Career Criminal Act, 18 U.S.C. § 924(c)(1) . 508 U.S. at 131. I t stated that “conviction” could refer to either the “adjudication of guilt” or the “judgment of conviction , ” id. at 131

– 32 , but when read i n context, the word had to bear the first meaning or else

“ the provision would be incoherent, prescribing that a sent ence which has already been imposed (the defendant ’ s second or subsequent ‘ conviction ’ ) shall be 5 or 20 years longer than it was. ” Id. at 132

– 33

. As in Deal , were we to interpret “conviction” in section 402 to mean “judgment of conviction,” then a defendant would not qualify for safety valve relief until after the district court imposed the mandatory

- minimum sentence. T o give the defendant the relief provid ed in section 402, the district court would have to vac ate or otherwise modify t h e sentence, which is the same kind of counterintuitive result that the Supreme Court rejected in Deal

. F or m aritime drug traffickers to obtain safety

- valve relief under section 402,

“ conviction entered ” must mean “adjudication of guilt

. ” Tigua , Castro , and the government also urge us t o interpret “conviction entered” consistent with the purpose of eliminat ing sentencing disparities as the Supreme Court did i n Dorsey v. United States , 567 U.S. 260 (2012) , but the text of

Case: 19-10213 Date Filed: 06/26/2020 Page: 11 of 1312 the Act forecloses that reading

. In Dorsey , the Supreme Court considered whether the reduced statutory penalties provided in the Fair Sentencing Act applied to defendants who had committed their crimes before and were sentenced after its effect ive date . 567 U.S. at 264. Because t he text of the Act did not address the issue , the Court concluded that Congress must have intended the Act to apply to defendants who had not yet been sentenced based on several policy consideration s , including the goal s of reduc ing statutory penalties and eliminat ing sentencing disparities

. Id. at 273

– 8 1

. In contrast with the Fair Sentencing Act , the First Step Act make s clear which offenders qualify. And although we acknowledge that it will result in sentencing disparities, the text states that on ly an offender who has his “ conviction entered on or after the date of enactment of this Act ” is eligible to receive a sentence below the statutory mandatory minimum penalty

. First Step Act § 40 2 ( b). The district court did not err in determining that Tigua and Castro were ineligible for safety

- valve relief under the First Step Act. The district court accepted Tigua’s and Castro’s pleas of guilty and adjudicated them guilty of maritime drug trafficking offenses in October 2018. Because Tigua and Castro had their “conviction[s] entered” before sec tion 402 was enacted in December 2018 , the statutory safety valve did not apply to their offenses and they were subject to mandatory

- minimum sentence s of 120 mont hs of imprisonment. See Castillo ,

Case: 19-10213 Date Filed: 06/26/2020 Page: 12 of 1313 899 F.3d at 1212

. That the government would prefer that Tigu a and Castro benefit from the Act does not affect our decision. See United States v. Linville , 228 F.3d 1330, 1331 n.2 (11th Cir. 2000)

. We must apply the Act as written

. B. Any Error in Denying Castro a Reduction f or Minor Role Is Harmless

. Even if we were to assume that the district court erred by denying Castro a reduction for a minor role, th e error w ould be harmless. Had Castro been entitled
to a two

- level reduction for being a minor participant in the criminal activity , U .S.S.G. § 3B1.2( b) , it would have re sulted in a total offense level of 29 and an advisory guideline range of 87 to 107 months of imprisonment. But t he district court could not impose a sentence “ below the statutory mandatory minimum unless the government filed a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 or [Castro] f [ell] within the safety

- valve of 18 U.S.C. § 3553(f) , ” United States v. Castaing

– Sosa , 530 F.3d 1358, 1360 (11th Cir. 2008) , and n either of those exceptions app lied to Castro

. The denial of a reduction for a minor role had no effect on Castro ’s sentence

. IV. CONCLUSION We AFFIRM Tigua’s and Castro’s sentences. Case: 19-10213 Date Filed: 06/26/2020 Page: 13 of 13