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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 13-31265                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                    April 14, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

DAVID W. HOLLINGSWORTH,

               Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
       A federal magistrate judge tried defendant-appellant David W.
Hollingsworth (“Hollingsworth”) for a petty offense committed on a federal
enclave. 1 The magistrate judge conducted a bench trial, entered a verdict of
guilty, and sentenced Hollingsworth to six months in federal prison.




       1 The federal magistrate judge was authorized to hear Hollingsworth’s case under 18
U.S.C. § 3401(b) (giving magistrate judges jurisdiction over trials for petty offenses), and
under 28 U.S.C. § 636(a)(1) and (3) (conferring powers and duties of former United States
commissioners upon federal magistrate judges, and authorizing magistrate judges to conduct
trials under 18 U.S.C. § 3401). See also Fed. R. Crim. P. 58(b)(E) (requiring magistrate judge
to notify defendant of right to trial, judgment, and sentencing before district judge unless
charge is a petty offense).
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                                       No. 13-31265
Hollingsworth appealed to the federal district court. 2 The district court
affirmed the judgment and sentence entered by the magistrate judge. 3
Hollingsworth now appeals to this court. 4 For the reasons explained below, we
AFFIRM the judgment of the district court.

                               FACTS AND PROCEEDINGS
       Hollingsworth was charged with violating 18 U.S.C. § 113(a)(5), a petty
offense, 5 at the Naval Air Station Joint Reverse Base New Orleans, a military
base located in Belle Chasse, Louisiana (“Belle Chasse”). It is uncontested that
Belle Chasse is a federal enclave under U.S. CONST. Art. I, § 8, cl. 17 (“Clause
17”), 6 and § 113 is effective on such enclaves. See 18 U.S.C. § 113(a) (providing
that law applies “within the special maritime and territorial jurisdiction of the
United States”). Hollingsworth objected to trial before the federal magistrate
judge, but the magistrate judge held that she had jurisdiction to try
Hollingsworth without his consent. Hollingsworth appealed his conviction to




       2 Hollingsworth was required to appeal first to the district court under 18 U.S.C. §
3402. See also Fed. R. Crim. P. 58(g)(2)(B) (authorizing defendant to appeal magistrate
judge’s judgment of conviction and sentence to district court).
       3 See Rule 58(g)(2)(D) (providing that district court’s review “is the same as in an

appeal to the court of appeals from a judgment entered by a district judge”).
       4 This court has held that we have jurisdiction to hear appeals of this kind under 28

U.S.C. § 1291. See United States v. Hughes, 542 F.2d 246, 248 n.3 (5th Cir. 1976); see also
United States v. Peck, 545 F.2d 962, 964 (5th Cir. 1977) (hearing appeal of this kind without
discussing basis for jurisdiction); United States v. Forcellati, 610 F.2d 25, 28 (1st Cir. 1979)
(explaining that circuit courts to consider issue have held that jurisdiction exists under §
1291).
       5 Hollingsworth concedes that his crime is a petty offense. Compare also 18 U.S.C. §

113(a)(5) (imposing a maximum six month sentence of imprisonment on any person who
commits a “[s]imple assault” on a person sixteen years of age or older), with id. § 3559(a)(7)
(defining Class B misdemeanor as crime for which maximum term of imprisonment is six
months or less), and id. § 19 (defining petty offense to include Class B misdemeanors).
       6 Clause 17 gives Congress the power “[t]o exercise exclusive Legislation in all Cases

whatsoever” over the District of Columbia and “to exercise like Authority over all Places
purchased by the Consent of the Legislature of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
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                                      No. 13-31265
the district court, arguing that he had a right to a jury trial. The district court
affirmed the conviction and sentence entered by the magistrate judge.
                                STANDARD OF REVIEW
       We apply the same standard of review used by the district court. Peck,
545 F.2d at 964 (“In our review we apply to the magistrate the same standard
used by the district court.”). Thus we review the magistrate judge’s findings of
fact for clear error and conclusions of law de novo. Compare Fed. R. Crim. P.
58(g)(2)(D) (providing that district court’s review of magistrate judge’s
judgment “is the same as in an appeal to the court of appeals from a judgment
entered by a district judge”), with Mid-Continent Cas. Co. v. Davis, 683 F.3d
651, 654 (5th Cir. 2012) (“In an appeal from a district court’s final judgment
following a bench trial, we review the district court’s findings of fact for clear
error and review conclusions of law de novo.”).
                                      DISCUSSION
                                             I.
                                             A.
       Hollingsworth now argues for the first time that he has a constitutional
right to trial before an Art. III judge. 7 The Government argues that, because
Belle Chasse is a federal enclave, Hollingsworth does not have a right to trial
before an Art. III judge.
       In Palmore v. United States, 411 U.S. 389 (1973), the Supreme Court
held that “Congress [is] not required to provide an Art. III court for the trial of
criminal cases arising under its laws applicable only within the District of




       7Because challenges to a court’s subject matter jurisdiction can never be forfeited or
waived, see Union Pac. R.R. Co. v. Bhd. Of Locomotive Eng’rs & Trainmen Gen. Comm. of
Adjustment, Cent. Region, 558 U.S. 67, 81 (2009), Hollingsworth may raise this challenge
here even though he failed to raise it before the district court.
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                                       No. 13-31265
Columbia.” Id. at 410. 8 Hollingsworth was tried for the violation of a federal
criminal statute that applies only “within the special maritime and territorial
jurisdiction of the United States.” 18 U.S.C. § 113(a)(5). Thus under Palmore,
Hollingsworth has no constitutional right to trial before an Art. III court. See
Jenkins, 734 F.2d at 1326 (holding that “the requirements of Article III are
consistent with the establishment by Congress of non-Article III courts to
enforce federal criminal laws” in Clause 17 federal enclaves).
       Hollingsworth also argues that, even if Congress could refer his trial to
an Article I court under Clause 17, the magistrate judge who heard his case is
not a member of such a court. But Congress “exercise[s] within [federal
enclaves] all legislative powers that the legislature of a state might exercise
within the State, and may vest and distribute the judicial authority in and
among courts and magistrates, and regulate judicial proceedings before them,
as it may think fit, so long as it does not contravene any provision of the
constitution of the United States.” Palmore, 411 U.S. at 397 (quoting Capital
Traction Co. v. Hof, 174 U.S. 1, 5 (1899)). Hollingsworth fails to cite any
constitutional provision that Congress violated when it referred his trial to a
federal magistrate judge. Indeed, the particular facts of Hollingsworth’s case
show that, as applied, Congress has not even entered the constitutional
borderlands. Pursuant to Clause 17, Congress could have referred all trials for
crimes committed at Belle Chasse to an Article I judge, including felony trials.


