                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                    FILED
                           ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                   July 22, 2005
                                 No. 04-15143
                                                                THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                     D. C. Docket No. 04-00182-CR-T-27-EAJ

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

      versus

ARNULFO PAREDES URENA,

                                                               Defendant-Appellant.

                           ________________________

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

                                   (July 22, 2005)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Arnulfo Paredes Urena appeals his conviction and 210-month sentence for

possession with intent to distribute, and conspiracy to possess with intent to
distribute, five kilograms or more of a mixture and substance containing a

detectable amount 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) and (j).

      Urena is a Mexican citizen who was rescued by the U.S. Coast Guard in

international waters off the shore of Mexico when his boat capsized. Urena’s boat

held more than 4536 kilograms of cocaine. The Mexican government could not

affirmatively and unequivocally assert that his vessel was of Mexican nationality,

and therefore the vessel was a “vessel without nationality” and subject to the

jurisdiction of the United States under the MDLEA. 46 U.S.C. App. §

1903(c)(1)(A).

       On appeal, Urena first argues that the MDLEA is unconstitutional because

Congress exceeded its authority under the Piracies and Felonies Clause of the

Constitution when it enacted the MDLEA. Urena argues that Congress exceeded

its power to “define and punish Piracies and Felonies on the high seas” because

the constitutional clause was not intended to give Congress power to criminalize

drug possession by a foreign sailor on a foreign vessel. Urena did not raise this

argument in the district court. U.S. C ONST. art. I, § 8, clause 10. Our review of a

challenge to the constitutionality of a statute, based on the assertion that Congress



                                           2
exceeded its authority in enacting the statute, is limited to “a search for plain error”

where the appellant failed to raise the issue at trial. United States v. Peters, 403

F.3d 1263, 1270 (11th Cir. 2005) (reviewing for plain error a claim that Congress

exceeded its authority under the Commerce Clause).

       To satisfy the plain-error standard, we must find that (1) the district court

committed “error,” (2) the error was plain or obvious, and (3) the error “affected

substantial rights” in that the error was prejudicial and not harmless. United States

v. Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). If

these criteria are met, we may, in our discretion, correct the plain error if it

“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736, 113 S.Ct. at 1779 (quotation omitted). We have held,

however, that “an error cannot meet the ‘plain’ requirement of the plain error rule

unless it is ‘clear under current law.’ . . . [W]here neither the Supreme Court nor

this Court has ever resolved an issue, and other circuits are split on it, there can be

no plain error in regard to that issue.” United States v. Aguillard, 217 F.3d 1319,

1321 (11th Cir. 2000) (citations omitted).

       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



                                             3
U.S.C. App. § 1903(a). A “vessel subject to the jurisdiction of the United States”

includes “a vessel without nationality,” which, in turn, is defined to include “a

vessel aboard which the master or person in charge makes a claim of registry and

the claimed nation of registry does not affirmatively and unequivocally assert that

the vessel is of its nationality.” 46 U.S.C. App. § 1903(c)(1)(A) and (c)(2)(C). In

this case, we hold that the district court did not commit plain error by failing to

hold sua sponte that the MDLEA was unconstitutional because Congress had

exceeded its authority under the Piracies and Felonies Clause. There is no

precedent from either the Supreme Court or this Court resolving this issue and

declaring that the enactment of the MDLEA exceeded Congress’s authority, and

therefore any alleged error the district court may have committed is not plain. See

Aguillard, 217 F.3d at 1321. Moreover, we have noted that “this circuit and other

circuits have not embellished the MDLEA with a nexus requirement.” United

States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003), cert. denied, 541 U.S.

1035 (2004). Accordingly, because Urena’s constitutional challenge fails under

the plain-error test, we affirm as to this issue.

       Next, Urena argues that the MDLEA is unconstitutional because jurisdiction

is an element of his crime under the MDLEA, and therefore must be found by a

jury beyond a reasonable doubt, but the statute vests the jurisdictional question in



                                             4
the judge. Urena bases his argument on United States v. Gaudin, 515 U.S. 506,

522-23, 115 S.Ct. 2310, 2320 (1995, where the Court stated, “[t]he Constitution

gives a criminal defendant the right to have a jury determine, beyond a reasonable

doubt, his guilt of every element of the crime with which he is charged.” However,

by pleading guilty, Urena admitted all elements of the crime and waived his right

to have a jury find any of the elements beyond a reasonable doubt. This Court has

stated that a defendant who enters an unconditional guilty plea admits all elements

of the criminal charge and waives all nonjurisdictional defects in his court

proceedings. United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986).

