Case: 12-14032   Date Filed: 08/20/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14032
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:12-cr-00097-JSM-TBM-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

WILIHTON AVENAMO MORALES,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 20, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Wilihton Avenamo Morales appeals from his 120-month statutory

mandatory minimum sentence for conspiracy to possess, and possession, with

intent to distribute cocaine while on board a vessel subject to the jurisdiction of the

United States. On appeal, he argues that he was entitled to safety valve relief

because: (1) a prior case from this Court was wrongly decided; (2) failure to grant

safety valve relief violates the Fifth Amendment; and (3) he was convicted under a

statute named in the safety valve statute.

      When reviewing the denial of safety valve relief, we review a district court’s

legal interpretation of statutes de novo. United States v. Johnson, 

,

1301 (11th Cir. 2004). However, we are bound by prior holdings unless they have

been overruled by the Supreme Court or this Court sitting en banc. United States

v. Hogan, 

, 1369 (11th Cir. 1993). We also review constitutional

challenges de novo. United States v. Wetherald, 

, 1320 (11th Cir.

2011).

      Under the guidelines, a district court can sentence a defendant below a

statutory minimum if he is statutorily eligible for safety valve relief, but only if

convicted of an offense under certain statutes, including sections 1010 or 1013 of

the Controlled Substances Import and Export Act, 21 U.S.C. §§ 960, 963. 18

U.S.C. § 3553(f)

      Avenamo pleaded guilty to 46 U.S.C. 70503(a)(1), which provides:


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“An individual may not knowingly or intentionally manufacture or distribute, or

possess with intent to manufacture or distribute, a controlled substance on board a

vessel of the United States or a vessel subject to the jurisdiction of the United

States.” 46 U.S.C. § 70503(a)(1). Since 2006, federal law has provided that a

violation of § 70503 “shall be punished as provided in section 1010 of the

Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 960)

. . .” 46 U.S.C. § 70506(a).

      In United States v. Pertuz-Pertuz, 

(11th Cir. 2012), this court

held that defendants convicted under 70503 were not eligible for the safety valve.

There, the defendant “pleaded guilty to conspiring to possess with intent to

distribute five or more kilograms of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1),

70506(a) & (b), and penalized pursuant to 21 U.S.C. § 960(b)(1)(B)(ii) (Count 1).

The defendant also pleaded guilty to aiding and abetting the possession with intent

to distribute five or more kilograms of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of section 70503(a)(1), section

70506(a), 18 U.S.C. § 2, and penalized pursuant to section 960(b)(1)(B)(ii) (Count

2).” 

sought safety valve relief at sentencing, without success, and

appealed. 

“plain text of a statute controls,” we held that no

Title 46 offense appeared in the safety valve statute and thus no safety valve


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sentencing relief applied. 

the contention that a penalty

pursuant to § 960 qualified a defendant for safety valve relief. 

an earlier case, United States v. Rodriguez-Rodriguez, 

(11th

Cir. 1989), we held that a Title 46 reference to penalty provisions in a specific act,

the “Comprehensive Drug Abuse Prevention and Control Act of 1970,”

incorporated subsequent 1986 amendments to the act referenced. 

that case did not address safety valve relief generally or whether Title 46

incorporated 21 U.S.C. § 960 as a substantive offense. See 

valid equal-protection challenge, a petitioner must allege that the

statute in question either singles out a protected class of individuals or impinges on

a fundamental right. See Thornton v. Hunt, 

, 527 (11th Cir. 1988). If

the challenged statute fails to fulfill either of these requirements, then the provision

is subject to rational-basis review. 

a court must uphold

legislation that does not employ suspect classifications or impinge on fundamental

rights unless the legislation is not rationally related to a legitimate governmental

purpose. Heller v. Doe, 

, 319, 

, 2642, 

(1993). A legislative classification subject to rational-basis review is “accorded a

strong presumption of validity.” 

the statute must show

that there is no “rational relationship between the disparity of treatment and some

legitimate governmental purpose.” 

S.Ct. at 2642.


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      This case falls squarely within the holding of Pertuz-Pertuz. Safety valve

relief was unavailable to Avenamo because he was convicted of Title 46 offenses

not enumerated in the safety valve statute. Pertuz-Pertuz, 679 F.3d at1328. We

have also specifically rejected the argument that including a citation to 21 U.S.C.

§ 960(b)(1)(B)(ii) as the penalty provision for a Title 46 offense renders a

defendant eligible for safety valve relief. 

n.1.

      Finally, Avenamo has failed to demonstrate a violation of the Fifth

Amendment. He concedes that rational basis review is appropriate, and he has

failed to demonstrate that there is no rational basis for the distinction in differing

mandatory minimums, especially given the “strong presumption of validity.”

, 113 S.Ct. at 2642. The district court correctly denied

safety valve relief.

      AFFIRMED. 1




1
      Avenamo’s motion for initial hearing en banc is DENIED.
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