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                                                                         [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-15011
                           ________________________

                       D.C. Docket No. 1:17-cr-20221-JEM-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ISABEL YERO GRIMON,

                                                             Defendant-Appellant.

                           ________________________

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

                                 (May 13, 2019)

Before MARCUS, GRANT and HULL, Circuit Judges.

HULL, Circuit Judge:

      After pleading guilty, Isabel Yero Grimon appeals her convictions for

possessing 15 or more unauthorized access devices and aggravated identity theft.
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Defendant Grimon argues that the factual proffer supporting her guilty plea was

insufficient to establish that the unauthorized access devices she possessed affected

interstate commerce and, therefore, the district court lacked subject matter

jurisdiction. The question presented is whether the district court has subject matter

jurisdiction over a criminal case to accept a guilty plea where: (1) the indictment

charges a violation of a valid federal criminal statute and sets forth the interstate

commerce element of the crime; (2) the factual proffer for the guilty plea states the

government at trial would prove that the defendant’s conduct affected interstate

commerce; but (3) the factual proffer does not contain any underlying facts

explaining how the interstate commerce nexus was satisfied.

      After review, and with the benefit of oral argument, we conclude that the

interstate commence element in § 1029(a)(3) is not “jurisdictional” in the sense of

bearing on whether the district court has subject matter jurisdiction to adjudicate a

case, and thus the government’s alleged failure to prove sufficiently the interstate

commerce nexus does not deprive the district court of its subject matter jurisdiction

over Grimon’s criminal case. Thus, we affirm Grimon’s convictions.

                                 I. BACKGROUND

A.    Arrest

      On January 18, 2017, officers conducted a traffic stop of Grimon’s vehicle

after observing her swerving between lanes and determining, through a records


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check, that there was an active warrant for her arrest out of Texas. Grimon was

arrested on the active warrant, and officers conducted a search incident to that

arrest.

          During the search, officers found 19 blank credit cards in Grimon’s vehicle,

16 of which were encoded with account numbers issued to 10 other persons.

Officers also recovered a thumb drive from Grimon, which contained 134 credit

card account numbers issued to other persons. Grimon admitted that (1) she knew

the blank cards were re-encoded with credit card account numbers issued to other

persons, (2) the credit card numbers on the thumb drive did not belong to her, and

(3) she was not authorized to possess those account numbers by their owners.

B.        Indictment and Plea

          In March 2017, a federal grand jury charged Grimon with (1) one count of

possession of 15 or more unauthorized access devices, in violation of 18 U.S.C.

§ 1029(a)(3) (Count 1), and (2) three counts of aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1) (Counts 2-4). Count 1 specifically charged

that Grimon knowingly, and with intent to defraud, possessed 15 or more

unauthorized access devices and that “said conduct affect[ed] interstate and foreign

commerce.”

          In July 2017, pursuant to a written plea agreement, Grimon pled guilty to

Counts 1 and 2 of the indictment, and the government agreed to dismiss Counts 3


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and 4. In connection with her plea agreement, Grimon executed a factual proffer

detailing the offense conduct described above. As to all of the elements of Count

1, Grimon’s factual proffer stated that, had the case gone to trial, the government

would have proved beyond a reasonable doubt that Grimon “did knowingly, and

with intent to defraud, possess fifteen (15) or more devices which are counterfeit

and unauthorized access devices, said conduct affecting interstate and foreign

commerce.”

      At the change of plea hearing, Grimon confirmed, through an interpreter,

that she received a copy of the indictment and had an opportunity to fully discuss

the charges with her attorney. The government summarized the charges in Counts

1 and 2. In doing so, the government explicitly stated with respect to Count 1 that

one of the elements of the offense “is that the Defendant’s conduct in some way

affected commerce between one state and other states or between a state of the

United States and a foreign country.” Grimon then confirmed that she understood

the charges to which she was pleading guilty. The government also read the

factual proffer into the record. That proffer included a stipulation that the

government would have proven at trial that Grimon “did knowingly and with intent

to defraud, possess 15 or more devices which are counterfeit and unauthorized

access devices, said conduct affecting interstate and foreign commerce.”




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      After this recitation, through an interpreter, Grimon agreed that the

government’s recitation of the facts was correct and that it could prove those facts

at trial. Grimon also confirmed that she had read and discussed the factual proffer

with her attorney before signing it. Grimon’s attorney stated that he was bilingual

and was able to translate the factual proffer into Spanish for Grimon, that he

explained the factual proffer to her, and that he was confident she understood its

contents.

