United States v. Federman Madera-Lopez , 190 F. App'x 832 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10769 JULY 21, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00332-CR-T-24-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FEDERMAN MADERA-LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 21, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Federman Madera-Lopez appeals his convictions and 168-month concurrent
sentences, imposed after he pled guilty to conspiracy to possess and possession
with intent to distribute five or more kilograms of cocaine, a violation of 21
U.S.C. § 960 and the Maritime Drug Law Enforcement Act (MDLEA), 46
U.S.C. §§ 1903(a), (g), and (j), respectively. He argues that the district court did
not have jurisdiction because Congress exceeded its constitutional authority by
enacting the MDLEA and that the MDLEA is unconstitutional because it removes
the jurisdictional element from the jury’s consideration. For the reasons set forth
more fully below, we affirm.
In open court before a magistrate judge, Madera-Lopez admitted to the
following facts: on or about August 3, 2005, Madera-Lopez and three other
defendants, while aboard a go-fast vessel “subject to the jurisdiction of the United
States,” possessed with the intent to distribute and aided and abetted with each
other to distribute in excess of five kilograms of cocaine. A United States Coast
Guard cutter intercepted and disabled the defendants’ boat with warning shots and
disabling fire, and, after boarding the boat, the Coast Guard seized over 21 bales
containing over 525 kilograms of cocaine. The district court adopted the
magistrate’s recommendation that Madera-Lopez’s plea be accepted. Later, the
court sentenced Madera-Lopez to 168 months’ imprisonment. At no point during
the proceedings did Madera-Lopez object to the district court’s jurisdiction.
As a preliminary matter, the government argues that because Madera-Lopez
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pled guilty unconditionally, he waived all non-jurisdictional challenges to his
conviction, preventing this Court from hearing his constitutional challenge. The
government acknowledges that we have never decided whether a guilty plea
forfeits a defendant’s right to challenge Congress’s authority to enact the statute to
which he pled guilty, and, while suggesting that our precedent might be read as
rendering Madera-Lopez’s claim non-jurisdictional, concedes that the claim also
might be construed as a jurisdictional one. Madera-Lopez argues that, despite
failing to challenge jurisdiction in the district court, we should review whether the
district court had jurisdiction de novo because the question of subject matter
jurisdiction can never be waived, and plain error review does not apply to
jurisdictional challenges, which can be raised at any point during the proceedings.
We review questions of subject matter jurisdiction de novo. United States v.
Petrie, 302 F.3d 1280, 1284 (11th Cir. 2002). “A defendant’s unconditional plea
of guilty, made knowingly, voluntarily, and with the benefit of competent counsel,
waives all non-jurisdictional defects in that defendant’s court proceedings.”
United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (quotation, brackets,
and citation omitted). Id. We further have held, however, that even when a
defendant pleads guilty, a jurisdictional exception exists for “cases in which the
accused is challenging the constitutionality of the statute, usually on Fifth
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Amendment grounds, under which he is charged.” United States v. Sepe, 474 F.2d
784, 788 (5th Cir. 1973).
The government suggests that Madera-Lopez’s argument regarding
Congressional authority might be viewed as non-jurisdictional, but we conclude
that his claims are jurisdictional in nature because, if he is successful, the MDLEA
would be rendered void. Id. However, because Madera-Lopez failed to raise his
jurisdictional argument below, we will review for plain error only. See United
States v. Williams, 121 F.3d 615, 618 (11th Cir. 1997) (reviewing for plain error a
defendant’s claim, raised for the first time on appeal, that Congress exceeded its
authority under the Commerce Clause and the Tenth Amendment in enacting the
Child Support Enforcement Act, noting that there was “no plainer error than to
allow a conviction to stand under a statute which Congress was without power to
enact.”); United States v. Walker, 59 F.3d 1196, 1198 (11th Cir. 1995) (rejecting
the government’s argument that a defendant waived his right to challenge the
constitutionality of 18 U.S.C. § 922(g)(1)(A) by failing to object in the district
court).
“To establish plain error, a defendant must show there is (1) error, (2) that is
plain, and (3) that affects substantial rights.” United States v. Moriarty, 429 F.3d
1012, 1019 (11th Cir. 2006). “If all three conditions are met, we may exercise our
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discretion to recognize a forfeited error, but only if the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” Id. “When neither
the Supreme Court nor this Court has resolved an issue, and other circuits are split
on it, there can be no plain error in regard to that issue.” Id.I. Congress’s Power to Enact the MDLEA
Madera-Lopez first argues that the MDLEA is unconstitutional because
Congress’s Article I powers “do not encompass the authority to punish drug
trafficking among stateless vessels on the high seas.” Specifically, Madera-Lopez
argues that Congress’s sole authority for legislating extra-territorially is the
“Piracies and Felonies Clause,” set forth in Article I, section 8, clause 10 of the
Constitution. He argues that this Clause granted Congress power to regulate three
distinct things—piracies, felonies, and “offenses against the laws of nations”—and
the MDLEA is an improper attempt to regulate a felony which bears no relation to
the United States. Next, Madera-Lopez argues that the felony and piracy powers
of Congress serve different purposes, and the piracy clause cannot be invoked to
grant Congress “universal jurisdiction” over all offenses if those offenses were not
considered “piracy” when the Constitution was written. Furthermore, he contends
that the “felony” clause serves narrow purposes and should not be read to extend
Congress’s power to include punishment for offenses, such as the one in the instant
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case, committed by foreigners on foreign vessels. Madera-Lopez also argues that
Congress’s power to punish offenses against the law of nations has no extra-
territorial scope, and drug crimes do not fall under the umbrella of “universal
jurisdiction.” Finally, Madera-Lopez argues that the legislative history of the
MDLEA demonstrates that Congress did not believe that a resort to “universal
jurisdiction” was necessary when it enacted the MDLEA. Thus, Madera-Lopez
concludes that Article I of the Constitution did not grant Congress authority to
punish drug activity committed in foreign waters by foreign nationals on a foreign
vessel.
