          United States Court of Appeals
                     For the First Circuit


No. 15-2116

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                       HILTON RÍOS-RIVERA,

                      Defendant, Appellant.


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

     [Hon. Aida M. Delgado-Colón, Chief U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Thompson and Barron, Circuit Judges.


     Alejandra Bird Lopez for appellant.
     Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee.


                         January 9, 2019
            HOWARD, Chief Judge.   Hilton Ríos-Rivera pled guilty to

transporting a minor to a hotel in Puerto Rico with the intent to

engage in criminal sexual activity with her, in violation of the

Mann Act, 18 U.S.C. § 2423(a).          After accepting his plea, the

district court sentenced Ríos to an above-guidelines incarcerative

term of 216 months.   Ríos now challenges both Congress's authority

to criminalize his conduct and the district court's sentence.     For

the reasons discussed below, we affirm Ríos's conviction and his

sentence.

                                   I.

            The parties do not dispute the events leading to this

prosecution.   All of the material conduct took place within Puerto

Rico.   In early April 2013, Ríos, a fifty-year-old man, met the

fourteen-year-old victim at a bar where he was performing with his

band.   While the victim's mother was in the restroom, he gave the

victim his band's compact disc and his business card and asked her

to contact him.   The following day, the victim's mother discovered

a text message from Ríos on her daughter's phone.     She called Ríos

to inform him of her daughter's age and warned him not to contact

her daughter again.      Despite those admonitions, Ríos continued

contacting the victim.    In one conversation, Ríos asked the victim

if she was fourteen, to which the victim responded affirmatively.

In a subsequent conversation on April 8, 2013, Ríos asked the

victim where she went to school.    The victim told Ríos the name of


                                - 2 -
her middle school, and he arranged to pick her up during her lunch

period the next day.

             On April 9, 2013, Ríos drove to the victim's middle

school.    The middle school had a sign clearly labeling it as such,

and its students wore school uniforms.                 Ríos met the victim at a

gas station across the street from her school and took her to a

motel, where he had sexual intercourse with her.                     Ríos repeated

this behavior the next day.            On April 11, at 8:00 a.m., Ríos once

more met the victim at the gas station near her middle school.                    He

again took her to a motel where he had sexual intercourse with her

and then dropped her off at 3:00 p.m. at the bus stop near her

house.

             After an investigation, in August 2013 the Puerto Rican

authorities charged Ríos with three counts of sexual assault.                    In

February 2014, a federal grand jury indicted Ríos for three

violations      of       §      2423(a),       which     prohibits      "knowingly

transport[ing]"      a       minor   "in    any    commonwealth,     territory   or

possession of the United States, with intent that the individual

engage . . . in any sexual activity for which any person can be

charged with a criminal offense."              Before trial, Ríos entered into

a   plea   agreement     with    the   government.        In   exchange   for    the

government dropping two counts of the three-count indictment, Ríos

pled guilty to one count and waived his right to appeal so long as




                                           - 3 -
the district court sentenced him within a certain range calculated

in accordance with the sentencing guidelines.

           The district court calculated the sentencing guidelines

range as the plea agreement suggested, but declined to sentence

Ríos within that range.        It found that Ríos's statements at

sentencing were "geared to minimize his responsibility."1                 During

his   hearing,   Ríos   protested    that    the   victim    and    her   mother

misrepresented her age to him.       These assertions contradicted not

only the victim's and her mother's statements to the probation

officer, but also the recitations in the plea agreement.                     The

district   court   also   expressed    concern       that    the    presentence

investigation    report   revealed    that    Ríos    had    been   previously

charged with five counts of sexually assaulting his stepdaughter,

although he ultimately pled guilty to one count of aggravated

assault.   Further, the district court noted that one of Ríos's

neighbors told probation officers that Ríos "always [had] young

girlfriends who looked to be 18 or 19 years of age."               The district

court also cited what it characterized as Ríos's manipulative

behavior and the government's unrebutted evidence that the victim

suffered psychological harm as a result of it.              After considering

this evidence in light of the 18 U.S.C. § 3553(a) sentencing



      1 The district court followed the plea agreement's
recommendation to reduce Ríos's offense level by three levels for
acceptance of responsibility, pursuant to U.S.S.G. §3E1.1(b).


                                    - 4 -
factors, the district court announced that it would "depart" from

the sentencing guidelines' recommendation and sentence Ríos to 196

months.     Shortly afterward, the court corrected a mathematical

error in its initial calculation and clarified that Ríos was

sentenced to 216 months, which was "in essence . . . a variance of

2.5 years."

