                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                      No. 16-10362
            Plaintiff-Appellee,
                                                D.C. No.
                  v.                     1:14-cr-00018-FMTG-2

FREDERICK A. OBAK,
         Defendant-Appellant.                    OPINION


           Appeal from the United States District Court
                     for the District of Guam
        Frances Tydingco-Gatewood, Chief District Judge,
                             Presiding

                  Submitted October 10, 2017 *
                      Honolulu, Hawaii

                       Filed March 13, 2018

        Before: Mary M. Schroeder, Dorothy W. Nelson,
          and M. Margaret McKeown, Circuit Judges.

                  Opinion by Judge McKeown




    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                   UNITED STATES V. OBAK

                          SUMMARY **


                          Criminal Law

    The panel affirmed a conviction in the United States
District Court for the District Court of Guam, in a case in
which the defendant argued that his constitutional right
under Article III, Section 2, clause 3 and the Sixth
Amendment to be tried in a state or district where the crime
was committed was violated because Guam is neither a state
nor a district.

    The panel dispensed with the defendant’s challenge to
the district court’s subject matter jurisdiction because under
the Organic Act of Guam, the District Court of Guam has the
same jurisdiction as a district court of the United States.

    The panel wrote that the defendant waived any objection
as to a defect in venue, but that the government, by not
raising the waiver issue, waived its ability to rely on the
defendant’s waiver. The panel wrote that the framework set
forth by Fed. R. Crim. P. 18 and 18 U.S.C. § 3237(a) places
venue in both Guam and Washington State.

    The panel held that the defendant’s Article III challenge
fails because, unlike certain other provisions of the United
States Constitution, Congress never extended Article III,
Section 2, clause 3 to Guam.

  Recognizing that Congress did extend the Sixth
Amendment in its entirety to Guam, the panel held that the

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. OBAK                       3

defendant’s Sixth Amendment right to a jury trial in the
“State and district wherein the crime shall have been
committed,” was not violated by laying venue in Guam. The
panel explained that to hold otherwise would require
ignoring the constitutional and statutory framework
established for Guam, overturn established precedent, and
effectively strip federal district courts located in
unincorporated territories of the ability to hear certain cases.


                         COUNSEL

Howard Trapp, Howard Trapp Incorporated, Hagåtña,
Guam, for Defendant-Appellant.

Garth R. Backe, Assistant United States Attorney; Shawn N.
Anderson, Acting United States Attorney; United States
Attorney’s Office, Guam and the Northern Mariana Islands,
Hagåtña, Guam; for Plaintiff-Appellee.



                          OPINION

McKEOWN, Circuit Judge:

    This appeal arises from a venue objection disguised as a
jurisdictional challenge. Frederick A. Obak appeals from his
conviction in the United States District Court for the District
of Guam based on his guilty plea for attempted possession
of methamphetamine with intent to distribute. Obak argues
that his constitutional right under Article III, Section 2,
clause 3 and the Sixth Amendment to be tried in a state or
district where the crime was committed was violated because
Guam is neither a state nor a district. Although Obak
4                  UNITED STATES V. OBAK

challenges the “jurisdiction” of the District Court of Guam,
the core of his complaint is that venue in Guam violated his
constitutional rights.

     Obak’s argument under Article III fails right off the bat
because, unlike certain other provisions of the United States
Constitution, Congress never extended Article III, Section 2,
clause 3 to Guam. In contrast, the Sixth Amendment, which
provides for the right to a jury trial in “the State and district
wherein the crime shall have been committed,” does apply
to Guam. But Obak is still not home free because Congress
has deemed Guam a “district.” Obak’s crime occurred in
part in the district of Guam and hence venue in Guam was
proper.

