           Case: 12-14855   Date Filed: 04/17/2014   Page: 1 of 7


                                                        [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14855
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:11-cr-20672-JAL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

DIEGO JAVIER CASTRO VARGAS,
a.k.a. Diego Castro,

                                                         Defendant-Appellant.

                       ________________________

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

                              (April 17, 2014)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      Diego Castro Vargas appeals his convictions for conspiracy to structure

financial transactions to evade financial reporting requirements, in violation of 18

U.S.C. § 371 (Count 1), and for structuring financial transactions to evade financial

reporting requirements, in violation of 31 U.S.C. § 5324(a)(3) (Count 4). On

appeal, Castro Vargas challenges his convictions on three grounds. First, he argues

that his indictment was defective, as it did not allege the necessary facts and

elements required to support the charges against him. Second, he contends that the

district court erred in accepting his guilty plea, as it was not supported by a

sufficient factual basis. Third, he argues that his indictment was impermissibly

multiplicitous, and that, as the court sentenced him to consecutive sentences, he

was effectively punished twice for the same offense, in excess of the applicable

statutory maximum. Upon review of the record and consideration of the parties’

briefs, we affirm.

                                           I.

      A defendant’s unconditional guilty plea acts as a waiver of all

non-jurisdictional challenges to his conviction. United States v. Betancourth, 554

F.3d 1329, 1332 (11th Cir. 2009). Challenges to the subject matter jurisdiction of

the federal courts, however, cannot be waived. Id. Federal district courts have

jurisdiction over offenses against the laws of the United States. 18 U.S.C. § 3231.

Accordingly, we have held that a defendant’s argument that the indictment against


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him failed to charge an offense that implicates the district court’s jurisdiction

cannot be waived. See United States v. Thompson, 702 F.3d 604, 606 (11th Cir.

2012), cert. denied, 133 S. Ct. 2826 (2013) (discussing the effect of an

unconditional guilty plea).

      Not all defects in an indictment are jurisdictional, however, and should not

be treated categorically. See United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct.

1781, 1785 (2002); United States v. McIntosh, 704 F.3d 894, 902 (11th Cir.), cert.

denied, 134 S. Ct. 470 (2013). Indictments that affirmatively allege conduct that

does not represent a federal offense contain jurisdictional defects “because

Congress’s grant of jurisdiction to the district courts in criminal cases extends only

to offenses against the laws of the United States.” McIntosh, 704 F.3d at 902

(internal quotation marks omitted); see 18 U.S.C. § 3231. Omissions in an

indictment, however, such as failing to allege an element of an offense, are not

jurisdictional errors. See Cotton, 535 U.S. at 630–31, 122 S. Ct. at 1785; see also

McIntosh, 704 F.3d at 903 (“An indictment’s relationship to jurisdiction is thus

based on whether it alleges conduct constituting a federal offense, not on some

intrinsic value of an indictment as such.”).

      Castro Vargas waived his challenge to his indictment by virtue of his guilty

plea. On appeal, he argues that the indictment was insufficient insofar as Counts 1

and 4 failed to allege the necessary facts and elements required for the charged


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offenses. As the alleged indictment defect is one of omission—i.e., that the

indictment failed to allege the necessary facts and elements of the charged

offenses—Castro Vargas has not alleged a jurisdictional error. See Cotton, 535

U.S. at 630–31, 122 S. Ct. at 1785. Accordingly, he has waived his opportunity to

challenge his indictment on this ground by virtue of his guilty plea. See

Betancourth, 554 F.3d at 1332. 1

                                               II.

       As noted, a defendant, by pleading guilty, waives the ability to appeal

non-jurisdictional defects in his proceedings. Betancourth, 554 F.3d at 1332.

Further, we have held that a defendant’s factual-basis challenge presents a

non-jurisdictional defect and, as such, is waived by a guilty plea. See United States

v. Johnson, 89 F.3d 778, 784 (11th Cir. 1996) (holding that the defendant’s

contention that there was no factual basis for his guilty plea was barred by the

plea); United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986) (per

curiam) (holding that the defendant’s claim of an insufficient factual basis to

support the indictment was a non-jurisdictional defect that was waived by his

guilty plea).




