              Case: 13-12290     Date Filed: 10/25/2013   Page: 1 of 8


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 13-12290
                               Non-Argument Calendar
                             ________________________

                      D.C. Docket Nos. 1:12-cv-21466-MGC,
                             1:09-cr-20428-MGC-2


CESAR ROLANDO HERNANDEZ,

                                                               Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                           ________________________

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

                                 (October 25, 2013)

Before DUBINA, PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:

      Appellant Cesar Hernandez, proceeding pro se, appeals the district court’s

denial of his timely 28 U.S.C. § 2255 motion to vacate, correct, or set aside his
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sentence of 48 months’ imprisonment for conspiracy to possess cocaine on board a

vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§

70503(a) and 70506(b). On appeal, Hernandez first argues that the district court

erred in finding that he was not prejudiced by his counsel’s failure to object at

sentencing to the district court’s decision to award him nine months’ credit for time

served while awaiting extradition. He argues that the Bureau of Prisons (“BOP”)

had the exclusive authority to award such credit, and the sentencing court’s

decision resulted in an additional 71 days’ imprisonment. Second, Hernandez

argues that his counsel was unconstitutionally ineffective for advising him to plead

guilty to the Maritime Drug Law Enforcement Act (“MDLEA”), which, in light of

United States v Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), is

unconstitutional on its face and as applied to him.

      He also asserts that the MDLEA violates the Fifth and Sixth Amendments

by removing from the jury a question of fact regarding its constitutional and

statutory jurisdiction, and further argues that the MDLEA was unconstitutional as

applied to him because he was neither captured on board a vessel subject to the

jurisdiction of the United States nor captured on the high seas. We lack

jurisdiction to consider these additional arguments, however, because they are

outside the scope of the certificate of appealability (“COA”). See Murray v.

United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (explaining that appellate


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review of a § 2255 motion is limited to only those issues specified in the COA);

see also 28 U.S.C. § 2253(c)(3).

                                           I.

      To review the denial of a § 2255 motion, we review questions of law de

novo and findings of fact for clear error. Devine v. United States, 520 F.3d 1286,

1287 (11th Cir. 2008). A claim for ineffective assistance of counsel is a mixed

question of law and fact that we review de novo. Id. “Pro se pleadings are held to

a less stringent standard than pleadings drafted by attorneys” and will be liberally

construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

      To make a successful claim of ineffective assistance of counsel, a defendant

must show both that his counsel’s performance was deficient and that the deficient

performance prejudiced his defense, and a defendant’s claim fails if he cannot

demonstrate both. Strickland v. Washington, 466 U.S. 668, 687, 697, 104 S.Ct.

2052, 2064, 2069 (1984). We are not required to consider the two prongs in any

particular order. Dell v. United States, 710 F.3d 1267, 1273-74 (11th Cir. 2013).

Because the petitioner must establish both prongs, we need not address the

performance prong if the prejudice prong cannot be satisfied, and vice versa. Id. at

1274 (citation omitted).

      Regarding the performance prong, “counsel is strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise of


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reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

The prisoner must “establish that counsel performed outside the wide range of

reasonable professional assistance and made errors so serious that he failed to

function as the kind of counsel guaranteed by the Sixth Amendment.” Butcher v.

United States, 368 F.3d 1290, 1293 (11th Cir. 2004). To show prejudice, a

defendant must establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. “The prejudice prong requires a

petitioner to demonstrate that seriously deficient performance of his attorney

prejudiced the defense.” Butcher, 368 F.3d at 1293.

      Section 3585(b) of Title 18 of the United States Code provides that “[a]

defendant shall be given credit toward the service of a term of imprisonment for

any time he has spent in official detention prior to the date the sentence

commences . . . as a result of the offense for which the sentence was imposed . . . .”

18 U.S.C. § 3585(b)(1). “Authority to calculate credit for time served under

section 3585(b) is vested in the Attorney General, not the sentencing court.”