      Grimon pled guilty to Counts 1 and 2, and the district court accepted her

plea. The district court found that Grimon was “fully competent and capable of

entering an informed plea” and that “her pleas of guilty [were] knowing and

voluntary pleas supported by an independent basis in fact containing each of the

essential elements of the offenses.”

C.    Sentence

      Following a sentencing hearing, the district court sentenced Grimon to 12

months’ imprisonment on her § 1029(a)(3) access device conviction in Count 1,

followed by a mandatory consecutive term of 24 months’ imprisonment on her

§ 1028A(a)(1) aggravated identity theft conviction in Count 2. Grimon’s total

sentence is thus 36 months’ imprisonment. At that time, the district court

dismissed Counts 3 and 4 of the indictment.




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       Grimon now appeals her convictions.1

                                      II. DISCUSSION

       On appeal, Grimon argues that the district court lacked subject matter

jurisdiction over her offenses because the factual proffer (1) merely stipulated to

the interstate commerce element of her access device offense and (2) did not

contain any underlying facts showing that her possession of counterfeit credit cards

and account numbers affected interstate commerce. Grimon stresses that the credit

cards were never used.

       The government responds that its indictment charged Grimon with violating

a valid federal statute, alleged an offense against the United States and, therefore,

invoked the district court’s subject matter jurisdiction. The government argues that

even if Grimon’s stipulation—that her conduct affected interstate commerce—was

an insufficient factual basis for the interstate commerce element of her offense, that

did not deprive the district court of subject matter jurisdiction to accept her plea.

       Whether the district court had “subject matter jurisdiction is a question of

law that we review de novo even when raised for the first time on appeal.” United

States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir. 2016).




       1
         On appeal, Grimon does not challenge the district court’s sentencing guidelines
calculations or the procedural or substantive reasonableness of her sentence.
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A.    Subject Matter Jurisdiction

      “Subject matter jurisdiction,” which Congress bestows on the lower federal

courts by statute, “defines the court’s authority to hear a given type of case.”

United States v. Morton, 467 U.S. 822, 828, 104 S. Ct. 2769, 2773 (1984); United

States v. Brown, 752 F.3d 1344, 1348 (11th Cir. 2014). In the context of federal

crimes, Congress has granted federal district courts original jurisdiction “of all

offenses against the laws of the United States.” Brown, 752 F.3d at 1348; 18

U.S.C. § 3231. As such, “[s]o long as the indictment charges the defendant with

violating a valid federal statute as enacted in the United States Code, it alleges ‘an

offense against the laws of the United States,’ and, thereby, invokes the district

court’s subject-matter jurisdiction.” Brown, 752 F.3d at 1354; see also Alikhani v.

United States, 200 F.3d 732, 734–35 (11th Cir. 2000). An effect on interstate

commerce may be required for Congress to have authority under the Commerce

Clause to forbid the conduct and make it a federal crime in the first place. United

States v. Lopez, 514 U.S. 549, 562, 115 S. Ct. 1624, 1631 (1995). But if an

indictment itself alleges a violation of a valid federal statute, the district court has

subject matter jurisdiction of that case.

      In contrast to subject matter jurisdiction, some federal statutes do contain

what is referred to as a “jurisdictional element”—that is, an element of the offense

requiring the government to prove that the defendant’s offense had some nexus


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with interstate or foreign commerce. See, e.g., United States v. Suarez, 893 F.3d

1330, 1333 (11th Cir. 2018) (“This statute contains a jurisdictional element—the

offense, in the case of an attempt, ‘would have affected interstate or foreign

commerce.’” (quoting 18 U.S.C. § 2332a(a)(2)(D))). In this very case,

§ 1029(a)(3), under which Grimon was convicted in Count 1, contains such an

interstate commerce element. 18 U.S.C. § 1029(a)(3). Specifically, § 1029(a)(3)

provides that whoever “knowingly and with intent to defraud possesses fifteen or

more devices which are counterfeit or unauthorized access devices . . . shall, if the

offense affects interstate or foreign commerce, be punished as provided in

subsection (c) of this section.” Id. (emphasis added).

      Nonetheless, interstate commerce jurisdictional elements, such as

§ 1029(a)(3)’s, are not “jurisdictional” in the sense of bearing on whether or not

the district court has subject matter jurisdiction or authority to adjudicate the case.