                         Background

    Obak, a citizen of Palau, has lived in Guam for the last
forty years. Obak was involved in a narcotics scheme in
which two individuals living in Guam, Amos Ueda and
Thomas Kautz, each agreed to receive a package containing
methamphetamine sent from Washington State. Obak
instructed them to contact him once the packages arrived in
Guam. As a precaution, Obak also arranged to have a Guam
Customs and Quarantine Officer, Jayvin Remoket, alert him
if law enforcement intercepted the packages. A United
States Postal Inspector intercepted the packages sent to Ueda
and Kautz, and the methamphetamine was replaced with a
sham product and a tracking device. Remoket informed
Obak that the package sent to Ueda had been intercepted, so
neither Obak nor Ueda accepted delivery. Obak later
admitted to law enforcement that he intended to possess the
methamphetamine and distribute it to other individuals.

   Obak pleaded guilty to two counts of attempted
possession of methamphetamine with intent to distribute, in
                   UNITED STATES V. OBAK                       5

violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C).
In the plea agreement, Obak waived, among other things, his
constitutional right to a jury trial, and his right “to appeal or
to collaterally attack any aspect of his conviction or sentence
including, but not limited to, any pretrial dispositions of
motions and other issues.” The plea agreement also
provided that Obak “acknowledges and agrees that this
waiver shall result in the dismissal of any appeal or collateral
attack [Obak] might file challenging his conviction or
sentence in this case, other than an attack based on alleged
ineffective assistance of counsel, alleged involuntariness of
[Obak’s] guilty plea, or alleged prosecutorial misconduct.”
The district court accepted the plea, at sentencing reiterated
the terms of the waiver, and sentenced Obak to 192 months
in prison.

    Within a week of the district court’s sentencing
judgment, Obak substituted his attorney and filed a motion
to dismiss the information on the ground that the District
Court of Guam was “without jurisdiction” because the
charged offenses were “cognizable only in the State and the
eastern or western federal judicial district of Washington.”
Because the court did not explicitly rule on this motion, we
proceed as if the motion were denied. Obak appeals the
judgment of conviction, arguing that his constitutional right
to be tried in the “State or district” where the alleged crime
was committed was violated because Guam is neither a state
nor a district. Because this is a criminal case, we review de
novo Obak’s claim of improper venue. See United States v.
Valdez-Santos, 457 F.3d 1044, 1046 (9th Cir. 2006).

                           Analysis

    Obak nominally raises a jurisdictional challenge, but this
case boils down to an argument over venue. See United
6                     UNITED STATES V. OBAK

States v. Roberts, 618 F.2d 530, 537 (9th Cir. 1980)
(“Occasionally courts speak in terms of jurisdiction when
they mean venue. This imprecision unfortunately causes
confusion, but it does not convert venue problems into
problems involving subject matter jurisdiction.” (citation
omitted)).

    We quickly dispense with Obak’s challenge to the
district court’s subject matter jurisdiction. Under the
Organic Act of Guam, the District Court of Guam has the
same jurisdiction as a district court of the United States. See
48 U.S.C. § 1424(b) (“The District Court of Guam shall have
the jurisdiction of a district court of the United States,
including, but not limited to, the diversity jurisdiction
provided for in section 1332 of Title 28, and that of a
bankruptcy court of the United States.”); see also United
States v. Santos, 623 F.2d 75, 77 (9th Cir. 1980) (holding
that the District Court of Guam has jurisdiction to hear
criminal cases involving violations of federal law).

     Having resolved the challenge to jurisdiction, we now
turn to the question of venue. By entering a guilty plea,
Obak waived any objection as to a defect in venue. 1 Even
though certain venue restrictions may be grounded in the
Constitution, “[t]his ‘constitutional venue’ right, like other
venue rights, can be waived.” Roberts, 618 F.2d at 537
(citing United States v. Powell, 498 F.2d 890, 891 (9th Cir.
1974)). However, inexplicably the government’s brief

