                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 05-15448                   MAY 17, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                 D. C. Docket No. 05-00207-CR-T-26-MAP

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RUCEO PORTOCARRERO,

                                                          Defendant-Appellant.


                        ________________________

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

                               (May 17, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

     Appellant Ruceo Portocarrero appeals his conviction and 135-month
sentence for possession with intent to distribute, and conspiracy to possess with

intent to distribute, five kilograms or more of a mixture and substance containing a

detectable amount of cocaine while on board a vessel subject to the jurisdiction of

the United States, in violation of 46 U.S.C. App. § 1903(a), (g), and (j), and 21

U.S.C. § 960(b)(1)(B).

                                           I.

      As an initial matter, the government argues that we lack jurisdiction to

review Portocarrero’s claim on appeal that his sentence is unreasonable.

Specifically, the government argues that Congress in 18 U.S.C. § 3742 limited

appellate jurisdiction to review certain grounds only, and absent meeting that

statutory requirement, a defendant cannot obtain appellate review of a sentence.

The government acknowledges that our holding in United States v. Martinez, 434

F.3d 1318 (11th Cir. 2006), rejected these arguments; however, it claims that its

claims are still viable while this court considers its petition for rehearing en banc in

Martinez.

      In Martinez, we rejected the challenge that we lack jurisdiction under 18

U.S.C. § 3742 to review the reasonableness of a guidelines sentence. Martinez,

434 F.3d at 1321-22. In Martinez, we explained that:




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      First, post-Booker,1 this Court repeatedly has reviewed sentences
      within the guidelines range for unreasonableness. Second, although
      Booker excised the standards of review in 18 U.S.C. § 3742(e), the
      Supreme Court explained that the [Federal Sentencing] Act continues
      to provide for appeals from sentencing decisions (irrespective of
      whether the trial judge sentences within or outside the Guidelines
      range in the exercise of his discretionary power under § 3553(a)), and
      cited 18 U.S.C. § 3742(a).

Id. at 1321 (internal citations and quotations omitted). Thus, we reasoned that

“[a]lthough the Supreme Court in Booker did not identify which provision of §

3742(a) provided for appeals for ‘unreasonableness,’ we conclude that a

post-Booker appeal based on the ‘unreasonableness’ of a sentence, whether within

or outside the advisory guidelines range, is an appeal asserting that the sentence

was imposed in violation of law pursuant to § 3742(a)(1).” Id. at 1322. In

addition, on March 6, 2006, we denied the government’s petition for rehearing en

banc in Martinez. Accordingly, we conclude that we have jurisdiction under §

3742(a)(1) to review Portocarrero’s sentence for reasonableness.

                                                II.

          Portocarrero next argues that we should not presume that his sentence is

reasonable just because it was imposed within the calculated guideline range.

Portocarrero claims that his sentence was unreasonable because the district court

misapprehended its authority to consider his age and infirmity in fashioning a

      1
           United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

                                                 3
reasonable sentence. He argues that his 135-month sentence was greater than

necessary to serve the purposes of sentencing because: (1) he played a small and

isolated role in a larger conspiracy; (2) he had no prior criminal record; and (3) he

may never see his family again.

      Pursuant to the Supreme Court’s instructions in Booker, we review a district

court’s sentence, imposed after consulting the guidelines and considering the

factors set forth at § 3553(a), for reasonableness. Booker, 543 U.S. at 260-261,

125 S. Ct. at 765. In assessing the reasonableness of a sentence, the factors that a

district court should consider include the nature and circumstances of the offense,

the history and characteristics of the defendant, the need for adequate deterrence

and protection of the public, the pertinent Sentencing Commission policy

statements, and the need to avoid unwarranted sentencing disparities. See 18

U.S.C. § 3553(a)(1)-(7). Although a sentence within the advisory guidelines range

is not per se reasonable, we ordinarily expect such a sentence to be reasonable. See

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). This expectation is

measured against the record, and Portocarrero bears the burden of showing his

sentence is unreasonable in light of the record and the 3553(a) factors. Id. In

reviewing for reasonableness, we “would not expect the district court in every case

to conduct an accounting of every § 3553(a) factor . . . and expound upon how



                                           4
each factor played a role in its sentencing decision.” See United States v. Robles,

408 F.3d 1324, 1328 (11th Cir. 2005).

      We conclude from the record that Portocarrero’s sentence of 135 months

imprisonment is reasonable. Contrary to Portocarrero’s contention, the district

court understood that the guideline range was advisory and that it was free to

fashion an appropriate sentence taking into consideration § 3553(a) factors. The

record reveals that the court considered Portocarrero’s role in the offense, his age,

infirmity, and the possibility that he may never see his family again. Furthermore,

the district court granted the government’s motion for a downward departure and

reduced Portocarrero’s total offense level by two points. The court considered

Portocarrero’s arguments in mitigation of his sentence and concluded that a

sentence at the low end of the guidelines was a reasonable one. Thus, the court’s

deliberations reflect consideration of several § 3553(a) factors: (1) the nature and

circumstances of the offense; (2) the need for the sentence imposed to reflect the

seriousness of the offense and to promote respect for the law; and (3) the history

and characteristics of the defendant.   Because the imposition of Portocarrero’s

sentence was reasoned and these reasons reflected consideration of several of the

relevant factors, including the guidelines, we conclude that Portocarrero’s sentence

is reasonable.



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                                           III.

