Amendment 833 Is Substantive and Non-Retroactive on Direct Appeal; MDLEA Applies in Foreign EEZs Without a U.S. Nexus

I. Introduction

This consolidated Eleventh Circuit decision arises from Maritime Drug Law Enforcement Act (“MDLEA”) prosecutions of Angelo Martinez, Eric Manuel Suero Terrero, and Justo Matos Pena after the U.S. Coast Guard interdicted their go-fast vessel approximately 158 nautical miles southeast of Isla Beata, Dominican Republic. The Coast Guard recovered roughly 375 kilograms of cocaine and established that the vessel was “without nationality” under the MDLEA after Martinez, the master, claimed Colombian registry and Colombia “could neither confirm nor deny” registration.

The appeals presented two clusters of issues: (1) constitutional and jurisdictional challenges to the MDLEA—especially whether Congress may reach conduct in another nation’s Exclusive Economic Zone (“EEZ”), whether international law limits Congress under the Felonies Clause, whether the MDLEA’s stateless-vessel definition is constitutional, and whether due process requires a nexus to the United States; and (2) a sentencing dispute unique to Suero Terrero—whether he should have received a minor-role reduction and whether post-sentencing Sentencing Guidelines Amendment 833 (effective Nov. 1, 2025) should apply retroactively on direct appeal.

II. Summary of the Opinion

The Eleventh Circuit affirmed across the board.

  • MDLEA constitutionality and jurisdiction: The court held that binding Eleventh Circuit precedent (notably United States v. Alfonso and United States v. Canario-Vilomar) foreclosed all constitutional attacks. It reaffirmed that an EEZ is part of the “high seas” for Felonies Clause purposes; that international law does not limit Congress’s Felonies Clause authority; that the MDLEA may treat a vessel as stateless when the claimed nation does not affirmatively and unequivocally confirm nationality; and that no U.S. nexus is required for MDLEA prosecutions.
  • Due process nexus argument: The court also declined to entertain the nexus/due-process argument because it was raised for the first time on appeal; and in any event it is foreclosed by circuit precedent.
  • Minor-role reduction: The court found no clear error in denying Suero Terrero a minor-role reduction given his relevant conduct—transporting more than 300 kilograms of cocaine—and the district court’s application of the Rodriguez De Varon framework.
  • Amendment 833 retroactivity on direct appeal: Applying United States v. Jerchower, the court held Amendment 833 is substantive, not clarifying, and therefore does not apply retroactively on direct appeal. It emphasized that the amendment changes guideline text, reflects an expansion of when § 3B1.2 applies, is not listed as retroactive in U.S.S.G. § 1B1.10(c), and would abrogate circuit precedent regarding comparative culpability considerations.

III. Analysis

A. Precedents Cited (and How They Shaped the Outcome)

1. Prior-panel precedent rule: why the court treated the constitutional questions as already decided

The decision is structured around the Eleventh Circuit’s strict adherence to the prior-panel-precedent rule stated in In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015): once a panel has decided an issue, later panels are bound unless the Supreme Court or the Eleventh Circuit en banc overrules or effectively abrogates it. That doctrine is the engine of the court’s MDLEA analysis here: the defendants explicitly acknowledged that United States v. Alfonso and United States v. Canario-Vilomar controlled, raising issues only to preserve further review.

2. EEZ as “high seas” for Felonies Clause purposes

The centerpiece is United States v. Alfonso, 104 F.4th 815 (11th Cir. 2024), cert. denied, 145 S. Ct. 2706 (2025). This opinion applies Alfonso’s holdings that:

  • a foreign nation’s EEZ is “part of the ‘high seas’ for purposes of the Felonies Clause,” and
  • international law “does not limit the Felonies Clause.”

It also relies on United States v. Canario-Vilomar, 128 F.4th 1374 (11th Cir.), cert. denied, 146 S. Ct. 269 (2025), which reiterated the same conclusions and rejected similar dismissal arguments.

3. Distinguishing territorial waters and the Offences Clause: defendants’ reliance on United States v. Bellaizac-Hurtado

Defendants invoked United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), for the proposition that customary international law limits congressional power. The court explained why that analogy fails:

  • Bellaizac-Hurtado involved conduct in territorial waters of another nation, not an EEZ; and
  • it concerned Congress’s Offences Clause power (to “define and punish … Offences against the Law of Nations”), which the court there held is constrained by customary international law.

Crucially, Bellaizac-Hurtado itself distinguished high-seas drug trafficking, noting Congress has “additional constitutional authority” on the high seas, including the Felonies Clause, and that the Eleventh Circuit has “always upheld” extraterritorial drug-trafficking convictions on that basis. This opinion leverages that distinction to reject the attempt to import Offences-Clause limitations into the Felonies-Clause MDLEA context.

