United States v. James Fernando Estrada-Obregon , 270 F. App'x 978 ( 2008 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 07-13517                   March 27, 2008
    Non-Argument Calendar            THOMAS K. KAHN
    CLERK
    ________________________
    D. C. Docket No. 06-00499-CR-T-23-MSS
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JAMES FERNANDO ESTRADA-OBREGON,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (March 27, 2008)
    Before BLACK, MARCUS and WILSON, Circuit Judges.
    PER CURIAM:
    James Fernando Estrada-Obregon appeals his conviction after his plea of
    guilty to conspiracy to possess with intent to distribute five kilograms or more of
    cocaine while on board a vessel subject to the jurisdiction of the United States, in
    violation of 
    46 U.S.C. §§ 70503
    (a), 70506(a) and (b); and 
    21 U.S.C. § 960
    (b)(1)(B)(ii). He asserts various issues on appeal, which we address in turn.
    After review, we affirm Estrada-Obregon’s conviction.
    I.
    Estrada-Obregon first asserts the district court lacked jurisdiction over the
    offense, and his conviction is void, because the factual basis of his plea agreement
    did not establish the United States’ statutory subject-matter jurisdiction over the
    offense, pursuant to the Maritime Drug Law Enforcement Act (MDLEA).
    Specifically, Estrada-Obregon argues that, although the factual basis of his plea
    showed Panama consented to the boarding and search of the vessel, those facts did
    not show that Panama consented or waived objection to the enforcement of United
    States law by the United States. In addition, Estrada-Obregon contends the factual
    basis of his plea failed to establish an offense punishable under the laws of the
    United States, and the district court erred by accepting the plea. Estrada-Obregon
    further asserts he would not have pled guilty if he had known the factual proffer
    was insufficient to establish the United States’ jurisdiction over him. Therefore,
    2
    Estrada-Obregon contends, his plea should be vacated and his case remanded for a
    new plea or trial, with the Government required to prove that Panama consented to
    the enforcement of United States law.
    The MDLEA provides, “[a]n individual may not knowingly or intentionally
    manufacture or distribute, or possess with intent to manufacture or distribute, a
    controlled substance on board . . . a vessel subject to the jurisdiction of the United
    States.” 
    46 U.S.C. § 70503
    (a)(1). A “vessel subject to the jurisdiction of the
    United States” includes, inter alia, “a vessel registered in a foreign nation if that
    nation has consented or waived objection to the enforcement of United States law
    by the United States.” 
    46 U.S.C. § 70502
    (c)(1)(C). “Jurisdiction of the United
    States with respect to a vessel subject to this chapter is not an element of an
    offense. Jurisdictional issues arising under this chapter are preliminary questions
    of law to be determined solely by the trial judge.” 
    46 U.S.C. § 70504
    (a); see also
    United States v. Tinoco, 
    304 F.3d 1088
    , 1112 (11th Cir. 2002).
    “[A] guilty plea does not bar an appeal that raises a jurisdictional question.”
    United States v. Reynolds, 
    215 F.3d 1210
    , 1215 (11th Cir. 2000). “[D]efects in
    subject-matter jurisdiction require correction regardless of whether the error was
    raised in district court.” United States v. Cotton, 
    122 S. Ct. 1781
    , 1785 (2002).
    3
    A “district court’s factual findings with respect to jurisdiction . . . are
    reviewed for clear error.” Tinoco, 
    304 F.3d at 1114
    . “[T]he government bears the
    burden of establishing that the statutory requirements of subject matter jurisdiction
    imposed by the MDLEA have been met.” 
    Id.
     We review for plain error, however,
    an argument raised for the first time on appeal that there was an insufficient factual
    basis for a guilty plea. United States v. Evans, 
    478 F.3d 1332
    , 1338 (11th Cir.),
    cert. denied, 
    128 S. Ct. 257
     (2007). In order for error to be plain, there must be
    binding precedent clearly holding that it is such. United States v. Chau, 
    426 F.3d 1318
    , 1322 (11th Cir. 2005).