            Ríos timely appealed.       For the first time, he challenges

the   constitutionality     of   his   conviction   on   the    grounds   that

Congress lacked the authority to enact § 2423(a) and that the

statute   impermissibly     discriminates     against    Puerto     Ricans   in

violation     of   the   equal   protection    component       of   the   Fifth

Amendment's Due Process Clause.         He also claims that his sentence

was procedurally and substantively unreasonable.

                                       II.

            As an initial matter, Ríos has forfeited his challenges

to the constitutionality of § 2423(a).        After his indictment, Ríos

agreed to plead guilty without ever contesting the indictment in

the district court.       Ríos cannot point to any instances in the

record where he so much as hinted at the constitutional arguments

he seeks to raise here.          Moreover, his plea agreement does not

refer to any potential constitutional qualms.

            At the time that Ríos lodged this appeal, in our circuit

this conduct would waive -- not forfeit -- Ríos's right to argue

on appeal that § 2423(a) is unconstitutional.            See, e.g., United


                                    - 5 -
States v. Martinez-Martinez, 69 F.3d 1215, 1224 (1st Cir. 1995).

But   the    Supreme   Court's    decision      in   Class      v.   United    States

established that such challenges are not waived by a guilty plea

alone.      138 S. Ct. 798, 803 (2018) (citing Blackledge v. Perry,

417 U.S. 21 (1974) (allowing challenge to vindictive prosecution

to proceed after guilty plea); Menna v. New York, 423 U.S. 61

(1975) (per curiam) (permitting double jeopardy claim after guilty

plea)).      Because the government conceded in a Federal Rule of

Appellate Procedure 28(j) letter that Class permits Ríos to raise

his   arguments    that   his     prosecution        is   unconstitutional,         we

consider them below.

             Nevertheless,       even     if    Ríos      may    object       to   his

prosecution's constitutionality for the first time on appeal, his

decision not to press these arguments before the district court

effects a forfeiture, even after Class.                   In Class, the Supreme

Court only decided that a guilty plea alone does not waive claims

that the government could not "constitutionally prosecute" the

defendant.     138 S. Ct. at 804 (quoting Menna, 423 U.S. at 62 n.2).

Nowhere in Class did the Court say that a defendant could never

forfeit such "Blackledge-Menna" claims.                It had no need to reach

the forfeiture issue because the defendant in Class had moved in

the   district    court   to     dismiss       his   indictment      on   the      same

constitutional grounds that he then sought to raise on appeal.

138 U.S. at 802. Class therefore does not require us to reconsider


                                        - 6 -
our prior case law and excuse a defendant's failure to preserve

Blackledge-Menna       arguments    below.         See    United    States       v.

Stefanidakis, 678 F.3d 96, 99 (1st Cir. 2012) (finding forfeited

appellant's   double     jeopardy    claim    and    applying      plain    error

review).

           Blackledge-Menna        claims    are    not   objections       to   the

court's Article III jurisdiction, and are thus not of the type

that we review de novo whenever they are brought.                   See United

States v. Cordero, 42 F.3d 697, 699 (1st Cir. 1994).               Rather, such

claims   relate   to    the   government's     authority     to    prosecute      a

defendant, not to the court's authority to adjudicate a case.                   See

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998)

("[T]he absence of a valid (as opposed to arguable) cause of action

does not implicate subject-matter jurisdiction, i.e., the courts'

statutory or constitutional power to adjudicate the case."); see

also United States v. De Vaughn, 694 F.3d 1141, 1152–53 (10th Cir.

2012) (observing that if the Supreme Court had resolved Blackledge

and Menna on jurisdictional grounds then the Court would have

dismissed them for lack of subject matter jurisdiction).

           Furthermore, to the extent that the Class Court said

anything about this issue, it suggested that Blackledge-Menna

claims are nonjurisdictional. For instance, the Class Court relied

on the fact that the advisory committee notes to Federal Rule of

Criminal Procedure 11(a)(2) indicate that both jurisdictional and


                                     - 7 -
Blackledge-Menna         claims    are    not    subject        to    its    preservation

requirements.         Class, 138 S. Ct. at 806.                  If Blackledge-Menna

claims were jurisdictional, then their specific inclusion -- both

in    the     advisory   committee       notes       and   in    Class      --   would    be

surplusage.         See Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct.

617, 632 (2018); In re Montreal, Me. & Atl. Ry., Ltd., 799 F.3d 1,

9 (1st Cir. 2015).

