            Case: 19-13861   Date Filed: 08/17/2020   Page: 1 of 8



                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-13861
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:18-cr-00248-SDM-SPF-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JAVIER FRANCISCO,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 17, 2020)

Before WILSON, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Javier Francisco pleaded guilty to conspiring to possess with the intent to

distribute five kilograms or more of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of the Maritime Drug Law Enforcement

Act (MDLEA). Francisco argues on appeal that his conviction violates the Fifth and

Sixth Amendments to the United States Constitution and the separation-of-powers

doctrine. He also argues that the sentence-appeal waiver in his plea agreement is

unconstitutional. We affirm.

        FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      On May 12, 2018, a United States Coast Guard helicopter spotted a “go-fast”

vessel in the Pacific Ocean approximately 330 nautical miles south of Acapulco,

Mexico. The coast guard deployed a small boat to intercept the vessel, and the boat

and helicopter chased the vessel for approximately two hours. As the coast guard’s

boat approached the vessel, the vessel ignored the coast guard’s instructions to stop

and instead sped away. The vessel also dropped some of its cargo into the ocean.

The coast guard fired warning shots and disabling shots at the vessel, and eventually

the vessel went dead in the water.

      The vessel did not display the flag of any nation or have any indicators as to

its nationality.   The coast guard boarded the vessel and detained its three

crewmembers, including Francisco. All three men claimed Mexican nationality but

did not have any identification. One of the men claimed to be the captain and said


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the vessel had Mexican nationality, but he did not present any supporting documents.

The coast guard reached out to the Mexican government and provided it a description

of the vessel, the location of its interception, and the name of the purported captain.

After communicating with the Mexican government, the coast guard searched the

vessel and found several kilograms of cocaine. Francisco and the other two men

were taken into custody and eventually transported to the Middle District of Florida.

      On May 24, 2018, a grand jury charged Francisco with one count of

conspiring to distribute and possess with intent to distribute five kilograms or more

of cocaine while aboard a vessel subject to the jurisdiction of the United States, in

violation of 46 U.S.C. section 70506(b), and one count of possessing with the intent

to distribute five kilograms or more of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. section 70503(a).

Francisco moved to dismiss the indictment, arguing that (1) the MDLEA’s venue

provision, which allows certain offenses to be tried in any federal district, violates

the delegation doctrine; (2) the district court lacked jurisdiction because the

government failed to prove that the vessel was stateless; and (3) due-process

principles required the district court to find a “sufficient nexus” between the acts

charged and the United States. A magistrate judge recommended that the motion be

denied. The district court adopted the recommendation over Francisco’s objections

and denied his motion.


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      On June 3, 2019, Francisco pleaded guilty to the conspiracy count pursuant to

a written plea agreement. The agreement included a sentence-appeal waiver by

which Francisco agreed to waive his right to appeal his sentence except under limited

circumstances. At his plea hearing, Francisco confirmed that he understood the

terms of the sentence-appeal waiver and entered into it knowingly and voluntarily.

The district court accepted Francisco’s plea, adjudicated him guilty, and sentenced

him to 135 months in prison followed by 60 months of supervised release. Francisco

timely appealed.

                           STANDARDS OF REVIEW

      We ordinarily review de novo the legal question of whether a federal statute

is constitutional. United States v. Valois, 915 F.3d 717, 729 n.7 (11th Cir. 2019).

We also review de novo the validity of an appeal waiver. United States v. Johnson,

541 F.3d 1064, 1066 (11th Cir. 2008). However, “[w]hen a defendant raises issues

for the first time on appeal, we review th[o]se issues for plain error only.” United

States v. Presendieu, 880 F.3d 1228, 1237 (11th Cir. 2018). To prevail under plain-

error review, a defendant must show (1) an error, (2) that the error was plain, and (3)

that the error affected the defendant’s substantial rights. Id. If all three conditions

are met, we may reverse only if the error seriously affected the fairness, integrity, or

public reputation of the proceedings. See id. at 1238.




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                                   DISCUSSION

      Francisco argues that the MDLEA: (1) violates his Fifth Amendment due-

process rights because it does not require that a charged offense have a nexus with

the United States; (2) violates his Sixth Amendment jury-trial rights because it does

not require the jury to make the determination of jurisdiction; and (3) violates the

separation-of-powers doctrine by allowing the executive branch to substitute its

determination of jurisdiction for the court’s. Francisco also contends that his

sentence-appeal waiver is facially unconstitutional.

