United States v. Aybar-Ulloa

United States Court of Appeals
For the First Circuit

No. 15-2377

UNITED STATES OF AMERICA,

Appellee,

v.

JOHVANNY AYBAR-ULLOA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Lynch, and Barron,
Circuit Judges.

Heather Clark, with whom Clark Law Office was on brief, for
appellant.
Margaret Upshaw, 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.

January 9, 2019
 BARRON, Circuit Judge. Johvanny Aybar-Ulloa ("Aybar")

pleaded guilty in 2015 to two counts of drug trafficking in

international waters while aboard a "stateless" vessel in

violation of the Maritime Drug Law Enforcement Act ("MDLEA"), 46

U.S.C. §§ 70501-08. He now challenges those convictions on the

ground that Congress lacks the authority under Article I, Section

8, Clause 10 of the United States Constitution to criminalize his

conduct, given that he contends that the conduct for which he was

convicted lacks any nexus to the United States. Aybar separately

challenges the sentence that he received for those convictions.

For the reasons that follow, we affirm the convictions but vacate

the sentence.

I.

At the change of plea hearing, the government described,

and Aybar does not dispute, the following events as having occurred

on August 9, 2013. HMS Lancaster, a foreign warship, was on patrol

in the Caribbean Sea and launched a helicopter that spotted a small

vessel dead in the water. The vessel was located in international

waters at the time and contained "numerous packages."

HMS Lancaster launched a small boat in order to conduct

a right-of-visit approach. During this approach, Aybar and his

co-defendant, who were aboard the vessel with the packages, claimed

to be citizens of the Dominican Republic, although the vessel bore

"no indicia of nationality."

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 Law enforcement personnel aboard the small boat

conducting the approach then determined that the vessel was

"without nationality," as Aybar conceded to the District Court was

true, and boarded it.1 The men on board the vessel, including

Aybar, were transferred to HMS Lancaster along with the packages

that were taken from the vessel.

A narcotics field test performed on board HMS Lancaster

confirmed that the packages contained cocaine. At this point,

Aybar was transferred to a United States Coast Guard vessel and

transported to Puerto Rico, where he was held in custody by United

States law enforcement.

On August 13, 2013, a federal grand jury in the District

of Puerto Rico returned an indictment against Aybar. The

indictment charged him under the MDLEA with conspiring to possess

with intent to distribute cocaine on board a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C.

§ 70506(b) (count one), and aiding and abetting possession with

intent to distribute cocaine on board a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C.

§§ 70502(c)(1)(A), 70503(a)(1), 70504(b)(1), 70506(a), and 18

1The government represented in a filing in the District Court
that the law enforcement personnel were United States Coast Guard
members who were embarked on HMS Lancaster. However, the
government did not mention this allegation while describing the
factual basis for the convictions at the change of plea hearing.

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U.S.C. § 2 (count two). A forfeiture allegation, under 46 U.S.C.

§ 70507, was also made against Aybar.

The MDLEA provides in part: "While on board a covered

vessel, an individual may not knowingly or intentionally . . .

manufacture or distribute, or possess with intent to manufacture

or distribute, a controlled substance . . . ." 46 U.S.C.

§ 70503(a)(1). A "covered vessel" includes "a vessel subject to

the jurisdiction of the United States." Id. § 70503(e)(1). A

"vessel subject to the jurisdiction of the United States" is in

turn defined to include "a vessel without nationality." Id.

§ 70502(c)(1)(A). And, as we mentioned, Aybar conceded below that

he was on board a vessel "without nationality" at the time he was

apprehended.

On October 2, 2014, Aybar filed a motion to dismiss the

indictment for lack of jurisdiction. He argued that Congress

lacked the power to criminalize his conduct, given the lack of

what Aybar claimed to be any constitutionally sufficient nexus

between his charged conduct and the United States, because

Congress's power under Article I of the Constitution "[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, did not extend to his conduct in such circumstances.

The government opposed Aybar's motion. The District

Court denied Aybar's motion on December 22, 2014 and issued a nunc

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pro tunc opinion and order on January 5, 2015. The District Court

acknowledged that the vessel was not a "vessel of the United

States" within the meaning of the MDLEA, 46 U.S.C. § 70503(e)(1);

that Aybar was not a citizen of the United States; and that the

other members of the crew were not either. But, the District Court

reasoned, because "international law allows the United States 'to

treat stateless vessels as if they were its own,'" it followed

that "persons navigating the high seas aboard a vessel without

nationality have effectively waived their rights to object to the

exercise of jurisdiction over them by the United States." The

District Court therefore concluded that Aybar's "as-applied

constitutional challenge fails" because his vessel was stateless.

Following a change of plea hearing, Aybar entered a

guilty plea to all charges on March 11, 2015. At that hearing,

Aybar engaged in the following colloquy with the Magistrate Judge:

The Magistrate: Now, do you admit that in
addition to the conspiracy you actually and
the other co-defendants possessed with the
intent to distribute these substances, this
cocaine?

Aybar: Yes, Your Honor.

The Magistrate: In the same circumstances on
board this vessel without nationality and
therefore subject to jurisdiction of the
United States?

Aybar: Yes, Your Honor.

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 The District Court accepted Aybar's guilty plea, and the

case proceeded to sentencing. A probation officer prepared a

presentence report ("PSR") using the 2014 United States Sentencing

Guidelines Manual. The PSR assigned Aybar a base offense level of

thirty-eight under the United States Sentencing Guidelines. After

receiving the PSR, Aybar filed an objection in which he argued

that two levels should be subtracted from his offense level under

§ 3B1.2(b) of the Guidelines because he was a minor participant.

At sentencing, the District Court declined to reduce his

offense level as Aybar had argued and sentenced Aybar to 135 months

in prison. Aybar timely filed a notice appealing the judgment

entered against him.

II.