See Alikhani, 200 F.3d at 735. Rather, the interstate commerce element is

“jurisdictional” only in the sense that it relates to the power of Congress to regulate

the forbidden conduct. See id.; see also Lopez, 514 U.S. at 561-62, 115 S. Ct. at

1631 (indicating that interstate commerce elements are meant to limit the reach of

federal statutes to ensure the conduct they regulate falls within Congress’s

Commerce Clause powers).




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      This Court has therefore explained that, when it comes to federal criminal

statutes requiring an interstate commerce nexus, the government’s failure to

sufficiently allege or prove the interstate commerce element does not deprive the

district court of its subject matter jurisdiction over the criminal case. Alikhani, 200

F.3d at 735. This Court in Alikhani reasoned that, while “[a]n effect on interstate

commerce may be required for Congress to have authority under the Commerce

Clause to forbid certain conduct,” that “does not imply that a district court faced

with an insufficient interstate-commerce nexus loses subject-matter jurisdiction of

the case.” Id. Stated differently, even if an indictment fails to allege sufficient

facts to support, or the government does not present sufficient evidence to prove,

an interstate commerce nexus, the district court still has subject matter jurisdiction

to adjudicate the case under § 3231, including, for example, the power to dismiss

the indictment for failure to allege facts showing the defendant committed the

charged offense. See id.; see also Brown, 752 F.3d at 1348-49 (discussing

Alikhani).

      Here, Grimon makes the same argument this Court explicitly rejected in

Alikhani. Grimon asserts that because her stipulated factual proffer merely stated

that her § 1029(a)(3) offense affected interstate commerce, without providing

supporting facts to explain how her conduct affected interstate commerce, the

district court lacked subject matter jurisdiction over her case. But as this Court


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explained in Alikhani, the government’s alleged failure to sufficiently establish an

interstate commerce nexus does not deprive the district court of its subject matter

jurisdiction under § 3231. See Alikhani, 200 F.3d at 735. All that was required for

the district court to exercise subject matter jurisdiction over Grimon’s case was an

indictment charging her with a violation of a valid federal law enacted in the

United States Code, and the indictment here did just that. See Brown, 752 F.3d at

1354. The indictment tracked the statutory language in § 1029(a)(3), charging that

Grimon:

      did knowingly, and with intent to defraud, possess fifteen (15) or more
      counterfeit and unauthorized access devices, that is, counterfeit credit
      cards encoded with account numbers issued to other persons and credit
      card account numbers issued to other persons, said conduct affecting
      interstate and foreign commerce, in violation of Title 18, United States
      Code, Sections 1029(a)(3) and 2.

Whether that indictment sufficiently alleged, or Grimon’s subsequent factual

proffer sufficiently demonstrated, an interstate nexus is merely a non-jurisdictional

challenge to the sufficiency of the evidence as to that element of the offense and

has no bearing on the district court’s power to adjudicate her case or subject matter

jurisdiction. See Alikhani, 200 F.3d at 735. Thus, we reject Grimon’s claim that

the district court lacked subject matter jurisdiction to accept her plea.

B.    Iguaran

      We recognize that Grimon relies on this Court’s decision in United States v.

Iguaran, 821 F.3d 1335 (11th Cir. 2016). But as we explain below, that reliance is
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misplaced. Iguaran dealt with a wholly different statutory scheme, which, unlike

§ 1029(a)(3), specifically requires the district court to make a preliminary

determination regarding subject matter jurisdiction—not just an interstate

commerce “jurisdictional element”—before proceeding with a case.

      In Iguaran, the defendant pled guilty to a cocaine conspiracy offense under

the Maritime Drug Law Enforcement Act (“MDLEA”). Id. at 1336. Among other

things, the statutory text of the MDLEA “makes it a crime to conspire to distribute

a controlled substance while on board ‘a vessel subject to the jurisdiction of the

United States.’” Id. (quoting 46 U.S.C. §§ 70503(a)(1), 70506(b)). Unlike the

interstate commerce element in § 1029(a)(3), this “vessel subject to the jurisdiction

of the United States” requirement in the MDLEA is “jurisdictional” in the true,

subject matter jurisdiction sense of the word. See id. Specifically, the MDLEA

expressly states that “‘[j]urisdiction of the United States with respect to a vessel

subject to this chapter is not an element of an offense.’” Id. (quoting 46 U.S.C.

§ 70504(a)). Instead, “‘[j]urisdictional issues arising under this chapter are

preliminary questions of law to be determined solely by the trial judge.’” Id.

(quoting 46 U.S.C. § 70504(a)).