                          Constitutionality of the MDLEA

      Francisco first argues that the MDLEA violates the Fifth Amendment Due

Process Clause because it lacks a nexus requirement. As Francisco concedes, this

argument is foreclosed by binding precedent. See United States v. Campbell, 743

F.3d 802, 812 (11th Cir. 2014) (“[T]he Due Process Clause of the Fifth Amendment

does not prohibit the trial and conviction of an alien captured on the high seas while

drug trafficking, because the Act provides clear notice that all nations prohibit and

condemn drug trafficking aboard stateless vessels on the high seas.”). Francisco

argues we should revisit Campbell “in light of the 2017 amendment to the MDLEA

that allows cases to be tried by any district” because that amendment “widens the

scope of where defendants can be tried[,] making the nexus requirement all the more

necessary.” But even after the 2017 amendment, we have rejected the argument that


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“due process prohibits the prosecution of foreign nationals for offenses bearing no

‘nexus’ to the United States.” United States v. Cabezas-Montano, 949 F.3d 567,

586–87 (11th Cir. 2020). We are bound by that holding until the Supreme Court or

the en banc court holds otherwise. See United States v. Archer, 531 F.3d 1347, 1352

(11th Cir. 2008) (“We acknowledge the strength of the prior panel precedent rule in

this circuit. Under that rule, a prior panel’s holding is binding on all subsequent

panels unless and until it is overruled or undermined to the point of abrogation by

the Supreme Court or by this court sitting en banc.”).

      Francisco next argues that the MDLEA violates his Sixth Amendment jury-

trial rights because it “mandates that courts make a judicial determination of the

jurisdictional element of the offense, rather than allowing a jury to make that factual

finding beyond a reasonable doubt.” This argument, too, is foreclosed by binding

precedent. Although Francisco is right that all essential elements of a crime must be

found by a jury, we have held that the MDLEA jurisdictional requirement is not an

essential element. See United States v. Tinoco, 304 F.3d 1088, 1109–10 (11th Cir.

2002) (“[T]he . . . jurisdictional requirement is not an essential ingredient or an

essential element of the MDLEA substantive offense, and, as a result, it does not

have to be submitted to the jury for proof beyond a reasonable doubt.”); accord

Cabezas-Montano, 949 F.3d at 587–87 (citing Tinoco and explaining that “because

the MDLEA’s jurisdictional requirement goes to the subject-matter jurisdiction of


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the courts and is not an essential element of the MDLEA substantive offense, it does

not have to be submitted to the jury for proof beyond a reasonable doubt”); Valois,

915 F.3d at 722 (same).

       Finally, Francisco argues that the MDLEA is unconstitutional because it

“violates the separation of powers doctrine [by allowing] the Executive Branch to

substitute its determination of jurisdiction for the court’s determination.”

Specifically, he challenges the certification procedure set out in section 70502.1

However, because Francisco did not raise this argument below, we review it only

for plain error. “When neither this Court nor the Supreme Court have resolved an

issue, there can be no plain error in regard to that issue.” United States v. Vereen,

920 F.3d 1300, 1312 (11th Cir. 2019). Neither the Supreme Court nor this court in

a published decision has addressed Francisco’s separation-of-powers argument. See

Cabezas-Montano, 949 F.3d at 588 n.11 (“[W]e have not directly addressed in a

published case whether the revised MDLEA statute’s certification procedure

implicates separation of powers . . . .”). As such, even if the district court erred in

failing to conclude on its own motion that the MDLEA is unconstitutional because



       1
           Some of the MDLEA’s jurisdictional requirements may be “proved conclusively by
certification of the Secretary of State or the Secretary’s designee.” See 46 U.S.C.
§ 70502(c)(2)(B), (d)(2). For example, a vessel is considered a “vessel subject to the jurisdiction
of the United States” if it is registered in a foreign nation that has consented or waived objection
to the enforcement of United States law by the United States. Id. § 70502(c)(1)(C). Such consent
or waiver of objection may be proved conclusively by certification of the Secretary of State or the
Secretary’s designee. Id. § 70502(c)(2)(B).
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it violates the separation-of-powers doctrine, Francisco has failed to show that the

error was plain.

                   Constitutionality of the Sentence-Appeal Waiver

      Francisco argues that his sentence-appeal waiver is facially unconstitutional

because it “impairs the plea bargaining process” and “violates the protections of the

Due Process Clause.” Francisco recognizes that “this Court has upheld the general

validity of plea agreement waiver of appeal clauses,” but he argues that this court

should “reconsider the constitutionality of those clauses, as well as the propriety of

the Government’s requirement that a defendant waive his right to appeal as a

standard condition of a plea agreement.”

      Again, as Francisco concedes, his argument is foreclosed by binding

precedent. See, e.g., United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993)

(“We agree with the basic reasoning of our sister circuits that sentence appeal

waivers may be enforced.”); see also Garza v. Idaho, 139 S. Ct. 738, 745 (2019)

(“[S]igning an appeal waiver means giving up some, many, or even most appellate

claims . . . .”). If he made the waiver knowingly and voluntarily, it is valid. See

Bushert, 997 F.2d at 1350. Francisco does not argue that he made the waiver

unknowingly or involuntarily; nor does the record support such a finding.

      AFFIRMED.




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