United States v. Clayton Humphries-Brant , 190 F. App'x 837 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 05-13517 ELEVENTH CIRCUIT
JULY 21, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00081-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAYTON HUMPHRIES-BRANT,
a. k. a. Clayton Humphries Brant,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 21, 2006)
Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Defendant-Appellant Clayton Humphries-Brant appeals his conviction and
135-month sentence for possession with intent to distribute and 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 the
Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. App. § 1903(a), (g),
(j)); 21 U.S.C. § 960(b)(1)(B). No reversible error has been shown; we affirm.
In February 2004, the United States Coast Guard intercepted a “go-fast”
boat transporting cocaine off the coast of Colombia; the boat carried 89 bales of
cocaine totaling approximately 2000 kilograms. Defendant was one of four crew
members aboard the boat; one of the four was the captain and another was charged
with overseeing the operation. Defendant pleaded guilty without a plea
agreement. At sentencing, Defendant objected to the failure of the PSI to award
him a mitigating role adjustment under U.S.S.G. § 3B1.2. No jurisdictional
challenge was advanced during the plea colloquy or at sentencing.
On appeal, Defendant for the first time raises a challenge to the
constitutionality of the MDLEA. According to Defendant, the MDLEA represents
an ultra vires exercise of Congressional power under Article I, Section 8, Clause
10, the Piracies and Felonies Clause. Defendant maintains that Congressional
power to legislate extra-territorially under the Piracies and Felonies Clause does
not encompass authority to criminalize drug trafficking among stateless vessels on
the high seas. Defendant argues that the district court erred when it failed to
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dismiss sua sponte the indictment against him because the MDLEA is
unconstitutional.
Plain error review ordinarily applies to issues not presented to the district
court. Because Defendant characterizes his constitutional challenge to the
MDLEA as jurisdictional, Defendant argues that de novo review applies.1 We
conclude that the district court committed no error -- plain or otherwise -- by
failing to dismiss sua sponte the indictment: the MDLEA does not exceed
Congress’s constitutional authority under the Piracies and Felonies Clause.
The Piracies and Felonies Clause empowers Congress “To 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 enacting the MDLEA,
Congress found and declared these things:
trafficking in controlled substances aboard vessels is a
serious international problem and is universally
condemned. Moreover, such trafficking presents a
specific threat to the security and societal well-being of
the United States.
1
If we accept that the thrust of Defendant’s claim is a challenge to the district court’s subject
matter jurisdiction, de novo review applies. See United States v. Giraldo-Prado, 150 F.3d 1328,
1329 (11th Cir. 1998) (reviewing de novo a challenge to the district court’s subject matter jurisdiction
for the first time on appeal). If, instead, we treat Defendant’s claim as a constitutional challenge to
Congressional authority to enact the MDLEA under the Piracies and Felonies Clause, plain error
review applies. See United States v. Williams, 121 F.3d 615, 618 (11th Cir. 1997) ( reviewing for
plain error challenge to the constitutionality of a federal statute raised for first time on appeal).
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46 U.S.C. app. § 1902. The MDLEA provides, in relevant part, 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.” 46 U.S.C. app § 1903(a). A “vessel subject to the jurisdiction of the
United States” includes “a vessel without nationality.” 46 U.S.C. app. §
1903(c)(1)(A).
We have already rejected a facial challenge to the MDLEA based on a lack
of a “meaningful relationship” to the United States, see United States v. Mena, 863
F.2d 1522, 1527 (11th Cir. 1989); neither this Circuit nor other circuits have
imposed upon the MDLEA a nexus requirement between a defendant’s criminal
conduct and the United States. See United States v. Rendon, 354 F.3d 1320, 1325
(11th Cir. 2003). And the circuits that have considered the authority of Congress
to enact the MDLEA pursuant to the Piracies and Felonies Clause have affirmed
expressly the constitutionality of the MDLEA. See United States v. Moreno-
Morillo, 334 F.3d 819, 824 (9th Cir. 2003) (“Congress ... was acting within its
constitutionally conferred authority [under the Piracies and Felonies Clause] when
it passed the MDLEA.”); United States v. Ledesma-Cuesta, 347 F.3d 527, 532 (3d
Cir. 2003) (“Congress had authority to enact [the MDLEA] pursuant to its
constitutional power to: define and punish Piracies and Felonies committed on the
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high seas, and Offences against the Law of Nations.” (Internal quotation and
citation omitted). We reject Defendant’s argument that the MDLEA represented
an ultra vires exercise of Congressional power under the Piracies and Felonies
Clause; the district court exercised properly subject-matter jurisdiction.2
About the sentence imposed, Defendant argues that (1) the district court
erred when it failed to award him a minor role adjustment pursuant to U.S.S.G. §
3B1.2; and (2) the 135-month sentence was unreasonable in the light of the 18
U.S.C. § 3553(a) factors and the Supreme Court’s decision in United States v.
Booker, 125 S.Ct. 738 (2005).3 We disagree.