       8 Hollingsworth argues that “[i]t is not clear” that this principle from Palmore applies
to Clause 17 federal enclaves like Belle Chasse. But in Paul v. United States, 371 U.S. 245
(1963), the Supreme Court stated that “[t]he power of Congress over federal enclaves that
come within the scope of [Clause 17] is obviously the same as the power of Congress over the
District of Columbia.” Id. at 263. Nothing in Palmore or later cases abrogate the Paul Court’s
unambiguous statement. We hold that we are bound by Paul to apply Palmore in the present
case. See United States v. Jenkins, 734 F.2d 1322, 1325-26 (9th Cir. 1983) (“Because clause
17 does not distinguish between the District of Columbia and other federal enclaves, we find
Palmore indistinguishable from the instant case and controlling.” (citing Paul, 371 U.S. at
263)).
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See Palmore, 411 U.S. at 391 (explaining that Palmore was tried and found
guilty of a felony in an Article I court). But Congress chose to refer only trials
for petty offenses to federal magistrate judges. Moreover, it is not clear that
Hollingsworth has a constitutional right to appeal to an Art. III court, yet
Congress granted him the right to appeal to not one but two Art. III courts.
       We hold that Hollingsworth did not have a right to trial before an Art.
III judge, and that his trial, conviction, and sentence before a federal
magistrate judge was constitutional. Because we are bound “never to
anticipate a question of constitutional law in advance of the necessity of
deciding it,” United States v. Raines, 362 U.S. 17, 21 (1960), our holding applies
only to defendants tried for petty offenses committed on federal enclaves
obtained by Congress pursuant to Clause 17. 9
                                              B.
       In response to the dissent, we begin by noting a historical fact that the
dissent passes over. From 1894 until 1948, Congress referred trials for
misdemeanors committed on certain federal lands to the federal magistracy. 10


       9   We refer to petty offenses only to show that Congress acted well within its
constitutional power under Clause 17. We do not decide the distinct question whether all
trials for petty offenses fall outside the scope of Art. III.
        10 Most of the statutes referring misdemeanor trials to the federal magistracy relate

to the national parks. See Act of May 7, 1894, ch. 72, § 5, 28 Stat. 73, 74 (giving commissioner
in Yellowstone National Park jurisdiction “to issue process in the name of the United States
for the arrest of any person charged with the commission of any misdemeanor . . . , and to try
the persons so charged, and, if found guilty, to impose the punishment and adjudge the
forfeiture prescribed”); Act of Aug. 22, 1914, Pub. L. No. 63-177, § 6, 38 Stat. 699, 700-01
(giving same jurisdiction to Glacier National Park commissioner); Act of June 30, 1916, Pub.
L. No. 64-124, § 6, 39 Stat. 243, 245 (giving same jurisdiction to Mount Rainier National Park
commissioner); Act of Aug. 21, 1916, Pub. L. No. 64-223, § 6, 39 Stat. 521, 523 (giving same
jurisdiction to Crater Lake National Park commissioner); Act of June 2, 1920, Pub. L. No. 66-
235, §§ 7-8, 41 Stat. 731, 733-34 (giving same jurisdiction to Yosemite, Sequoia, and General
Grant National Park commissioners); Act of Apr. 25, 1928, Pub. L. No. 70-317, § 6, 45 Stat.
458, 460 (giving same jurisdiction to Mesa Verde National Park commissioner); Act of Apr.
26, 1928, Pub. L. No. 70-320, § 6, 45 Stat. 463, 464-65 (giving same jurisdiction to Lassen
Volcanic National Park commissioner); Act of Mar. 2, 1929, Pub. L. No. 70-1009, § 6, 45 Stat.
1536, 1538 (giving same jurisdiction to Rocky Mountain National Park commissioner); Act of
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The statutes referring such trials did not require the defendant’s consent as a
prerequisite to the magistrate’s jurisdiction. See statutes cited supra note 10.
This fact is relevant for two reasons. First, it shows that the dissent is wrong
to claim that the federal magistracy has always been an “adjunct body,”
“statutorily, historically, and doctrinally” (footnotes omitted). Second, the
Supreme Court’s non-delegation caselaw requires us to consider historical
context and practice when construing the “literal command of Art. III.” N.
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64 (1982)
(plurality opinion); see also NLRB v. Canning, 134 S. Ct. 2550, 2560 (2014)
(holding that historical practice is important when courts interpret the
Constitution, “even when the nature or longevity of that practice is subject to
dispute, and even when that practice began after the founding era”). We have
not found evidence that a defendant tried under the statutes referring
misdemeanor trials to commissioners ever challenged the constitutionality of



