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United States v. Dávila-Reyes

United States Court of Appeals, First Circuit

September 3, 2019

UNITED STATES OF AMERICA, Appellee,
v.
JEFFRI DÁVILA-REYES, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
v.
JOSÉ D. REYES-VALDIVIA, Defendant, Appellant.

          Appeals from the United States District Court for the District of Puerto Rico [Hon. Francisco A. Besosa, U.S. District Judge]

          Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and John A. Mathews II, Assistant United States Attorney, were on brief, for appellee.

          Franco L. Pérez-Redondo, Research and Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, and Liza L. Rosado-Rodríguez, Research and Writing Specialist, were on brief, for appellant Jose D. Reyes-Valdivia.

          Raymond L. Sánchez-Maceira on brief for appellant Jeffri Dávila-Reyes.

          Before Howard, Chief Judge, Lipez and Thompson, Circuit Judges.

          Lipez, Circuit Judge.

         These consolidated appeals arise from the U.S. Coast Guard's interdiction of a small speed boat in the western Caribbean Sea and the subsequent arrest and indictment of the three men on board the boat for drug trafficking under the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501-70508. In a motion to dismiss the indictment, appellants José Reyes-Valdivia and Jeffri Dávila-Reyes challenged the constitutionality of the MDLEA. They argued that the statute, which in certain circumstances allows U.S. law enforcement to arrest foreign nationals for drug crimes committed in international waters, exceeds Congress's authority under Article I of the Constitution and violates the Due Process Clause. The district court denied the motion to dismiss. Both appellants then pleaded guilty pursuant to plea agreements in which each waived his right to appeal if sentenced in accordance with his agreement's sentencing recommendation provision.

         On appeal, appellants renew their constitutional objections to their prosecution. However, their primary argument __ that their vessel was not properly deemed stateless __ founders on our governing precedent concerning the protective principle of international law. That principle, as applied by our court, permits prosecution under the MDLEA even of foreigners on foreign vessels. That precedent may only be reconsidered by the en banc court. We as a panel may not do so. Hence, we affirm both appellants' convictions. Reyes-Valdivia also asserts sentencing error, but we find no abuse of discretion in the sentence imposed.

         I.

         We draw the following facts from appellants' change of plea colloquies and the uncontested portions of their Presentence Investigation Reports ("PSRs"). See United States v. Vélez-Luciano, 814 F.3d 553, 556 (1st Cir. 2016). While patrolling waters approximately 30 nautical miles southeast of San Andrés Island, Colombia, [1] U.S. Coast Guard officers observed a small vessel moving at a high rate of speed. When the occupants of the vessel became aware of the Coast Guard boat nearby, they began throwing packages and fuel barrels overboard. The Coast Guard officers approached the boat and began to question its occupants, the two appellants and a third co-defendant. The "master"[2] of the vessel "claimed Costa Rican nationality for the vessel," but did not provide any documentation of Costa Rican registry. The Coast Guard then contacted the government of Costa Rica, which neither confirmed nor denied the registry of the vessel. The Coast Guard officers thus determined that, pursuant to § 70502(d)(1)(C) of the MDLEA, [3] the boat was "without nationality" and subject to U.S. jurisdiction, and they proceeded to board and search it. The officers did not find any contraband, but a chemical test found traces of cocaine. Based on that evidence, the Coast Guard detained the three men __ all citizens of Costa Rica __ and took them to the U.S. Naval Base at Guantánamo Bay, Cuba, and then eventually to Puerto Rico.

         All three defendants were charged with two counts of trafficking cocaine in violation of the MDLEA. Reyes-Valdivia and Dávila-Reyes moved to dismiss the indictment for lack of jurisdiction, arguing that the MDLEA, particularly § 70502(d)(1)(C), is unconstitutional. In their view, § 70502(d)(1)(C) exceeds Congress's authority under Article I of the Constitution, and it violates the Due Process Clause of the Fifth Amendment because it is unconstitutionally vague, subject to arbitrary enforcement, and criminalizes conduct that has no nexus with the United States. The district court denied the motion.

