            Case: 15-13489   Date Filed: 06/29/2016   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13489
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:14-cr-00529-EAK-TBM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                   versus

RAMON MACIAS,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 29, 2016)



Before TJOFLAT, HULL and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       After pleading guilty, Ramos Macias appeals his convictions for conspiring

to possess with intent to distribute five kilograms or more of cocaine and

possessing five kilograms or more of cocaine with intent to distribute 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. § 70503(a), and 21

U.S.C. § 960(b)(1)(B)(ii). On appeal, Macias argues for the first time that the

MDLEA, as applied to him, exceeded Congress’s authority under the “Piracies and

Felonies Clause” of the U.S. Constitution.1 After review, we affirm.

       Defendant Macias, an Ecuadorean citizen, and two other individuals were

onboard a vessel when they were interdicted by the U.S. Coast Guard “in

international waters in the Eastern Pacific Ocean, approximately 206 nautical miles

northeast of the Galapagos Islands.” After the Coast Guard boarded the vessel,

none of the crew claimed a nationality for the vessel. Upon inspection of the

vessel, the Coast Guard found approximately 300 kilograms of cocaine. After

Macias pled guilty, the district court imposed concurrent 120-month sentences.2




       1
         The parties dispute whether Macias’s newly raised constitutional argument is subject to
plain error review or is a jurisdictional challenge subject to de novo review. We need not resolve
this question as Macias fails to show any error at all, and thus his argument fails under either
standard of review. See United States v. Estupinan, 453 F.3d 1336, 1338 (11th Cir. 2006)
(declining to resolve which standard of review applies to a previously unraised challenge that
Congress exceeded its authority under the Piracies and Felonies Clause because the defendant’s
claim failed under “the more exacting standard of de novo review”).
       2
           Macias does not appeal his sentence.
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      The Piracies and Felonies Clause grants Congress the power “[t]o 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. As interpreted by the U.S. Supreme

Court, the Piracies and Felonies Clause contains “three distinct grants of power:”

(1) “the power to define and punish piracies” (the Piracies Clause); (2) “the power

to define and punish felonies committed on the high seas” (the Felonies Clause);

and (3) “the power to define and punish offenses against the law of nations,” (the

Offences Clause). United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1248 (11th

Cir. 2012). Macias’s case involves the exercise of the grant of power under the

Felonies Clause. The Felonies Clause is “textually limited to conduct on the high

seas.” Id..

      The MDLEA provides, in relevant part, that “[a]n individual may not

knowingly or intentionally . . . manufacture or distribute, or possess with intent to

manufacture or distribute, a controlled substance” while onboard “a vessel subject

to the jurisdiction of the United States.” 46 U.S.C. § 70503(a)(1), (e)(1). A

“vessel subject to the jurisdiction of the United States” includes “a vessel without

nationality.” Id. § 70502(c)(1)(A).

      By enacting the MDLEA, Congress specifically sought “to punish drug

trafficking on the high seas, because drug trafficking aboard vessels (1) is a serious

international problem and is universally condemned, and (2) presents a specific


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threat to the security and societal well-being of the United States.” United States

v. Estupinan, 453 F.3d 1336, 1338 (11th Cir. 2006) (quotation marks omitted). To

that end, the MDLEA broadly prohibits drug trafficking on any vessel subject to

the jurisdiction of the United States even if “the act is committed outside the

territorial jurisdiction of the United States.” 46 U.S.C. § 70503(a), (b).

      This Court has already twice rejected the argument that Congress exceeded

its authority under the Felonies Clause in enacting the MDLEA. See United States

v. Campbell, 743 F.3d 802, 809-10 (11th Cir.), cert. denied, 135 S. Ct. 704 (2014);

Estupinan, 453 F.3d at 1338-39. Moreover, “we have always upheld

extraterritorial convictions under our drug trafficking laws as an exercise of power

under the Felonies Clause.” Bellaizac-Hurtado, 700 F.3d at 1257; see also United

States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir. 1982) (“Having

determined that international law in no way restricts the right of the United States

to assert jurisdiction over stateless vessels on the high seas, we hold that Section

955a [the predecessor to the MDLEA] properly extends the criminal jurisdiction of

this country to any stateless vessel in international waters engaged in the

distribution of controlled substances”). As we explained in Campbell:

      The Felonies Clause empowers Congress to punish crimes committed
      on the high seas. And inasmuch as the trafficking of narcotics is
      condemned universally by law-abiding nations, we see no reason to
      conclude that it is fundamentally unfair for Congress to provide for
      the punishment of persons apprehended with narcotics on the high
      seas. Congress may assert extraterritorial jurisdiction over vessels in
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      the high seas that are engaged in conduct that has a potentially adverse
      effect and is generally recognized as a crime by nations that have
      reasonably developed legal systems.
743 F.3d at 810 (quotation marks and citations omitted). Based on this Court’s

well-settled precedent, there is no merit to Macias’s argument that the MDLEA as

applied to his drug trafficking in international waters exceeds Congress’s power

under the Felonies Clause.