Apr. 19, 1930, Pub. L. No. 71-157, § 6, 46 Stat. 227, 228 (giving same jurisdiction to Hawaii
National Park commissioner); Act of Aug. 19, 1937, Pub. L. No. 75-322, § 5, 50 Stat. 700, 702
(giving same jurisdiction to Shenandoah National Park commissioner); Act of Mar. 6, 1942,
Pub. L. No. 77-478, §§ 3, 5, 56 Stat. 133, 133-35 (giving Isle Royale National Park
commissioner jurisdiction to try and sentence defendants for “violation[s] of the [park’s] rules
and regulations,” which were misdemeanors and could result in a sentence of up to six
months of imprisonment); Act of Apr. 29, 1942, Pub. L. No. 77-533, §§ 3, 5, 56 Stat. 258, 259-
60 (giving commissioner in Great Smoky Mountains National Park same jurisdiction as Isle
Royale commissioner); Act of Apr. 23, 1946, Pub. L. No. 79-356, § 2, 60 Stat. 119, 119-20
(giving commissioner in Sequoia National Park jurisdiction to try and sentence defendants
for “commission within [Kings Canyon National P]ark of a petty offense against the law”).
But Congress also extended limited petty crimes jurisdiction to commissioners in certain
federal enclaves beyond the national parks. See, e.g., Act of Apr. 20, 1904, Pub. L. No. 58-124,
§ 6, 33 Stat. 187, 188 (giving commissioner in Hot Springs Mountain Reservation jurisdiction
to try and sentence defendants for any misdemeanor “or other like offense” when prescribed
punishment “d[id] not exceed a fine of one hundred dollars”). At least one statute authorized
general-duty commissioners, sitting as adjuncts to a federal district court, to conduct
misdemeanor trials arising in a neighboring federal enclave. See Act of Sept. 1, 1916, Pub. L.
No. 64-250, 39 Stat. 676, 693 (giving “nearest United States commissioner for the District of
Maryland” jurisdiction to try and sentence defendants for moving-vehicle offenses committed
on Conduit Road, now called MacArthur Boulevard, when prescribed punishment did not
exceed a fine of $40).
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                                  No. 13-31265
the delegation. Indeed, in the only case we have identified addressing a
commissioner’s jurisdiction to hear a misdemeanor case under such a statute,
neither the defendant nor the court saw fit to even raise the issue. See Rider v.
United States, 149 F. 164, 166-67, 170 (8th Cir. 1906) (vacating defendant’s
misdemeanor conviction because he was tried before general commissioner,
instead of commissioner specifically appointed to hear cases arising on federal
land, as envisioned in statute). The fact that these statutes survived
unchallenged for more than half a century ought to inform our constitutional
analysis.
      We also disagree with the dissent on two theoretical issues. First, the
dissent insists that this case involves Art. III “federal judicial power” and
proceeds as if this distinction carries the day. The Supreme Court once
“suggested a rigid distinction between those subjects that could be considered
only in Art. III courts and those that could be considered only in legislative
courts.” Marathon, 458 U.S. at 63 n.14 (plurality opinion). But the Court’s
“more recent cases clearly recognize that legislative courts may be granted
jurisdiction over some cases and controversies to which the Art. III judicial
power might also be extended.” Id.; see also id. at 113 (White, J., dissenting)
(stating that “[t]here is no difference in principle between the work that
Congress may assign to an Art. I court and that which the Constitution assigns
to Art. III courts”); Palmore, 411 U.S. at 402 (explaining that “the enforcement
of federal criminal law” has never “been deemed the exclusive province of
federal Art. III courts”). By relying on the outdated notion that federal judicial
power can never be assigned to legislative courts, the dissent’s reasoning is
wrong from the start.
      Instead of asking whether this case involves “federal judicial power,” the
Supreme Court’s caselaw makes clear that we should ask a simpler question:
whether the case arose in a “geographical area[ ], in which no State operate[s]
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                                      No. 13-31265
as sovereign.” Marathon, 458 U.S. at 64 (plurality opinion). The Constitution
and the Supreme Court’s caselaw define these areas. They include United
States territories, the District of Columbia (“D.C.”), Indian territories, and
foreign areas over which the United States has jurisdiction to try American
citizens by treaty. See id. at 65 & n.16. 11 And, as we explained above, the
Supreme Court has left no doubt that the geographical exception applies to all
Clause 17 federal enclaves, not just D.C. See supra note 8. Because
Hollingsworth’s crime occurred in a Clause 17 federal enclave, Congress had
the power to refer Hollingsworth’s trial to a legislative court, regardless of the
fact that the magistrate judge exercised federal judicial power that normally
resides in the Art. III courts.
       Second, the dissent argues that the federal magistracy is an “adjunct
body.” Of course, the magistrate judge did not act as an adjunct in this case;
she exercised full judicial power over Hollingsworth’s criminal trial. See Stern
v. Marshall, 131 S. Ct. 2594, 2610-11 (2011) (explaining that a court that
resolves all issues of law and fact, enters final judgment, and is reviewed under
ordinary appellate standard “is no mere adjunct of anyone”). Thus the dissent
must mean that the federal magistracy should be an adjunct body. The
dissent’s only justification for this argument is its assertion that the federal
magistracy is “different in kind from Article I ‘legislative courts.’” The dissent
fails to explain how the federal magistracy is different in kind, and we discern




       11 The exception can also apply to crimes arising on American ships on the high seas
or in foreign waters, at least when Congress has expressly given admiralty jurisdiction to a
nearby legislative court. Compare id. at 74 n.27 (explaining that the Court had recognized
Congress’s power to confer admiralty jurisdiction on “administrative tribunals”), with United
States v. Flores, 289 U.S. 137, 149-150 (1933) (holding that United States’ admiralty
jurisdiction extended not only to the high seas, but also to American vessels in foreign
waters).
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                                         No. 13-31265
nothing in the various statutes authorizing legislative courts to justify the
claim.
       It is true that magistrate judges are appointed by district courts, 12 not
by the President with the advice and consent of the Senate, as legislative and
territorial judges often are. 13 But magistrate judges are not the only legislative
judges appointed by other federal agencies or officers, 14 or even the only ones
appointed by Art. III judges. 15 Magistrate judges receive a salary that
approaches that of some legislative judges, 16 and exceeds that of others. 17 And
magistrate judges’ terms of appointment and job protections are similar to
those offered to other legislative judges. 18 Magistrate judges have the
professional competence and resources found in the legislative courts. We