         Reyes-Valdivia and Dávila-Reyes both subsequently agreed to plead guilty to one count of possession with intent to distribute five or more kilograms of cocaine in violation of the MDLEA. See 46 U.S.C. § 70503(a)(1).[4] The plea agreements for both men calculated a total offense level of 27, based on a base offense level of 30 and a three-level deduction for acceptance of responsibility. See U.S.S.G. §§ 2D1.1(a); 3E1.1(a)-(b). The parties' recommended sentences depended on the court's eventual finding of the Criminal History Category ("CHC"), with the statutory minimum of 120 months' imprisonment to be recommended unless the court found CHC VI (the highest level) applicable. In a supplement to Reyes-Valdivia's plea agreement, the parties agreed to recommend a 57-month term if he qualified for the "safety valve" exception to the mandatory minimum. See 18 U.S.C. § 3553(f)(1)-(5); U.S.S.G. § 5C1.2.[5] Both men agreed to waive appellate review if sentenced in accordance with the sentencing recommendation provisions.

         The PSRs calculated the total base offense levels consistently with the plea agreements and assigned Reyes-Valdivia a CHC of I and Dávila-Reyes a CHC of III, triggering the 120-month recommendation or, for Reyes-Valdivia, a 57-month term if he were found eligible for the safety valve. However, Reyes-Valdivia's PSR also concluded that he should be given a two-level enhancement for being the "captain" of the vessel. See U.S.S.G. § 2D1.1(b)(3)(C). After Reyes-Valdivia informally objected to the enhancement, the Probation Officer filed an addendum to the PSR stating that Reyes-Valdivia had told federal agents upon his arrival in Puerto Rico that he was the vessel's captain. Reyes-Valdivia then filed a written objection to the PSR in which he argued, inter alia, that the captain enhancement was inapplicable because he did not possess the "specialized skills" it required.

         Consistent with the plea agreements, the parties jointly recommended a sentence of 120 months for Dávila-Reyes and a sentence of 57 months for Reyes-Valdivia. The court sentenced Dávila-Reyes to 120 months, but sentenced Reyes-Valdivia to 70 months based on its finding that both the safety valve and the captain enhancement applied. Reyes-Valdivia's motion for reconsideration was denied. Both Reyes-Valdivia and Dávila-Reyes then appealed.

         II.

         The government contends that Reyes-Valdivia and Dávila-Reyes each waived his right to appeal in two distinct ways: by the express appellate waiver provisions in their plea agreements and by entry of unconditional guilty pleas to drug trafficking in violation of the MDLEA. With respect to Reyes-Valdivia, the government is wrong in arguing that he is barred by his plea agreement. As described above, the district court declined to follow the parties' recommended term of 57 months and instead sentenced him to a 70-month term of imprisonment. Because Reyes-Valdivia's sentence exceeded the recommendation, the waiver provision plainly does not apply.[6]

         Dávila-Reyes, however, received a 120-month sentence that aligns with the recommendation in his plea agreement. He argues that, despite the enforceable waiver, we should exercise our inherent authority to consider his claims to avoid "a miscarriage of justice." United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). He contends that his appeal raises "important questions of law and [of] first impression" __ including the constitutionality of § 70502(d)(1)(C) of the MDLEA __ and that preventing him from presenting that challenge would be unjust.

         We agree that the constitutional issues Dávila-Reyes raises are significant and that the other factors allowing us to exercise our discretion to disregard the appellate waiver also are present to the necessary degree. See, e.g., United States v. Ortiz-Vega, 860 F.3d 20, 27-28 (1st Cir. 2017). Particularly important is the lack of prejudice to the government, given Reyes-Valdivia's presentation of the same issues as Dávila-Reyes. See id. at 27. Indeed, if appellants request and obtain en banc reconsideration of the precedent that currently forecloses their constitutional claims, see infra, the potential for relief should not depend on the happenstance that the district court added an enhancement to Reyes-Valdivia's sentence. Thus, we exercise our discretion to decline to enforce Dávila-Reyes's appellate waiver.