Defendant argues that he was a low-level crewman who played no integral
part in the overall conspiracy. Defendant contends that because he had no equity
interest in the drugs, no decision-making authority, and no role in planning the
2
Also without merit is Defendant’s argument that 46 U.S.C. app. § 1903(f), which provides that
“[a]ll jurisdictional issues arising under [the MDLEA] are preliminary questions of law to be
determined solely by the trial judge,” is unconstitutional under United States v. Gaudin, 115 S.Ct.
2310 (1995). As Defendant recognizes, we rejected a Gaudin challenge to section 1903 in United
States v. Tinoco, 304 F.3d 1088, 1109-1110 (11th Cir. 2002). We are bound to follow Tinoco under
the prior-precedent rule. See United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (only
Supreme Court or this Court sitting en banc can judicially overrule a prior panel decision).
3
The government argues that we are without jurisdiction under 18 U.S.C. § 3742 to review the
reasonableness of a sentence within the advisory guidelines range. That argument was rejected in
United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir.), petition for cert. filed, (U.S. May 30,
2006) (No. 05-11248): “a post-Booker appeal based on the ‘unreasonableness’ of a sentence,
whether within or outside the advisory guidelines range, is an appeal asserting that the sentence was
imposed in violation of law pursuant to § 3742(a)(1).” .
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criminal scheme or distribution of the drugs, he was less culpable than many of the
other people involved in the conspiracy.
Section 3B1.2(b) of the United States Sentencing Guidelines allows for a
two-level reduction in a defendant’s base offense level if the sentencing court
determines that the defendant was a minor participant in the offense. A minor
participant is a participant “who is less culpable than most other participants, but
whose role could not be described as minimal.” U.S.S.G. § 3B1.2(b), comment.
(n.5.). In United States v. De Varon, 175 F.3d 930 (11th Cir. 1999), we set out two
measurements that inform the sentencing court’s mitigating-role-in-the-offense
determination: (1) the defendant’s role against the relevant conduct for which he
has been held accountable; and (2) the defendant’s role as compared to that of
other participants in his relevant conduct. Id. at 940. About the first
measurement, De Varon counsels that “[o]nly if the defendant can establish that
[he] played a relatively minor role in the conduct for which [he] has already been
held accountable -- not a minor role in any larger criminal conspiracy -- should the
district court grant a downward adjustment for minor role in the offense.” Id. at
944. About the second measurement, De Varon counsels that this relative
culpability inquiry includes “only those participants who were involved in the
relevant conduct attributed to the defendant. The conduct of participants in any
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larger criminal conspiracy is irrelevant.” Id. The first measurement is the most
important and, in many cases, may end the inquiry. Id. at 945.
The district court’s decision to deny Defendant a minor-role reduction is
supported by the record. Defendant failed to show that he played a minor role in
the relevant conduct for which he was held accountable. Defendant’s offense
involved 2,000 kilograms of cocaine; he was held accountable for no larger
quantity. Where the relevant conduct for which a defendant is held accountable is
identical to the defendant’s actual conduct, no minor role entitlement may be
established simply by referencing some broader criminal scheme. See De Varon,
175 F.3d at 941. Also, in the drug courier context, a large amount of drugs itself is
an important factor -- maybe even a dispositive factor -- in determining the
availability of a minor role adjustment. Id. at 943 (“[T]he amount of drugs
imported is a material consideration in assessing a defendant’s role in [his]
relevant conduct....[W]e do not foreclose the possibility that amount of drugs may
be dispositive....”). No record evidence distinguishes significantly Defendant’s
culpability from that of other crew members.4 “The proponent of the downward
adjustment ... always bears the burden of proving a mitigating role in the offense
4
We accept that the boat’s captain played a larger role than that of Defendant; the captain received
a role enhancement at sentencing. That the captain merited an upward role adjustment does not mean
that the others on the boat were not each average participants in the offense conduct.
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by a preponderance of the evidence.” De Varon, 175 F.3d at 939. Defendant
failed to show that he was “less culpable than most other participants in [his]
relevant conduct.” Id. at 944 (emphasis in original).
About the reasonableness of the sentence imposed, Defendant argues that
his 135-month sentence is unreasonable because the sentence exceeds that which
is necessary to fulfill the statutory purposes of sentencing set out in section
3553(a). Under section 3553(a), a district court should consider, among other
things, the nature and circumstances of the offense, the history and characteristics
of the defendant, the need for adequate deterrence and protection of the public,
policy statements of the Sentencing Commission, provision for the medical and
educational needs of the defendant, and the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a)(1)-(7). A sentence within the advisory
guidelines range is not per se reasonable, United States v. Talley, 431 F.3d 784,
786 (11th Cir. 2005); but “ordinarily we would expect a sentence within the
Guidelines range to be reasonable.” Id. at 788. Reasonableness review is
“deferential.” Id.The record reflects that the district court considered the section 3553(a)
sentencing factors; the district court stated expressly that a sentence at the low end
of the guideline range “satisfies the statutory purpose of sentencing.” Defendant
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fails to show that the sentence imposed was unreasonable when measured against
the record. See Talley, 341 F.3d at 788 (“the party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
both [the] record and the factors in section 3553(a).”).
AFFIRMED.
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