In prior cases in our circuit that have presented

constitutional challenges to MDLEA convictions not unlike the one

that Aybar now makes to us, the defendant had either waived or

forfeited the constitutional argument challenging the scope of

Congress's power under Article I to criminalize conduct supposedly

lacking a sufficient nexus to the United States. See, e.g., United

States v. Diaz-Doncel, 811 F.3d 517 (1st Cir. 2016) (waived);

United States v. Nueci-Peña, 711 F.3d 191 (1st Cir. 2013)

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(forfeited).2 But that is not the case here. Aybar timely raised

below the challenge that he now makes on appeal. And while Aybar

did plead guilty to the offenses that underlie the convictions

that he challenges on appeal, the government concedes that, in

consequence of the Supreme Court's holding in Class v. United

States, 138 S. Ct. 798 (2018), Aybar's guilty plea does not bar

him from challenging Congress's constitutional power to

criminalize his conduct pursuant to its Article I powers.

The government does separately argue that Aybar waived

his right to bring this challenge because he conceded in the plea

colloquy that the vessel he was on board was "without nationality"

-- which is one of the MDLEA's definitions for a "vessel subject

to the jurisdiction of the United States." 46 U.S.C.

§ 70502(c)(1)(A). But, as we read the record, Aybar conceded only

that his conduct fell within the MDLEA's scope and not that the

MDLEA was a valid exercise of Congress's constitutional power under

Article I insofar as it covered his conduct.

2 We rejected a similar as-applied challenge to the
constitutionality of the MDLEA under the Define and Punish Clause
on plain error review in Nueci-Peña. See 711 F.3d at 196-98. In
doing so, we noted that of all the circuits to have addressed the
argument that this Clause "does not authorize Congress to enact
the MDLEA, which punishes conduct without a connection to the
United States," at least one has squarely rejected that argument,
and none has held otherwise. Id. at 198 (citing United States v.
Estupinan, 453 F.3d 1336, 1338-39 (11th Cir. 2006)).

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 Thus, we review de novo the district court's rejection

of Aybar's constitutional challenge to Congress's power to

criminalize the conduct for which he was convicted. See United

States v. Bravo, 489 F.3d 1, 6 (1st Cir. 2007). Nevertheless, as

we will explain, the particular constitutional challenge to

Congress's power that Aybar develops fails because, although we

have not had occasion directly to address it before, related

precedent from our circuit precludes us from accepting the premise

concerning international law on which his constitutional challenge

to congressional power rests.

A.

Aybar contends that Congress exceeded its authority

under Article I in criminalizing his conduct under the MDLEA

because Congress lacked the necessary power to criminalize such

conduct under the Define and Punish Clause. That Clause gives

Congress the power "[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. In responding to

Aybar's constitutional challenge, the government does not identify

any other source of constitutional authority pursuant to which

Congress may criminalize Aybar's conduct. We thus focus here

solely on the dispute between the parties regarding the scope of

the power that the Define and Punish Clause affords Congress to

criminalize Aybar's conduct.

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 Aybar's constitutional challenge relies heavily on Judge

Torruella's dissent in United States v. Cardales-Luna, 632 F.3d

731 (1st Cir. 2011).3 Aybar first contends, by quoting Judge

Torruella's dissent, that "piracy" under international law is only

"robbery when committed upon the sea" and thus does not encompass

drug trafficking. Id. at 745 (Torruella, J., dissenting). For

that reason, he contends that Congress has no power to criminalize

his conduct pursuant to the "Piracies" component of the Clause in

question.

Aybar further contends, again by quoting the following

portion of Judge Torruella's Cardales-Luna dissent, that the "'Law

of Nations' is generally understood to be the eighteenth and

nineteenth-century term for 'customary international law'" and

that customary international law does not recognize drug

trafficking as an offense against the law of nations. Id. at 745-

47. Thus, Aybar contends, the "law of nations" component of the

Clause at issue also does not give Congress the power to

criminalize the conduct for which he was convicted.

3 The defendant in Cardales-Luna did not raise a
constitutional challenge to Congress's power under Article I to
regulate conduct aboard stateless vessels on the high seas absent
any nexus between that conduct and the United States. 632 F.3d at
737. Judge Torruella nevertheless addressed this issue in his
dissent because he concluded that this constitutional challenge
implicated the court's subject matter jurisdiction. Id. The
majority disagreed, however, and thus declined to address the issue
sua sponte. Id.

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 Of course, Aybar recognizes that, even if these

arguments are right, he still must show that Congress could not

criminalize his conduct pursuant to its power to define and punish

"Felonies" committed on the high seas. He acknowledges, as

precedent compels him to do, that this portion of the Clause gives

Congress an independent source of power to define and punish

conduct on the high seas, separate and apart from the power that

Congress has under the other portions of the Clause that we have

just discussed. See United States v. Smith, 18 U.S. 153, 158-59

(1820).

In arguing that the portion of the Clause that empowers

Congress to punish "Felonies" on the high seas does not permit

Congress to criminalize his conduct, Aybar contends that Congress

cannot define and punish his conduct as a "Felon[y]" within the

meaning of Article I, Section 8, Clause 10, because there was no

nexus between that conduct and the United States.4 And Aybar bases

that argument entirely on an assertion about the way that

international law -- which he appears to treat as having been

4Specifically, Aybar asserts the following: He was
"interdicted in a vessel in international waters"; "no offense
occurred within the territorial jurisdiction of the United
States"; his vessel neither departed from nor was bound for the
United States; "there is no evidence that the cocaine aboard the
vessel was intended for distribution" in the United States; he
"did not commit any offense against a vessel of the United States";
and he was "located by and taken in custody aboard" a foreign
warship.

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invariant in the relevant respect from the Founding to the present

-- treats drug trafficking and a nation's power to prosecute it in

circumstances like those involved here.