         Nor do appellants' guilty pleas foreclose their right to challenge the constitutionality of the MDLEA. The Supreme Court recently held in Class v. United States that "a guilty plea by itself" does not bar "a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal." 138 S.Ct. 798, 803 (2018). In their briefing and oral argument, appellants present claims that are permissible under Class. Although they conceded through their guilty pleas that the MDLEA, by its terms, allows the government to prosecute them under U.S. law, they argue that Congress lacked authority to enact the applicable provisions. In other words, appellants accepted that their convictions were "proper" under the statute, but nonetheless unconstitutional. Such claims may proceed notwithstanding an unconditional guilty plea. See United States v. Aybar-Ulloa, 913 F.3d 47, 51 (1st Cir. 2019), petition for reh'g en banc filed, No. 15-2377 (Jan. 23, 2019); cf. United States v. Miranda, 780 F.3d 1185, 1194 (D.C. Cir. 2015) (noting that Congress would want the "'[j]urisdiction of the United States with respect to a vessel,' [46] U.S.C. § 70504(a), to be insulated from waiver or forfeiture by a defendant" because "[t]he requirement aims to protect the interests of foreign nations, not merely the interests of the defendant").

         III.

         Appellants' primary constitutional challenge targets a section of the MDLEA that allows U.S. authorities to deem a vessel "without nationality" __ i.e., "stateless" __ when certain conditions are met. See 46 U.S.C. § 70502(d)(1). It is undisputed in this case that the "vessel without nationality" provision of the MDLEA was enacted pursuant to Congress's authority to "define and punish . . . Felonies committed on the high Seas" ("the Felonies Clause"). U.S. Const. art. I, § 8, cl. 10; see United States v. Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016) (stating that the MDLEA "was enacted under Congress's authority provided by the Felonies Clause"); United States v. Matos-Luchi, 627 F.3d 1, 3 (1st Cir. 2010) (stating that, in criminalizing drug trafficking in the MDLEA, Congress was "[i]nvoking its constitutional power" under the Felonies Clause). Appellants argue that Congress's authority under the Felonies Clause is limited by the principles of international law, and they maintain that, under that law, their vessel cannot be deemed stateless. Specifically, they contend that the definition of a stateless vessel relied upon by the government to support jurisdiction over their boat improperly disregards a master's verbal claim of nationality or registry based on mere inaction by the named country, i.e., its failure to confirm or deny "that the vessel is of its nationality." 46 U.S.C. § 70502(d)(1)(C). Thus, they say, their arrests and prosecution were unconstitutional.

         Under our caselaw, however, appellants' prosecution does not depend on their vessel having been properly deemed stateless. Even if their challenge to the MDLEA's statelessness definition were successful, appellants would still confront our precedent holding that the MDLEA is consistent with the "protective principle" of international law, which permits a nation "to assert jurisdiction over a person whose conduct outside the nation's territory threatens the nation's security." United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (quoting United States v. Robinson, 843 F.2d 1, 3 (1st Cir. 1988) (Breyer, J.)).

         In Cardales, we stated that the protective principle may be triggered in cases brought under the MDLEA "because Congress has determined that all drug trafficking aboard vessels threatens our nation's security." Id. (emphasis added). In so concluding, we relied on a provision of the MDLEA stating, in pertinent part: "Congress finds and declares that [] trafficking in controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to the security and societal well-being of the United States." 46 U.S.C. § 70501. Our court, albeit in mostly split panels, has subsequently accepted as governing precedent the view expressed in Cardales that the protective principle can be applied to drug trafficking in violation of the MDLEA. See, e.g., Aybar-Ulloa, 913 F.3d at 56 (majority opinion); United States v. Vilches-Navarrete, 523 F.3d 1, 21-22 (1st Cir. 2008) (separate opinion of Lynch and Howard, JJ.); United States v. Bravo, 489 F.3d 1, 7-8 (1st Cir. 2007); but see, e.g., Aybar-Ulloa, 913 F.3d at 58-59 (Torruella, J., joining in part and dissenting in part).[7]

         Significantly for the case before us, Cardales invoked the protective principle with respect to foreigners on a foreign vessel, initially spotted about 150 miles south of Puerto Rico. See 168 F.3d at 551. The captain of the boat, which was boarded by Coast Guard officers over the captain's objection, claimed it was a Venezuelan vessel. Id. at 551-52. The Venezuelan ...


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