               United States v. DiSanto does not require a different

conclusion.         86 F.3d 1238 (1st Cir. 1996).               There, we assumed for

the    sake    of    argument    that    we   review       de   novo    an   unpreserved

challenge to the statute of conviction's constitutionality.                              Id.

at 1244.        We later described that assumption as dicta and held

that constitutional challenges of the type that Ríos presents do

not relate to the court's jurisdiction.                         See United States v.

Carrasquillo-Peñaloza, 826 F.3d 590, 593 n.3 (1st Cir. 2016) ("[T]o

the extent that DiSanto suggests that a constitutional challenge

to a statute of conviction is jurisdictional, it is dicta.").

Prior panel decisions generally bind us unless a Supreme Court

opinion, en banc ruling, or statute undermines the panel decision.

Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995).

And,    as     explained        above,    Class       does      not    contradict        our

characterization of DiSanto in Carrasquillo-Peñaloza.

               At least one other circuit, the Sixth Circuit, has

reckoned       with    Class's     impact       on    unpreserved        constitutional


                                         - 8 -
challenges, and that court's interpretation of Class comports with

ours.    See United States v. Bacon, 884 F.3d 605, 610-11 (6th Cir.

2018) (applying plain error review to a constitutional challenge

raised for the first time on appeal); cf. United States v. St.

Hubert, 909 F.3d 335, 339, 341, 344-46 (11th Cir. 2018) (applying

de novo review to a preserved constitutional challenge after an

unconditional guilty plea).    Because nothing in Class undermines

the application of our forfeiture doctrine here, we apply it to

Ríos's unpreserved constitutional arguments.

                                III.

            Ríos's constitutional arguments cannot surmount the high

bar of plain error review applicable to forfeited claims.      To show

plain error, the appellant must meet a demanding four-prong test.

United States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (en

banc).    In particular, Ríos cannot show "clear or obvious" error

for any of his constitutional arguments, and he thus falters at

the test's second prong.    United States v. Pabon, 819 F.3d 26, 34

(1st Cir. 2016).    For an error to be clear and obvious, we require

an   "'indisputable'   error   by   the   judge   'given   controlling

precedent.'"    United States v. Morosco, 822 F.3d 1, 21 (1st Cir.

2016) (quoting United States v. Correa-Osorio, 784 F.3d 11, 22

(1st Cir. 2015)).

            Here, Ríos makes two constitutional claims.     First, he

asserts that Puerto Rico's commonwealth status precludes Congress


                                - 9 -
from relying on its plenary authority to govern territories under

the Territorial Clause.      See U.S. Const. art IV, § 3, cl. 2.        Ríos

contends that Congress was required to promulgate § 2423(a) under

a different enumerated power and that the only power that might

justify it, the authority to regulate interstate and international

commerce, does not.      See U.S. Const. art I, § 8, cl. 3.           Yet he

identifies no precedent ruling out Congress's authority to rely on

the Territorial Clause to legislate for Puerto Rico; in fact, Ríos

invites   us   to   answer   what   is   at   best   an   open   question   of

constitutional law.     As such, it was not plainly erroneous for the

district court to have concluded that § 2423(a) was a valid

exercise of the Territorial Clause.2

           Second, Ríos suggests that the Mann Act's different

treatment of conduct occurring wholly within Puerto Rico from that

occurring wholly within one of the fifty states violates the equal

protection component of the Fifth Amendment's Due Process Clause.

He urges us to disregard Supreme Court precedent applying rational

basis review to such claims and to instead apply heightened


     2 None of the cases mentioned by the parties that discuss
Puerto Rican "sovereignty" applied that concept to decide
constitutional questions about Congress's powers.      See, e.g.,
United States v. Quinones, 758 F.2d 40, 42 (1st Cir. 1985). We do
not address whether the dicta in those cases is correct, except to
observe that those cases do not explain how the statutes enabling
and approving the Puerto Rican Constitution bind future
Congresses, notwithstanding the principle that normal-course
legislation generally may be repealed by future Congresses. See
United States v. Winstar Corp., 518 U.S. 839, 872-74 (1996).


                                    - 10 -
scrutiny. See Harris v. Rosario, 446 U.S. 651 (1980) (per curiam);

Califano v. Torres, 435 U.S. 1, 4-5 (1978) (per curiam).        We

decline the invitation; it cannot be obvious error for a district

to fail to apply, sua sponte, a doctrine that would be inconsistent

with Supreme Court precedent.

           In the alternative, Ríos argues that § 2423(a) fails

rational    basis    review      because   it    prohibits     only

intrajurisdictional transportation of a minor for the purpose of

committing a sex crime within "any commonwealth, territory, or

possession," but not a state.      Congress does not plainly lack

plenary power under the Territorial Clause to criminalize certain

intrajurisdictional activity in those jurisdictions simply because

it may not do so under the Commerce Clause within the fifty states.