       12   See 28 U.S.C. § 631(a) (authorizing appointment of magistrate judges by district
courts).
       13  See, e.g., D.C. Code § 11-1501(a) (providing that President appoints judges of the
D.C. courts with advice and consent of the Senate); 10 U.S.C. § 942(b)(1) (same for judges of
the Court of Appeals for the Armed Forces); 38 U.S.C. § 7253(6) (same for judges of the Court
of Appeals for Veterans Claims); 48 U.S.C. § 1614(a) (same for judges of the District Court of
the Virgin Islands).
        14 See, e.g., 8 C.F.R. § 1003.1(a)(1) (providing that Attorney General appoints members

of Board of Immigration Appeals); 41 U.S.C. § 7105(a)(2), (b)(2)(B) (providing that federal
agencies appoint members of the Armed Services and Civilian Boards of Contract Appeals).
        15 Certain Art. III judges may appoint legislative judges to the territorial courts when

“necessary for the proper dispatch of the business of the . . . court.” 48 U.S.C. § 1614(a)
(authorizing certain Art. III judges to appoint members of District Court of the Virgin
Islands); see also id. at § 1424b(a) (same for Guam); id. at § 1821(b)(2) (same for Northern
Mariana Islands).
        16 Compare 28 U.S.C. § 634(a) (allowing compensation for magistrate judges “equal to

92 percent of the salary of a judge of the district court”), with, e.g., 48 U.S.C. § 1614(a) (setting
Virgin Island judges’ salary “at the rate prescribed for judges of the . . . district courts”).
        17 Compare 28 U.S.C. § 634(a) (allowing basic compensation for magistrate judges of

about $180,000 as of 2014), with 5 U.S.C. § 5372a(b) (setting maximum, basic compensation
for highest-paid member of Armed Services and Civilian Boards of Contract Appeals at about
$160,000 as of 2015).
        18 Compare 28 U.S.C. § 631(e) (setting magistrate judges’ term at eight years), and id.

§ 631(i) (allowing removal “only for incompetency, misconduct, neglect of duty, or physical or
mental disability”), with, e.g., 10 U.S.C. § 942(b)(2), (c) (setting Court of Appeals for the
Armed Forces terms at fifteen years, and allowing removal only for “neglect of duty,”
“misconduct,” or “mental or physical disability”), and 48 U.S.C. § 1614(a) (setting Virgin
Island District Court terms at ten years, and allowing removal “by the President for cause”).
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discern no meaningful difference between the federal magistracy and the
legislative courts. Indeed, because the federal magistracy’s members are
appointed by federal judges instead of the President or the President’s
appointees, we can have greater confidence in federal magistrate judges’ ability
to fairly exercise federal judicial power and to avoid diminution of the
separation of powers. Cf. Marathon, 458 U.S. at 63-64 (plurality opinion)
(explaining that legislative courts exception to Art. III did not threaten the
separation of powers). The “differen[ce] in kind” that motivates our decision is
Congress’s “plenary authority” over Clause 17 federal enclaves. Id. at 75
(explaining that Congress’s power over D.C. is “obviously different in kind from
other broad powers conferred on Congress” in Article I).
       The dissent contends that we overlook relevant Supreme Court opinions.
But nothing in the cases the dissent refers to purports to overrule Palmore.
Because Palmore remains good law, we do not understand the dissent’s
objection to our reliance on it, especially since its relevance here is so obvious. 19
The cases the dissent refers to, including CFTC v. Schor, 478 U.S. 833 (1986),
have much to say about Congress’s attempts to assign a whole area of law to
legislative courts. See id. at 853-54. They have little to say about Congress
assigning cases that arise in a special geographic area to legislative courts. Cf.
Marathon, 458 U.S. at 76 (plurality opinion) (explaining that Palmore did not
mean that Congress could create legislative courts “in every area in which
Congress may legislate,” only that it could create legislative courts when it
exercises plenary power “in limited geographic areas”).
       The dissent also raises several practical concerns about our decision. The
dissent worries that “[f]ederal enclaves are neither few nor small.” But the


       19 Nor do we understand why the dissent accuses us of “leapfrog logic” for relying on
Paul. Caselaw aggregates over time, and courts are tasked daily with applying the holdings
of cases decided across decades or more.
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                                  No. 13-31265
Constitution does not empower us to decide how much federal land is too much.
Rather, the Constitution leaves that decision to the Government and the State
legislatures. See Clause 17 (authorizing Congress to exercise exclusive
jurisdiction over lands purchased by Congress for military installations “and
other needful Buildings,” with “the Consent of the Legislature of the State in
which the Same shall be”).
      The dissent also faults us for failing to identify a “limiting principle” that
will restrain Congress from referring “federal criminal felony (even capital)
cases that might arise in a federal enclave” to federal magistrate judges. There
is no death penalty in D.C., but the legislative courts there frequently try
defendants for serious felonies. See, e.g., McKnight v. United States, 102 A.3d
284 (D.C. 2014) (upholding defendant’s conviction in D.C. Superior Court for
first-degree murder). If Congress may refer trials for crimes committed in D.C.
to legislative judges, we do not understand why the dissent worries
(hypothetically) about that happening in other Clause 17 federal enclaves. Of
course, both in D.C. and elsewhere, Congress’s power to refer trials to
legislative courts may turn on whether the relevant federal statute relates to
an issue of national concern, or to “matters of strictly local concern” like local
criminal activity. See Palmore, 411 U.S. at 405-07.
      The dissent contends that our decision will result in absurd
consequences. It postulates that, where an oceanside federal enclave abuts
state land, “whether a defendant has a right to be tried by an Article III judge
will depend on which of the neighboring piers he is standing on.” But whenever
events occur along jurisdictional borders, courts must engage in jurisdictional
line-drawing. To provide only one example, this court once held that the federal
courts had concurrent jurisdiction with the state courts “if the crime charged
. . . was committed on the ocean below the low-water mark.” Murray v.
Hildreth, 61 F.2d 483, 485 (5th Cir. 1932). It follows that, should a defendant
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                                 No. 13-31265
commit a crime at high tide, just above the low-water mark, the federal courts
could offer him no rescue. Jurisdiction often turns on just such narrow
considerations.
                                       II
       Hollingsworth argues that his conviction should be overturned because
he was denied the right to a jury trial. But it is well-established that those
charged with petty offenses do not have a right to a jury trial. See, e.g., Lewis
v. United States, 518 U.S. 322, 325-26 (1996) (explaining that there is no right
to jury trial for petty offenses, and that crimes with a six month maximum
prison term are presumed petty). Hollingsworth concedes that this argument
is foreclosed by binding precedent.
      We hold that Hollingsworth did not have a right to a jury trial.
                                 CONCLUSION
      For the reasons explained above, we AFFIRM the judgment of the
district court.