    1
      In the plea agreement, Obak explicitly agreed to waive his right to
a jury trial and his right to appeal or collaterally attack the conviction or
sentence, except on the grounds of ineffective assistance of counsel,
involuntariness of the plea, or prosecutorial misconduct. Obak did not
challenge any of these grounds on appeal. The Supreme Court’s recent
decision in Class v. United States does not change this result. No. 16-
424, 2018 WL 987347 (U.S. Feb. 21, 2018).
                    UNITED STATES V. OBAK                          7

responded to the merits and did not raise the waiver issue.
So, the government waived its ability to rely on Obak’s
waiver. United States v. Garcia–Lopez, 309 F.3d 1121, 1122
(9th Cir. 2002) (holding that “the government can waive the
waiver”); see also United States v. Story, 439 F.3d 226, 230–
31 (5th Cir. 2006) (noting that, “[i]n the absence of the
government’s objection to [the defendant’s] appeal based on
his appeal waiver, the waiver is not binding because the
government has waived the issue.”); United States v. Jacobo
Castillo, 496 F.3d 947, 949, 957 (9th Cir. 2007) (en banc)
(holding that a valid guilty plea does not deprive the
appellate court of jurisdiction).

    The starting point for analyzing venue is the Federal
Rules of Criminal Procedure, which provide that “the
government must prosecute an offense in a district where the
offense was committed.” Fed. R. Crim. P. 18. 2 When a
crime is a “continuing offense,” that is, “begun in one district
and completed in another, or committed in more than one
district,” venue is proper “in any district in which [the crime]
was begun, continued, or completed.” 18 U.S.C. § 3237(a);
see Valdez-Santos, 457 F.3d at 1046. An offense involving
“the use of the mails” is a continuing offense, and venue is
proper “in any district from, through, or into which” the mail
moves. 18 U.S.C. § 3237(a). This framework places venue
in both Guam and Washington State. Obak’s crime began in
Washington State, where the packages of methamphetamine
were placed in the mail, and continued and/or was completed
in Guam.

   Obak attempts to circumvent this result by relying on
two constitutional venue provisions. Under Article III,

    2
      Under Rule 1(a)(3)(A), these rules “govern the procedure in all
criminal proceedings” in “the district court of Guam.”
8                    UNITED STATES V. OBAK

Section 2, clause 3, “Trial shall be held in the State where
the said Crimes shall have been committed; but when not
committed within any State, the Trial shall be at such Place
or Places as the Congress may by Law have directed.” U.S.
Const. Art. III § 2, cl. 3. The Sixth Amendment guarantees
a right to a jury trial in “the State and district wherein the
crime shall have been committed, which district shall have
been previously ascertained by law.” U.S. Const. amend.
VI. Neither provision offers Obak the relief he seeks.

    As a preliminary matter, we consider whether Obak, a
resident of Guam for forty years, can avail himself of these
constitutional protections. With the exception of certain
“fundamental rights,” constitutional rights do not
automatically apply to unincorporated territories such as
Guam. See Guam v. Guerrero, 290 F.3d 1210, 1214, 1217
(9th Cir. 2002) (“Guam is a federal instrumentality, enjoying
only those rights conferred to it by Congress.”); see also 48
U.S.C. § 1421a (“Guam is declared to be an unincorporated
territory of the United States.”). Thus, “[a]n act of Congress
is required to extend constitutional rights to the inhabitants
of unincorporated territories.” Guerrero, 290 F.3d at 1214. 3

   In Pugh v. United States, we held that neither Article III,
Section 2, clause 3 nor the Sixth Amendment have

    3
       For example, it was only after Congress enacted the Revised
Organic Act of 1954 that inhabitants of the Virgin Islands—an
unincorporated territory—were provided with a constitutional right to a
jury trial. See Gov’t of Virgin Islands v. Bodle, 427 F.2d 532, 533–34
n.1 (3d Cir. 1970) (“All aspects of the Constitution do not ex proprio
vigore become operative in unincorporated territories, and until a
territory is incorporated into the United States, full constitutional
guarantees remain in abeyance. . . . Congress, however, has provided the
right to a jury trial in criminal cases to the inhabitants of the Virgin
Islands by virtue of the Revised Organic Act of 1954, 48 U.S.C.
§ 1616.”); see also 48 U.S.C. § 1561.
                     UNITED STATES V. OBAK                              9

