Appeals from the United States District Court for the
District of Puerto Rico [Hon. Francisco A. Besosa, U.S.
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
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.
Raymond L. Sánchez-Maceira on brief for appellant
Howard, Chief Judge, Lipez and Thompson, Circuit Judges.
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.
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.
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,  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" 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,  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.
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.
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). 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. Both men agreed to waive appellate review
if sentenced in accordance with the sentencing recommendation
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.
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.
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.
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.
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.
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,'  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
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
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.)).
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).
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 ...