                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 07-13517                   March 27, 2008
                         Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                       ________________________

                D. C. Docket No. 06-00499-CR-T-23-MSS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JAMES FERNANDO ESTRADA-OBREGON,

                                                         Defendant-Appellant.


                       ________________________

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

                             (March 27, 2008)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      James Fernando Estrada-Obregon appeals his conviction after his plea of

guilty to conspiracy to possess with intent to distribute five kilograms or more of

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

violation of 46 U.S.C. §§ 70503(a), 70506(a) and (b); and 21 U.S.C.

§ 960(b)(1)(B)(ii). He asserts various issues on appeal, which we address in turn.

After review, we affirm Estrada-Obregon’s conviction.

                                           I.

      Estrada-Obregon first asserts the district court lacked jurisdiction over the

offense, and his conviction is void, because the factual basis of his plea agreement

did not establish the United States’ statutory subject-matter jurisdiction over the

offense, pursuant to the Maritime Drug Law Enforcement Act (MDLEA).

Specifically, Estrada-Obregon argues that, although the factual basis of his plea

showed Panama consented to the boarding and search of the vessel, those facts did

not show that Panama consented or waived objection to the enforcement of United

States law by the United States. In addition, Estrada-Obregon contends the factual

basis of his plea failed to establish an offense punishable under the laws of the

United States, and the district court erred by accepting the plea. Estrada-Obregon

further asserts he would not have pled guilty if he had known the factual proffer

was insufficient to establish the United States’ jurisdiction over him. Therefore,



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Estrada-Obregon contends, his plea should be vacated and his case remanded for a

new plea or trial, with the Government required to prove that Panama consented to

the enforcement of United States law.

      The MDLEA provides, “[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). A “vessel subject to the jurisdiction of the

United States” includes, inter alia, “a vessel registered in a foreign nation if that

nation has consented or waived objection to the enforcement of United States law

by the United States.” 46 U.S.C. § 70502(c)(1)(C). “Jurisdiction of the United

States with respect to a vessel subject to this chapter is not an element of an

offense. Jurisdictional issues arising under this chapter are preliminary questions

of law to be determined solely by the trial judge.” 46 U.S.C. § 70504(a); see also

United States v. Tinoco, 304 F.3d 1088, 1112 (11th Cir. 2002).

      “[A] guilty plea does not bar an appeal that raises a jurisdictional question.”

United States v. Reynolds, 215 F.3d 1210, 1215 (11th Cir. 2000). “[D]efects in

subject-matter jurisdiction require correction regardless of whether the error was

raised in district court.” United States v. Cotton, 122 S. Ct. 1781, 1785 (2002).




                                            3
      A “district court’s factual findings with respect to jurisdiction . . . are

reviewed for clear error.” Tinoco, 304 F.3d at 1114. “[T]he government bears the

burden of establishing that the statutory requirements of subject matter jurisdiction

imposed by the MDLEA have been met.” Id. We review for plain error, however,

an argument raised for the first time on appeal that there was an insufficient factual

basis for a guilty plea. United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.),

cert. denied, 128 S. Ct. 257 (2007). In order for error to be plain, there must be

binding precedent clearly holding that it is such. United States v. Chau, 426 F.3d

1318, 1322 (11th Cir. 2005).

      Although Estrada-Obregon argues an issue of subject-matter jurisdiction

which is not waived, the basis of his argument is that the Government did not meet

its burden to prove a fact underlying the jurisdictional requirement of the MDLEA.

Although a district court’s factual findings with respect to jurisdiction generally are

reviewed for clear error, Tinoco, 304 F.3d at 1114, because Estrada-Obregon did

not object to the factual proffer below, we review for plain error the district court’s

implicit factual finding that Panama consented to the enforcement of U.S. law for

purposes of the MDLEA’s jurisdictional requirement. See 46 U.S.C.

§ 70502(c)(1)(C); Evans, 478 F.3d at 1338.




                                            4
      The Government’s factual proffer at the plea colloquy does not contain a

statement that Panama explicitly consented to the enforcement of U.S. law by the

United States. Also, the record contains no documentation of Panama’s explicit

consent to the enforcement of U.S. law. Rather, the Government stated Panama

consented to U.S. authorities’ boarding and search of the vessel. By accepting

Estrada-Obregon’s guilty plea, the district court implicitly found Panama’s consent

to boarding and search implied at least a waiver of objection to the enforcement of

U.S. law for purposes of the MDLEA’s jurisdictional requirement. See 46 U.S.C.

§§ 70502(c)(1)(C), 70503(a)(1).

      Where the U.S. Coast Guard routinely intercepts boats in international

waters for the purpose of enforcing U.S. law, particularly U.S. drug laws, it is

reasonable to conclude that U.S. authorities request permission to board and search

vessels for that purpose, and a flag nation that objected to the enforcement of U.S.

law would not grant permission to board and search. Neither the MDLEA nor

controlling case law provides what the government specifically must do or say to

meet its burden of establishing that a flag nation has consented or waived objection

to the enforcement of U.S. law. See Tinoco, 304 F.3d at 1114; see generally 46

U.S.C. §§ 70502-70504. Under these circumstances, any possible error by the

district court in finding that Panama at least waived objection to the enforcement of



                                          5
U.S. law cannot be plain. See Moriarty, 429 F.3d at 1019; Chau, 426 F.3d at 1322.

Accordingly, having found that Panama waived objection to enforcement of U.S.

law, the district court did not err in failing to sua sponte dismiss the case for lack

of statutory jurisdiction under the MDLEA, and did not plainly err in accepting

Estrada-Obregon’s plea. See 46 U.S.C. §§ 70502(c)(1)(C), 70503(a)(1).

