United States Court of Appeals
For the First Circuit
No. 14-1819
UNITED STATES OF AMERICA,
Appellee,
v.
BETSIAN CARRASQUILLO-PEÑALOZA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
Alejandra Bird López for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, were on brief, for appellee.
June 21, 2016
LYNCH, Circuit Judge. Betsian Carrasquillo-Peñaloza
pleaded guilty to one count of violating 18 U.S.C. § 2423(a) by
attempting to prostitute a fourteen-year-old girl to undercover
federal agents. On appeal, Carrasquillo-Peñaloza argues that her
conviction must be reversed because the application of 18 U.S.C.
§ 2423(a) to conduct wholly within Puerto Rico exceeds Congress's
legislative authority. But Carrasquillo-Peñaloza waived her right
to bring this challenge when she entered an unconditional guilty
plea and executed a waiver-of-appeal clause. We affirm.
I.
On October 10, 2012, Carrasquillo-Peñaloza was indicted
for one count of transportation of a minor with the intent that
she engage in prostitution, in violation of 18 U.S.C. § 2423(a),1
and one count of sex trafficking of a child, in violation of 18
U.S.C. § 1591(a). A substantially similar superseding indictment
was issued on October 24, 2012.
On December 7, 2012, Carrasquillo-Peñaloza filed a
motion to dismiss the superseding indictment, arguing, inter alia,
that the application of 18 U.S.C. § 2423(a) to conduct wholly
1 This statute, which was passed as part of the Mann Act,
makes it a crime to "knowingly transport[] an individual who has
not attained the age of 18 years in interstate or foreign commerce,
or in any commonwealth, territory or possession of the United
States, with intent that the individual engage in prostitution, or
in any sexual activity for which any person can be charged with a
criminal offense." 18 U.S.C. § 2423(a).
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within Puerto Rico exceeded Congress's legislative authority. On
April 20, 2013, the district court denied the motion on the basis,
inter alia, that the constitutionality of that particular
application of 18 U.S.C. § 2423(a) had already been settled in
Crespo v. United States, 151 F.2d 44, 45 (1st Cir. 1945).
On October 11, 2013, Carrasquillo-Peñaloza pleaded
guilty to the first count of the superseding indictment, for
violation of 18 U.S.C. § 2423(a). Her potential sentencing
exposure was ten years to life imprisonment. The plea agreement
contained a joint recommendation that Carrasquillo-Peñaloza be
sentenced to the statutory minimum sentence of 120 months of
imprisonment. The plea agreement also contained a waiver-of-
appeal clause.2
On July 7, 2014, Carrasquillo-Peñaloza was sentenced to
120 months of imprisonment, as jointly recommended. This appeal
followed.
II.
Carrasquillo-Peñaloza contends that the argument she
wishes to raise on appeal -- that the application of 18 U.S.C.
§ 2423(a) to conduct wholly within Puerto Rico exceeds Congress's
2 The waiver-of-appeal clause stated that "if this
Honorable Court accepts this Plea Agreement and sentences the
defendant according to its terms, conditions and recommendations,
the defendant then waives and permanently surrenders his [sic]
right to appeal the judgment and sentence in this case."
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legislative authority under the Commerce Clause -- is not barred
by her unconditional guilty plea or the waiver-of-appeal clause in
her plea agreement. Because that is not so, we do not reach the
merits of her argument of unconstitutionality, save to point out
that it would be an uphill battle in light of precedent.
"It is well-established that an unconditional guilty
plea results in the waiver of errors preceding the plea." United
States v. Castro-Vazquez, 802 F.3d 28, 32 (1st Cir. 2015) (citing
Tollett v. Henderson, 411 U.S. 258, 267 (1973)). "So long as the
unconditional guilty plea is knowing and voluntary," id. at 33, it
"effectuates a waiver of any and all independent non-
jurisdictional lapses that may have marred the case's progress up
to that point," id. (quoting United States v. Cordero, 42 F.3d
697, 699 (1st Cir. 1994)).
Carrasquillo-Peñaloza does not contest the knowing and
voluntary character of her guilty plea. Rather, she argues that
her appeal can proceed notwithstanding her unconditional guilty
plea because her constitutional challenge to the statute of her
conviction casts doubt on the district court's subject matter
jurisdiction. But her argument is foreclosed by circuit precedent.
In United States v. Cardales-Luna, we faced the issue of
whether a portion of the Maritime Drug Law Enforcement Act
("MDLEA") that allowed a federal criminal law to be enforced
against persons and activities lacking any nexus with the United
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States, 46 U.S.C. §§ 70502(c)(1)(C), 70503(a)(1), exceeded
Congress's Article I authority. 632 F.3d 731, 737 (1st Cir. 2011).
