          United States Court of Appeals
                     For the First Circuit


No. 14-1819

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                 BETSIAN CARRASQUILLO-PEÑALOZA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Torruella and Lynch, Circuit Judges.


     Alejandra Bird López for appellant.
     Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, were on brief, for appellee.




                          June 21, 2016
          LYNCH, Circuit Judge.          Betsian Carrasquillo-Peñaloza

pleaded guilty to one count of violating 18 U.S.C. § 2423(a) by

attempting to prostitute a fourteen-year-old girl to undercover

federal agents.   On appeal, Carrasquillo-Peñaloza argues that her

conviction must be reversed because the application of 18 U.S.C.

§ 2423(a) to conduct wholly within Puerto Rico exceeds Congress's

legislative authority.    But Carrasquillo-Peñaloza waived her right

to bring this challenge when she entered an unconditional guilty

plea and executed a waiver-of-appeal clause.       We affirm.

                                   I.

          On October 10, 2012, Carrasquillo-Peñaloza was indicted

for one count of transportation of a minor with the intent that

she engage in prostitution, in violation of 18 U.S.C. § 2423(a),1

and one count of sex trafficking of a child, in violation of 18

U.S.C. § 1591(a).   A substantially similar superseding indictment

was issued on October 24, 2012.

          On   December   7,   2012,    Carrasquillo-Peñaloza   filed   a

motion to dismiss the superseding indictment, arguing, inter alia,

that the application of 18 U.S.C. § 2423(a) to conduct wholly



     1    This statute, which was passed as part of the Mann Act,
makes it a crime to "knowingly transport[] an individual who has
not attained the age of 18 years in interstate or foreign commerce,
or in any commonwealth, territory or possession of the United
States, with intent that the individual engage in prostitution, or
in any sexual activity for which any person can be charged with a
criminal offense." 18 U.S.C. § 2423(a).


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within Puerto Rico exceeded Congress's legislative authority.             On

April 20, 2013, the district court denied the motion on the basis,

inter    alia,   that   the   constitutionality    of     that    particular

application of 18 U.S.C. § 2423(a) had already been settled in

Crespo v. United States, 151 F.2d 44, 45 (1st Cir. 1945).

            On   October   11,   2013,    Carrasquillo-Peñaloza      pleaded

guilty to the first count of the superseding indictment, for

violation of 18 U.S.C. § 2423(a).             Her potential sentencing

exposure was ten years to life imprisonment.            The plea agreement

contained a joint recommendation that Carrasquillo-Peñaloza be

sentenced to the statutory minimum sentence of 120 months of

imprisonment.     The plea agreement also contained a waiver-of-

appeal clause.2

            On July 7, 2014, Carrasquillo-Peñaloza was sentenced to

120 months of imprisonment, as jointly recommended.              This appeal

followed.

                                    II.

            Carrasquillo-Peñaloza contends that the argument she

wishes to raise on appeal -- that the application of 18 U.S.C.

§ 2423(a) to conduct wholly within Puerto Rico exceeds Congress's



     2    The waiver-of-appeal clause stated that "if this
Honorable Court accepts this Plea Agreement and sentences the
defendant according to its terms, conditions and recommendations,
the defendant then waives and permanently surrenders his [sic]
right to appeal the judgment and sentence in this case."


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legislative authority under the Commerce Clause -- is not barred

by her unconditional guilty plea or the waiver-of-appeal clause in

her plea agreement.      Because that is not so, we do not reach the

merits of her argument of unconstitutionality, save to point out

that it would be an uphill battle in light of precedent.

              "It is well-established that an unconditional guilty

plea results in the waiver of errors preceding the plea."                   United

States v. Castro-Vazquez, 802 F.3d 28, 32 (1st Cir. 2015) (citing

Tollett v. Henderson, 411 U.S. 258, 267 (1973)).                "So long as the

unconditional guilty plea is knowing and voluntary," id. at 33, it

"effectuates      a   waiver     of     any    and   all      independent     non-

jurisdictional lapses that may have marred the case's progress up

to that point," id. (quoting United States v. Cordero, 42 F.3d

697, 699 (1st Cir. 1994)).

              Carrasquillo-Peñaloza does not contest the knowing and

voluntary character of her guilty plea.              Rather, she argues that

her appeal can proceed notwithstanding her unconditional guilty

plea because her constitutional challenge to the statute of her

conviction casts doubt on the district court's subject matter

jurisdiction. But her argument is foreclosed by circuit precedent.

              In United States v. Cardales-Luna, we faced the issue of

whether   a    portion   of    the    Maritime   Drug   Law    Enforcement    Act

("MDLEA") that allowed a federal criminal law to be enforced

against persons and activities lacking any nexus with the United


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States,     46   U.S.C.     §§    70502(c)(1)(C),       70503(a)(1),   exceeded

Congress's Article I authority. 632 F.3d 731, 737 (1st Cir. 2011).