4. Stateless vessels and international law: United States v. Marino-Garcia and United States v. Campbell

On the statelessness issue, the court situates the MDLEA within long-standing doctrine that stateless vessels are “international pariahs” and may be subjected to broader jurisdictional assertions. It quotes United States v. Campbell, 743 F.3d 802, 810 (11th Cir. 2014), which in turn quotes United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir. 1982). While Marino-Garcia recognized the general rule against exercising jurisdiction over foreign vessels on the high seas, it also recognized the special status of stateless vessels and upheld U.S. jurisdiction over them in international waters.

This opinion then anchors the constitutional point in United States v. Canario-Vilomar, which held that once the MDLEA is a valid Felonies Clause exercise, “international law cannot limit Congress’s authority to define ‘stateless vessel’ for purposes of the MDLEA.”

5. No nexus requirement: United States v. Cabezas-Montano and the broader line of cases

For the nexus/due-process argument, the court invokes two constraints:

  • Procedural forfeiture doctrine: Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994), for the general rule that issues not raised below will not be considered on appeal.
  • Merits foreclosed: United States v. Cabezas-Montano, 949 F.3d 567, 587 (11th Cir. 2020), and again Alfonso (citing Campbell), for the proposition that the MDLEA applies to high-seas drug trafficking even without a case-specific nexus to the United States.

In addition, the court points to Congress’s express findings in 46 U.S.C. § 70501 that maritime drug trafficking is universally condemned and threatens U.S. security and societal well-being—supporting the idea that the statute itself embodies Congress’s assessment of the U.S. interest.

6. Minor-role reduction framework: United States v. Rodriguez De Varon and related sentencing cases

The sentencing analysis is controlled by United States v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc), cert denied, 528 U.S. 976 (1999). The opinion applies De Varon’s two-pronged approach: (1) compare the defendant’s role to the relevant conduct attributed to him; and (2) compare the defendant to other identifiable participants in that same relevant conduct.

The court reinforces the standard of review and deference principles using: United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016); United States v. Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002); and the burden-of-proof rule from United States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). It also cites United States v. Moran, 778 F.3d 942, 980 (11th Cir. 2015), to limit “other participant” comparisons to those involved in the defendant’s relevant conduct (not the larger conspiracy).

7. Retroactivity on direct appeal for Guidelines amendments: United States v. Jerchower

The most “new law” work in this opinion is the treatment of Amendment 833 under United States v. Jerchower, 631 F.3d 1181, 1184-85 (11th Cir. 2011). Jerchower instructs courts to apply the Guidelines in effect at sentencing and to consider later amendments on direct appeal only if they are “clarifying” rather than “substantive.” The opinion methodically applies Jerchower’s factors and concludes Amendment 833 is substantive, chiefly because it changes guideline text and meaningfully expands eligibility for § 3B1.2 adjustments in § 2D1.1 cases, is not listed as retroactive in § 1B1.10(c), and would conflict with existing Eleventh Circuit role-reduction precedent.

B. Legal Reasoning

1. Felonies Clause authority reaches conduct in a foreign EEZ

The court’s reasoning is straightforwardly precedent-driven: if the EEZ is treated as part of the “high seas” for Felonies Clause purposes, then Congress may “define and punish” felonies there, and MDLEA enforcement is constitutionally valid. This collapses defendants’ “EEZ is not high seas” contention under Alfonso.

2. International law does not constrain Congress under the Felonies Clause in this context

The court rejects the framing that customary international law supplies a constitutional limit on the Felonies Clause. Where Bellaizac-Hurtado constrained the Offences Clause by reference to international law, the Eleventh Circuit treats the Felonies Clause as not similarly limited—again following Alfonso and Canario-Vilomar. The court then couples that principle with the “stateless vessels” doctrine: because stateless vessels occupy a distinct status under international law and because Congress may regulate them on the high seas, the MDLEA’s jurisdictional reach survives both facial and as-applied attack.

3. The MDLEA’s “claimed registry not confirmed” rule remains valid

Applying 46 U.S.C. § 70502(d)(1)(C), the court treats a vessel as “without nationality” when the claimed nation does not “affirmatively and unequivocally assert” nationality. On defendants’ theory, that definition is overbroad compared to customary international law; on the court’s view, that mismatch is not a constitutional problem because (per binding precedent) international law does not cabin Congress’s Felonies Clause authority in this setting.

4. No U.S. nexus requirement (and procedural default)

The court gives two independent reasons to reject the nexus claim: it was not raised below (Walker v. Jones), and it is substantively foreclosed by the Eleventh Circuit’s repeated holdings that MDLEA prosecutions do not require a case-specific U.S. nexus (Cabezas-Montano, Alfonso, and Canario-Vilomar).