We note that, in advancing this argument about the

content of international law, Aybar is less than clear in

explaining the precise extent to which, in his view, international

law reflects limits on national power that the Constitution

incorporates in the portion of Article I that empowers Congress to

define and punish "Felonies" committed on the high seas. But, be

that as it may, it is at least clear that Aybar's constitutional

contention with respect to the scope of Congress's power under

this part of Article I is necessarily premised on the underlying

assertion that he makes about the content of international law as

it relates to a nation's ability to criminalize conduct on the

high seas where there is no more connection between that conduct

and the United States than there is here. And so we now turn to

a consideration of that international-law-based premise for his

constitutional argument concerning Congress's power, for, unless

we accept that premise, his constitutional challenge must fail.5

5 We note that the Supreme Court addressed Congress's
constitutional power to define and punish piracies and felonies in
a series of cases in the early nineteenth century. See United
States v. Furlong, 18 U.S. (5 Wheat.) 184, 195-98 (1820); Smith,
18 U.S. (5 Wheat.) at 158-60; United States v. Palmer, 16 U.S. (3
Wheat.) 610, 630 (1818); cf. United States v. Holmes, 18 U.S. (5
Wheat.) 412 (1820); United States v. Klintock, 18 U.S. (5 Wheat.)

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 B.

In asserting this premise, Aybar again relies heavily on

the reasoning set forth in portions of Judge Torruella's dissent

in Cardales-Luna. Aybar begins by quoting Judge Torruella's

conclusion that, "under the international law doctrine of

universal jurisdiction (UJ), a nation may prosecute certain

serious offenses even though they have no nexus to its territory

or its nationals, and no impact on its territory or its citizens."

Cardales-Luna, 632 F.3d at 740. But, Aybar goes on to contend,

once again by quoting Judge Torruella's dissent in Cardales-Luna,

that "[o]ther than in the case of those limited crimes, there is

no general authority to regulate purely foreign criminal conduct

that does not have a demonstrable connection with the United

States." Id. at 741. Aybar then ties up his constitutional

argument by asserting (yet again by quoting Judge Torruella's

dissent in Cardales-Luna) that, because "[d]rug trafficking is not

recognized in customary international law as a universally

cognizable offense," id. at 745, the MDLEA may not afford universal

jurisdiction for drug trafficking as a "Felon[y]" within the

meaning of Article I, Section 8, Clause 10 of the Constitution in

a case in which the defendant's conduct did not have any more nexus

to the United States than was present here.

144 (1820). But, Aybar makes no argument that these cases resolved
his constitutional argument in his favor.

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 The problem for Aybar in advancing this argument is that,

notwithstanding his contention that international law does not

authorize the United States to prosecute conduct like his own due

to what he claims to be the lack of any nexus between that conduct

and the United States, we set forth a contrary view of

international law in United States v. Victoria, 876 F.2d 1009 (1st

Cir. 1989) (Breyer, J.). There, we considered a challenge to a

conviction for possessing marijuana under a predecessor statute to

the MDLEA based on conduct aboard a stateless vessel that was

captured off the coast of Colombia. Id. at 1009-10. And, in the

course of rejecting that defendant's challenge to his drug

conviction, we explained first that "international law . . . gives

the United States . . . authority to treat stateless vessels as if

they were its own." Id. at 1010 (second omission in original)

(quoting United States v. Smith, 680 F.2d 255, 258 (1st Cir.

1982)). Then, on the basis of that understanding of international

law's treatment of stateless vessels, we concluded: "Thus the

United States, as a matter of international law, may prosecute

drug offenders on stateless ships found on the high seas." Id.6

6At oral argument, when asked why our holding in Victoria
was not dispositive, Aybar's counsel responded that Victoria did
not address the distinction between statelessness under the MDLEA
and statelessness for the purposes of international law. But,
while Aybar's brief asserts in a footnote that the MDLEA's
definition of statelessness is broader than international law's,
he does not develop any argument for distinguishing Victoria on

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 To be sure, Victoria did not fully spell out why its

conclusion that international law authorizes the United States to

treat a stateless vessel as its own means that, as a matter of

international law, the United States could prosecute a person on

board such a vessel for a drug offense. Victoria nevertheless

made it clear that its ruling was definitive as to this point

through its approving and extensive references to out-of-circuit

precedents holding similarly and "explain[ing] in detail why this

is so." Id. at 1011 (citing United States v. Alvarez-Mena, 765

F.2d 1259, 1265-66 (5th Cir. 1985); United States v. Pinto-Mejia,

720 F.2d 248, 260-61 (2d Cir. 1983); United States v. Marino-

Garcia, 679 F.2d 1373, 1382-83 (11th Cir. 1982); United States v.

Rubies, 612 F.2d 397, 402-03 (9th Cir. 1979); United States v.

Cortes, 588 F.2d 106, 110 (5th Cir. 1979)).7

this basis. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
7 For this reason, we do not find significant the fact, not
mentioned by the defendant here, that there was some evidence in
Victoria -- as there is not here -- that the vessel in that case
was potentially bound for the United States. See 876 F.2d at 1010.
In fact, there is no indication in Victoria that the statute at
issue made proof of such a tie between the defendant's conduct and
the United States necessary to convict the defendant. Nor did we
qualify our holding that "the United States, as a matter of
international law, may prosecute drug offenders on stateless ships
found on the high seas" in light of that evidence. Id. We also
note that Victoria, in asserting the United States' broad authority
under international law to prosecute persons who are not citizens
of the United States for drug trafficking on a stateless vessel in
international waters, made no reference to our decision the year
before in United States v. Robinson, 843 F.2d 1, 3-4 (1st Cir.

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 We do recognize that Victoria did not consider a

constitutional challenge to Congress's power under Article I, such

as Aybar now makes to us. In Victoria, the defendant argued merely

that the statute there at issue did not reach his conduct in light

of the Charming Betsy canon, see Murray v. The Schooner Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (reasoning that "an act of

Congress ought never to be construed to violate the law of nations

if any other possible construction remains"), given that he claimed

that "international law would not permit the United States to

convict him for possessing marijuana . . . so far from the United

States." Victoria, 876 F.2d at 1010. But, even though our ruling

in Victoria did not purport to address the constitutional question

of congressional power that Aybar now raises, its reasoning is no

less dispositive as to the assertion about international law that

supplies the premise for the constitutional argument that Aybar

does make. Accordingly, because Aybar's constitutional challenge

rests on an assertion about the content of international law that,

as a panel, we are not free to accept in light of our prior

precedent, we must reject his constitutional contention regarding

1988), in which we observed in dicta that there was a "forceful"
argument to be made that international law would not justify the
United States' prosecution of drug offenders on a foreign-flagged
ship found on the high seas where there was no clear proof that
the ship was bound for the United States and where the United
States acted without the flag state's consent.