      Citing this Court’s decision in Bellaizac-Hurtado, Macias contends that

under the Felonies Clause, Congress can proscribe conduct on the high seas only if

that conduct is recognized as a felony under customary international law, and that

his conduct, drug trafficking, does not violate customary international law.

Macias’s reliance on Bellaizac-Hurtado is misplaced.

      Bellaizac-Hurtado addressed Congress’s authority under the Offences

Clause to proscribe drug trafficking committed in another country’s waters, not

Congress’s power under the Felonies Clause to proscribe drug trafficking crimes

committed in international waters. See Bellaizac-Hurtado, 700 F.3d at 1248-49.

Specifically, Bellaizac-Hurtado concluded that the MDLEA was unconstitutional

under the Offences Clause as applied to defendants who had committed their drug

trafficking offense within the territorial waters of Panama. Id. at 1247, 1258. This

Court explained that Congress’s power under the Offences Clause to define

offenses against the law of nations is limited to proscribing violations of


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“customary international law,” and that drug trafficking, like most private criminal

activity, is not a violation of customary international law. Id. at 1249-58.3

Bellaizac-Hurtado reconfirmed, however, that “Congress possesses additional

constitutional authority to restrict conduct on the high seas,” through both the

Piracies Clause and the Felonies Clause, and that this Court has “always upheld

extraterritorial convictions under our drug trafficking laws as an exercise of power

under the Felonies Clause.” Id. at 1257 (emphasis added).

       Macias contends that under Bellaizac-Hurtado’s reasoning, the term “define”

in the Piracies and Felonies Clause limits Congress’s authority under all three

clauses to violations of customary international law. Thus, a court has jurisdiction

over felonies committed onboard a stateless vessel on the high seas only if

Congress has the power to “define” that crime as a felony under customary

international law.

       Macias misreads Bellaizac-Hurtado. The Court in Bellaizac-Hurtado

reasoned that it was the terms that follow “define” (i.e., “Piracies,” “Felonies


       3
         “Customary international law” is a term of art that refers to “a general and consistent
practice of states” that is followed out of “a sense of legal obligation” pertaining to “a matter of
mutual legal concern.” See Bellaizac-Hurtado, 700 F.3d at 1252. The fact that states universally
proscribe certain conduct in their domestic laws “is not necessarily significant or relevant for
purposes of customary international law.” Id. The subset of offenses which violate customary
international law that can be committed by a private individual and punished criminally is very
small. Id. at 1254. Such offenses include counterfeiting foreign currency, war crimes, crimes
against humanity, and violations of safe conducts or ambassadorial rights, but exclude most
malum in se crimes, even those universally condemned, such as rape and murder. Id. at 1254,
1256-57.
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committed on the high Seas,” and “against the Laws of Nations”) that narrow

Congress’s authority. See id. at 1249. And, unlike the Offences Clause, the

Felonies Clause is not narrowed by the language “against the Laws of Nations.”

See U.S. Const., art. I, § 8, cl. 10. Bellaizac-Hurtado’s discussion of the meaning

of the word “define” as it pertains to the Offences Clause does not support

Macias’s argument as to the Felonies Clause. Furthermore, the interpretation of

the Felonies Clause Macias urges upon us conflicts with this Court’s long-standing

precedent that “the assertion of jurisdiction over stateless vessels on the high seas

in no way transgresses recognized principles of international law.” See Marino-

Garcia, 679 F.2d at 1382.

      Macias does not dispute that he committed his drug trafficking offenses in

international waters. Therefore, Bellaizac-Hurtado does not apply, and Macias’s

prosecution under the MDLEA for drug trafficking crimes committed onboard a

stateless vessel in international waters is a constitutional exercise of extraterritorial

jurisdiction under the Felonies Clause. See U.S. Const. art. I, § 8, cl. 10;

Campbell, 743 F.3d at 809-10; Estupinan, 453 F.3d at 1339.

      For these reasons, we affirm Macias’s drug trafficking convictions under the

MDLEA and 120-month total sentence.

      AFFIRMED.




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