5. Minor-role reduction: drug quantity and role comparison

Under De Varon’s first prong, the court emphasizes that Suero Terrero’s relevant conduct was transporting “nearly half a ton of cocaine”—a “material consideration” in assessing role. Under the second prong, even if he was less culpable than his codefendants, De Varon makes clear that being the least culpable does not automatically confer a minor-role reduction; it is possible that no participant is minor. The court also points out that the district court expressed sympathy and granted a downward variance, imposing the lowest sentence among the three defendants, supporting the view that the district court accounted for relative culpability without committing clear error under § 3B1.2.

6. Amendment 833: substantive change, therefore no retroactive application on direct appeal

The opinion’s retroactivity analysis uses Jerchower’s four-factor test to classify Amendment 833 as substantive:

  • It changes guideline text (not merely commentary).
  • The Commission described it as expanding circumstances where § 3B1.2 is warranted in § 2D1.1 cases.
  • It is not listed as retroactive in U.S.S.G. § 1B1.10(c).
  • It would abrogate circuit precedent insofar as it diminishes the relevance of other participants to role eligibility in a way inconsistent with De Varon’s comparative framework.

That combination leads the court to decline applying the amendment to Suero Terrero’s already-imposed sentence.

C. Impact

1. MDLEA litigation: reinforced barriers to constitutional challenges in the Eleventh Circuit

While the court largely applies existing precedent, the decision consolidates and reaffirms several defenses’ frequent attack points: EEZ-as-high-seas, no international-law limit on the Felonies Clause in this context, stateless-vessel treatment when registry is not confirmed, and no nexus requirement. Practically, the opinion signals that district courts within the Eleventh Circuit may continue to deny MDLEA dismissal motions raising these theories with high confidence that affirmance will follow under Alfonso/Canario-Vilomar.

2. Sentencing: a clear signal on Amendment 833’s posture on direct appeal

The decision’s most forward-looking consequence is its characterization of Amendment 833 as “substantive” under Jerchower. That classification matters because it sharply limits defendants’ ability to invoke Amendment 833 on direct appeal from pre-amendment sentencings. Unless and until the Sentencing Commission makes Amendment 833 retroactive via § 1B1.10 (or higher courts alter the retroactivity framework), the principal route for relief will not be direct-appeal “clarifying amendment” arguments.

IV. Complex Concepts Simplified

  • Felonies Clause: A constitutional grant allowing Congress to “define and punish” felonies committed on the “high seas.” In this circuit, it supports MDLEA prosecutions for maritime drug trafficking outside U.S. territory, including in EEZs.
  • Exclusive Economic Zone (EEZ): An area up to 200 nautical miles from a coastal nation where that nation has certain resource rights, but it is not the same as territorial waters. The Eleventh Circuit treats the EEZ as “high seas” for Felonies Clause analysis.
  • Offences Clause vs. Felonies Clause: The Offences Clause concerns “Offences against the Law of Nations” and can be limited by customary international law; the Eleventh Circuit holds the Felonies Clause is not similarly constrained for MDLEA high-seas cases.
  • “Vessel without nationality” (MDLEA): A statutory category that includes a vessel whose master claims registry but the claimed nation does not affirmatively confirm it. That makes the vessel subject to U.S. jurisdiction under the MDLEA.
  • Nexus requirement: A theory that due process requires a connection between the defendant’s conduct and the United States. The Eleventh Circuit has repeatedly rejected the need for a nexus in MDLEA high-seas/stateless-vessel prosecutions.
  • Minor-role reduction (§ 3B1.2): A Guidelines decrease for defendants substantially less culpable than the average participant. Under De Varon, courts focus on the defendant’s relevant conduct and (where appropriate) compare him to other identifiable participants in that relevant conduct.
  • Clarifying vs. substantive Guidelines amendments: Clarifying amendments can sometimes be applied on direct appeal to interpret earlier guideline text; substantive amendments change the law and generally do not apply retroactively unless made retroactive under § 1B1.10.

V. Conclusion

The Eleventh Circuit’s decision does two key things. First, it reaffirms (as a matter of binding circuit law) that MDLEA prosecutions may proceed for drug trafficking in a foreign nation’s EEZ, on a vessel deemed stateless under 46 U.S.C. § 70502(d)(1)(C), without proof of a case-specific U.S. nexus—and that international law does not constitutionally limit Congress’s Felonies Clause authority in this setting. Second, it holds that Sentencing Guidelines Amendment 833 expanding minor-role considerations in § 2D1.1 cases is a substantive change and therefore not retroactively applicable on direct appeal under United States v. Jerchower.