We held that, whatever its merits, a constitutional challenge to

Congress's legislative authority to enact the statute under which

a defendant is charged does not deprive the district court of

subject matter jurisdiction over the criminal case brought under

that statute.        Id.   We adopted the D.C. Circuit's position that:

"If a challenge to the constitutionality of an underlying criminal

statute     always     implicated        subject-matter    jurisdiction,    then

federal courts, having an obligation to address jurisdictional

questions    sua     sponte,     would    have   to   assure   themselves   of   a

statute's validity as a threshold matter in any case.                       This

requirement would run afoul of established Supreme Court precedent

declining to address constitutional questions not put in issue by

the parties."      Id. at 737–38 (quoting United States v. Baucum, 80

F.3d 539, 541 (D.C. Cir. 1996) (per curiam)).

            We reaffirmed that conclusion in two subsequent cases.

In United States v. Nueci-Peña, a defendant who was convicted after

a jury trial sought de novo review of an unpreserved argument that

the application of the MDLEA in his case exceeded Congress's

legislative authority.           711 F.3d 191, 196 (1st Cir. 2013).          The

defendant tried to excuse his failure to preserve the issue by

arguing that it was a jurisdictional issue that could be raised at

any time.        Id. at 196–97.           We cited Cardales-Luna as having


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previously         rejected       his     assertion   that       his        constitutional

challenge was jurisdictional, and we went on to apply plain error

review.      Id. at 197.

              In       United    States    v.   Díaz-Doncel,      the       defendant    had

entered      an     unconditional         guilty    plea    and       had     subsequently

attempted         to     bring     an     appellate   challenge          to     Congress's

legislative authority to enact the MDLEA.                   811 F.3d 517, 517 (1st

Cir.       2016).         We     cited    Cardales-Luna         and     held    that     his

constitutional challenge was nonjurisdictional and so could not be

raised on appeal following an unconditional guilty plea.                            Id. at

518.

              In sum, circuit precedents make clear that Carrasquillo-

Peñaloza's         challenge       to    the    statute    of     her       conviction   is

nonjurisdictional.3              Because the challenge is nonjurisdictional,

Carrasquillo-Peñaloza waived her right to bring it by entering an

unconditional guilty plea.4               She could have tendered a conditional


       3  In arguing otherwise, Carrasquillo-Peñaloza relies
heavily on United States v. DiSanto, 86 F.3d 1238 (1st Cir. 1996),
in which we stated that "a claim that a statute is unconstitutional
or that the court lacked jurisdiction may be raised for the first
time on appeal." Id. at 1244. DiSanto has no relevance to the
issue before us -- the effect of an unconditional guilty plea --
because the defendant there was convicted by a jury. Moreover, to
the extent that DiSanto suggests that a constitutional challenge
to a statute of conviction is jurisdictional, it is dicta. The
law of our circuit on this issue is the firm holding of this court
in Cardales-Luna.

       4  The Supreme Court has recognized two types of
nonjurisdictional errors that are not waived by an unconditional


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guilty plea and preserved her right to appeal the district court's

denial of her Commerce Clause challenge.        See United States v.

Rodriguez-Castillo, 350 F.3d 1, 4 n.2 (1st Cir. 2003) (citing Fed.

R. Crim. P. 11(a)(2)).     She did not, however, avail herself of

that option.

            Carrasquillo-Peñaloza's   appeal   is   also   independently

barred by the waiver-of-appeal clause in her plea agreement.

"[S]uch waivers are binding and enforceable so long as: (1) the

written plea agreement clearly delineates the scope of the waiver;

(2) the district court specifically inquired at the plea hearing

about the waiver, and the questioning of the defendant suffices to

show that the waiver was knowing and voluntary; and (3) the denial

of the right to appeal would not constitute a miscarriage of

justice."   United States v. González-Colón, 582 F.3d 124, 127 (1st

Cir. 2009) (citing United States v. Teeter, 257 F.3d 14, 24–26

(1st Cir. 2001)).

            Carrasquillo-Peñaloza argues that her plea agreement did

not make clear that the scope of the waiver encompassed challenges

to the validity of the statute of conviction.       Not so.   Her appeal



guilty plea. See Díaz-Doncel, 811 F.3d at 518 n.2 (citing Menna
v. New York, 423 U.S. 61, 62–63 & n.2 (1975) (per curiam) (double
jeopardy challenge); Blackledge v. Perry, 417 U.S. 21, 30 (1974)
(due process challenge arising from repetitive, vindictive
prosecution)).
          Neither exception is applicable here. See id.; United
States v. Miranda, 780 F.3d 1185, 1190–91 (D.C. Cir. 2015).


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is fairly encompassed by her express waiver of the "right to appeal

the judgment and sentence in this case," and we have previously

characterized such wording as "simple and easily understood."

United States v. Borrero-Acevedo, 533 F.3d 11, 14 (1st Cir. 2008).

She does not challenge the adequacy of the district court's inquiry

into the knowing and voluntary nature of the plea.       Nor would

enforcement of the waiver be a miscarriage of justice.   See United

States v. Vélez-Luciano, 814 F.3d 553, 559 (1st Cir. 2016).    The

waiver-of-appeal provision applies.

          The appeal is dismissed.




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