            United States Court of Appeals
                       For the First Circuit


No. 14-1733

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                        FERRISON DÍAZ-DONCEL,

                        Defendant, Appellant.


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

           [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before

                   Torruella, Hawkins,* and Barron,
                           Circuit Judges.


     Jennie M. Espada, with whom Espada Esquire Legal Services PSC
was on brief, for appellant.
     Tiffany V. Monrose, Assistant United States Attorney, with
whom, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.


                          January 27, 2016




     *   Of the Ninth Circuit, sitting by designation.
             BARRON, Circuit Judge.   This appeal follows defendant

Ferrison Díaz-Doncel's straight plea of guilty to all three counts

set forth in a criminal indictment.    The first two counts were for

conspiracy to possess, and aiding and abetting the possession of,

cocaine on a vessel subject to the jurisdiction of the United

States, in violation of the Maritime Drug Law Enforcement Act

("MDLEA").     46 U.S.C. §§ 70501 et seq.; 18 U.S.C. § 2.    The third

count was for aiding and abetting a failure to heave.        18 U.S.C.

§§ 2237, 2.1     On appeal, Díaz argues that Congress exceeded the

scope of its Article I powers in enacting the MDLEA and that his

MDLEA convictions must therefore be reversed.    But precedent makes

clear that Díaz waived his right to bring this challenge when he

entered his guilty plea.

             The undisputed facts can be briefly stated.    On June 28,

2013, a United States Coast Guard ("USCG") cutter ordered a

cigarette boat in the Caribbean Sea to heave to.           Following a

chase, a Dutch war ship with USCG personnel on-board interdicted

the cigarette boat.    The USCG personnel then boarded the cigarette

boat, arrested the crew, including Díaz, and seized the vessel.

             Following the arrest, Díaz was indicted by a federal

grand jury on three counts.    He then filed a late motion to dismiss


     1  18 U.S.C. § 2237 "makes it unlawful for an operator of 'a
vessel subject to the jurisdiction of the United States, to
knowingly fail to obey' a federal law enforcement officer's order
'to heave to that vessel' (in layman's terms, failing to slow down
or stop)." United States v. $8,440,190.00 in U.S. Currency, 719
F.3d 49, 53 (1st Cir. 2013).

                                   - 2 -
the indictment.           The motion argued that Congress had exceeded the

scope       of    its   powers    under   Article        I    of   the    United   States

Constitution in enacting the MDLEA.                The District Court denied the

motion as untimely.              The District Court ruled that no exception

could be made for Díaz's late filing, because his challenge was

not a challenge to the Court's subject matter jurisdiction.

                 On the second day of the trial, Díaz entered a straight

plea of guilty to all three counts.                          The District Court then

sentenced Díaz to 168 months of imprisonment on each of the MDLEA

counts, and to 60 months of imprisonment for failing to heave, to

be served concurrently.            On appeal, Díaz challenges only his MDLEA

convictions, which he contends must be reversed because Congress

exceeded the scope of its Article I powers in enacting that

statute.

                 "Ordinarily a guilty plea, entered unconditionally --

that is, without reserving an issue or issues for appeal --

establishes        guilt    and    forfeits      all   objections        and   defenses."

United States v. González, 311 F.3d 440, 442 (1st Cir. 2002)

(citing United States v. Cordero, 42 F.3d 697, 699 (1st Cir.

1994)).      There are, however, "a few exceptions to this principle."

Id.     And the one that Díaz relies on "applies where the claim on

appeal       is    that    the     district      court       lacked      subject   matter

jurisdiction over the case."              Id.2


        2
        Another exception to the rule that a guilty plea waives
all objections is derived from the Supreme Court's decisions in

                                              - 3 -
          Our precedent makes clear, however, that this exception

does not apply here.    As we have held before, a constitutional

challenge to Congress's "jurisdiction" to pass the MDLEA pursuant

to its Article I powers is not a challenge to a district court's

subject matter jurisdiction over a criminal case brought under the

MDLEA.   United States v. Nueci-Peña, 711 F.3d 191, 197 (1st Cir.

2013); United States v. Cardales-Luna, 632 F.3d 731, 737-38 (1st

Cir. 2011).   And the D.C. Circuit recently agreed in concluding

that a guilty plea barred a defendant from asserting an Article I

challenge to the MDLEA on appeal.     See United States v. Miranda,

780 F.3d 1185, 1189-91 (D.C. Cir. 2015). Thus, whatever the merits

of Díaz's constitutional argument, see Cardales-Luna, 632 F.3d at

738-51 (Torruella, J., dissenting) (setting forth the argument

that Congress exceeded its Article I powers in enacting the MDLEA),

Díaz waived his right to assert it when he pled guilty.         The

convictions are therefore affirmed.



                   -Dissenting Opinion Follows-




Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York,
423 U.S. 61 (1975). Those cases involved, respectively, "a due
process challenge arising from repetitive, vindictive prosecution"
and a double jeopardy challenge. United States v. Miranda, 780
F.3d 1185, 1190 (D.C. Cir. 2015). Diaz makes no argument that his
case falls into the Blackledge-Menna exception. And we note that
the D.C. Circuit recently held that a challenge such as Diaz's
does not fit within the Blackledge-Menna exception. Id.

                                 - 4 -
           TORRUELLA, Circuit Judge, Dissenting.             I disagree that

the issue of the challenge to Díaz's conviction under the MDLEA

has been waived.      As I stated in United States v. Cardales-Luna,

632 F.3d 731, 738-51 (1st Cir. 2011) (Torruella, J., dissenting),

and United States v. González, 311 F.3d 440, 444-450 (1st Cir.

2002)   (Torruella,    J.,   concurring),   this    is   a    constitutional

challenge to the government's authority under the MDLEA, which

implicates the subject matter jurisdiction of this Court, and, as

a result, this issue can be raised by Díaz at any point in the

proceeding.   His right to assert this argument is not waived by

entering an unconditional guilty plea.         See Cardales-Luna, 632

F.3d at 751; González, 311 F.3d at 444.            I respectfully dissent

for all of the reasons stated in those cases.




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