                                                                     [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                         -------------------------------------------U.S. COURT OF APPEALS
                                      No. 05-13517                    ELEVENTH CIRCUIT
                                                                          JULY 21, 2006
                                Non-Argument Calendar
                        -------------------------------------------- THOMAS K. KAHN
                                                                             CLERK

                   D.C. Docket No. 04-00081-CR-T-17-MAP

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                          versus

CLAYTON HUMPHRIES-BRANT,
a. k. a. Clayton Humphries Brant,

                                                         Defendant-Appellant.

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

                                  (July 21, 2006)

Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

      Defendant-Appellant Clayton Humphries-Brant appeals his conviction and

135-month sentence for possession with intent to distribute and conspiracy to
possess with intent to distribute, five kilograms or more of cocaine while on board

a vessel subject to the jurisdiction of the United States, in violation of the

Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. App. § 1903(a), (g),

(j)); 21 U.S.C. § 960(b)(1)(B). No reversible error has been shown; we affirm.

      In February 2004, the United States Coast Guard intercepted a “go-fast”

boat transporting cocaine off the coast of Colombia; the boat carried 89 bales of

cocaine totaling approximately 2000 kilograms. Defendant was one of four crew

members aboard the boat; one of the four was the captain and another was charged

with overseeing the operation. Defendant pleaded guilty without a plea

agreement. At sentencing, Defendant objected to the failure of the PSI to award

him a mitigating role adjustment under U.S.S.G. § 3B1.2. No jurisdictional

challenge was advanced during the plea colloquy or at sentencing.

      On appeal, Defendant for the first time raises a challenge to the

constitutionality of the MDLEA. According to Defendant, the MDLEA represents

an ultra vires exercise of Congressional power under Article I, Section 8, Clause

10, the Piracies and Felonies Clause. Defendant maintains that Congressional

power to legislate extra-territorially under the Piracies and Felonies Clause does

not encompass authority to criminalize drug trafficking among stateless vessels on

the high seas. Defendant argues that the district court erred when it failed to

                                           2
dismiss sua sponte the indictment against him because the MDLEA is

unconstitutional.

       Plain error review ordinarily applies to issues not presented to the district

court. Because Defendant characterizes his constitutional challenge to the

MDLEA as jurisdictional, Defendant argues that de novo review applies.1 We

conclude that the district court committed no error -- plain or otherwise -- by

failing to dismiss sua sponte the indictment: the MDLEA does not exceed

Congress’s constitutional authority under the Piracies and Felonies Clause.

       The Piracies and Felonies Clause empowers Congress “To define and

punish Piracies and Felonies committed on the high Seas, and Offences against the

Law of Nations.” U.S. Const. Art. I, § 8, cl.10. In enacting the MDLEA,

Congress found and declared these things:

               trafficking in controlled substances aboard vessels is a
               serious international problem and is universally
               condemned. Moreover, such trafficking presents a
               specific threat to the security and societal well-being of
               the United States.


   1
     If we accept that the thrust of Defendant’s claim is a challenge to the district court’s subject
matter jurisdiction, de novo review applies. See United States v. Giraldo-Prado, 150 F.3d 1328,
1329 (11th Cir. 1998) (reviewing de novo a challenge to the district court’s subject matter jurisdiction
for the first time on appeal). If, instead, we treat Defendant’s claim as a constitutional challenge to
Congressional authority to enact the MDLEA under the Piracies and Felonies Clause, plain error
review applies. See United States v. Williams, 121 F.3d 615, 618 (11th Cir. 1997) ( reviewing for
plain error challenge to the constitutionality of a federal statute raised for first time on appeal).

                                                   3
46 U.S.C. app. § 1902. The MDLEA provides, in relevant part, that “[i]t is

unlawful for any person ... on board a vessel subject to the jurisdiction of the

United States ... to possess with intent to manufacture or distribute, a controlled

substance.” 46 U.S.C. app § 1903(a). A “vessel subject to the jurisdiction of the

United States” includes “a vessel without nationality.” 46 U.S.C. app. §

1903(c)(1)(A).

      We have already rejected a facial challenge to the MDLEA based on a lack

of a “meaningful relationship” to the United States, see United States v. Mena, 863

F.2d 1522, 1527 (11th Cir. 1989); neither this Circuit nor other circuits have

imposed upon the MDLEA a nexus requirement between a defendant’s criminal

conduct and the United States. See United States v. Rendon, 354 F.3d 1320, 1325

(11th Cir. 2003). And the circuits that have considered the authority of Congress

to enact the MDLEA pursuant to the Piracies and Felonies Clause have affirmed

expressly the constitutionality of the MDLEA. See United States v. Moreno-

Morillo, 334 F.3d 819, 824 (9th Cir. 2003) (“Congress ... was acting within its

constitutionally conferred authority [under the Piracies and Felonies Clause] when

it passed the MDLEA.”); United States v. Ledesma-Cuesta, 347 F.3d 527, 532 (3d

Cir. 2003) (“Congress had authority to enact [the MDLEA] pursuant to its

constitutional power to: define and punish Piracies and Felonies committed on the

                                          4
high seas, and Offences against the Law of Nations.” (Internal quotation and

citation omitted). We reject Defendant’s argument that the MDLEA represented

an ultra vires exercise of Congressional power under the Piracies and Felonies

Clause; the district court exercised properly subject-matter jurisdiction.2

       About the sentence imposed, Defendant argues that (1) the district court

erred when it failed to award him a minor role adjustment pursuant to U.S.S.G. §

3B1.2; and (2) the 135-month sentence was unreasonable in the light of the 18

U.S.C. § 3553(a) factors and the Supreme Court’s decision in United States v.

