UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20355
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDILSON BUSTOS-USECHE, also known as Pacifico Duarte,
also known as Edilson Useche Bustos,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
November 13, 2001
Before EMILIO M. GARZA, and PARKER, Circuit Judges, and ELLISON,
District Judge.*
ROBERT M. PARKER, Circuit Judge:
Defendant-Appellant Edilson Bustos-Useche pleaded guilty to
possession with intent to distribute a controlled substance and
conspiracy to possess with intent to distribute a controlled
substance in violation of the Maritime Drug Law Enforcement Act.
*
District Judge of the Southern District of Texas sitting by
designation.
1
See 46 U.S.C. app. § 1903. The district court sentenced Bustos to
210 months in prison, followed by a five-year term of supervised
release. On appeal, Bustos argues that the district court did not
have jurisdiction to accept his guilty plea, that the court should
have suppressed his statement to United States Coast Guard
officials, and that the court erroneously enhanced his offense
level for possession of a dangerous weapon.
I. Facts
In May of 1999, the M/V CHINA BREEZE, a 510-foot Panamanian
freighter bound for Portugal, sailed through the international
waters south of the passage between Hispanola and Puerto Rico. The
United States government suspected the vessel’s use in drug
trafficking based on information from federal authorities in
Greece. On May 27, 1999, the Panamanian government issued a
statement of no objection to allow the United States Coast Guard to
board the freighter and search for contraband. The Coast Guard
boarded the vessel and found four tons of cocaine in a disabled
sewage tank. The following day, Panama gave express permission for
the enforcement of United States laws on the vessel. The Coast
Guard then ordered the M/V CHINA BREEZE to Galveston, Texas.
During the ten-day voyage to Galveston, Coast Guard officials
questioned the crew members about the hidden cocaine.
Agent Mihalopoulos of the Drug Enforcement Administration
interviewed Bustos on May 31, 1999. Three other uniformed officers
2
and a translator were present during the interview. After Agent
Mihalopoulos recited the Miranda Warnings, Bustos asked the
officers whether his right to counsel entailed postponing the
interview until a lawyer arrived. One of the officers stated that
Bustos was correct. Bustos claimed that an officer told him that
it would be in his best interest to cooperate because he was facing
a potential twenty-year prison sentence. Bustos began crying and
agreed to give a statement.
When asked about his identification, Bustos claimed that the
documents identifying him as Pacifico Duarte, a Panamainian citizen
born on December 4, 1975, were falsified. Bustos stated he was
Edilson Bustos-Useche from Columbia, born on June 9, 1977. He
explained that he traveled from Colombia to Panama in 1998 to
obtain the false identification so that he could work as a seaman
on a Panamanian vessel. Bustos admitted to being on three voyages
where drugs were transported. Bustos claimed he was responsible
for accounting for the cocaine on the M/V CHINA BREEZE. He also
admitted that he possessed a .38 caliber revolver, which he threw
overboard when he heard the Coast Guard helicopters.
Following his arraignment, Bustos filed a motion to suppress
the statements he made to the Coast Guard and DEA officials.
Bustos also objected to the court’s jurisdiction claiming that his
true date of birth was February 20, 1983, and therefore he was a
juvenile at the time of the offense and indictment. Bustos also
3
filed a motion to incorporate and adopt the motions of his co-
defendants, who argued that the court lacked jurisdiction under 42
U.S.C. app. § 1903(c) because Coast Guard officials did not have
consent from the Panamanian government to enforce United States
laws at the time the officials seized the cocaine. The district
court rejected Bustos’s arguments and set the case for trial. On
November 9, 1999, Bustos volunteered an unconditional guilty plea
to possession with intent to distribute a controlled substance
under 46 U.S.C. app. § 1903(a) and conspiracy to possess with
intent to distribute a controlled substance pursuant to 46 U.S.C.
§ 1903(j). Prior to sentencing, Bustos objected to the two-level
enhancement recommendation in the presentence report, arguing that
his possession of a firearm was unrelated to the charged offenses.
The district court adopted the conclusions in the presentence
report and sentenced Bustos to a 210-month term of imprisonment and
five years of supervised release.
II. Maritime Drug Law Enforcement Act
Bustos claims that the district court did not have
jurisdiction to accept his plea because the M/V CHINA BREEZE was
not subject to United States jurisdiction at the time the officers
seized the hidden cocaine. Before reaching the merits of Bustos’s
argument, we assess whether his guilty plea prevents him from
raising the issue on appeal.