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PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
       With admiration for my colleague’s dissent, and while my heart travels
in its direction, I concur fully in Judge Clement’s opinion.                    That we are
addressing a petty offense is important. A person charged with a petty offense
has no right to an indictment, 1 no absolute right to counsel, 2 and no right to a
trial by jury. 3 To my eyes, this reality enforces the power of the Congress over
federal enclaves and simultaneously limits it.




       1  Fed. R. Crim. P. 58(b)(1) (“The trial of a petty offense may also proceed on a citation
or violation notice.”).
        2 See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (“[A]bsent a knowing and

intelligent waiver, no person may be imprisoned for any [petty] offense, . . . unless he was
represented by counsel at his trial.”).
        3 Lewis v. United States, 518 U.S. 322, 323-24 (1996).
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STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
       “In all failures, the beginning is certainly the half of the whole.” George
Eliot, Middlemarch (1874).                The failure I apprehend is incremental
reassignment of federal judicial power.                   From the first Judiciary Act,
magistrates (later “commissioners,” presently “magistrate judges”) have
assisted federal district judges, the primary courts of original jurisdiction in
the federal system. 1 As assistants, the federal magistracy is an Article III
adjunct body—joining in aid, indispensably and even magisterially—but
always part of, and with delimited Article III jurisdiction and authority. That




       1  See Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73, 91 (“[F]or any crime or offence
against the United States, the offender may, by any justice or judge of the United States, or
by any justice of the peace, or other magistrate of any of the United States where he may be
found agreeably to the usual mode of process against offenders in such state, and at the
expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for
trial before such court of the United States as by this act has cognizance of the offence.”); Act
of March 2, 1793, ch. 22, § 4, 1 Stat. 333, 334 (“[B]ail for appearance in any court of the United
States . . . may be taken by any judge of the United States . . . and by any person having
authority from a circuit court, or the district courts of Maine or Kentucky to take bail; which
authority . . . may [be] give[n] to one or more discreet persons learned in the law . . . .”); Act
of March 1, 1817, ch. 30, 3 Stat. 350 (“[T]he commissioners who now are, or hereafter may
be, appointed by virtue of the act, entitled ‘An act for the more convenient taking of affidavits
and bail in civil causes, depending in the courts of the United States,’ are hereby authorized
to take affidavits and bail in civil causes, to be used in the several district courts of the United
States . . . .”).
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is true statutorily, 2 historically, 3 and doctrinally, 4 and is so constitutionally.
U.S. Const. art. III, § 1 (“The judicial power of the United States shall be vested



       2  28 U.S.C. § 636(b)(4) (“Each district court shall establish rules pursuant to which
the magistrate judges shall discharge their duties.”); id. § 636(b)(1)(B) (“[A] judge may also
designate a magistrate judge to conduct hearings, including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact and recommendations for the
disposition, by a judge of the court . . . .”); id. § 636(c)(4) (“The court may, for good cause shown
on its own motion, or under extraordinary circumstances shown by any party, vacate a
reference of a civil matter to a magistrate judge under this subsection.”). Compare 18 U.S.C.
§ 3401(a) (“When specially designated to exercise such jurisdiction by the district court or
courts he serves, any United States magistrate judge shall have jurisdiction to try persons
accused of, and sentence persons convicted of, misdemeanors committed within that judicial
district.”), with id. § 3401(b) (“Any person charged with a misdemeanor, other than a petty
offense may elect, however, to be tried before a district judge for the district in which the
offense was committed.” (emphasis added)).
        3 Indeed, no congressional intent exists until 1996 to support as a constitutionally

