USCA11 Case: 21-13758 Date Filed: 09/30/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13758
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO GRUESO VALENCIA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00380-SCB-AAS-3
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2 Opinion of the Court 21-13758
____________________
Before ROSENBAUM, LUCK and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Orlando Grueso Valencia appeals his conviction
for one count of conspiring to possess with intent to distribute five
kilograms or more of cocaine while onboard a vessel subject to the
jurisdiction of the United States. On appeal, he argues for the first
time that the district court erred by failing to determine sua sponte
that
46 U.S.C. § 70502(d)(1)(C), the provision in the Maritime Drug
Law Enforcement Act (“MDLEA”) that defines “vessels without
nationality,” is unconstitutional under the Felonies Clause, U.S.
Const. art. I, § 8, cl. 10. Having read the parties’ briefs and reviewed
the record, we affirm Valencia’s conviction.
I.
A district court’s subject-matter jurisdiction “is a question of
law that we review de novo even when it is raised for the first time
on appeal.” United States v. Iguaran,
821 F.3d 1335, 1336 (11th Cir.
2016). Likewise, we normally review de novo the constitutionality
of a criminal statute. United States v. Wright,
607 F.3d 708, 715
(11th Cir. 2010). Nevertheless, when a non-jurisdictional constitu-
tional challenge is raised for the first time on appeal, we review for
plain error only.
Id. at 715; United States v. Vereen,
920 F.3d 1300,
1312 (11th Cir. 2019). Plain error occurs when “(1) there was error,
(2) that was plain, (3) that affected the defendant’s substantial
rights, and (4) that seriously affected the fairness, integrity, or
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21-13758 Opinion of the Court 3
public reputation of judicial proceedings.” Wright,
607 F.3d at 715
(quotation marks omitted). “When neither this Court nor the Su-
preme Court have resolved an issue, there can be no plain error in
regard to that issue.” Vereen, 920 F.3d at 1312.
II.
Article I of the Constitution empowers Congress “[t]o define
and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations.” U.S. Const. Art. I, § 8, cl. 10.
Pursuant to this Clause, Congress enacted the MDLEA to prohibit
knowing and intentional possession with intent to distribute a con-
trolled substance onboard a vessel subject to the jurisdiction of the
United States. United States v. Campbell,
743 F.3d 802, 805 (11th
Cir. 2014);
46 U.S.C. § 70503(a)(1). The MDLEA describes a num-
ber of circumstances in which a vessel is subject to the jurisdiction
of the United States, including when it is “a vessel without nation-
ality” or a vessel registered in a foreign nation that has consented
to, or waived objection to the defendant’s prosecution in the
United States.
46 U.S.C. § 70502(c)(1)(A), (C). A vessel without
nationality includes “a vessel aboard which the master or individ-
ual in charge makes a claim of registry and for which the claimed
nation of registry does not affirmatively and unequivocally assert
that the vessel is of its nationality.”
Id. § 70502(d)(1)(C).
A person charged with a violation of the MDLEA “does not
have standing to raise a claim of failure to comply with interna-
tional law as a basis for a defense.” Id. § 70505; see United States v.
Hernandez,
864 F.3d 1292, 1301-02 (11th Cir. 2017). Such a claim
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4 Opinion of the Court 21-13758
“may be made only by a foreign nation,” and “does not divest a
court of jurisdiction.”
46 U.S.C. § 70505. Accordingly, “any battle
over the United States’ compliance with international law in ob-
taining MDLEA jurisdiction should be resolved nation-to-nation in
the international arena, not between criminal defendants and the
United States in the U.S. criminal justice system.” Hernandez,
864 F.3d at 1302.
We have previously held that Congress did not exceed its
power under the Felonies Clause in enacting the MDLEA. Id. at
1303; Campbell, 743 F.3d at 810-12; United States v. Estupinan,
453 F.3d 1336, 1338 (11th Cir. 2006). We have “always upheld ex-
traterritorial convictions under our drug trafficking laws as an ex-
ercise of power under the Felonies Clause.” Campbell, 743 F.3d at
810 (quotation marks omitted). “Congress may assert extraterrito-
rial jurisdiction over vessels in the high seas that are engaged in
conduct that has a potentially adverse effect and is generally recog-
nized as a crime by nations that have reasonably developed legal
systems.” Id. (quotation marks omitted). Moreover, because nar-
cotics trafficking is condemned universally by law abiding nations,
there is “no reason to conclude that it is fundamentally unfair for
Congress to provide for the punishment of persons apprehended
with narcotics on the high seas.” Estupinan,
453 F.3d 1336, 1338-
39 (11th Cir. 2006) (quotation marks omitted).
III.
As an initial matter, we review Valencia’s constitutional
challenge for plain error. Valencia does not contend on appeal that
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21-13758 Opinion of the Court 5
the stipulated facts in the plea agreement are incorrect, or that un-
der the stipulated facts, he is not subject to jurisdiction under
§ 70502(d)(1)(C) as written. Instead, his argument is that the stat-
ute, as applied to him, is unconstitutional. As Valencia acknowl-
edges, there is no binding precedent from this Court or the Su-
preme Court that directly addresses the specific issue of personal
jurisdiction under § 70502(d)(1)(C). Thus, Valencia cannot show
that any error was plain. Vereen, 920 F.3d at 1312.
Likewise, even if we deem Valencia’s argument to relate to
the district court’s subject-matter jurisdiction and review it de
novo, it still fails, as he has not shown any error. We have consist-
ently found that the MDLEA is a permissible exercise of congres-
sional power under the Felonies Clause. Campbell, 743 F.3d at 810-
12; Hernandez, 864 F.3d at 1303; Estupinan,
453 F.3d at 1338. We
have also stated, as has Congress, that asserting a violation of inter-
national law is not a defense under the MDLEA.
46 U.S.C. § 70505;
Hernandez, 864 F.3d at 1301-02. Valencia has not shown that §
70502(d)(1)(C) is an unconstitutional exercise of congressional au-
thority under the Felonies Clause. Accordingly, based on the afore-
mentioned reasons, we affirm Valencia’s conviction.
AFFIRMED.