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the scope of Congress's power. See United States v. Wurie, 867

F.3d 28, 34 (1st Cir. 2017) (explaining the law of the circuit

rule). And, on that basis, we affirm his convictions.8

8 The dissent disputes the merits of Victoria's holding as to
international law, as well as the necessity of Victoria having
resolved the Charming Betsy issue on the basis of that
understanding of international law. See Diss. Op. 30-33. But,
under the law of the circuit doctrine, what matters is simply
whether Victoria did rely on that proposition for its holding that
the Charming Betsy canon did not require a narrower construction
of the MDLEA, and it is clear that Victoria did. In fact, in
defending that view of international law, Victoria cited
extensively to out-of-circuit precedent and included
parentheticals in which those circuits set forth that very
proposition of international law. See Victoria, 876 F.2d at 1011.
We thus are not free to treat that aspect of the Victoria decision
as mere dicta. We note, too, that other circuits, since Victoria,
have continued to rule the same way. See, e.g., United States v.
Campbell, 743 F.3d 802, 809-12 (11th Cir. 2014); United States v.
Caicedo, 47 F.3d 370, 372-73 (9th Cir. 1995); United States v.
Martinez-Hidalgo, 993 F.2d 1052, 1056-57 (3d Cir. 1993).
The dissent also observes that Smith, 680 F.2d 255, a decision
that predates Victoria, indicates that Victoria's view of
international law is mistaken. See Diss. Op. 31-32. The dissent
further notes that Victoria relied on Smith. See id. However, as
the dissent itself points out, Victoria did not cite the full
passage from Smith that the dissent contends is at odds with
Victoria's assertion about international law. See Victoria, 876
F.2d at 1010. And, the particular part of that passage from Smith
that Victoria did cite does not support the dissent's view. Nor
does the dissent contend that it does. See Diss. Op. 31-32. In
any event, we do not read even the full passage from Smith to
support the dissent's view of it. See Diss. Op. 31. In that
passage, Smith concludes that "[the United States] has the
authority to treat stateless vessels as if they were its own," 680
F.2d at 258, and then follows that conclusion by emphasizing the
circumstances of the case in front of it, stating that the United
States "has [that] authority . . ., particularly when engaged in
conduct affecting United States vessels and having an effect within
the jurisdiction of the United States," id. (emphasis added). Read
as a whole, therefore, the passage from Smith on which the dissent
places much weight suggests that evidence of a nexus between the

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 There is, in addition to Victoria, another of our

precedents that is at odds with Aybar's contention that

international law of its own force requires there to be more of a

nexus between a person charged with drug trafficking and the nation

that wishes to criminally prosecute it than is present here. That

precedent is United States v. Cardales, 168 F.3d 548 (1st Cir.

1999), which concerned the application of the MDLEA to drug

smugglers on the high seas (there, on a foreign-flagged ship).

Id. at 551-52.

In Cardales, the defendants argued that the Due Process

Clause, rather than the Define and Punish Clause, "requires the

government to prove a nexus between their criminal conduct and the

United States in a prosecution for violating the MDLEA," 168 F.3d

at 552, which is an argument that we rejected there, id. at 553,

and that Aybar does not press here.9 Moreover, Cardales, unlike

Aybar's case, involved a foreign-flagged vessel, id. at 552, and

we noted that the flag nation had consented to the assertion of

conduct at issue and the United States is not necessary in order
for the United States to exercise the authority that Smith
recognizes.
9 We note that Aybar's brief mentions that the warship that
intercepted the stateless vessel on which he was aboard was a
foreign one. That was not the case in either Victoria or Cardales
(a point Aybar does not himself point out), but Aybar makes no
argument as to why this difference should matter with respect to
whether the exercise of United States jurisdiction over his conduct
aboard the stateless vessel was consistent with international law.
See Zannino, 895 F.2d at 17.

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jurisdiction by the United States, id., which we identified as key

to our holding rejecting Cardales's due process challenge on ground

of a lack of any nexus.

But, apart from that aspect of our ruling, we also stated

in Cardales that the application of the MDLEA in that case was

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." Id. at 553 (quoting Robinson, 843 F.2d at 3). And, in

so concluding, Cardales relied on a congressional finding in the

MDLEA that "trafficking in controlled substances aboard vessels is

a serious international problem and is universally condemned[,

and] . . . presents a specific threat to the security . . . of the

United States." Id. (alteration and omissions in original)

(quoting 46 U.S.C. app. § 1902). Cardales then explained that

"application of the MDLEA to the defendants is consistent with the

protective principle of international law because Congress has

determined that all drug trafficking aboard vessels threatens our

nation's security." Id. (emphasis added).

There is no indication in this aspect of Cardales's

reasoning that its broad assertion regarding the United States'

entitlement to assert protective jurisdiction, under international

law, was limited only to cases in which the flag nation has

consented to the United States' assertion of jurisdiction over a

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vessel and those on board it. See id. at 553. Thus, the language

on this point in Cardales is, like the language referenced in

Victoria concerning international law that we have described

above, directly contrary to Aybar's sole constitutional

contention, given the assertion about international law on which

his contention rests.

Moreover, Aybar makes no argument as to why,

notwithstanding our conclusion to the contrary in Cardales, his

conduct does not fall within the United States' protective

jurisdiction. He instead contends only that his crime of drug

trafficking is outside the United States' universal jurisdiction.

He thus develops no argument for reconsidering our statement in

Cardales concluding that the scope of protective jurisdiction

encompasses conduct of the kind present here. See Zannino, 895

F.2d at 17.

III.