delegable responsibility the right to fully try federal criminal misdemeanor offenses over a
defendant’s objection. And no congressional intent exists, ever, at all, for using the Enclave
Clause of Article I as authority to so empower magistrate judges. See, e.g., To Abolish the
Office of United States Commissioner, to Establish in Place Thereof Within the Judicial
Branch of the Government the Office of the United States Magistrate, and for Other Purposes:
Hearing on S. 945, H.R. 5502, H.R. 8277, H.R. 8520, H.R. 8932, H.R. 9970, and H.R. 10841
Before the Subcomm. No. 4 of the H. Comm. on the Judiciary, 90th Cong. 62 (1968) (statement
of Warren Christopher, Deputy Att’y Gen. of the United States) (“[T]he performance of
judicial functions by the magistrates would be entirely under the control of Article III judges.
In fact, the magistrates themselves would function within the judicial branch, as satellite
tribunals to the Article III courts.”); H.R. Rep. No. 94-1609, at 4 (1976) (“When the Congress
enacted the Magistrates Act in 1968 . . . it created a system of full-time and part-time judicial
officers who would perform various judicial duties under the supervision of the district courts
in order to assist the judges of these courts in handling an ever-increasing caseload.”); id. at
11 (“The judge is given the widest discretion to ‘accept, reject or modify’ the findings and
recommendation proposed by the magistrate, including the power to remand with
instructions. Thus, it will be seen that under subparagraph (B) and (C) the ultimate
adjudicatory power over dispositive motions, habeas corpus, prisoner petitions and the like
is exercised by a judge of the court after receiving assistance from and the recommendation
of the magistrate.”); see also Linda J. Silberman, Masters and Magistrates Part II: The
American Analogue, 50 N.Y.U. L. Rev. 1297, 1303-05 (1975) (explaining that the creation of
magistrates was prompted by “the need for assistance to judges” and that “[t]he jurisdiction
being exercised [by magistrate judges] is clearly that of the article III federal district court,
and the article III judge directly controls the magistrate’s powers” (footnote omitted)); Admin.
Office of the U.S. Courts, A Guide to the Legislative History of the Federal Magistrate Judges
System 21 (1995) (“The Senate report [regarding the 1976 Amendments to the Federal
Magistrates Act] noted that without the assistance furnished by magistrates in handling
additional duties for the court, district judges would have to devote a ‘substantial’ portion of
their time to various procedural matters rather than to trying cases.”).
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                                       No. 13-31265
in one Supreme Court, and in such inferior courts as the Congress may, from
time to time, ordain and establish. The judges, both of the Supreme and
inferior courts, shall hold their offices during good behaviour; and shall, at
stated times, receive for their services, a compensation, which shall not be
diminished during their continuance in office.”). For that reason, I do not agree
that our federal magistracy is an Article I court system with Palmore
equivalence to congressional court systems over federal territories and the
District of Columbia, available constitutionally, as the majority contemplates,




       4  See, e.g., Wingo v. Wedding, 418 U.S. 461, 469-70 (1974) (finding that the Federal
Magistrates Act did not authorize magistrates to hold habeas corpus evidentiary hearings
and explaining that “although the Act gives district judges broad authority to assign a wide
range of duties to magistrates, Congress carefully circumscribed the permissible scope of
assignment to only ‘such additional duties as are not inconsistent with the Constitution and
laws of the United States’” (quoting 28 U.S.C. § 636(b))); United States v. Raddatz, 447 U.S.
667, 681, 683 (1980) (holding that the district court’s referral of a motion to suppress to a
magistrate did not violate Article III “so long as the ultimate decision is made by the district
court,” and explaining that “Congress was alert to Art. III values concerning the vesting of
decisionmaking power in magistrates. Accordingly, Congress made clear that the district
court has plenary discretion whether to authorize a magistrate to hold an evidentiary hearing
and that the magistrate acts subsidiary to and only in aid of the district court. Thereafter,
the entire process takes place under the district court’s total control and jurisdiction.”);
Gomez v. United States, 490 U.S. 858, 871-72 (1989) (finding that the Federal Magistrates
Act’s “additional duties” clause did not permit magistrates to conduct jury selection in felony
trials without consent and explaining that “the carefully defined grant of authority to conduct
trials of civil matters and of minor criminal cases [subject to special assignment, consent of
the parties, and judicial review] should be construed as an implicit withholding of authority
to preside at a felony trial. The legislative history, with its repeated statements that
magistrates should handle subsidiary matters to enable district judges to concentrate on
trying cases, and its assurance that magistrates’ adjudicatory jurisdiction had been
circumscribed in the interests of policy as well as constitutional constraints, confirms this
inference.” (footnotes omitted)); Peretz v. United States, 501 U.S. 923, 937 (1991)
(distinguishing Gomez on the basis of consent and holding that when a defendant consents,
the magistrate has jurisdiction to perform jury selection in a felony trial, finding no Article
III structural protections implicated where the district court maintains “total control and
jurisdiction” (internal citation and quotation marks omitted)). See generally Crowell v.
Benson, 285 U.S. 22, 61-65 (1932) (approving statutory regime that allowed the United States
Employees’ Compensation Commission to make initial fact-finding, but requiring substantial
oversight by Article III judges, who must decide “fundamental or jurisdictional facts” de
novo).
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                                      No. 13-31265
to exercise federal judicial power outside of Article III, and regardless of party
consent. 5
       Instead, I would reiterate that the federal magistracy has been a
longstanding adjunct body to Article III “constitutional courts,” different in
kind from Article I “legislative courts,” to use the time-tested distinction set
forth by Chief Justice Marshall in American Insurance Co. v. 356 Bales of
Cotton, 26 U.S. 511, 512 (1828). At least as to constitutional courts whose life
tenure and protected salaries give Article III its structural independence,
judicial power flows through circuity that is a closed loop. See James E.
Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the
United States, 118 Harv. L. Rev. 643, 672 (2004) (“Article III creates an
independent judicial department with a single Supreme Court to which all
other federal courts, if any, must remain inferior. The familiar pyramidal
shape of the judicial department flows from the combined requirements of
unity, supremacy, and inferiority, and precludes Congress from establishing
an independent set of courts invested with a portion of the judicial power and
free from ultimate oversight in the Supreme Court.”).
       Notably, Congress has the power not only to make “all laws which shall
be necessary and proper for carrying into execution [its own] foregoing powers”
(hence laws establishing bankruptcy, immigration, and military tribunals,
whose adjudicative powers exist alongside constitutional courts, often
reviewed by them), but also, significantly, “all laws which shall be necessary
and proper for carrying into execution . . . all other powers vested by this
Constitution in the government of the United States, or in any department or
officer thereof.”    U.S. Const. art. I, § 8, cl. 18.        Constitutional courts are