    Although Estrada-Obregon argues an issue of subject-matter jurisdiction
    which is not waived, the basis of his argument is that the Government did not meet
    its burden to prove a fact underlying the jurisdictional requirement of the MDLEA.
    Although a district court’s factual findings with respect to jurisdiction generally are
    reviewed for clear error, Tinoco, 
    304 F.3d at 1114
    , because Estrada-Obregon did
    not object to the factual proffer below, we review for plain error the district court’s
    implicit factual finding that Panama consented to the enforcement of U.S. law for
    purposes of the MDLEA’s jurisdictional requirement. See 
    46 U.S.C. § 70502
    (c)(1)(C); Evans, 
    478 F.3d at 1338
    .
    4
    The Government’s factual proffer at the plea colloquy does not contain a
    statement that Panama explicitly consented to the enforcement of U.S. law by the
    United States. Also, the record contains no documentation of Panama’s explicit
    consent to the enforcement of U.S. law. Rather, the Government stated Panama
    consented to U.S. authorities’ boarding and search of the vessel. By accepting
    Estrada-Obregon’s guilty plea, the district court implicitly found Panama’s consent
    to boarding and search implied at least a waiver of objection to the enforcement of
    U.S. law for purposes of the MDLEA’s jurisdictional requirement. See 
    46 U.S.C. §§ 70502
    (c)(1)(C), 70503(a)(1).
    Where the U.S. Coast Guard routinely intercepts boats in international
    waters for the purpose of enforcing U.S. law, particularly U.S. drug laws, it is
    reasonable to conclude that U.S. authorities request permission to board and search
    vessels for that purpose, and a flag nation that objected to the enforcement of U.S.
    law would not grant permission to board and search. Neither the MDLEA nor
    controlling case law provides what the government specifically must do or say to
    meet its burden of establishing that a flag nation has consented or waived objection
    to the enforcement of U.S. law. See Tinoco, 
    304 F.3d at 1114
    ; see generally 
    46 U.S.C. §§ 70502-70504
    . Under these circumstances, any possible error by the
    district court in finding that Panama at least waived objection to the enforcement of
    5
    U.S. law cannot be plain. See Moriarty, 429 F.3d at 1019; Chau, 
    426 F.3d at 1322
    .
    Accordingly, having found that Panama waived objection to enforcement of U.S.
    law, the district court did not err in failing to sua sponte dismiss the case for lack
    of statutory jurisdiction under the MDLEA, and did not plainly err in accepting
    Estrada-Obregon’s plea. See 
    46 U.S.C. §§ 70502
    (c)(1)(C), 70503(a)(1).
    II.
    Estrada-Obregon next argues four constitutional claims. He contends:
    (1) his offense conduct had no nexus with the United States, and, thus, his
    prosecution violated due process; (2) the MDLEA violates due process because it
    is “fundamentally unfair to the extent that it allows forum shopping [by the
    government], removes the element of jurisdiction from the jury, and precludes
    defendants from asserting violations of international law as a defense;” (3) the
    MDLEA violates the Due Process Clause and the Sixth Amendment right to a jury
    trial because the MDLEA does not require jurisdiction be proven to a jury beyond
    a reasonable doubt; and (4) the MDLEA represents an ultra vires exercise of
    congressional power under the Piracies and Felonies Clause.
    Estrada-Obregon arguably waived appeal of these claims based on this
    Court’s recent decision in United States v. De La Garza, __ F.3d __, No. 06-
    13396, 
    2008 WL 397456
    , at *4 (11th Cir. Feb. 15, 2008). His plea agreement was
    6
    substantially the same as the plea agreement held to waive all non-jurisdictional
    challenges in De La Garza.
    Even if these claims are not waived, they each fail under plain error review.
