United States v. Franco Posligua ( 2023 )

Case: 22-40393 Document: 00516789185 Page: 1 Date Filed: 06/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 15, 2023
No. 22-40393 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Christian Leonardo Franco Posligua,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:21-CR-132-3
______________________________
Before Richman, Chief Judge, and Dennis and Ho, Circuit Judges.
Per Curiam: *
Christian Leonardo Franco Posligua pleaded guilty to conspiracy to
possess with intent to distribute a controlled substance on board a vessel
subject to the jurisdiction of the United States, in violation of the Maritime
Drug Law Enforcement Act (MDLEA). Under the MDLEA, the district
court was required to make a preliminary determination as to its jurisdiction
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40393 Document: 00516789185 Page: 2 Date Filed: 06/15/2023
No. 22-40393
over the vessel at issue but did not do so. 1 Posligua now challenges the
district court’s jurisdiction and also seeks to vacate an order of forfeiture
entered by the district court. We order a limited remand for the district court
to consider, in the first instance, whether it has jurisdiction. We also order
the district court to vacate the forfeiture order.
I
Four years before the events that led to the present appeal, Posligua,
a fisherman from Ecuador, was found on a vessel that was transporting
cocaine. He pled guilty in the District Court for the Southern District of New
York to participating in a conspiracy to violate the MDLEA. He was
sentenced to time served, which was 14 months, and removed from the
United States.
Four years later, in 2021, Posligua and three other men were found in
a low-profile vessel in the Pacific Ocean that had no indicia of nationality or
state documents. The United States Coast Guard officers who searched the
vessel seized 1100 kilograms of cocaine, after they observed men throwing a
package overboard. Two of the men aboard the vessel identified Posligua as
its captain.
A grand jury charged Posligua with conspiracy to possess with intent
to distribute a controlled substance on board a vessel subject to the
jurisdiction of the United States in violation of 46 U.S.C. §§ 70503(a)(1) and
_____________________
1
See United States v. Bustos-Useche, 273 F.3d 622, 626 (5th Cir. 2001) (“[46 U.S.C.
§ 70504(a)] 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.’ 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 [the MDLEA].”).
2
Case: 22-40393 Document: 00516789185 Page: 3 Date Filed: 06/15/2023
No. 22-40393
70506(b). 2 The indictment was premised on § 70502(c)(1)(A), alleging that
the vessel Posligua was found aboard was “without nationality,” thereby
being “subject to the jurisdiction of the United States.” 3 Although under
§ 70504(a) the question of whether a vessel is subject to the jurisdiction of
the United States is a question of law to be decided by the district court, 4
neither Posligua nor the Government asked the district court to decide the
issue. The district court ultimately did not make a determination as to its
jurisdiction before accepting Posligua’s plea agreement.
As part of that agreement, Posligua signed a factual basis admitting he
“made an agreement to commit the crime charged in the [i]ndictment.” The
factual basis did not, however, mention the vessel from which the cocaine
was seized. Posligua also agreed to waive his right to appeal except in limited
circumstances. Posligua’s presentence report provides additional
information. It notes that Posligua was interdicted by the U.S. Coast Guard
“in the Eastern Pacific Ocean;” that the “vessel had no physical indicia of
nationality and no state documents on board;” that “[n]one of the
codefendants claimed to be captain of the vessel;” that “Posligua advised the
vessel was of Colombian nationality;” that “Officers were advised Colombia
could neither confirm nor deny the vessel’s nationality;” and that
“[Posligua] was the apparent captain of the boat.” Neither Posligua nor the
Government objected to the presentence report. At the sentencing hearing,
Posligua stated that he reviewed the presentence report, understood it, and
_____________________
2
46 U.S.C. §§ 70503(a)(1), 70506(b).
3
46 U.S.C. § 70502(c)(1)(A).
4
46 U.S.C. § 70504(a) (“Jurisdiction of the United States with respect to a vessel
subject to this chapter is not an element of an offense. Jurisdictional issues arising under
this chapter are preliminary questions of law to be determined solely by the trial judge.”).
3
Case: 22-40393 Document: 00516789185 Page: 4 Date Filed: 06/15/2023
No. 22-40393
believed it adequately covered his background. The district court then
adopted the facts and accepted the plea agreement.
After the sentencing hearing, the Government filed a motion for the
district court to issue a final order of forfeiture against Posligua for $100,000,
pursuant to Federal Rule of Criminal Procedure 32.2(b) and (c). 5 The district
court subsequently granted the motion and entered a final order of forfeiture
against Posligua.
Posligua now appeals, arguing that the district court lacked subject
matter jurisdiction, or alternatively, that his plea was not knowing and
voluntary. He also asserts that the forfeiture order accompanying the final
judgment was illegal.
II
Without making the required jurisdictional determination, the district
court entered a plea agreement. We order a limited remand to permit the
district court to determine, in the first instance, whether it has jurisdiction.
III
After the present appeal was filed, Posligua filed a separate appeal
challenging the district court’s order of forfeiture accompanying the final
judgment. That appeal was dismissed because the present appeal,
challenging the district court’s final judgment, was already pending. The
motion to vacate the forfeiture order is carried with this appeal.
Both Posligua and the Government argue that the forfeiture order
entered by the district court against Posligua should be vacated because it was
not statutorily authorized. Although Posligua did not object to the forfeiture
_____________________
5
Fed. R. Crim. P. 32.2(b), (c).
4
Case: 22-40393 Document: 00516789185 Page: 5 Date Filed: 06/15/2023
No. 22-40393
order at sentencing, “we review [his claim] de novo because he claims that
this element of his sentence is illegal.” 6
In the interest of judicial economy, we address the forfeiture issue
now. Because Posligua’s appeal waiver “reserves the right to appeal any
punishment imposed in excess of the statutory maximum,” his appeal waiver
does not foreclose this court from granting relief from an unauthorized
forfeiture. 7
Under 46 U.S.C. § 70507(a), forfeiture of property is proper if it “is
used or intended for use to commit, or to facilitate the commission of,” an
MDLEA offense. 8 Here, as the Government recognizes, “the record
contains no allegation or evidence that Posligua or his coconspirators used or
intended to use the $100,000 cash to commit or facilitate the charged
MDLEA offense.” Under 28 U.S.C. § 2106, this “court has the discretion
to either reform a judgment or remand the case for the district court to do
so.” 9 Accordingly, because there is no evidence or allegation that Posligua
used or intended to use the $100,000 cash to commit or facilitate his charged
_____________________
6
United States v. Nagin, 810 F.3d 348, 352 (5th Cir. 2016) (citing United States v.
Nolen, 472 F.3d 362, 382 & n. 52 (5th Cir. 2006)).
7
United States v. Gasanova, 332 F.3d 297, 300 (5th Cir. 2003) (explaining that
“[f]orfeiture is a form of punishment” (citing Austin v. United States, 509 U.S. 602, 618
(1993))).
8
46 U.S.C. § 70507(a).
9
United States v. Fuentes-Rodriguez, 22 F.4th 504, 506 (5th Cir. 2022) (per curiam)
(citing 28 U.S.C. § 2106).
5
Case: 22-40393 Document: 00516789185 Page: 6 Date Filed: 06/15/2023
No. 22-40393
offense, we remand the case to the district court with instructions to vacate
the forfeiture order.
* * *
For the foregoing reasons we order a limited REMAND for further
proceedings consistent with this opinion.
6