Aybar next argues that the District Court erroneously

denied him a minor participant reduction under § 3B1.2(b) of the

Sentencing Guidelines based on five factors that he contends show

that he was a minor participant. That guideline provides that

"[i]f the defendant was a minor participant in any criminal

activity, decrease by 2 levels." U.S. Sentencing Guidelines Manual

§ 3B1.2(b) (2014).

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 Application Note 3(C) of the November 2015 edition of

the Sentencing Guidelines sets forth the five factors on which

Aybar relies in challenging his sentence. U.S. Sentencing

Guidelines Manual § 3B1.2, cmt. n.3(C) (2015). But, as the

government points out, he was sentenced according to the November

2014 edition of the Guidelines in effect at the time of his October

21, 2015 sentencing, and the application note to the minor-role

guideline in that edition did not include those specific factors.

Nevertheless, Aybar did file a letter under Rule 28(j)

calling our attention to our ruling in the companion case to this

one, United States v. Sarmiento-Palacios, 885 F.3d 1, 6 (1st Cir.

2018), which we decided after all briefing was complete in this

case. See Fed. R. App. P. 28(j). Sarmiento held that Amendment

794 to the Sentencing Guidelines, which added the five factors to

the application note, clarifies the Commission's original intent

regarding § 3B1.2 and therefore that it does apply retroactively.

Id. And, in Sarmiento we therefore vacated the sentence and

remanded for resentencing, so that the District Court could have

an opportunity to apply the new factors. Id.

The government argues that vacating the sentence and

remanding for resentencing is not appropriate here, because, even

under the factors set out in Amendment 794, Aybar would still have

been denied the minor-role reduction. But the same argument was

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unsuccessful in Sarmiento, and we reject it for the same reasons

that we did there:

we think it prudent to leave that
determination in the hands of the able
district court judge. Accordingly, a remand
is justified to allow the sentencing court the
opportunity to consider the "Commission's
current policy position[,] . . . [which] may
have some influence on the judge's ultimate
discretionary choice of sentence."

Id. (alterations and omission in original) (quoting United States

v. Ahrendt, 560 F.3d 69, 79 (1st Cir. 2009)).

IV.

We therefore affirm the convictions. But we vacate the

District Court's sentence and remand for resentencing under the

Commission's clarified guidance, as reflected in Amendment 794.

- Separate Opinion Follows -

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 TORRUELLA, Circuit Judge, joining in part and dissenting

in part. I join the majority with respect to Aybar's sentencing

appeal in light of our recent decision in Sarmiento-Palacios, 885

F.3d at 6. I respectfully dissent, however, from the majority's

conclusion that our precedent requires us to affirm Aybar's

conviction. As the majority notes, none of this Court's precedent

directly considered a constitutional challenge to Congress's power

to criminalize conduct pursuant to Article I, section 8, clause

10. Therefore, that precedent should not bind this panel.

Moreover, the related but non-binding precedent upon which the

majority relies diverges from international and constitutional law

principles governing Congress' powers to criminalize the conduct

in Aybar's case. These principles, as explained below, lead to

the conclusion that the application of the MDLEA to Aybar was

unconstitutional.

The majority correctly identifies that Aybar's

conviction hinges on the provision of the Define and Punish clause

which gives Congress the authority to define and punish "Felonies"

on the high seas. See Smith, 18 U.S. at 159; U.S. Const. art. I,

§ 8, cl. 10. But as explained below, the majority's reliance and

application of this court's precedent to the issues in Aybar's

case is inapt.

The majority opinion relies to a great degree upon the

rationale in Cardales, 168 F.3d at 553. See Maj. Op. 17-19. But,

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as the majority in this case concedes, the facts and issues before

the court in Cardales were quite different than those in the

present case. The holding in Cardales relied only on the flag

nation's consent in concluding that no nexus was required under

the Due Process Clause. 168 F.3d at 553 ("[D]ue process does not

require the government to prove a nexus between a defendant's

criminal conduct and the United States in a prosecution under the

MDLEA when the flag nation has consented to the application of

United States law to the defendants. . . . We therefore hold that

when individuals engage in drug trafficking aboard a vessel, due

process is satisfied when the foreign nation in which the vessel

is registered authorizes the application of United States law to

the persons on board the vessel."(emphasis added)).10 That holding

is inapplicable to the case at hand, in which there is no such

consent, and the majority's reliance on it is therefore erroneous.

The Cardales defendants did not raise a challenge to Congress's

constitutional authority to enact the MDLEA as applied to them,

and, by arguing that due process required proof of a nexus between

their conduct and the United States, see id. at 552-53, inherently

accepted that the enacting authority had the constitutional power

to create the law under which those due process rights arise. Not

so in our case.

10 Consent, after all, is the cornerstone of international
law. See generally The Paquete Habana, 175 U.S. 677 (1900).

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 Notably, the Cardales court discussed international law

principles in dicta for the sole purpose of explaining why that

court's application of the MDLEA to the facts in that case did not

violate the precepts of due process. In its superfluous discussion

of international law's protective principle, the Cardales court

looked to a presumptuous Congressional statement that "trafficking

in controlled substances aboard vessels is a serious international

problem and . . . presents a specific threat to the security . . .

of the United States." Id. (second alteration in original)

(quoting 46 U.S.C. app. § 1902). The Cardales court leaned on

this Congressional statement for support that "application of the

MDLEA is consistent with the protective principle of international

law." Id. (citing United States v. Martinez-Hidalgo, 993 F.2d

1052, 1056 (3d Cir. 1993)). The majority here leans almost as

heavily on this statement. But, the accompanying parenthetical in

Cardales, in expressing that the application of the MDLEA to drug

trafficking on the high seas is not "fundamentally unfair," id.

(quoting Martinez-Hidalgo, 993 F.2d at 1056), makes clear that the

Cardales court's dicta regarding international law was used only

to support its due process analysis. While the logic of Cardales

may be persuasive to some, that case's conclusion is not binding

to the as-applied constitutional challenge that Aybar raises here.

