United States v. Aybar-Ulloa , 913 F.3d 47 ( 2019 )

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,
- 22 -
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).
- 23 -
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
- 24 -
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
- 25 -
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).
- 26 -
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.
- 38 -