A. Effect of Bustos’s Guilty Plea
A guilty plea forecloses appellate review of the factual and
4
legal elements necessary to sustain a final judgment of guilt and
a lawful sentence. See United States v. Broce, 488 U.S. 563, 569
(1989). “By entering a plea of guilty, the accused is not simply
stating that he did the discrete acts described in the indictment;
he is admitting guilt of a substantive crime.” Id. at 570. A
defendant who pleads guilty may challenge “the very power of the
State to bring the defendant into court to answer the charge
against him.” Blackledge v. Perry, 417 U.S. 21, 30 (1974).
Defendants may therefore raise jurisdictional defects on appeal.
See United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir.
1999) (explaining that errors on the face of an indictment
constitute jurisdictional defects, which are not waived by a guilty
plea); United States v. Owens, 996 F.2d 59, 60 (5th Cir. 1993) (“By
pleading guilty to an offense, therefore, a criminal defendant
waives all non-jurisdictional defects preceding the plea.”); United
States v. Ruelas, 106 F.3d 1416, 1418 (9th Cir. 1997) (stating that
a guilty plea does not confer jurisdiction on a district court to
receive the plea). The validity of a guilty plea is a question of
law we review de novo. See United States v. Hernandez, 234 F.3d
252, 254 (5th Cir. 2000).1
A defendant violates the provisions of the Maritime Drug Law
Enforcement Act if he possesses with intent to distribute a
1
Bustos concedes that he has waived his non-jurisdictional
arguments pertaining to the statements he made to authorities on
board the M/V CHINA BREEZE.
5
controlled substance while on board a vessel subject to the
jurisdiction of the United States. See 46 U.S.C. app. § 1903(a).
A marine vessel flying the flag of a foreign nation is subject to
the jurisdiction of the United States if “the flag nation has
consented or waived objection to the enforcement of United States
law . . ..” 46 U.S.C. app. § 1903(c)(1)(C). Bustos argues that if
the United States did not have jurisdiction over the vessel, then
the district court did not have jurisdiction to accept his guilty
plea.
Bustos’s argument hinges on whether the jurisdictional
requirements of section 1903 are merely substantive elements of the
crime or prerequisites to the district court’s subject matter
jurisdiction. Certain elements of an offense may be jurisdictional
in nature, yet not a condition to subject matter jurisdiction.
See, e.g., United States v. Johnson, 194 F.3d 657, 659 (5th Cir.
1999) (holding that the interstate commerce requirement is merely
an element of the offense and not essential to subject matter
jurisdiction), vacated on other grounds, United States v. Johnson,
529 U.S. 848 (2000); United States v. Rea, 169 F.3d 1111, 1113 (8th
Cir. 1999) (same); United States v. Robinson, 119 F.3d 1205, 1212
n.4 (5th Cir. 1997) (noting that the interstate commerce element in
the Hobbs Act is not purely jurisdictional). Based on the former
language of section 1903, courts construed the phrase “a vessel
subject to the jurisdiction of the United States” as a factual
6
element of the offense. See United States v. Cardales, 168 F.3d
548, 554 (1st Cir.), cert. denied, 528 U.S. 338 (1999); United
States v. Klimavicius-Viloria, 144 F.3d 1249, 1256 (9th Cir. 1998);
United States v. Medina, 90 F.3d 459, 461 (11th Cir. 1996). Cf.
United States v. Pretel, 939 F.2d 233, 236-37 (5th Cir. 1991)
(stating that whether an exiled Panamanian leader had authority to
consent was a political question that was not appropriate for
submission to a jury).
Congress added subsection (f) to the statute in 1996.
Subsection (f) states that “[j]urisdiction of the United States
with respect to vessels subject to this chapter is not an element
of any offense. All jurisdictional issues arising under this
chapter are preliminary questions of law to be determined by the
trial judge.” 46 U.S.C. app. § 1903(f). Based on this addition to
the statute, we conclude that the district court’s preliminary
determination of whether a flag nation has consented or waived
objection to the enforcement of United States law is a prerequisite
to the court’s jurisdiction under § 1903.2 Bustos is therefore not
foreclosed from raising the issue on appeal.
B. Jurisdiction Under the Maritime Drug Law Enforcement Act
Bustos argues that the district court did not have
jurisdiction under the statute because the United States lacked
2
Circuit courts have recognized that subsection (f) eliminates
jurisdiction as an element of the offense. See Cardales, 168 F.3d
at 554 n.3; Klimavicius-Viloria, 144 F.3d at 1256 n.1.