I pause for a moment to note that the Congressional

statement relied upon by the Cardales court does not make an

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application of the MDLEA to entirely foreign nationals and foreign

conduct, with no nexus to the United States, consistent with the

"protective principle" of international law. The protective

principle of international law requires a showing that the

regulated conduct has some nexus or effect on the prosecuting

nation; the protective principle cannot be invoked simply through

a blanket assertion that some disfavored conduct creates a

"specific threat to the security" of that nation. Id. (quoting 46

U.S.C. app. § 1902). As I discussed in my dissent in United States

v. Angulo-Hernández, some sort of actual cognizable threat to the

nation is required under international law for an assertion of the

protective principle. 576 F.3d 59, 61 (1st Cir. 2009) (Torruella,

J., dissenting).

A broad grant of power to the executive branch to

prosecute any and all vessels carrying illegal substances that are

not in the United States' waters, are not headed for or departing

from the United States, are not flying the United States' flag,

and are not carrying United States nationals, is plainly

inconsistent with international law. Id. (citing Restatement

(Third) of U.S. Foreign Relations Law § 402 cmt. f). Allowing a

nation to make such a broad assertion under the guise of the

protective principle with no substantial showing of a nexus to

that nation would render the protective principle coterminous with

the doctrine of universal jurisdiction. Id. And, while there may

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be a global consensus about the negative effects of drug

trafficking, it is not a universal crime -- despite vigorous

attempts by the United States at international law forums to make

it one11 -- and cannot be prosecuted under the "universality

principle" of international law.

Having established that our precedent does not compel us

to reject Aybar's as-applied constitutional challenge, I next

address the constitutional limitations of Congress' ability to

regulate Felonies on the high seas under the mandates of

constitutional and international law. I am emphatically of the

view that doing so requires us to hold that Congress' power under

this clause is necessarily limited to instances where there is a

nexus between the conduct underlying the felony and the United

States. See Cardales-Luna, 632 F.3d at 739 (Torruella, J.,

dissenting); Angulo-Hernández, 576 F.3d at 62 (Torruella, J.,

dissenting); cf. United States v. James-Robinson, 515 F. Supp.

1340, 1346 (S.D. Fla. 1981) (holding that the court did not have

subject matter jurisdiction because the defendant's conduct had no

"effect whatsoever" on the U.S.); United States v. Angola, 514 F.

11
See United States v. Bellaizac-Hurtado 700 F.3d 1245, 1256
(11th Cir. 2012) ("The negotiators of the Rome Statute repeatedly
referred to drug crimes as 'treaty crimes' only . . . [a]nd several
delegates expressed the opinion that drug crimes had no place in
a statute dealing with international crimes and should be addressed
at the national level." (internal quotation marks and citation
omitted)); see also Cardales-Luna, 632 F.3d at 745 (Torruella, J.,
dissenting).

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Supp. 933, 936 (S.D. Fla. 1981) (asserting that jurisdiction was

valid under the protective principle because the ship was close

enough to the U.S. to assume a "real, not an imaginary, potential

for harm" to U.S. narcotics laws). Because Congress cannot grant

the government the authority to prosecute conduct beyond that which

the Define and Punish clause allows Congress to regulate, see

United States v. Furlong, 18 U.S. (5 Wheat) 184, 196-97 (1820),

and the Define and Punish clause does not give Congress the ability

to regulate Felonies on the high seas having no nexus to the United

States, Congress cannot create laws -- such as the MDLEA --

granting the government the authority to prosecute conduct by

foreign individuals on the high seas that has no nexus to the

United States. See Eugene Kontorovich, Beyond the Article I

Horizon: Congress's Enumerated Powers and Universal Jurisdiction

over Drug Crimes, 93 Minn. L. Rev. 1191, 1212 (2009). "[S]uch

general jurisdiction over high seas offenses had never been

suggested . . . [nor] intended," and if the Constitution did not

explicitly forbid Congress from legislating against foreign

conduct, it was "only because it was too silly for the Framers to

have contemplated." Id. (citing Hon. John Marshall, Speech

Delivered in the House of Representatives, in 4 The Papers of John

Marshall, 92-93, 96, 102 (Charles T. Cullen & Leslie Tobias eds.,

1984)); cf. Furlong, 18 U.S. at 196-97. Just as Congress cannot

create criminal laws regulating the conduct of foreign nationals

- 27 -
in foreign countries with no effect on the United States, see

United States v. Nippon Paper Industries Co., Ltd., 109 F.3d 1, 4-

9 (1st Cir. 1997); Restatement (Third) of U.S. Foreign Relations

Law § 402(1)(c), Congress cannot create laws regulating the

conduct of foreign nationals on foreign vessels over which the

United States has no jurisdiction because those vessels are

navigating on international waters, and there is no indication

that they have either left from the United States or are headed

thereto.

Early Supreme Court cases support the requirement of

such a nexus. When first faced with the opportunity to determine

the scope of Congress's ability to legislate extraterritorially,

the Supreme Court held that, aside from universal jurisdiction

crimes (that is, certain serious offenses recognized by

international law that all nations may prosecute even without a

nexus or impact to that nation's territory or citizens), there

must be a nexus between the United States and the regulated

conduct. See United States v. Klintock, 18 U.S. (5 Wheat) 144,

151-52 (1820). This principle has been continually upheld, see

United States v. Pizzarusso, 388 F.2d 8, 10 (2d Cir. 1968) ("Acts

done outside a jurisdiction, but intended to produce . . .

detrimental effects within it, justify a state in punishing the

cause of the harm." (emphasis added) (quoting Strassheim v. Daily,

221 U.S. 280, 285 (1911) (Holmes, J.))); see also United States v.

- 28 -
Columba-Colella, 604 F.2d 356, 358 (5th Cir. 1979) ("When an

allegedly criminal act is performed by an alien on foreign soil[,]

courts in the United States have long held that if jurisdiction is

to be extended over that act, it must be supported by either the

Protective or Objective territorial theory."), including in cases

involving early interpretations of anti-drug trafficking laws

similar to the MDLEA in situations involving stateless vessels.