Furthermore, as Urena concedes, this Court already rejected this argument in

United States v. Tinoco, 304 F.3d 1088, 1095 (11th Cir. 2002).1

          Third, Urena objects to his sentence in light of United States v. Booker, 543

U.S.___, 125 S. Ct. 738 (2005), because his sentence was imposed in a mandatory

guidelines system. In Booker, the Supreme Court held that the mandatory nature

of the Federal Sentencing Guidelines rendered them incompatible with the Sixth

Amendment’s guarantee to the right to a jury trial. 543 U.S. at ___, 125 S.Ct. at

749-51. In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of


          1
              Urena states that he raises the issue primarily for the purposes of en banc or certiorari
review.

                                                      5
1984, the appropriate remedy was to “excise” two sections that made the

Guidelines mandatory, and rendered the Sentencing Guidelines effectively

advisory. Id. at ___, 125 S.Ct. at 764. The Court indicated that both its “Sixth

Amendment holding and . . . remedial interpretation of the Sentencing Act” must

be applied to “all cases on direct review.” Id. at ___, 125 S.Ct. at 769.

       Because Urena properly preserved his claim by objecting to the

constitutionality of the Guidelines in the district court, “we review the defendant’s

Booker claim in order to determine whether the error was harmless.” United States

v. Mathenia, __ F.3d.__, 2005 WL 1201455 (11th Cir. May 23, 2005). The

harmless error standard to be used, however, depends on whether there was a

constitutional error or a statutory error. See id. Because this case only concerns a

“Booker statutory error,”2 the error is:

       harmless if, viewing the proceedings in their entirety, a court
       determines that the error did not affect the sentence, or had but very
       slight effect. If one can say with fair assurance that the sentence was
       not substantially swayed by the error, the sentence is due to be
       affirmed even though there was error.

Id. (quotations and alterations omitted). This standard “is not easy for the


       2
          Urena has conceded that there was no Sixth Amendment constitutional error in this case
because he admitted those facts that resulted in enhancements to his sentence. Urena does argue
that there was a Fifth Amendment violation because he was sentenced based on facts that were
not charged in his indictment. As we discuss in the next section, we find that there was no Fifth
Amendment violation. Accordingly, we review the mandatory application of the Guidelines
under the statutory harmless error standard.

                                                6
government to meet,” and it is “as difficult for the government to meet that

standard as it is for a defendant to meet the third-prong prejudice standard for plain

error review. The reason for that parity of difficulty is that the standard is the same

in those two situations; the difference is the party that has the burden. ” Id. at 6.

In this case, the Government admits that it cannot meet its burden to show that the

mandatory nature of the Guidelines did not affect the sentence imposed.

Accordingly, we vacate and remand for resentencing as to this issue.

      Finally, Urena argues that his then-mandatory Guidelines’ range should have

been determined solely on the facts charged in the indictment, and that any

sentence imposed post-Booker that is greater than the maximum sentence under the

Guidelines would violate the Ex Post Facto and Due Process Clauses is without

merit. Urena’s argument fails because the maximum punishment that he faced

both before and after Booker is the same. In United States v. Duncan, this Court

determined that because Booker made the Guidelines advisory, not mandatory,

“the various top ranges of the Guidelines are no longer binding, and therefore, no

longer constitute ‘little relevant maximums.’ This leaves as the only maximum

sentence the one set out in the United States Code.” 400 F.3d 1297, 1303 (11th

Cir. 2005). Accordingly, because the statutory maximum sentence for Urena’s

offense has always been life imprisonment, and because this maximum has not



                                            7
changed, there is no Fifth Amendment, ex post facto, or due process violations

implicated in this case. See id. at 1307-08.

      Based upon our review of the record and the parties’ briefs, and as discussed

above, we conclude that Urena’s constitutional challenges to the MDLEA are

without merit and affirm his conviction. However, because the district court

committed a Booker statutory error by sentencing Urena under a mandatory

guidelines system, and because the government has not shown that this error was

harmless, we vacate and remand for re-sentencing consistent with Booker.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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