7
jurisdiction over the vessel at the time Coast Guard officials
seized the cocaine. Bustos claims that the Coast Guard received
permission to enforce United States law the day after the drugs
were discovered.3 He argues that he cannot be prosecuted for
violating section 1903 if the statute did not apply to him during
the time he possessed the cocaine.4 We review the district court’s
legal conclusions on jurisdiction de novo. See Foster v. Townsley,
243 F.3d 210, 213 (5th Cir. 2001).
Persons charged with a crime under section 1903 do not have
standing to raise issues of international law. See 46 U.S.C. app.
§ 1903(d). By enacting section 1903(d), Congress intended to
eliminate jurisdictional impediments to convictions under the
statute. See S. REP. NO. 99-530, at 16 (1986), reprinted in 1986
U.S.C.C.A.N. 5986, 6001. As set forth in the Senate Report:
In the view of the Committee, only the flag nation of a
vessel should have a right to question whether the Coast
3
Although there is some debate over the effect of Panama’s first
approval to board and search the M/V CHINA BREEZE, we will assume
for purposes of this appeal that the Coast Guard did not receive
permission to enforce United States law until after the cocaine was
discovered and seized.
4
Bustos avoids raising issues concerning treaties or domestic
laws that have no relation to the jurisdiction of United States
courts. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655
(1992) (holding that a defendant had no rights under international
law or an extradition treaty); United States v. Postal, 589 F.2d
862, 875-876, 875 n.19 (5th Cir. 1979) (explaining that there is no
defect in a court’s jurisdiction for violation of domestic laws
that are unrelated to the court’s jurisdiction).
8
Guard has boarded that vessel with the required consent.
The international law of jurisdiction is an issue between
sovereign nations. Drug smuggling is universally
recognized criminal behavior, and defendants should not
be allowed to inject these collateral issues into their
trials.
Id. The legitimacy of a flag nation’s consent is therefore a
question of international law that can be raised only by the
foreign nation. See, e.g., United States v. Greer, 223 F.3d 41,
55-56 (2d Cir. 2000) (“[T]he MDLEA requires the consent of foreign
nations for purposes of international comity and diplomatic
courtesy, not as a protection for defendants.”). There is no
dispute that the Panamanian government consented to the enforcement
of United States law on May 28, 1999.5
While Bustos lacks standing to question whether Panama’s
consent effectively granted jurisdiction to the United States, he
may nonetheless argue that the district court failed to satisfy the
jurisdictional requirements of the statute itself. The Maritime
Drug Law Enforcement Act is “United States law,” not “international
law.” See United States v. Maynard, 888 F.2d 918, 926-27 (1st Cir.
1989); United States v. Mena, 863 F.2d 1522, 1530-31 (11th Cir.
1989). “[H]ad Congress intended to deprive defendants of standing
5
Consent or waiver of objection by the flag nation is
conclusively proven by certification from the Secretary of State or
the Secretary’s designee. See 46 U.S.C. app. § 1903(c).
9
to object to the government’s non-compliance with the terms of
section 1903(a), Congress would not merely have prevented
defendants from raising objections under international law.” Mena,
863 F.2d at 1531. Bustos does not argue that Panama failed to
effectively consent to the enforcement of United States law on May
28, 1999. He argues that section 1903 requires a flag nation to
consent before United States officials seize illegal cargo.
Because his argument involves statutory interpretation as opposed
to application of international law, he is not barred from raising
his argument on appeal.
The exact timing of a flag nation’s permission is not a
condition to consent under subsection (c)(1)(C). A defendant may
be tried for an offense under the statute if the flag nation
acquiesces after a vessel is commandeered. See Greer, 223 F.3d at
55 (finding that the United States had jurisdiction over a vessel
even when the flag nation consented five years after the completion
of the offense). See also Cardales, 168 F.3d at 552; United
States v. Medjuck, 48 F.3d 1107 (9th Cir. 1995); United States v.
Khan, 35 F.3d 426, 431 (9th Cir. 1994). The only statutory
prerequisite to the district court’s jurisdiction under section
1903(c)(1)(C) is that the flag nation consent to the enforcement of
United States law before trial. Because Panama consented to the
enforcement of United States law over the M/V CHINA BREEZE on May
28, 1999, the district court satisfied the jurisdictional
10
requirements of the statute.6
III. Whether Bustos Was a Juvenile
Bustos claims that the district court lacked jurisdiction to
accept his plea because he was a juvenile at the time of the
offense and indictment.7 We review the district court’s factual
findings pertaining to Bustos’s age for clear error. See, e.g.,
United States v. Juvenile No. 1, 118 F.3d 298, 307 (1997).