See e.g., United States v. Smith, 680 F.2d 255, 257-258 (1st Cir.

1982); James-Robinson, 515 F. Supp. at 1346-1347; Angola, 514 F.

Supp. at 935.

Here, Aybar was interdicted on a vessel in international

waters, far from the United States. His vessel did not depart

from the United States nor was there any evidence that it was bound

for the United States. No concrete evidence suggests that the

drugs aboard this specific vessel were intended for distribution

in the United States. Aybar did not commit any offense against a

vessel or citizen of the United States, or within the United

States' territory. Save for the fact that he was intercepted by

officers of the United States Coast Guard, who in fact were aboard

a foreign vessel, there is absolutely nothing connecting Aybar to

the United States. The United States nexus was artificially

provided by the actions of the United States, a unique condition

unheard of in the criminal law -- in which it is the government

that provides one of the elements of the crime that is charged.

- 29 -
Given this lack of nexus, the Felonies provision of the Define and

Punish clause does not give Congress the authority to create laws

criminalizing Aybar's conduct.

Because Cardales did not address the issues presented in

this case, and constitutional and international law do not support

the conclusion that the majority reaches, this Court need not and

should not adopt the rationale in Cardales to reject Aybar's

constitutional challenge. See United States v. Irizarry-Colón,

848 F.3d 61, 69 (1st Cir. 2017) (declaring that the district court

was "led astray" by a prior panel's statement concerning an issue

not before that prior panel); see also Cohens v. Virginia, 19 U.S.

(6 Wheat) 264, 399 (1821) ("It is a maxim not to be disregarded,

that general expressions, in every opinion, are to be taken in

connection with the case in which those expressions are used. If

they go beyond the case, they may be respected, but ought not to

control the judgment in a subsequent suit when the very point is

presented for decision."). The logical force of the Cardales dicta

is insufficient to govern this Court's decision when the opposite

conclusion is consistent with constitutional and international law

principles.

Nor does Aybar's admission that he was aboard a vessel

without nationality provide a nexus to give the United States

prescriptive jurisdiction to prosecute his conduct under its

domestic laws. The majority points to Victoria, in which this

- 30 -
Court broadly stated that "as United States courts have interpreted

international law, that law gives the 'United States . . .

authority to treat stateless vessels as if they were its own."

876 F.2d at 1010 (quoting Smith, 680 F.2d at 248). See Maj. Op.

14. But, for the following reasons, this court should not rely

too heavily on that statement.

First, in Victoria, there was evidence of a nexus between

the conduct on the stateless vessel and the United States. 876

F.2d at 1010 (noting that "the Coast Guard found . . . navigational

charts indicating a course for the . . . southern tip of Florida").

Therefore, the Victoria court did not need to consider whether the

United States could in fact treat stateless vessels as its own

when there was no nexus between the conduct at issue and the United

States, for the charts provided evidence of a U.S. nexus. Second,

the full quotation from Smith, only part of which the Victoria

court cited,12 itself actually supports the existence of a nexus

requirement. See Smith, 680 F.2d at 258 (stating that the United

States "has authority to treat stateless vessels as if they were

its own, particularly when engaged in conduct affecting United

12
Victoria, 876 F.2d at 1010 ("[A]s United States courts have
interpreted international law, that law gives the 'United States
. . . authority to treat stateless vessels as if they were its
own.'" (second alteration in the original) (quoting Smith, 680
F.2d at 258)).

- 31 -
States vessels and having an effect within the jurisdiction of the

United States" (emphasis added)).

Third, like in Cardales, the defendant in Victoria

appealed his conviction on grounds not at issue here. The Victoria

defendant partly based his argument on the Charming Betsy canon,

in with the Supreme Court stated that "an act of Congress ought

never to be construed to violate the law of nations if any other

possible construction remains." Murray v. The Schooner Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). As the majority

recognizes, the defendant in Victoria asserted that Congress did

not intend for the MDLEA to apply extraterritoriality, implicit in

which is acceptance of Congress' authority to enact such a law.

See 876 F.2d at 1010. Unlike the Victoria defendant, Aybar asserts

that Congress did not have the authority under the Define and

Punish clause to apply the MDLEA to regulate extraterritorial

conduct having no nexus to the United States. Furthermore, the

statement from Victoria, if read to foreclose any nexus requirement

other than a defendant's presence aboard a stateless vessel, would

run afoul of international law (and therefore the Charming Betsy

cannon), which is clear that it allows countries to prescribe law

extraterritorially only when there is some connection between the

conduct and that country. See Restatement (Third) of U.S. Foreign

Relations Law § 402. Therefore, the majority in this case

- 32 -
overstates the extent to which Victoria forecloses the argument

that Aybar presents.

Before moving forward, I must fall on my own sword and

recognize that I, like the Victoria court and the majority here,

have made too broad an assertion. See Sarmiento-Palacios, 885

F.3d at 7 (Torruella, J., concurring) ("And while the United States

(like all nations) does have universal jurisdiction over stateless

vessels . . . ."); Cardales-Luna, 632 F.3d at 747 ("These

principles regarding [universal] jurisdiction have been relaxed to

include . . . stateless vessels."). But, "it is never too late to

'surrende[r] former views to a better considered position.'" South

Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2100 (2018) (Thomas, J.,

concurring) (quoting McGrath v. Kristensen, 340 U.S. 162, 178

(1950) (Jackson, J., concurring)). And, upon further reflection,

I now realize that international law's allowance of any nation to

prevent the operation of stateless vessels does not confer

jurisdiction on that nation to prosecute the individuals aboard

those vessels under that nation's domestic criminal codes.

