[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 28, 2006
No. 05-16279 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00240-CR-T-24-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL ESTUPINAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 28, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Manuel Estupinan appeals from his plea of guilty to the charge of conspiracy
to possess with intent to distribute five kilograms or more of cocaine while on
board a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. app. § 1903(a), (g), and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). Specifically,
Estupinan challenges the constitutionality of 46 U.S.C. app. § 1903, the Maritime
Drug Law Enforcement Act (“MDLEA”). After review, we affirm.
I. BACKGROUND
On May 30, 2005, the United States Coast Guard (“USCG”) spotted a “go-
fast” boat alongside a fishing vessel in international waters off the coast of
Ecuador. After the two vessels separated, the go-fast boat appeared dead in the
water. When the USCG launched an inflatable boat to conduct a boarding, the go-
fast boat attempted to escape. A USCG helicopter fired warning shots, which
caused the go-fast boat to stop. Before jumping overboard, the four crew members
of the go-fast boat were observed removing their clothing, throwing cargo
overboard and attempting to set the boat on fire.
The crew was apprehended, including Defendant Estupinan. A total of
approximately 118 bales of cocaine, weighing approximately 2,676 kilograms,
were recovered from the go-fast boat and the surrounding waters. Estupinan and
his co-defendants were taken into custody by the USCG.
On June 7, 2005, Estupinan and his co-defendants were charged in a two-
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count indictment with: (1) possession with intent to distribute five kilograms or
more of cocaine while on board a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. app. § 1903(a) and (g), and 21 U.S.C.
§ 960(b)(1)(B)(ii); and (2) conspiracy to possess with intent to distribute five
kilograms or more of cocaine while on board a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. app. § 1903(a), (g), and (j), and 21
U.S.C. § 960(b)(1)(B). On July 18, 2005, Estupinan pled guilty to count two of the
indictment (the conspiracy count) pursuant to a written plea agreement, and on July
25, 2005, the district court accepted Estupinan’s guilty plea. On October 28, 2005,
based on an adjusted offense level of 33, a criminal history category of I, and a
advisory Guidelines range of 135-168 months’ imprisonment, the district court
sentenced Estupinan to 135 months’ imprisonment.
Estupinan timely appealed.
II. DISCUSSION
On appeal, Estupinan argues that the MDLEA is unconstitutional.
Specifically, Estupinan contends: (1) that Congress exceeded its authority under
the “Piracies and Felonies Clause” of the Constitution 1 in enacting the MDLEA;
1
The Piracies and Felonies Clause is found at Article I, Section 8, Clause 10 of the
Constitution, and it empowers Congress “[t]o define and punish Piracies and Felonies on the
high Seas, and Offences against the Law of Nations.” U.S. Const., art. I, § 8, cl. 10.
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and (2) that the MDLEA is unconstitutional because it removes the element of
jurisdiction from the jury’s consideration. We conclude that both arguments lack
merit.
A. Congress’s Authority Under the Piracies and Felonies Clause
Preliminarily, we note that Estupinan failed to raise his Piracies and Felonies
Clause argument before the district court. Ordinarily, this would cause us to
review for plain error, and indeed, the government here urges us to apply plain-
error review. See United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005)
(“Constitutional objections not raised before the district court are reviewed only for
plain error.”). However, Estupinan contends that he is entitled to de novo review
because he is actually arguing that the district court lacked subject-matter
jurisdiction over the instant case as a result of Congress’s improper enactment of
the MDLEA, and subject-matter jurisdiction can be raised at any time. See United
States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992) (reviewing previously
unraised issue of district court’s subject matter jurisdiction de novo).
We need not resolve the question of which standard of review is appropriate
here, because even applying the more exacting standard of de novo review, we
conclude that the district court did not err by failing to hold sua sponte that
Congress exceeded its authority under the Piracies and Felonies Clause in enacting
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the MDLEA.
The Piracies and Felonies Clause empowers Congress “[t]o define and
punish Piracies and Felonies on the high Seas, and Offences against the Law of
Nations.” U.S. Const., art. I, § 8, cl. 10. In pertinent part, the MDLEA provides
that “[i]t is unlawful for any person . . . on board a vessel subject to the jurisdiction
of the United States . . . to possess with intent to manufacture or distribute, a
controlled substance.”2 46 U.S.C. app. § 1903(a). The MDLEA was specifically
enacted to punish drug trafficking on the high seas, “because drug trafficking
aboard vessels (1) ‘is a serious international problem and is universally
condemned,’ and (2) ‘presents a specific threat to the security and societal well-
being of the United States.’” United States v. Rendon, 354 F.3d 1320, 1325 n.2
(11th Cir. 2003) (citation omitted). Moreover, “this circuit and other circuits have
not embellished the MDLEA with [the requirement of] a nexus [between a
defendant’s criminal conduct and the United States].” Rendon, 354 F.3d at 1325;
see also United States v. Moreno-Morillo, 334 F.3d 819, 824-25 (9th Cir. 2003)
(holding that Congress properly acted within the scope of the Piracies and Felonies
2
A “vessel subject to the jurisdiction of United States” includes “a vessel without
nationality.” 46 U.S.C. app. § 1903(c)(1)(A). Estupinan does not contest that the vessel at issue
here, which bore no indicia of nationality, was “subject to the jurisdiction of the United States.”
However, Estupinan does contend that the MDLEA unconstitutionally places the jurisdictional
determination in the hands of the judge, rather than the jury. This argument is discussed infra at
Section II(B).
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Clause in enacting the MDLEA); United States v. Ledesma-Cuesta, 347 F.3d 527,
531-32 (3d Cir. 2003) (observing that Congress derived the “authority” to enact the
MDLEA from the Piracies and Felonies Clause). Indeed, as the Third Circuit has
recognized, “[i]nasmuch as the trafficking of narcotics is condemned universally
by law-abiding nations, we see no reason to conclude that it is ‘fundamentally
unfair’ for Congress to provide for the punishment of persons apprehended with
narcotics on the high seas.” United States v. Martinez-Hidalgo, 993 F.2d 1052,
1056 (3d Cir. 1993). Estupinan directs us to no case in which any court has held
that the MDLEA was an unconstitutional exercise of Congressional power. Thus,
we readily hold that the district court committed no error in failing to sua sponte
rule that Congress exceeded its authority under the Piracies and Felonies Clause in
enacting the MDLEA.
B. Jurisdiction as a Jury Issue
Estupinan also argues that the MDLEA is unconstitutional because it
provides that the judge, rather than the jury, shall decide whether a vessel is
“subject to the jurisdiction of the United States” for purposes of establishing a
violation of 46 U.S.C. app. § 1903(a). Specifically, Estupinan contends that the
MDLEA is unconstitutional because it creates an offense with a jurisdictional
element, but then takes consideration of that element away from the jury, in
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violation of the Supreme Court’s decision in United States v. Gaudin, 515 U.S.
506, 115 S. Ct. 2310 (1995). However, Estupinan correctly recognizes that this
Court has already expressly addressed and rejected his Gaudin argument in United
States v. Tinoco, 304 F.3d 1088 (11th Cir. 2002). Because “only the Supreme
Court or this Court sitting en banc can judicially overrule a prior panel decision,”
we must follow Tinoco. See United States v. Marte, 356 F.3d 1336, 1344 (11th
Cir. 2004) (explaining prior panel rule).
III. CONCLUSION
For the foregoing reasons, we reject Estupinan’s contention that the MDLEA
is unconstitutional, and affirm Estupinan’s conviction.
AFFIRMED.
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