Bustos admitted on numerous occasions that he was born on June
9, 1977. On board the M/V CHINA BREEZE, Bustos told officials that
the Panamanian documents identifying him as Pacifico Duarte were
6
We recognize that the language in 46 U.S.C. app. § 1903(f)
could arguably be interpreted to relate to the district court’s
authority to act on this case, separate and apart from whether the
United States had jurisdiction over the vessel. However, we are
not convinced that this is a proper interpretation. In our view,
the United States’s jurisdiction over the vessel and the district
court’s jurisdiction to act are inextricably intertwined. Because
Panama consented to the enforcement of United States law over the
M/V China Breeze prior to Bustos’s trial, the district court had
jurisdiction to act on the case so long as the criminal statute
under which Bustos was prosecuted meets the subject matter
jurisdiction requirements of Article III of the United States
Constitution and 18 U.S.C. § 3231. Section 1903(a) defines a “law
of the United States” sufficiently enough to satisfy Article III
and defines an “offense against the law of the United States”
sufficiently enough to satisfy 18 U.S.C. § 3231. Therefore, the
district court had the authority to act on this case.
7
In order for the district court to assert jurisdiction over a
juvenile, the United States Attorney General must certify the case
pursuant to 18 U.S.C. § 5032. “The need for certification . . . is
a jurisdictional requirement; therefore, a challenge to the legal
sufficiency of the certification . . . can be raised at any time.”
United States v. Sealed Juvenile 1, 225 F.3d 507, 508 (5th Cir.
2000). Bustos’s argument is therefore jurisdictional and cannot be
waived by a valid guilty plea. See Owens, 996 F.2d at 50.
11
fraudulent. He stated his real name was Edilson Bustos-Useche born
on June 9, 1977. Bustos claimed he was twenty-one at the Harris
County Jail and at his arraignment before the magistrate judge.
Bustos again admitted the June 9, 1977 date of birth in a
handwritten statement. A Columbian identification document
procured after Bustos’s arrest also listed June 9, 1977 as his date
of birth.
Bustos claimed that the Columbian document was also fraudulent
and that his date of birth was actually February 20, 1983. Bustos
offered no documentation in support of his testimony. In light of
Bustos’s repeated statements and the Columbian identification
document, the district court did not clearly err by concluding that
Bustos was an adult at the time of the offense and indictment.
IV. Increase of Bustos’s Base Offense Level
Finally, Bustos argues that the district court should not have
increased his offense level by two points for possession of a
dangerous weapon. Although he admits to carrying a firearm on
board the M/V CHINA BREEZE, he claims that he did not possess the
weapon to assist himself in committing the offense. The district
court’s conclusion that Bustos possessed a weapon during the
commission of his offense is a factual determination that we review
for clear error. See United States v. Westbrook, 119 F.3d 1176,
1192 (5th Cir. 1997).
The Sentencing Guidelines provide for a two-level increase in
12
a defendant’s offense level for possession of a dangerous weapon.
U.S.S.G. § 2D1.1(b)(1). The commentary suggests adjusting the
offense level if the weapon was present during the commission of
the offense, “unless it is clearly improbable that the weapon was
connected with the offense.” Id. at cmt. 3. “Possession of a
firearm will enhance a defendant’s sentence . . . where a temporal
and spatial relationship exists between the weapon, the drug-
trafficking activity, and the defendant.” United States v.
Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997).
Bustos admits possessing the firearm when he boarded the M/V
CHINA BREEZE. Bustos boarded the vessel from the same speed boats
that transported the cocaine from Columbia. He explained that he
brought similar weapons on earlier drug smuggling voyages, but
always gave them to the captain when he boarded the vessel. Bustos
admits that he did not give the gun to the captain on this voyage.
He claims that he threw the weapon overboard when he heard the
approaching Coast Guard helicopters. Bustos argues that he never
used the weapon or showed it to anyone on board.
We will not reverse the district court’s sentence adjustment
simply because the defendant did not “display or brandish” the
firearm. Marmolejo, 106 F.3d at 1216. Bustos boarded the M/V
CHINA BREEZE with the weapon at the same time the cocaine was
loaded on the vessel. His only duty on the voyage was to account
for the cocaine. The firearm remained in his possession until he
13
threw it overboard. Based on these facts, there was a sufficient
connection between the weapon and the offense. The district
court’s two-level adjustment was appropriate.
V. Conclusion
We find that the district court satisfied the statutory
requirements for jurisdiction under 46 U.S.C. app. § 1903. We
also affirm the court’s conclusions that Bustos was not a juvenile
and that he possessed a firearm in conjunction with trafficking
narcotics. Bustos’s remaining issues on appeal are foreclosed by
his valid guilty plea.
AFFIRMED
14
United States v. Bustos-Useche
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-11-14
Citations: 273 F.3d 622
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