As noted above, we review for plain error because Madera-Lopez did not
object to the MDLEA’s application in the district court. The “Piracies and
Felonies Clause” grants Congress the power “[t]o define and punish Piracies and
Felonies committed on the high Seas, and Offenses against the Law of Nations.”
U.S. Const., Art. I, sec. 8, cl. 10. The MDLEA provides, in relevant part, that “[i]t
is unlawful for any person . . . on board a vessel subject to the jurisdiction of the
United States . . . to possess with intent to manufacture or distribute, a controlled
substance.” 46 U.S.C.App. § 1903(a). A “vessel subject to the jurisdiction of the
United States” includes “a vessel without nationality,” which, in turn, is defined to
include “a vessel aboard which the master or person in charge makes a claim of
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registry and the claimed nation of registry does not affirmatively and
unequivocally assert that the vessel is of its nationality.” 46 U.S.C.App.
§ 1903(c)(1)(A) and (c)(2)(C). However, there is no precedent from either the
Supreme Court or this Court resolving the issue of whether the MDLEA’s
enactment exceeded Congress’s authority under the “Piracies and Felonies
Clause.”1 Therefore any alleged error the district court may have committed was
not plain. Cf. United States v. Urena, 140 Fed.Appx. 879, 881-82 (11th Cir.), cert.
denied 126 S.Ct. 771 (2005) (unpublished) (holding that the district court did not
commit plain error by failing to sua sponte dismiss a case because Congress did not
have the authority under the Piracies and Felonies Clause to enact the MDLEA).
The two Supreme Court cases Madera-Lopez relies upon do not alter the
result. In United States v. Smith, 18 U.S. 153, 5 Wheat. 153, 5 L.Ed. 57 (1820),
the Supreme Court addressed an act of Congress that defined piracy by reference to
the “law of nations.” Id. at 157. The Court declared that “piracy, by the law of
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The Ninth Circuit has held that the MDLEA was a constitutional exercise of
Congressional power, although it did not discuss the limits of Congress’s authority under the
Piracies and Felonies Clause. See United States v. Moreno-Morillo, 334 F.3d 819, 824 (9th Cir.
2003). The Third Circuit also has held that Congress has the authority under that clause to
criminalize drug trafficking on the high seas, regardless of whether a nexus to the United States
existed. United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3rd Cir.1993). Similarly, we
have rejected the argument that the MDLEA is unconstitutional because the conduct at issue
lacks a nexus to the United States. United States v. Rendon, 354 F.3d 1320, 1325 (11th
Cir.2003).
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nations, is robbery upon the sea, and that it is sufficiently and constitutionally
defined by the fifth section of the act of 1819.” Id. at 162. Even if Smith, as
Madera-Lopez suggests, stands for the proposition that the Piracies and Felonies
Clause creates distinct grants of power for defining and punishing piracy and
felonies, it does not impact the result in this case.
The other case cited is United States v. Furlong, 18 U.S. 184, 5 Wheat. 184,
5 L.Ed. 64 (1820). Simply put, Furlong did not involve an interpretation of the
Piracies and Felonies Clause, but rather an act of 1790 criminalizing piratical
murder, and it certainly did not hold that Congress exceeded its authority under the
Pirates and Felonies Clause by seeking to regulate drug trafficking on the high
seas. See generally id. Accordingly, we conclude that the district did not plainly
err because neither the Supreme Court nor any circuit court has ever declared the
MDLEA an unconstitutional exercise of congressional power.
II. The MDLEA’s Jurisdictional Element
Madera-Lopez argues that the MDLEA unconstitutionally removes the
jurisdictional element of the crime from the jury’s consideration, in violation of the
Supreme Court’s ruling in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310,
132 L.Ed.2d 444 (1995), that every element of an offense must be submitted to a
jury for proof beyond a reasonable doubt. Madera-Lopez concedes that this
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Court’s precedent forecloses this argument, but wishes to raise the issue for
purposes of en banc or certiorari review.
In Gaudin, the Supreme Court stated that “[t]he Constitution gives a criminal
defendant the right to have a jury determine, beyond a reasonable doubt, his guilt
of every element of the crime with which he is charged.” Gaudin, 515 U.S. at
522-23, 115 S.Ct. at 2320. The MDLEA, however, specifically provides that:
“Jurisdiction of the United States with respect to vessels subject to this chapter is
not an element of any offense. All jurisdictional issues arising under this chapter
are preliminary questions of law to be determined solely by the trial judge.” 46
U.S.C.App. § 1903(f).
First, Madera-Lopez waived his right to have the jury make any findings
whatsoever. Pierre, 120 F.3d at 1155; cf. Ureda, 142 Fed.Appx. at 882. In any
event, even if the issue was not waived, we have squarely rejected his Gaudin
argument by holding that the MDLEA’s jurisdictional requirements are not
elements of the offense, and, therefore, do not have to be proven to a jury. See
United States v. Tinoco, 304 F.3d 1088, 1111-12 (11th Cir. 2002). We, therefore,
affirm.
AFFIRMED.
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