       5 Supreme Court’s precedent, see, e.g. Baldwin v. New York, 399 U.S. 66, 68 & n.5
(1970), instructs that persons accused of petty offenses, not considered “crimes” at common
law, have no due process right to be tried by a jury of their peers. On that point, I concur.
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                                       No. 13-31265
comprised of “principal officers,” and our federal magistracy assisting them is
proper congressional objective to effectuate “other powers” reposed in Article
III. See McCulloch v. Maryland, 17 U.S. 316 (1819).
       Finding constitutional birthright in Article I, Section 8, Clause 18’s
“other powers” phrase—instead of Clause 17’s Seat of Government Clause or
its Enclave Clause enhancement of Article I powers—enhances Article III
courts’ discretion to refer matters to the federal magistracy for preliminary
review and a recommended decision. See Mathews v. Weber, 423 U.S. 261, 270-
71 (1976). Indeed, as Congress has revised and expanded matters that may be
so referred, the Supreme Court repeatedly has tested each subsequent
delegation, when there is no consent, according to one constant principle,
namely, that case-dispositive matters may be handled by magistrate judges
provided that Article III district courts retain full and ultimate authority “to
make an informed, final determination” of the case. See United States v.
Raddatz, 447 U.S. 667, 682-83 (1980). 6


       6 Well-developed non-delegation caselaw has been applied to the distinctive Article III
role of our federal magistracy over half a dozen times by the Supreme Court, see, e.g., supra
note 4, as well as by our court. See, e.g., United States v. Johnston, 258 F.3d 361 (5th Cir.
2001) (holding that a consensual delegation of the final judgment in a federal prisoner’s
motion to vacate conviction or sentence to a magistrate judge violated the Constitution); Hill
v. City of Seven Points, 230 F.3d 167 (5th Cir. 2000) (holding that a post-consent reference
order signed by the district judge was required to vest authority in a magistrate judge for
disposition of a summary judgment motion); Puryear v. Ede’s Ltd., 731 F.2d 1153 (5th Cir.
1984) (holding that referrals of civil matters to magistrates pursuant to 28 U.S.C. § 636(c)
are constitutional “[f]or essentially the reasons stated by our sister circuits”). Yet the
majority opinion gives this caselaw of ours no reference, jumping back over half a century of
doctrinal turbulence applicable to legislative courts to the Supreme Court’s most permissive
precedent in Palmore v. United States, 411 U.S. 389 (1973). Even making that span, the
majority must also use leapfrog logic connecting Palmore, a case addressing Congress’s
creation of an “entirely new court system” in the District of Columbia “with functions
essentially similar to those of the local courts found in the 50 States of the Union,” 411 U.S.
at 409, to a decision a decade earlier, Paul v. United States, 371 U.S. 245 (1963), a case
addressing California’s attempt to enforce price regulations on milk sold at military
installations. Second, the majority cites broadly to Northern Pipeline Construction Co. v.
Marathon Pipe Line Co., 458 U.S. 50 (1982) (declaring unconstitutional Congress’s broad
grant of jurisdiction to bankruptcy judges over all civil proceedings arising under, or arising
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                                       No. 13-31265
       Section 3401(b)’s diversion of core federal judicial power to try an
accused over objection through conviction, and then also to sentence a
convicted defendant to prison, subject only to appeals to district judges now
reviewing with identical, often considerable, deference given by circuit courts,
infringes the “total control and jurisdiction” constitutional courts must exercise
over federal criminal trials. Raddatz, 447 U.S. at 681-83. As the majority
decides, the Article III adjunct has become the Article I judge, at least in any
relevant constitutional adjudicatory sense. There may be efficiencies to this
arrangement, though the legislative history offers no showing that criminal
trials are overburdening constitutional courts. Regardless, the Supreme Court
has not shown solicitude to workload as a basis to pass off the essential
attributes of power assigned to other branches of our government. See Clinton
v. City of New York, 524 U.S. 417, 447-49 (1998); I.N.S. v. Chadha, 462 U.S.




in or related to cases under, Title 11), yet only determinatively to its dissent for the
proposition that there is no principled difference between the work that Congress may assign
to Article I courts and that which must be assigned, constitutionally, to Article III courts.
Indeed, the Court in Marathon (1) explicitly disclaims the “ad hoc balancing” approach
implicit in the majority’s reasoning—that “petty offenses” are less significant, id. at 70 n.25;
(2) highlights that Palmore is limited to the “unique” District of Columbia and “territories
outside the States” which are “specialized areas having particularized needs,” id. at 75-76
(internal quotation marks omitted); (3) reinforces Congress’s power to create Article III
adjuncts—performing “limited adjudicatory functions” and operating within Article III—
restrained by the requirement that Article III courts retain “the essential attributes of the
judicial power,” id. at 77 n.29 (quoting Crowell, 285 U.S. at 51); and (4) crucially, in the
Court’s only discussion of the Federal Magistrates Act, the Court vindicates Raddatz’s
principle that “the ultimate decision [would be] made by the district court,” id. at 79-83 &
n.33 (quoting Raddatz, 447 U.S. at 683). Finally, the majority overlooks subsequent, limiting
legislative court caselaw, above all Commodity Futures Trading Comm’n v. Schor, 478 U.S.
833 (1986), whose multifaceted test likely is not met by full criminal trial authority exercised
here, even if magistrate judges were, as I strongly contend they are not, Article I legislative
courts. See generally Judith Resnik, “Uncle Sam Modernizes His Justice”: Inventing the
Federal District Courts of the Twentieth Century for the District of Columbia and the Nation,
90 Geo. L.J. 607, 638 (2002) (noting the personal as well as structural components of Schor’s
otherwise “forgiving balancing test”).
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919, 944-59 (1983). 7 Finally, the implications of the majority opinion’s reliance
on half-century old legislative court precedent, instead of the Supreme Court’s
more recent, half-dozen cases calibrating Article III judicial power referred to
magistrate judges, are far-reaching, acknowledging that Congress could
expand an Article I magistracy alongside and independent of Article III federal
district courts to try federal criminal felony (even capital) cases that might
arise in a federal enclave. 8 Federal enclaves are neither few nor small, and no