      Next, Portocarrero argues, for the first time on appeal, that the district court

lacked jurisdiction over the case because the Maritime Drug Law Enforcement Act

(“MDLEA”) is unconstitutional as Congress’s limited Article I powers do not

encompass the authority to punish non-citizen drug traffickers on stateless vessels

on the high seas. Portocarrero contends that Congress’s jurisdiction to legislate

under the MDLEA cannot extend any further than that granted to it under the

Piracies and Felonies Clause of Article I, and that Congress is not allowed to

criminalize any conduct on the high seas regardless of its lack of connection to the

United States. Portocarrero argues further that he has not waived his right to

challenge the constitutionality of the MDLEA, and his challenge to the district

court’s subject-matter jurisdiction can be raised at any time and should be reviewed

de novo.

      Our review of a challenge to the constitutionality of a statute, based on the

assertion that Congress exceeded its authority in enacting the statute and thus

deprived the district court of jurisdiction, is limited to “a search for plain error”

where the appellant failed to raise the issue at trial. United States v. Williams, 121

F.3d 615, 618 (11th Cir. 1997) (reviewing challenge to Child Support Enforcement

Act). To satisfy the plain-error standard, we must find that (1) the district court



                                            6
committed “error,” (2) the error was plain or obvious, and (3) the error “affected

substantial rights” in that the error was prejudicial and not harmless. United States

v. Olano, 507 U.S. 725, 730-32, 113 S. Ct. 1770, 1776 (1993). If these criteria are

met, we may, in our discretion, correct the plain error if it “seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 736, 113 S.

Ct. at 1779 (quotation omitted). We have held, however, that “an error cannot

meet the ‘plain’ requirement of the plain error rule unless it is ‘clear under current

law.’ . . . Where neither the Supreme Court nor this Court has ever resolved an

issue, and other circuits are split on it, there can be no plain error in regard to that

issue.” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (citations

omitted). Nevertheless, we have stated that there is “no plainer error than to allow

a conviction to stand under a statute which Congress was without power to enact.”

United States v. Walker, 59 F.3d 1196, 1198 (11th Cir. 1995).

       The MDLEA provides, in relevant part, that “[i]t is unlawful for any

person on board a vessel subject to the jurisdiction of the United States, . . . to

possess with intent to manufacture or distribute, a controlled substance.” 46

U.S.C. App. § 1903(a). A “vessel subject to the jurisdiction of the United States”

includes “a vessel without nationality,” which in turn is defined to include “a

vessel aboard which the master or person in charge makes a claim of registry and



                                            7
the claimed nation of registry does not affirmatively and unequivocally assert that

the vessel is of its nationality.” 46 U.S.C. App. § 1903(c)(1)(A) and (c)(2)(C).

Moreover, we have noted that “this circuit and other circuits have not embellished

the MDLEA with a nexus requirement.” United States v. Rendon, 354 F.3d 1320,

1325 (11th Cir. 2003), cert. denied, 541 U.S. 1035, 124 S. Ct. 2110 (2004).

      Portocarrero fails to show that the district court committed plain error by not

finding the MDLEA unconstitutional because its enactment exceeded Congress’s

authority, since neither the Supreme Court nor we have spoken on this issue.

                                         IV.

      Finally, Portocarrero argues that the MDLEA is unconstitutional because the

offense contains a jurisdictional element, but the statute removes that element from

the jury’s consideration. Portocarrero argues that this removal violates the

Supreme Court’s holding in United States v. Gaudin, 515 U.S. 506, 115 S. Ct.

2310 (1995), that every element of an offense must be submitted to the jury.

Portocarrero acknowledges that our decision in United States v. Tinoco, 304 F.3d

1088 (11th Cir. 2002), forecloses this argument, but raises the issue “primarily for

purposes of en banc or certiorari review.”

      In Gaudin, the Supreme Court held that “[t]he Constitution gives a criminal

defendant the right to have a jury determine, beyond a reasonable doubt, his guilt



                                          8
of every element of the crime with which he is charged.” 515 U.S. at 522-23, 115

S. Ct. at 2320. Based on Gaudin, Portocarrero argues that jurisdiction is an

element of his crime, and therefore, that it must be found by a jury beyond a

reasonable doubt. The MDLEA, however, specifically provides that: “Jurisdiction

of the United States with respect to vessels subject to this chapter is not an element

of any offense. All jurisdictional issues arising under this chapter are preliminary

questions of law to be determined solely by the trial judge.” 46 U.S.C. App.

§ 1903(f).

      In Tinoco, the appellants challenged the constitutionality of the MDLEA by

arguing, in relevant part, that Gaudin required the jurisdictional element of the

offense to be decided by a jury, not by the judge as a preliminary question of law.

See Tinoco, 304 F.3d at 1095. We stated:

      By adding to the MDLEA the jurisdiction and venue provision, 46
      U.S.C. app. § 1903(f), Congress, as we have pointed out, plainly
      indicated that whether a vessel is subject to the jurisdiction of the
      United States is not an element of the offense, but instead is solely an
      issue of subject matter jurisdiction that should be treated as a
      preliminary question of law for the court’s determination. . . . The
      statutory language of the MDLEA now unambiguously mandates that
      the jurisdictional requirement be treated only as a question of subject
      matter jurisdiction for the court to decide.

Id. at 1105-06. In Tinoco, therefore, we “reject[ed] the appellants’ argument that

the MDLEA . . . is unconstitutional under Gaudin . . . because the jurisdictional



                                           9
provision here is not a traditional element, or otherwise an essential ingredient, of a

criminal offense.” Id. at 1111-12. Furthermore, in Rendon, we re-affirmed its

holding in Tinoco. See Rendon, 354 F.3d at 1326-28.

      Thus, because we rejected Portocarrero’s argument about the

constitutionality of the MDLEA in Tinoco and Rendon, we conclude that

Portocarrero’s argument is meritless.

      For the above-stated reasons, we affirm Portocarrero’s conviction and

sentence.

      AFFIRMED.




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