                                           II.

      Estrada-Obregon next argues four constitutional claims. He contends:

(1) his offense conduct had no nexus with the United States, and, thus, his

prosecution violated due process; (2) the MDLEA violates due process because it

is “fundamentally unfair to the extent that it allows forum shopping [by the

government], removes the element of jurisdiction from the jury, and precludes

defendants from asserting violations of international law as a defense;” (3) the

MDLEA violates the Due Process Clause and the Sixth Amendment right to a jury

trial because the MDLEA does not require jurisdiction be proven to a jury beyond

a reasonable doubt; and (4) the MDLEA represents an ultra vires exercise of

congressional power under the Piracies and Felonies Clause.

      Estrada-Obregon arguably waived appeal of these claims based on this

Court’s recent decision in United States v. De La Garza, __ F.3d __, No. 06-

13396, 2008 WL 397456, at *4 (11th Cir. Feb. 15, 2008). His plea agreement was



                                            6
substantially the same as the plea agreement held to waive all non-jurisdictional

challenges in De La Garza.

       Even if these claims are not waived, they each fail under plain error review.

See Moriarty, 429 F.3d at 1018. First, the Supreme Court has not ruled on the

nexus issue, and Estrada-Obregon recognizes a circuit split.1 Estrada-Obregon

acknowledges that in United States v. Mena, 863 F.2d 1522, 1527, this Court did

not find a nexus requirement in the case of foreign-registered vessels, but he

distinguishes his case from Mena on the basis that he is presenting an as-applied

challenge to the MDLEA rather than a facial challenge as in Mena. Although

Mena addresses a facial rather than an as-applied challenge to the MDLEA, it

suggests there is no nexus requirement for foreign-registered vessels. See Mena,

863 F.2d at 1527. Because there is no binding precedent clearly holding the

MDLEA requires a nexus between a foreign-registered vessel and the United

States, any error by the district court in not dismissing the case for lack of nexus

could not be plain. See Chau, 426 F.3d at 1322. Accordingly, the district court did




       1
          Estrada-Obregon cites Ninth and Second Circuit cases that required a nexus between
conduct on foreign-registered vessels and the United States analogous to the minimum contacts
required for personal jurisdiction. See United States v. Zakharov, 468 F.3d 1171, 1177 (9th Cir.
2006); United States v. Yousef, 327 F.3d 56, 111 (2d Cir. 2003). Estrada-Obregon recognizes,
however, that other circuits have held that no nexus is required when the flag nation consents to
the enforcement of U.S. law. See, e.g., United States v. Perez Oviedo, 281 F.3d 400, 403 (3d
Cir. 2002); United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999).

                                                7
not plainly err in failing to sua sponte dismiss the case for lack of a nexus with the

United States.

      Second, the district court did not plainly err in failing to sua sponte dismiss

the case against Estrada-Obregon on the basis that the MDLEA was fundamentally

unfair. See Chau, 426 F.3d at 1322. We have previously addressed all of Estrada-

Obregon’s arguments regarding this issue, with the exception of the preclusion of

international law defense, and held the MDLEA is facially constitutional as applied

to foreign citizens. See United States v. Rendon, 354 F.3d 1320, 1325-26 (11th

Cir. 2003); Tinoco, 304 F.3d at 1109-10; Mena, 863 F.2d at 1527. We have also

declined to conclude the MDLEA is “fundamentally unfair.” See United States v.

Estupinan, 453 F.3d 1336, 1339 (11th Cir. 2006).

      Further, Estrada-Obregon concedes his arguments that the MDLEA violates

the Due Process Clause and the Sixth Amendment right to a jury trial because the

MDLEA does not require jurisdiction be proven to a jury beyond a reasonable

doubt, and that the MDLEA represents an ultra vires exercise of congressional

power under the Piracies and Felonies Clause, are foreclosed by our prior

precedent. We have held subject-matter jurisdiction is not an element of the

offense and, therefore, jurisdiction does not need to be submitted to a jury.

Rendon, 354 F.3d at 1326-27. We have also held a district court “committed no



                                           8
error in failing to sua sponte rule that Congress exceeded its authority under the

Piracies and Felonies Clause in enacting the MDLEA.” See Estupinan, 453 F.3d at

1339 (11th Cir. 2006); see also U.S. Const. Art.I, § 8, cl.10. Thus, there is no plain

error on these claims as well.

                                          III.

      The district court did not err in failing to sua sponte dismiss the case for lack

of statutory jurisdiction under the MDLEA. Estrada-Obregon arguably waived his

constitutional claims, but even if he did not waive these claims the district court

plainly err in failing to sua sponte dismiss the case on the basis of any of the

constitutional arguments. Accordingly, we affirm Estrada-Obregon’s conviction.

      AFFIRMED.




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