       7  The Supreme Court’s non-delegation doctrine applied to the political branches
parallels the Raddatz principle emphasizing retained and final determining authority. See
Mistretta v. United States, 488 U.S. 361, 393-97 (1989) (Congress may delegate the power to
promulgate sentencing guidelines to an independent sentencing commission within the
judicial branch, but Congress retains power to revoke or amend any or all of the guidelines).
        8 The majority limits its holding that Article III magistrate judges are in fact Article

I enclave courts as they preside over petty offense trials of cases arising in federal land
acquired pursuant to Clause 17, yet the majority refers to non-Clause 17 “federal enclaves”
throughout its opinion. In support of its historical conclusion, the majority claims that
Congress referred misdemeanor trial authority to the federal magistracy in numerous
statutes from 1894 until 1948. The cited statutes pertain to non-Clause 17 federal land,
mostly national parks. See Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 529-30 (1938)
(explaining that Clause 17 is “not the sole authority for the acquisition of jurisdiction” and
noting that “[t]he United States has large bodies of public lands. These properties are used
for forests, parks, ranges, wild life sanctuaries, flood control, and other purposes which are
not covered by Clause 17.”). As the majority points out, the first commissioner position was
authorized for Yellowstone National Park, which was under exclusive federal jurisdiction
though not acquired pursuant to Clause 17. See Admin. Office of the U.S. Courts, A Guide to
the Legislative History of the Federal Magistrate Judges System 2 (1995); Yellowstone Park
Transp. Co. v. Gallatin Cnty., 31 F.2d 644, 645 (1929); Collins, 304 U.S. at 529-30. It is also
important to note that the Act of October 9, 1940 conferred trial jurisdiction, subject to the
consent of the defendant, to United States commissioners over petty offenses that were
committed “in any place over which the Congress has exclusive power to legislate or over
which the United States has concurrent jurisdiction . . . .” Act of October 9, 1940, ch. 785, 54
Stat. 1058. Again, this was not limited to Clause 17 federal enclaves, and this Act became
the basis for the current magistrate judge system. See 28 U.S.C. § 636(a)(1) (giving U.S.
magistrate judges “all powers and duties conferred or imposed upon United States
commissioners”).
        Adding another layer of incongruity, the statute under which Hollingsworth was
convicted, 18 U.S.C. § 113, applies to “the special maritime and territorial jurisdiction of the
United States,” which includes much more than Clause 17 federal property. See 18 U.S.C.
§ 7 (defining the “special maritime and territorial jurisdiction of the United States” as
including, among other things: “[t]he high seas [and] any other waters within the admiralty
and maritime jurisdiction of the United States;” vessels, aircrafts, and space vehicles owned
by the United States; “lands reserved or acquired for the use of the United States, and under
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                                       No. 13-31265
limiting principle is offered other than that presently Congress has refrained
from extending the orbit of first-instance criminal trial adjudication to the
nearly three thousand other offenses set forth in its federal criminal code. See
Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1054 (7th Cir. 1984)
(Posner, J., dissenting) (“Maybe section 636(c) [conferring civil jurisdiction on
magistrate judges with parties’ consent] is a small violation of the
Constitution. But the time to deal with this small violation is now, before it
sends down roots. . . . It will be harder to enforce the Constitution against the
excesses of the magistrate system when magistrates try 10 or 20 or 50 percent
of the nation’s federal trials—when . . . section 636(c) is indispensable to coping
with the federal judicial workload—than it is today.”).
       It is said that a well-built house requires but little repairs. Article III
federal district judges are not over-burdened in their most essential judicial




the exclusive or concurrent jurisdiction thereof;” and “[a]ny island, rock, or key containing
deposits of guano”). The majority overlooks this further discrepancy in order to draw analogy
with Palmore, in which the Court narrowed its holding to laws “applicable only within the
District of Columbia.” Palmore, 411 U.S. at 410.
        The majority emphasizes that Hollingsworth was charged for a crime that is
applicable in “federal enclaves,” but the term “federal enclave” can refer to a variety of
federally owned land—land that is exclusively, partially, or concurrently under the
jurisdiction of the federal government vis-à-vis the States. The jurisdictional status depends
on which statute was in place when the land was acquired by the federal government or when
the federal government accepted jurisdiction. Roger W. Haines, Jr., Federal Enclave Law 17
(2011). Already half a century ago, six million acres of land were under “exclusive” federal
jurisdiction and thirty-six million were under either “partial” or “concurrent” federal
jurisdiction. Id. at 56. These lands include military bases, national forests and parks, federal
prisons, and public health facilities, among other property. Id. at 58-72. Also problematic
for the majority’s position, within one federal property there can exist numerous
jurisdictional statuses. For instance, the San Diego Naval Station consists of federally owned
land that is under partial and exclusive federal jurisdiction as well as some federally owned
land under state jurisdiction. Id. at 243, 275. Under the majority’s opinion, whether a
defendant has a right to be tried by an Article III judge will depend on which of the
neighboring piers he is standing on; or if the defendant is standing on the main public road
through the Naval Station, which was retroceded to the State, Article III protections
apparently would attach, in the middle of the enclave. See id. at 243-45.

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                               No. 13-31265
function, trying federal criminal cases. Without consent, persons accused of
federal offenses should not lose their liberty except after trial in a
constitutional court, unless an Article III judge reserves “the ultimate
decisionmaking authority.” Marathon, 458 U.S. at 79 (citing Raddatz, 447 U.S.
at 682).




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