See United States v. Morrison, 529 U.S. 598, 617-18 (2000).    Ríos

does not seriously challenge the notion that Congress may have

limited the Mann Act's applicability within the fifty states

because it implicitly recognized potential constitutional limits

on its power.   Indeed, Ríos argues that "the federal government

has no general police . . . power" and that Congress could not

criminalize this conduct within any one of the fifty states.    He

simply asserts that § 2423(a) is irrational because Congress never

explained its justification for treating trafficking within Puerto

Rico differently from interstate trafficking.     But there is no

requirement that Congress state its reasons for enacting a statute


                                - 11 -
in order for it to survive rational basis review.                     See U.S. R.R.

Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).                  Because Ríos has not

shown      a   clear    or    obvious    error,   both   of   his    constitutional

challenges fail.3

                                           IV.

                Nor do Ríos's sentencing arguments warrant relief.               We

generally review preserved claims of error in the district court's

imposition of a sentence "under a deferential abuse-of-discretion

standard."          United States v. Fuentes-Echevarria, 856 F.3d 22, 25

(1st Cir. 2017) (quoting United States v. Martin, 520 F.3d 87, 92

(1st Cir. 2008)).            The district court's legal conclusions receive

de novo review, while we evaluate its fact-finding for clear error.

United States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015).

                We turn first to Ríos's procedural challenge.               At the

outset,        we   note   that   Ríos   forfeited   any      possible   procedural

objection.          Despite having ample opportunity to take exception to

the district court's sentence at his sentencing hearing, Ríos did

not.       The district court recited the sentencing factors and the

evidence that it considered before it pronounced Ríos's sentence.

Ríos did not object during that recitation.                         Moreover, after

announcing Ríos's sentence, the district court asked if there was


       3
       Ríos does not argue that § 2423(a) fails rational basis
review because it is motivated by animus. See United States v.
Windsor, 570 U.S. 744, 770 (2013). As a result, he has waived any
such argument.


                                         - 12 -
"[a]nything else" counsel wished to discuss, and defense counsel

replied, "That is all." Consequently, Ríos forfeited his arguments

that the district court failed to provide him with notice of a

possible departure sentence or to follow a departure guideline.

See United States v. Perretta, 804 F.3d 53, 57 (1st Cir. 2015).

Accordingly, we review Ríos's challenge for plain error.

             Ríos   posits    that   the      district   court   committed      a

procedural error because it failed to provide him with "reasonable

notice" before imposing a departure sentence.             See Fed. R. Crim.

P. 32(h).    He asserts that the district court improperly issued an

above guidelines sentence based on his criminal history category's

failure   to   adequately    represent     the    seriousness    of    his   past

convictions.        See   U.S.S.G.   §4A1.3(a)(1).       This    assertion    is

misguided.     Recently, we observed that there is no discernible

difference between departure and variance sentences.                  See United

States v. Santini-Santiago, 846 F.3d 487, 489-90 (1st Cir. 2017).

Before United States v. Booker, 543 U.S. 220 (2005), district

courts needed to justify deviations from the guidelines by citing

a departure provision.         See Santini-Santiago, 846 F.3d at 490

(citing Booker, 543 U.S. at 259-60). After Booker, district courts

can rely on the 18 U.S.C. § 3553(a) sentencing factors instead.

Because the guidelines' departure provisions fit neatly into the

§ 3553(a) sentencing factors, we have noted that Rule 32(h)




                                     - 13 -
currently "serves no substantive purpose at all."                  See Santini-

Santiago, 846 F.3d at 490.

            Ríos protests that at least where, as here, the district

court said that it would "depart" -- as opposed to vary -- from

the sentencing guidelines, the district court must hew to Rule

32(h).     Nevertheless, we need not resolve whether the district

court had to comply with Rule 32(h) or §4A1.3 here because the

district    court   imposed   a   variant    sentence,       not    a   departure

sentence.

            Ríos asks us to focus on one fact in isolation, the

district court's stray use of the word "depart."              But it is clear

in context that the district court misspoke and corrected itself.

Immediately before announcing its intention to "depart" from the

guidelines, the district court analyzed the § 3553(a) factors.

Subsequently, in the course of correcting its calculation of the

sentence's length, the district court pronounced that the sentence

was "in essence . . . a variance."          See United States v. Nelson,

793 F.3d 202, 206-07 (1st Cir. 2015) (characterizing an above

guidelines sentence as a variance despite district court's stray

use of the word "depart").        Therefore, the district court gave a

variant sentence and had no need to follow Rule 32(h) or §4A1.3.