    See Moriarty, 429 F.3d at 1018. First, the Supreme Court has not ruled on the
    nexus issue, and Estrada-Obregon recognizes a circuit split.1 Estrada-Obregon
    acknowledges that in United States v. Mena, 
    863 F.2d 1522
    , 1527, this Court did
    not find a nexus requirement in the case of foreign-registered vessels, but he
    distinguishes his case from Mena on the basis that he is presenting an as-applied
    challenge to the MDLEA rather than a facial challenge as in Mena. Although
    Mena addresses a facial rather than an as-applied challenge to the MDLEA, it
    suggests there is no nexus requirement for foreign-registered vessels. See Mena,
    863 F.2d at 1527. Because there is no binding precedent clearly holding the
    MDLEA requires a nexus between a foreign-registered vessel and the United
    States, any error by the district court in not dismissing the case for lack of nexus
    could not be plain. See Chau, 
    426 F.3d at 1322
    . Accordingly, the district court did
    1
    Estrada-Obregon cites Ninth and Second Circuit cases that required a nexus between
    conduct on foreign-registered vessels and the United States analogous to the minimum contacts
    required for personal jurisdiction. See United States v. Zakharov, 
    468 F.3d 1171
    , 1177 (9th Cir.
    2006); United States v. Yousef, 
    327 F.3d 56
    , 111 (2d Cir. 2003). Estrada-Obregon recognizes,
    however, that other circuits have held that no nexus is required when the flag nation consents to
    the enforcement of U.S. law. See, e.g., United States v. Perez Oviedo, 
    281 F.3d 400
    , 403 (3d
    Cir. 2002); United States v. Cardales, 
    168 F.3d 548
    , 553 (1st Cir. 1999).
    7
    not plainly err in failing to sua sponte dismiss the case for lack of a nexus with the
    United States.
    Second, the district court did not plainly err in failing to sua sponte dismiss
    the case against Estrada-Obregon on the basis that the MDLEA was fundamentally
    unfair. See Chau, 
    426 F.3d at 1322
    . We have previously addressed all of Estrada-
    Obregon’s arguments regarding this issue, with the exception of the preclusion of
    international law defense, and held the MDLEA is facially constitutional as applied
    to foreign citizens. See United States v. Rendon, 
    354 F.3d 1320
    , 1325-26 (11th
    Cir. 2003); Tinoco, 
    304 F.3d at 1109-10
    ; Mena, 863 F.2d at 1527. We have also
    declined to conclude the MDLEA is “fundamentally unfair.” See United States v.
    Estupinan, 
    453 F.3d 1336
    , 1339 (11th Cir. 2006).
    Further, Estrada-Obregon concedes his arguments that the MDLEA violates
    the Due Process Clause and the Sixth Amendment right to a jury trial because the
    MDLEA does not require jurisdiction be proven to a jury beyond a reasonable
    doubt, and that the MDLEA represents an ultra vires exercise of congressional
    power under the Piracies and Felonies Clause, are foreclosed by our prior
    precedent. We have held subject-matter jurisdiction is not an element of the
    offense and, therefore, jurisdiction does not need to be submitted to a jury.
    Rendon, 354 F.3d at 1326-27. We have also held a district court “committed no
    8
    error in failing to sua sponte rule that Congress exceeded its authority under the
    Piracies and Felonies Clause in enacting the MDLEA.” See Estupinan, 
    453 F.3d at 1339
     (11th Cir. 2006); see also U.S. Const. Art.I, § 8, cl.10. Thus, there is no plain
    error on these claims as well.
    III.
    The district court did not err in failing to sua sponte dismiss the case for lack
    of statutory jurisdiction under the MDLEA. Estrada-Obregon arguably waived his
    constitutional claims, but even if he did not waive these claims the district court
    plainly err in failing to sua sponte dismiss the case on the basis of any of the
    constitutional arguments. Accordingly, we affirm Estrada-Obregon’s conviction.
    AFFIRMED.
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