Booker, 125 S.Ct. 738 (2005).3 We disagree.

       Defendant argues that he was a low-level crewman who played no integral

part in the overall conspiracy. Defendant contends that because he had no equity

interest in the drugs, no decision-making authority, and no role in planning the



  2
    Also without merit is Defendant’s argument that 46 U.S.C. app. § 1903(f), which provides that
“[a]ll jurisdictional issues arising under [the MDLEA] are preliminary questions of law to be
determined solely by the trial judge,” is unconstitutional under United States v. Gaudin, 115 S.Ct.
2310 (1995). As Defendant recognizes, we rejected a Gaudin challenge to section 1903 in United
States v. Tinoco, 304 F.3d 1088, 1109-1110 (11th Cir. 2002). We are bound to follow Tinoco under
the prior-precedent rule. See United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (only
Supreme Court or this Court sitting en banc can judicially overrule a prior panel decision).
   3
    The government argues that we are without jurisdiction under 18 U.S.C. § 3742 to review the
reasonableness of a sentence within the advisory guidelines range. That argument was rejected in
United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir.), petition for cert. filed, (U.S. May 30,
2006) (No. 05-11248): “a post-Booker appeal based on the ‘unreasonableness’ of a sentence,
whether within or outside the advisory guidelines range, is an appeal asserting that the sentence was
imposed in violation of law pursuant to § 3742(a)(1).” .

                                                 5
criminal scheme or distribution of the drugs, he was less culpable than many of the

other people involved in the conspiracy.

      Section 3B1.2(b) of the United States Sentencing Guidelines allows for a

two-level reduction in a defendant’s base offense level if the sentencing court

determines that the defendant was a minor participant in the offense. A minor

participant is a participant “who is less culpable than most other participants, but

whose role could not be described as minimal.” U.S.S.G. § 3B1.2(b), comment.

(n.5.). In United States v. De Varon, 175 F.3d 930 (11th Cir. 1999), we set out two

measurements that inform the sentencing court’s mitigating-role-in-the-offense

determination: (1) the defendant’s role against the relevant conduct for which he

has been held accountable; and (2) the defendant’s role as compared to that of

other participants in his relevant conduct. Id. at 940. About the first

measurement, De Varon counsels that “[o]nly if the defendant can establish that

[he] played a relatively minor role in the conduct for which [he] has already been

held accountable -- not a minor role in any larger criminal conspiracy -- should the

district court grant a downward adjustment for minor role in the offense.” Id. at

944. About the second measurement, De Varon counsels that this relative

culpability inquiry includes “only those participants who were involved in the

relevant conduct attributed to the defendant. The conduct of participants in any

                                           6
larger criminal conspiracy is irrelevant.” Id. The first measurement is the most

important and, in many cases, may end the inquiry. Id. at 945.

       The district court’s decision to deny Defendant a minor-role reduction is

supported by the record. Defendant failed to show that he played a minor role in

the relevant conduct for which he was held accountable. Defendant’s offense

involved 2,000 kilograms of cocaine; he was held accountable for no larger

quantity. Where the relevant conduct for which a defendant is held accountable is

identical to the defendant’s actual conduct, no minor role entitlement may be

established simply by referencing some broader criminal scheme. See De Varon,

175 F.3d at 941. Also, in the drug courier context, a large amount of drugs itself is

an important factor -- maybe even a dispositive factor -- in determining the

availability of a minor role adjustment. Id. at 943 (“[T]he amount of drugs

imported is a material consideration in assessing a defendant’s role in [his]

relevant conduct....[W]e do not foreclose the possibility that amount of drugs may

be dispositive....”). No record evidence distinguishes significantly Defendant’s

culpability from that of other crew members.4 “The proponent of the downward

adjustment ... always bears the burden of proving a mitigating role in the offense


  4
    We accept that the boat’s captain played a larger role than that of Defendant; the captain received
a role enhancement at sentencing. That the captain merited an upward role adjustment does not mean
that the others on the boat were not each average participants in the offense conduct.

                                                  7
by a preponderance of the evidence.” De Varon, 175 F.3d at 939. Defendant

failed to show that he was “less culpable than most other participants in [his]

relevant conduct.” Id. at 944 (emphasis in original).

      About the reasonableness of the sentence imposed, Defendant argues that

his 135-month sentence is unreasonable because the sentence exceeds that which

is necessary to fulfill the statutory purposes of sentencing set out in section

3553(a).     Under section 3553(a), a district court should consider, among other

things, the nature and circumstances of the offense, the history and characteristics

of the defendant, the need for adequate deterrence and protection of the public,

policy statements of the Sentencing Commission, provision for the medical and

educational needs of the defendant, and the need to avoid unwarranted sentencing

disparities. See 18 U.S.C. § 3553(a)(1)-(7). A sentence within the advisory

guidelines range is not per se reasonable, United States v. Talley, 431 F.3d 784,

786 (11th Cir. 2005); but “ordinarily we would expect a sentence within the

Guidelines range to be reasonable.” Id. at 788. Reasonableness review is

“deferential.” Id.

      The record reflects that the district court considered the section 3553(a)

sentencing factors; the district court stated expressly that a sentence at the low end

of the guideline range “satisfies the statutory purpose of sentencing.” Defendant

                                           8
fails to show that the sentence imposed was unreasonable when measured against

the record. See Talley, 341 F.3d at 788 (“the party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in the light of

both [the] record and the factors in section 3553(a).”).

      AFFIRMED.




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