            Case: 13-13380   Date Filed: 02/04/2014   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13380
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 8:02-cr-00228-JSM-6




UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

SIGIFREDO OLIVEROS-ESTUPINAN,

                                                          Defendant-Appellant.



                       ________________________

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

                             (February 4, 2014)

Before TJOFLAT, JORDAN, and HILL, Circuit Judges.
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PER CURIAM:

      Sigifredo Oliveros-Estupinan (“Estupinan”), proceeding pro se, appeals the

district court’s denial of his post-judgment motion to dismiss his indictment for

lack of subject matter jurisdiction, which attacked the constitutionality of his

convictions and was filed more than eight years after the convictions were final,

and after he unsuccessfully sought 28 U.S.C. § 2255 relief. In his motion, which

he claimed was filed pursuant to Rule 57(b) of the Federal Rules of Criminal

Procedure, the All Writs Act, and the district court’s inherent supervisory power,

Estupinan challenged the constitutionality of the Maritime Drug Law Enforcement

Act (“MDLEA”) following United States v. Bellaizac-Hurtado, 700 F.3d 1245

(11th Cir. 2012), and asked for his conviction to be vacated because the court

lacked subject matter jurisdiction over his prosecution. The district court denied

Estupinan’s motion, finding that his reliance on Bellaizac-Hurtado was misplaced

because that case only applied to individuals apprehended within the territorial

waters of foreign countries, and that the MDLEA was constitutional for

individuals, like Estupinan, who were apprehended in international waters.

      Estupinan appeals, arguing that he was convicted of an unconstitutional law

and that his convictions and sentences should be vacated. He asks us to review his

case en banc, or alternatively certify the issue to the Supreme Court because the

Constitution authorizes Congress to create a felony offense for crimes committed


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on the high seas, but, in Bellaizac-Hurtado, this Court held that Congress could not

create an international felony of drug trafficking.

       After consideration of the parties’ filings on appeal and review of the record,

we affirm. 1

       We review the district court’s denial of a motion to dismiss the indictment

for an abuse of discretion. United States v. Rojas, 718 F.3d 1317, 1319 (11th Cir.

2013). However, we review de novo questions concerning the district court’s

jurisdiction, and we may affirm for any reason supported by the record. United

States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).

       Rule 12(b)(3) of the Federal Rules of Criminal Procedure provides that a

motion alleging a defect in the indictment generally must be filed before trial.

Fed.R.Crim.P. 12(b)(3)(B). The rule, however, also states that, at any time while a

case is pending, the district court may hear a claim that the indictment fails to

invoke the court’s jurisdiction or to state an offense. Id.

       Where a federal prisoner is collaterally attacking his sentence as violating

the U.S. Constitution, § 2255 is the proper avenue of relief. United States v. Holt,

417 F.3d 1172, 1175 (11th Cir. 2005). When a prisoner previously has filed a



       1
          The government has filed a motion to dismiss the appeal or to summarily affirm and to
stay the briefing schedule. Estupinan responded and moved for sanctions against the government
for its purported failure to comply with this Court’s briefing schedule. Both motions are
DENIED.
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§ 2255 motion to vacate, he must apply for and receive permission from us before

filing a successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3), 2255(h).

      Rule 57(b) of the Federal Rules of Criminal Procedure provides that the

district judge may regulate practice in any manner so long as it is consistent with

federal law, the Federal Rules of Criminal Procedure, and the district court’s local

rules. Fed.R.Crim.P. 57(b). The All Writs Act gives a district court the power to

“issue all writs necessary or appropriate in aid of [its] respective jurisdiction[] and

agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).

      In United States v. Elso, 571 F.3d 1163, 1166 (11th Cir. 2009), we affirmed

the district court’s denial of the defendant’s post-judgment motion, under

Rule 12(b)(3)(B), for relief from judgment, in which the defendant argued that the

court lacked subject matter jurisdiction as to one of the counts of the indictment or,

alternatively, that the count failed to state an offense. The defendant filed his

motion after we had issued its mandate in his direct appeal and the U.S. Supreme

Court had denied his petition for a writ of certiorari, but before the Court had

denied his petition for rehearing. Id. at 1165. We held that the defendant’s case

was no longer “pending,” as that term is used in Rule 12(b)(3)(B), when we issued

our mandate on direct appeal. See id. at 1166. Moreover, once a case is no longer

pending, a district court lacks authority to hear a Rule 12(b)(3) motion for relief

from judgment. Id.


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      In Bellaizac-Hurtado, we vacated four defendants’ convictions under the

MDLEA, holding that the Act was unconstitutional as applied to the defendants,

whose conduct took place in the territorial waters of Panama. 700 F.3d at 1247-48,

1258. In that case, the U.S. Coast Guard, during a routine patrol of Panamanian

waters, informed the Panamanian Navy of a vessel that was operating without

lights or a flag. Id. at 1247. After the Panamanian Navy pursued the vessel, the

defendants abandoned the vessel and fled into a jungle. Id. The Panamanian

authorities located the defendants, searched the vessel, discovered 760 kilograms

of cocaine on board, and consented to the prosecution of the defendants in the

United States. Id. at 1247-48. Following the denial of their motion to dismiss the

indictment “based upon the lack of jurisdiction and the unconstitutionality of the

[MDLEA] as applied to [their] conduct,” the defendants entered conditional guilty

pleas to 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. Id.

at 1248.

      On appeal, we considered whether Congress has the power to proscribe

drug-trafficking in the territorial waters of another nation under the Offences

Clause of the U.S. Constitution, which provides Congress the power to define and

punish offenses against the law of nations. Id. at 1248-49 (citing U.S. Const.,

Art. I, § 8, cl. 10). We held that, because drug-trafficking is not a violation of


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customary international law, Congress does not have power to proscribe

drug-trafficking in foreign territorial waters under the Offences Clause. Id.

at 1249-58. However, we distinguished cases addressing the constitutionality of

drug-trafficking laws that involve conduct on the “high seas,” noting that

Congress’s power to punish felonies committed on the high seas was not

implicated in the case and that Congress possesses additional constitutional

authority to restrict conduct on the high seas. Id. at 1248, 1257. In particular, we

have “always upheld extraterritorial convictions under [ ] drug trafficking laws as

an exercise of power under the Felonies Clause,” which gives Congress the power

to define and punish felonies committed on the high seas. Id. Generally, the

United States “recognizes the territorial seas of foreign nations up to twelve

nautical miles adjacent to recognized foreign coasts.” United States v. McPhee,

336 F.3d 1269, 1273 (11th Cir. 2003) (affirming the defendant’s MDLEA

conviction on the basis that the district court did not clearly err in finding that his

vessel was in international waters at the time of its interception by the Coast

Guard).

      A petition for an en banc hearing must begin with a statement that either

(1) a panel decision of our court conflicts with a decision of the U.S. Supreme

Court or of the court to which the petition is addressed, or (2) the proceeding




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involves a question of “exception importance,” such as a panel decision of our

court that conflicts with the decisions of other circuit courts. Fed.R.App.P. 35(b).

      Estupinan has not identified a jurisdictional basis on which the district court

could properly have considered his motion, and he does not argue on appeal that

the district court should have construed his motion to dismiss as a § 2255 motion to

vacate or a 28 U.S.C. § 2241 petition.

      AFFIRMED.




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