           Case: 18-13327   Date Filed: 03/31/2020   Page: 1 of 9



                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13327
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 8:15-cr-00076-VMC-AAS-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee.

versus

JORGE ELIECER CIFUENTES-CUERO,

                                             Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (March 31, 2020)

Before MARTIN, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Jorge Cifuentes-Cuero pled guilty to conspiring to possess with intent to

distribute five kilograms or more of cocaine while on board a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a)

and (b), and 21 U.S.C. § 960(b)(1)(B)(ii). He appeals his conviction, arguing that

the factual basis for his guilty plea was insufficient and that the Maritime Drug Law

Enforcement Act, 46 U.S.C. § 70501 et. seq., as applied to his conduct, exceeds

Congress’ authority under the Foreign Commerce Clause.           For the following

reasons, we affirm.

                                          I

      On March 18, 2015, a federal grand jury returned a two-count indictment

against Mr. Cifuentes-Cuero, charging him with conspiracy to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. §§ 963 and 960(b)(1)(B)(ii)

(count one), 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 46 U.S.C. §§ 70503(a)(1), 70506(a) and (b), and 21 U.S.C. §

960(b)(1)(B)(ii) (count two). On April 30, 2018, he pled guilty to the second count,

pursuant to a written plea agreement.

      The plea agreement set forth the factual basis for Mr. Cifuentes-Cuero’s

offense as follows. From 2011 to 2015, Mr. Cifuentes-Cuero—who had been

involved in maritime narcotics trafficking since 2001—was a principal member of a


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Colombian and Ecuadorian-based drug trafficking organization. During that time,

he organized the logistics of multiple maritime drug-trafficking ventures, including

holding meetings with others and supplying information about vessel routes,

rendezvous points, and final destinations. He owned several vessels that were used

to transport cocaine and materials to launch sites where other vessels were staged

and dispatched. He also hired and paid crewmembers on board the vessels that were

transporting cocaine and funded the supplies necessary to conduct the ventures,

including the purchase of vessels, fuel, engines, and electronic equipment.

      On at least two occasions, Mr. Cifuentes-Cuero organized cocaine smuggling

ventures that were interdicted by law enforcement.

      First, Mr. Cifuentes-Cuero organized the distribution of cocaine by a go-fast

vessel that was interdicted by the Coast Guard on January 4, 2013, in the

international waters of the Pacific Ocean, approximately 120 nautical miles south of

Acajutla, El Salvador. The crew made no claim of nationality or registry for the

vessel, rendering the vessel without nationality and subject to the jurisdiction of the

United States.    The Coast Guard conducted a law enforcement boarding and

recovered 318 kilograms of cocaine. The United States filed certifications by the

Department of State that the vessel was subject to the jurisdiction of the United

States.




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      Second, Mr. Cifuentes-Cuero organized the distribution of cocaine by the go-

fast vessel that was interdicted by the Coast Guard on July 20, 2014, in the

international waters of the Pacific Ocean, approximately 75 nautical miles northwest

of Isla de Malpelo, Colombia. The crew claimed Colombian nationality for the

vessel. The Government of Colombia was unable to confirm or deny the vessel’s

nationality, rendering it without nationality and subject to the jurisdiction of the

United States. The law enforcement boarding team drilled into the deck of the vessel

and discovered a hidden compartment that contained 587 individually wrapped

packages containing a total of 704 kilograms of cocaine. The United States filed

certifications by the Department of State that the vessel was subject to the

jurisdiction of the United States.

      At the change-of-plea hearing, the magistrate judge reviewed the plea

agreement with Mr. Cifuentes-Cuero, confirming that he had a chance to review all

the facts and evidence with his attorney. The government read the factual basis for

his offense from the written plea agreement at the hearing. After the government

read the factual proffer into the record, the magistrate judge asked Mr. Cifuentes-

Cuero if he had any disagreement with the facts as stated by the government. He

responded, “Nope. It is what is written there.” D.E. 64 at 27. The magistrate judge

then asked, “So everything is true then?” and Mr. Cifuentes-Cuero responded,

“Yes.” Id.



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      After the hearing, the magistrate judge recommended that the district court

accept Mr. Cifuentes-Cuero’s guilty plea. Mr. Cifuentes-Cuero did not object to the

report and recommendation. The district court accepted the plea, entered a judgment

of conviction, and imposed a sentence of 262 months’ imprisonment. This appeal

followed.

                                           II

                                           A

       “Before entering judgment on a guilty plea, the court must determine that

there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). Generally, “[t]he

standard for evaluating [such a claim] is whether the [district] court was presented

with evidence from which it could reasonably find that the defendant was guilty.”

United States v. Puentes-Hurtado, 794 F.3d 1278, 1287 (11th Cir. 2015) (citation

and internal quotation marks omitted; alterations in original).

      Mr. Cifuentes-Cuero argues that the district court erred in accepting his plea

because there was not a sufficient factual basis to support his conviction. The

government responds that we should not consider this argument, because Mr.