We held that, whatever its merits, a constitutional challenge to
Congress's legislative authority to enact the statute under which
a defendant is charged does not deprive the district court of
subject matter jurisdiction over the criminal case brought under
that statute. Id. We adopted the D.C. Circuit's position that:
"If a challenge to the constitutionality of an underlying criminal
statute always implicated subject-matter jurisdiction, then
federal courts, having an obligation to address jurisdictional
questions sua sponte, would have to assure themselves of a
statute's validity as a threshold matter in any case. This
requirement would run afoul of established Supreme Court precedent
declining to address constitutional questions not put in issue by
the parties." Id. at 737–38 (quoting United States v. Baucum, 80
F.3d 539, 541 (D.C. Cir. 1996) (per curiam)).
We reaffirmed that conclusion in two subsequent cases.
In United States v. Nueci-Peña, a defendant who was convicted after
a jury trial sought de novo review of an unpreserved argument that
the application of the MDLEA in his case exceeded Congress's
legislative authority. 711 F.3d 191, 196 (1st Cir. 2013). The
defendant tried to excuse his failure to preserve the issue by
arguing that it was a jurisdictional issue that could be raised at
any time. Id. at 196–97. We cited Cardales-Luna as having
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previously rejected his assertion that his constitutional
challenge was jurisdictional, and we went on to apply plain error
review. Id. at 197.
In United States v. Díaz-Doncel, the defendant had
entered an unconditional guilty plea and had subsequently
attempted to bring an appellate challenge to Congress's
legislative authority to enact the MDLEA. 811 F.3d 517, 517 (1st
Cir. 2016). We cited Cardales-Luna and held that his
constitutional challenge was nonjurisdictional and so could not be
raised on appeal following an unconditional guilty plea. Id. at
518.
In sum, circuit precedents make clear that Carrasquillo-
Peñaloza's challenge to the statute of her conviction is
nonjurisdictional.3 Because the challenge is nonjurisdictional,
Carrasquillo-Peñaloza waived her right to bring it by entering an
unconditional guilty plea.4 She could have tendered a conditional
3 In arguing otherwise, Carrasquillo-Peñaloza relies
heavily on United States v. DiSanto, 86 F.3d 1238 (1st Cir. 1996),
in which we stated that "a claim that a statute is unconstitutional
or that the court lacked jurisdiction may be raised for the first
time on appeal." Id. at 1244. DiSanto has no relevance to the
issue before us -- the effect of an unconditional guilty plea --
because the defendant there was convicted by a jury. Moreover, to
the extent that DiSanto suggests that a constitutional challenge
to a statute of conviction is jurisdictional, it is dicta. The
law of our circuit on this issue is the firm holding of this court
in Cardales-Luna.
4 The Supreme Court has recognized two types of
nonjurisdictional errors that are not waived by an unconditional
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guilty plea and preserved her right to appeal the district court's
denial of her Commerce Clause challenge. See United States v.
Rodriguez-Castillo, 350 F.3d 1, 4 n.2 (1st Cir. 2003) (citing Fed.
R. Crim. P. 11(a)(2)). She did not, however, avail herself of
that option.
Carrasquillo-Peñaloza's appeal is also independently
barred by the waiver-of-appeal clause in her plea agreement.
"[S]uch waivers are binding and enforceable so long as: (1) the
written plea agreement clearly delineates the scope of the waiver;
(2) the district court specifically inquired at the plea hearing
about the waiver, and the questioning of the defendant suffices to
show that the waiver was knowing and voluntary; and (3) the denial
of the right to appeal would not constitute a miscarriage of
justice." United States v. González-Colón, 582 F.3d 124, 127 (1st
Cir. 2009) (citing United States v. Teeter, 257 F.3d 14, 24–26
(1st Cir. 2001)).
Carrasquillo-Peñaloza argues that her plea agreement did
not make clear that the scope of the waiver encompassed challenges
to the validity of the statute of conviction. Not so. Her appeal
guilty plea. See Díaz-Doncel, 811 F.3d at 518 n.2 (citing Menna
v. New York, 423 U.S. 61, 62–63 & n.2 (1975) (per curiam) (double
jeopardy challenge); Blackledge v. Perry, 417 U.S. 21, 30 (1974)
(due process challenge arising from repetitive, vindictive
prosecution)).
Neither exception is applicable here. See id.; United
States v. Miranda, 780 F.3d 1185, 1190–91 (D.C. Cir. 2015).
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is fairly encompassed by her express waiver of the "right to appeal
the judgment and sentence in this case," and we have previously
characterized such wording as "simple and easily understood."
United States v. Borrero-Acevedo, 533 F.3d 11, 14 (1st Cir. 2008).
She does not challenge the adequacy of the district court's inquiry
into the knowing and voluntary nature of the plea. Nor would
enforcement of the waiver be a miscarriage of justice. See United
States v. Vélez-Luciano, 814 F.3d 553, 559 (1st Cir. 2016). The
waiver-of-appeal provision applies.
The appeal is dismissed.
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