      In light of this statutory language in the MDLEA, this Court has “interpreted

the on board a vessel subject to the jurisdiction of the United States” provision “as

a congressionally imposed limit on courts’ subject matter jurisdiction, akin to the


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amount-in-controversy requirement contained in 28 U.S.C. § 1332.” Id. (internal

quotation marks and citation omitted). Consequently, for a district court to have

adjudicatory authority over a charge that the defendant conspired to violate a

substantive crime defined in the MDLEA, the government must make a

preliminary showing that the vessel was, when apprehended, subject to the

jurisdiction of the United States. Id.

      In Iguaran, this Court vacated the defendant’s guilty plea because the district

court did not make any factual findings with respect to its subject matter

jurisdiction under the MDLEA, and the record contained no facts from which such

jurisdiction could be determined. See id. at 1337–38. We then remanded the case

to the district court for the limited purpose of determining whether subject matter

jurisdiction existed, after affording both parties an opportunity to present evidence

bearing on whether Iguaran’s vessel was subject to the jurisdiction of the United

States. Id. at 1338.

      Though Grimon is correct that this Court held in Iguaran that parties may not

stipulate to jurisdiction, but rather only to underlying facts that bear on the

jurisdictional inquiry, that holding is simply irrelevant to her case. Id. at 1337.

Iguaran involved the MDLEA, where the statutory text made clear that

“jurisdiction” is not merely an element of the offense. See id. at 1336

(“‘Jurisdiction of the United States with respect to a vessel subject to this chapter is


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not an element of an offense.’” (emphasis added) (quoting 46 U.S.C. § 70504(a))).

Iguaran, as explained above, dealt with a statutory requirement that was truly

“jurisdictional”—that is, without facts showing that Iguaran’s vessel was subject to

the jurisdiction of the United States, the district court in that case had no authority

to adjudicate his case. Id.

      Here, by contrast, § 1029(a)(3) did not require the district court to determine

that Grimon’s offense affected interstate commerce to have subject matter

jurisdiction. See 18 U.S.C. § 1029(a)(3). Rather, the interstate nexus requirement

was simply one of several elements of Grimon’s § 1029(a)(3) offense that the

government had to prove. See id.; United States v. Klopf, 423 F.3d 1228, 1240

(11th Cir. 2005) (indicating that an effect on interstate or foreign commerce is an

element for offenses under § 1029(a)). Neither Iguaran nor any other case cited by

Grimon has held that this interstate nexus requirement is akin to the amount in

controversy requirement in 28 U.S.C. § 1332 or to the jurisdictional requirement in

the MDLEA. And we squarely hold that it is not. So, whether the government

proved the interstate commerce nexus or failed to prove it, the district court still

had subject matter jurisdiction over Grimon’s case and her Count 1 conviction.

See Alikhani, 200 F.3d at 735.

      As to her aggravated identity theft conviction in Count 2, Grimon’s statute

of conviction, 18 U.S.C. § 1028A(a)(1), itself does not contain an interstate


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commerce element. See 18 U.S.C. § 1028A. However, because a conviction

under § 1028A is predicated on the unlawful transfer, possession, or use of a

means of identification “during and in relation to [an enumerated] felony

violation,” Grimon argues that, if the district court lacked subject matter

jurisdiction over the § 1029(a)(3) offense in Count 1, it likewise lacked subject

matter jurisdiction over the § 1028A(a)(1) offense in Count 2. For the reasons

stated above, we reject Grimon’s jurisdiction claim as to Count 2 as well.

C.    No Other Claim

      As a final matter, Grimon’s brief on appeal did not raise any error or

argument other than the subject matter jurisdictional one addressed above. More

specifically, as the government points out, Grimon has not raised on appeal, and

has therefore abandoned, any claim or argument that the alleged insufficiency of

the factual proffer as to the interstate commerce element violated Federal Rule of

Criminal Procedure 11 or rendered her plea unknowing or involuntary. See United

States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (explaining that issues

not raised on appeal are deemed abandoned).

      Accordingly, we do not address whether any alleged insufficiency in

Grimon’s factual proffer as to the interstate commerce element of her § 1029(a)(3)

offense invalidated her guilty plea. Because Grimon has raised no claim of Rule

11 error, we also do not address the government’s argument that the doctrine of


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invited error applies because Grimon agreed in her factual proffer that the

government could have established at trial that her conduct affected interstate or

foreign commerce.

                               III. CONCLUSION

      For the foregoing reasons, we affirm Grimon’s two convictions.

      AFFIRMED.




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