It is widely accepted that international law confers the

right of any nation to approach and "visit" a vessel if it is

suspected that the vessel is stateless. See United Nations

Convention on the Law of the Sea [hereinafter "UNCLOS"] art. 110,

Dec. 10, 1982, 1833 U.N.T.S. 397. But, international law

distinguishes between a nation's authority to prescribe law

- 33 -
extraterritorially as to the conduct of foreign persons and its

authority to interfere with the navigation of a vessel encountered

on the high seas. Although stateless vessels enjoy no diplomatic

protections and thus are subject to being stopped and boarded by

any other nation's vessels, it does not follow that this "right to

visit" confers jurisdiction on the boarding vessel's nation to

prosecute the occupants of the stateless vessel -- who continue to

enjoy diplomatic protection from their nation -- under the visiting

nation's substantive criminal laws without some nexus between

their conduct and the boarding nation. See James-Robinson, 515 F.

Supp. at 1343 n.5 (explaining that the issue before the court was

not whether the United States had jurisdiction over a stateless

ship, but whether it had jurisdiction "over the foreign citizen

crewmembers of such a stateless ship"); see also Ted L. McDorman,

Stateless Fishing Vessels, Int'l Law, and the U.N. High Seas

Fisheries Conference, 25 J. Mar. L & Com. 531, 540 (1994)

(discussing the views of D. O'Connell, 2 The Int'l Law of the Sea

75 (Oxford University Press, Inc., 1984) and H. Meyers, The

Nationality of Ships 318-321 (Martinus Nijhoff, 1967) (noting that

individuals aboard stateless vessels "retain their nationality"

and may thus be prosecuted by their home country under

international law); see, e.g., Robin R. Churchill & Alan V. Lowe,

The Law of the Sea 172 (1988) (arguing that a vessel's

"'statelessness' will not, of itself, entitle each and every State

- 34 -
to assert jurisdiction over [its occupants], for there is not in

every case any recognized basis, such as nationality or

territoriality, upon which jurisdiction can be asserted over them

while they are on the high seas . . . . [T]here is a need for

some jurisdictional nexus in order that a State may extend its

laws to those on board a stateless ship and enforce the laws

against them").

A review of customary international law reveals that

in all instances for which a state may interfere with the right of

passage of another vessel, aside from the universal jurisdiction

crimes of piracy and slave trading, international law requires

some independent nexus between the visiting state and the suspected

basis for the interference. See UNCLOS at art. 110. For example,

customary international law allows a State to board a foreign

vessel on the high seas if the State has reason to believe that

the foreign vessel is engaged in unauthorized broadcasting.13 Id.

at art. 110(c). But that State may only prosecute those

individuals engaged in that unauthorized broadcasting if that

State has an independent basis for asserting jurisdiction over

those individuals or that conduct. See id. at art. 109(3),

13
UNCLOS defines "unauthorized broadcasting" as "the
transmission of sound radio or television broadcasts from a ship
or installation on the high seas intended for reception by the
general public contrary to international regulations, but
excluding the transmission of distress calls." UNCLOS at art.
109(2).

- 35 -
110(1)(c). Similarly, while any nation may board and prevent

navigation of a suspected stateless vessel under international

law, that nation must have a nexus to the vessel's occupants or to

those occupant's conduct to assert jurisdiction to prosecute those

aboard the stateless vessel for a violation of its domestic laws

-- such as drug trafficking under the MDLEA. The application of

that nation's domestic laws to a stateless vessel's occupants

without a nexus unilaterally extends that nation's sovereignty

over the high seas, in violation of customary international law.

See UNCLOS at art. 89.

Moreover, allowing all nations to prosecute crewmembers

aboard stateless vessels under that nation's own domestic laws

simply because of their presence aboard that stateless vessel would

convert the operation of a stateless vessel into a universal

jurisdiction crime. "There are two premises underlying universal

jurisdiction. The first involves the gravity of the crime. . . .

The second involves the locus delicti (place of the act)."

Bellaizac-Hurtado, 700 F.3d at 1260 (Barkett, J., concurring)

(quoting Michael P. Scharf, Application of Treaty-Based Universal

Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev.

363, 368-69 (2001)). But, piloting a stateless vessel is not of

the same heinous nature as those universal jurisdiction crimes

(piracy, slavery and genocide) and has not been recognized as a

universal crime under international law. See UNCLOS; Allyson

- 36 -
Bennett, That Sinking Feeling: Stateless Ships, Universal

Jurisdiction, and the Drug Trafficking Vessel Interdiction Act, 37

Yale J. Int'l L. 433, 448-50 (2012) (explaining that universal

crimes are those agreed upon by the international community to be

"so heinous . . . that they offend the interest of all humanity,"

such as genocide, and noting that statelessness is not listed as

a universal jurisdiction crime under UNCLOS). In fact, I have

been unable to find any federal statute or regulation making

piloting a stateless vessel a crime under the laws of the United

States. Because being aboard a stateless vessel does not meet the

substantive component (the gravity of the crime) of universal

jurisdiction, and is not a universal crime, it follows that nations

cannot apply their domestic laws to an individual simply by the

fact that they are aboard a vessel without nationality.

Just as Congress cannot pass legislation "attempting to

apply the criminal laws of the United States, with the Bolivian

government's consent, to the conduct of Colombian nationals in

Bolivia," Cardales-Luna, 632 F.3d at 741 (Torruella, J.,

dissenting), it cannot punish foreign nationals aboard foreign

vessels. See, e.g., Furlong, 18 U.S. at 197-98; Klintock, 18 U.S.

at 151. And, for the reasons explained in this dissent, the same

must be true even if those foreign nationals were aboard stateless

vessels. If any state can assert its own laws based purely on a

vessel's statelessness, then it follows that a United States

- 37 -
citizen aboard a stateless vessel can be prosecuted under any

foreign country's domestic laws even if the regulation of such

conduct would be considered absurd in the United States. Common

sense dictates that this is not and cannot be the case.

There is no denying that most circuits, including our

own, have upheld the application of the MDLEA to the crews of

stateless vessels. However, this Court has not yet directly

addressed the exact constitutional challenge Aybar has raised, and

we need not be constrained by related but non-binding precedent.

And because the Felonies provision of the Define and Punish clause

requires that there be a nexus between the conduct and the United

States to pass constitutional muster, and no such nexus has been

shown here, Aybar's conviction must be overturned. For the

foregoing reasons, I respectfully dissent.

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