“application to the Island of Guam or to the courts therein in
the absence of some act of Congress extending their
application there.” 212 F.2d 761, 762–63 (9th Cir. 1954).
However, in 1968, revisions to the Organic Act—known as
the Mink Amendment—extended certain constitutional
rights to Guam, including the Sixth Amendment in its
entirety. Guerrero, 290 F.3d at 1214; see 48 U.S.C.
§ 1421b(u) (“The following provisions of and amendments
to the Constitution of the United States are hereby extended
to Guam to the extent that they have not been previously
extended to that territory and shall have the same force and
effect there as in the United States or in any State of the
United States: . . . the first to ninth amendments
inclusive . . . .”). However, Congress has not similarly
extended Article III, Section 2, clause 3 to Guam. 4 See
generally Arnold H. Leibowitz, The Applicability of Federal
Law to Guam, 16 Va. J. Int’l L. 21, 29-31 (1975) (noting that
the Organic Act of 1950 and the 1968 amendment extended
numerous, but not all, constitutional rights to Guam). Thus,
our holding in Pugh—that Article III, Section 2, clause 3
does not apply to Guam—still stands. 212 F.2d at 762–63.
Obak may avail himself of the constitutional protections of
the Sixth Amendment but not of the protections of Article
III, Section 2, clause 3.

    Finally, we address whether Obak’s Sixth Amendment
right to a jury trial in the “State and district wherein the crime
shall have been committed” was violated.                   Again,
inexplicably, the government didn’t argue that Obak’s


    4
      Obak conceded as much in his supplemental briefing, stating that
Article III, Section 2, clause 3 “does not include Guam.” The
government was in accord. The court requested supplemental briefing
from both parties on the applicability of the constitutional provisions to
Guam.
10                UNITED STATES V. OBAK

appeal waiver precludes this challenge. But even with this
omission by the government, Obak cannot prevail.

    To give effect to the congressional extension of the Sixth
Amendment to Guam, it makes no common sense to claim
that Guam is not a state or a district such that venue cannot
be laid in Guam. Otherwise, having the same “force and
effect” in Guam as “in any State of the United States” would
strip away part of the amendment as extended to Guam. As
noted earlier, under 48 U.S.C. § 1424, “[t]he District Court
of Guam shall have the jurisdiction of a district court of the
United States.” Reinforcing that provision, we have held
that “the term ‘district’ includes territories containing
‘district courts’ pursuant to an act of Congress.” United
States v. Lee, 472 F.3d 638, 644 (9th Cir. 2006) (providing
that, unlike Guam, American Samoa is not a “district”
because it is a territory that lacks a district court) (citing
United States v. Santos, 623 F.2d 75, 77 (9th Cir. 1980)).
We have invoked this rationale to reject the argument that
Obak now advances—that venue in Guam is improper
because Guam is neither a state nor a district. For example,
in United States v. Santos, we held that 18 U.S.C. § 3238—
a venue statute that applies when an offense is “not
committed in any district”—did not apply when a
defendant’s offense occurred in Guam. 623 F.2d 75, 77 (9th
Cir. 1980) (per curiam). Citing 48 U.S.C. § 1424, we
rejected the argument that Guam is not a judicial district and
held that an offense committed there is not “out of the
jurisdiction of any particular district.” Id.

     We hold that Obak’s Sixth Amendment right to a jury
trial in the “State and district wherein the crime shall have
been committed” was not violated by laying venue in Guam.
To hold differently would require us to ignore the
constitutional and statutory framework established for
                  UNITED STATES V. OBAK                      11

Guam, overturn established precedent, and effectively strip
federal district courts located in unincorporated territories of
the ability to hear certain cases.

    AFFIRMED.