United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010). After

sentencing, “the Attorney General, through the BOP, has the responsibility for

administering the sentence,” and credit for time served is administered by the




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attorney general through the BOP. United States v. Wilson, 503 U.S. 329, 335, 112

S.Ct. 1351, 1355 (1992).

      We conclude from the record that Hernandez’s counsel was not ineffective

for failing to object to the district court’s decision to reduce Hernandez’s sentence

for time spent incarcerated while awaiting extradition to the United States from

Colombia because Hernandez cannot show prejudice from the sentence reduction.

                                          II.

      As stated above, the Strickland test for determining whether a defendant

received ineffective assistance of counsel is a two-part inquiry: (1) whether

counsel’s representation fell below an objective standard of reasonableness and

(2) whether that deficient performance resulted in prejudice toward the defendant.

466 U.S. at 687, 104 S.Ct. at 2064. To satisfy the prejudice requirement in the plea

context, a defendant must establish “a reasonable probability that, but for counsel’s

error, he would not have pleaded guilty and would have insisted on going to trial.”

Gordon v. United States, 518 F.3d 1291, 1297 (11th Cir. 2008) (internal quotation

marks omitted).

      The United States Constitution empowers Congress “[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. The Supreme Court determined that this

Clause provides three separate powers: “the power to define and punish piracies,


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the power to define and punish felonies committed on the high seas, and the power

to define and punish offenses against the law of nations.” Bellazaic-Hurtado, 700

F.3d at 1248 (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 158-59,

5 L.Ed. 57 (1820)). Regarding the second power, “Congress possesses additional

constitutional authority to restrict conduct on the high seas, including the Piracies

Clause, the Felonies Clause, and the admiralty power. And we have always upheld

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

under the Felonies Clause.” Id. at 1257 (internal citations omitted).

      The MDLEA provides that “[a]n individual may not knowingly or

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

distribute, a controlled substance on board . . . a vessel subject to the jurisdiction of

the United States.” 46 U.S.C. § 70503(a)(1). Further, the law “applies even

though the act is committed outside the territorial jurisdiction of the United States.”

Id. § 70503(b). The United States criminalized this activity because it is “a serious

international problem and is universally condemned” and it “presents a specific

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

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

(interpreting former 46 U.S.C. app. § 1903(a), the prior codification of the

MDLEA). We held that “we see no reason to conclude that it is ‘fundamentally

unfair’ for Congress to provide for the punishment of persons apprehended with


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narcotics on the high seas.” Id. at 1339 (quoting United States v. Martinez-

Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993)). Thus, we held that Congress did

not “exceed[] its authority under the Piracies and Felonies Clause in enacting the

MDLEA.” Id. Further, we determined that “the MDLEA jurisdictional

requirement does not raise factual questions that traditionally would have been

treated as elements of an offense under common law.” United States v. Tinoco,

304 F.3d 1088, 1108 (11th Cir. 2002). The MDLEA’s requirement that the vessel

be subject to the jurisdiction of the United States is not an element of the offense.

Id.

      In Bellaizac-Hurtado, we determined that the MDLEA was unconstitutional

as applied to the facts in that case. 700 F.3d at 1258. There, we specifically

determined that, “[b]ecause drug trafficking is not a violation of customary

international law, . . . Congress exceeded its power, under the Offences Clause,

when it proscribed the defendants’ conduct in the territorial waters of Panama.” Id.

We explained that we had “never held that Congress has the power, under the

Offences Clause, to apply our drug trafficking laws to the conduct in the territorial

waters of another State.” Id. at 1257. However, in Bellaizac-Hurtado, we

affirmed Congress’s authority to restrict conduct on the high seas pursuant to the

Piracies and Felonies Clauses. Id.




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      Based on our review of the record, we conclude that defense counsel was not

ineffective for advising Hernandez to plead guilty to the MDLEA. Contrary to

Hernandez’s assertion, the statute was constitutional as applied to him.

      For the aforementioned reasons, we affirm the district court’s order denying

Hernandez’s 28 U.S.C. §2255 motion to vacate, correct, or set aside his sentence.

      AFFIRMED.




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