Cifuentes-Cuero waived it by failing to object to the magistrate judge’s finding that

there was a sufficient factual basis for his plea.

      Under Federal Rule of Criminal Procedure 59(b)(2), failing to object to a

magistrate judge’s report and recommendation “waives a party’s right to review” of



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the unobjected-to issue on appeal. Eleventh Circuit Rule 3-1 provides, however, that

“[i]n the absence of a proper objection” to a magistrate judge’s report, “the court

may review on appeal for plain error if necessary in the interests of justice.” To

establish plain error, a defendant must show that: “(1) an error occurred; (2) the error

was plain; (3) it affected his substantial rights; and (4) it seriously affected the

fairness of the judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265

(11th Cir. 2003).

      Mr. Cifuentes-Cuero did not object to the magistrate judge’s finding that the

offense charged was supported by “an independent basis in fact[.]” D.E. 45. Indeed,

at his change-of-plea hearing, Mr. Cifuentes-Cuero confirmed that he had a chance

to review all the facts and evidence with his attorney and admitted that the factual

proffer was correct. See D.E. 64 at 8, 27. Mr. Cifuentes-Cuero therefore waived his

challenge to the sufficiency of the factual basis for his plea. See United States v.

Garcia-Sandobal, 703 F.3d 1278, 1283 (11th Cir. 2013) (holding that the defendant

waived his argument that the district court erred when it accepted his guilty plea

because he did not file any objections to the magistrate judge’s recommendation that

the district court accept his plea).

      Even if we were to review for plain error, there is no plain error here. Contrary

to Mr. Cifuentes-Cuero’s assertions, the factual proffer established that he took

specific actions to organize multiple maritime drug trafficking ventures—including



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that he owned vessels that were used to traffic cocaine, organized the logistics of

cocaine trafficking ventures, hired and paid crewmembers to carry them out, and

purchased fuel, engines, and other equipment needed. It also established that on at

least two of the ventures, the vessels were subject to the jurisdiction of the United

States. Mr. Cifuentes-Cuero admitted that these facts were correct. See D.E. 64 at

27. On this record, we cannot say that the district court plainly erred in finding that

there was a sufficient factual basis to support his plea. See Puentes-Hurtado, 794

F.3d at 1287.

                                          B

      Mr. Cifuentes-Cuero next argues that the MDLEA is unconstitutional under

the Foreign Commerce Clause as applied to him, because his offense conduct

occurred entirely within a foreign country and did not have any ties to the United

States. He raises this argument for the first time on appeal, so we review only for

plain error. See United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005).

      The MDLEA, as applied to Mr. Cifuentes-Cuero’s conduct, does not exceed

Congress’ authority under the Foreign Commerce Clause. This is because Congress’

power to enact the MDLEA is derived from the Felonies Clause—which grants

Congress “the power to define and punish felonies committed on the high seas”—

not the Foreign Commerce Clause. See United States v. Bellaizac-Hurtado, 700

F.3d 1245, 1248, 1257 (11th Cir. 2012) (“[W]e have always upheld extraterritorial



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convictions under our drug trafficking laws as an exercise of the power under the

Felonies Clause.”). Indeed, “this Court has held that the MDLEA is a valid exercise

of Congress’s power under the Felonies Clause as applied to drug trafficking crimes

without a ‘nexus’ to the United States.” United States v. Cabezas-Montano, 949

F.3d 567, 587 (11th Cir. 2020) (citing United States v. Campbell, 743 F.3d 802, 809–

10 (11th Cir. 2014)).

      Mr. Cifuentes-Cuero argues that Congress’ power to proscribe his conduct

cannot be derived from the Felonies Clause because his actions occurred entirely on

foreign land—and thus were not “committed on the high seas.” Reply Br. at 7. But

the fact that Mr. Cifuentes-Cuero was not physically on board the vessels is of no

consequence. In a conspiracy, “the overt act of one partner in a crime is attributable

to all,” so long is it can be “reasonably foreseen as a necessary or natural

consequence of the unlawful agreement.” Pinkerton v. United States, 328 U.S. 640,

647–48 (1946). Even if Mr. Cifuentes-Cuero’s own acts were not committed on the

“high seas,” the factual proffer established that his co-conspirators committed

felonious acts in international waters that are attributable to him. The Felonies

Clause therefore gives Congress the power to punish Mr. Cifuentes-Cuero for his

role in the conspiracy. See United States v. Ballestas, 795 F.3d 138, 147 (D.C. Cir.

2015) (holding that the Felonies Clause “provides Congress with authority to

‘punish’ Ballestas for his role” in a drug trafficking conspiracy even though he was



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never on board the relevant vessels because his “co-conspirators committed

felonious acts on the high seas” that “are directly attributable to him”). Accordingly,

there is no error in applying the MDLEA to Mr. Cifuentes-Cuero’s conduct, let alone

plain error.

                                         III

      For the foregoing reasons, we affirm Mr. Cifuentes-Cuero’s conviction.

      AFFIRMED.




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