            Next, Ríos contends that his sentence was substantively

unreasonable.       Ríos   failed,   as     he   did   for    his       procedural

reasonableness claim, to object to the substantive reasonableness


                                   - 14 -
of his sentence during his sentencing hearing.             As we have before,

we   decline    to    resolve    whether   a   defendant   must   preserve   a

substantive challenge to his sentence, and we assume, favorably to

Ríos, that he was not required to do so.              See United States v.

Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).

             We accordingly review the substantive reasonableness of

Ríos's sentence under the abuse-of-discretion framework recited

above.     Ríos contends that his 216-month (eighteen years) sentence

was disproportionate for two reasons.            First, he posits that his

conduct was less severe than the prototypical Mann Act violation

(i.e. border-crossing human trafficking).              Second, he suggests

that some states punish conduct similar to his with significantly

shorter prison terms.4      Ríos's reasons are unconvincing.        We defer

to   the   district    court's    sentencing    determinations    and   affirm

sentences that are based on "a plausible sentencing rationale" and

that reflect "a defensible result."            United States v. Martin, 520

F.3d 87, 96 (1st Cir. 2008).           Moreover, when a district court

chooses to impose a variant sentence, we only require that its

"plausible rationale . . . justif[ies] a variance of the magnitude


      4For the first time in his reply brief, Ríos argues that his
sentence was substantively unreasonable because the district court
calculated his offense level using the guideline applicable to
interjurisdictional human trafficking as opposed to the guideline
for statutory rape. Compare U.S.S.G. §2G1.3, with §2A3.2. We do
not address this argument because arguments raised only in reply
are waived. United States v. Hall, 557 F.3d 15, 20 n.3 (1st Cir.
2009).


                                    - 15 -
in question."      See United States v. Gallardo-Ortiz, 666 F.3d 808,

812 (1st Cir. 2012) (quoting Martin, 520 F.3d at 91). In reviewing

a variant sentence, we consider the variance's magnitude but will

not conclude from the variance's size alone that the sentence was

substantively unreasonable.           Instead, we "give due deference to

the district court's decision that the § 3553(a) factors, on a

whole, justify the extent of the variance." Gall v. United States,

552 U.S. 38, 51 (2007).

               As such, we have upheld a sentence "well-above the top"

of the guidelines range where the district court cited "the

seriousness of the defendant's criminal conduct, the defendant's

past history and likelihood of recidivism, and the need for

deterrence."       United States v. Flores-Machicote, 706 F.3d 16, 25

(1st    Cir.    2013);   see   also   Gallardo-Ortiz,    666   F.3d    at   817

(reasoning that the district court's weighing of the § 3553(a)

factors could not provide grounds for finding a substantially

above-guidelines sentence substantively unreasonable).

               Here, the district court provided a plausible rationale

and a defensible result.        It noted Ríos's seeming lack of remorse

and his decision to downplay his criminal activity.            The district

court    also    cited   Ríos's   past    aggravated    assault    conviction

stemming from his alleged rapes of his stepdaughter.              Furthermore,

the district court considered Ríos's manipulative behavior to

persuade the victim to engage in sexual activity. Ríos's arguments


                                      - 16 -
do not undermine the plausibility of this reasoning; they at most

only show that the "universe of reasonable sentencing outcomes"

may include a shorter sentence.                 See Ruiz-Huertas, 792 F.3d at

229.

                Ríos insists that other jurisdictions' shorter sentences

for similar conduct shows the substantive unreasonableness of his

sentence.         Far from it.          Ríos cites no case indicating that

sentences in other jurisdictions set a baseline for the substantive

reasonableness of federal sentences.               And even if we assumed that

they do -- a problematic assumption -- Ríos fails to acknowledge

that many jurisdictions impose similar or longer sentences than

the sentence that he received.              Compare, e.g., Cal. Penal Code §

261.5(d) (permitting sentence up to four years), with Mass. Gen.

Laws ch. 265, § 23A (mandating a minimum sentence of ten years

with       a   maximum   of   life).5     Accordingly,   Ríos's   sentence   was

substantively reasonable.

                                           V.

                For the foregoing reasons, we AFFIRM Ríos's conviction

and sentence.




       5
       Ríos's brief cites a different Massachusetts statute that
imposes a three-year maximum incarcerative sentence. See Mass.
Gen. Laws ch. 272, § 4. Rhode Island penalizes conduct analogous
to Ríos's conduct more harshly than Massachusetts does. See R.I.
Gen. Laws §§ 11-37-8.1, 8.2 (minimum of twenty-five years, maximum
of life).


                                         - 17 -