       1
          Moreover, even if Castro Vargas had not waived this claim, it is still meritless. The
indictment properly stated the essential elements of the charged offenses underlying Counts 1
and 2, as well as Castro Vargas’s charged conduct. Accordingly, the indictment was sufficient.
See United States v. Lang, 732 F.3d 1246, 1247 (11th Cir. 2013).

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       Castro Vargas waived, by virtue of his guilty plea, his challenge to the

factual basis underlying his plea. Thus, as Castro Vargas’s claim alleging that

there was an insufficient factual basis in support of his plea constitutes a non-

jurisdictional challenge, it was waived by virtue of his guilty plea. See Johnson, 89

F.3d at 784. 2

                                                III.

       The failure to object to multiplicity in the indictment before trial waives the

issue with regard to error in the indictment. United States v. Mastrangelo, 733

F.2d 793, 800 (11th Cir. 1984). A failure to object to the indictment, however, will

not bar a defendant from objecting to the imposition of multiple sentences. Id. If a

defendant does not object to his multiple sentences below, we review only for plain

error. United States v. Frank, 599 F.3d 1221, 1239 (11th Cir. 2010).

       “An indictment is multiplicitous if it charges a single offense in more than

one count.” United States v. Williams, 527 F.3d 1235, 1241 (11th Cir. 2008). As a

multiplicitous indictment gives the jury more than one opportunity to convict the


       2
           In any event, we note here, too, that even if Castro Vargas had not waived this claim, it
is still meritless. Upon entering into the plea agreement, Castro Vargas and the government
jointly submitted an agreed-upon factual proffer relaying the facts underlying Castro Vargas’s
guilty plea. At Castro Vargas’s change of plea hearing, the government orally summarized the
factual proffer, and Castro Vargas admitted that the facts contained in the proffer were correct.
As such, there was sufficient evidence upon which the district court could reasonably find that
Castro Vargas committed the offenses underlying Counts 1 and 4. See United States v.
Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000). Accordingly, the district court did not plainly
err in determining that Castro Vargas’s guilty plea was supported by a factual basis. See United
States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004).

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defendant for the same offense, such an indictment violates double-jeopardy

principles. Id.

      We “use the Blockburger[3] test to determine whether an indictment is

multiplicitous, verifying that each count requires an element of proof that the other

counts do not require.” Williams, 527 F.3d at 1241. If counts in the indictment are

multiplicitous, separate sentences resulting from those counts are also

multiplicitous. See Mastrangelo, 733 F.2d at 800. We have held, however, that

charges are not multiplicitous where they differ by even a single element or alleged

fact. United States v. Costa, 947 F.2d 919, 926 (11th Cir. 1991). Further, we have

specifically concluded that “a conspiracy and the related substantive offense which

is the object of the conspiracy, are separate and distinct offenses.” United States v.

Ternus, 598 F.3d 1251, 1254–55 (11th Cir. 2010).

      As an initial matter, because Castro Vargas did not object to the alleged

multiplicity of his indictment before the district court, he has waived that issue on

appeal. See Mastrangelo, 733 F.2d at 800. While Castro Vargas similarly did not

object to the district court’s imposition of multiple consecutive sentences, his claim

in this regard may proceed, subject to plain-error review. See Frank, 599 F.3d at

1239; Mastrangelo, 733 F.2d at 800.




      3
          Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).

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      The district court did not plainly err in imposing consecutive sentences as to

Counts 1 and 4. The conspiracy offense underlying Count 1 and the structuring

offense underlying Count 4 were charged under separate statutes and consisted of

distinct elements. See 18 U.S.C. § 371; 31 U.S.C. § 5324(a)(3); Ratzlaf v.United

States, 510 U.S. 135, 136, 114 S. Ct. 655, 657 (1994); United States v. Guerra, 293

F.3d 1279, 1285 (11th Cir. 2002). Additionally, we have specifically held that a

conspiracy and the related substantive offense are separate and distinct offenses.

See Ternus, 598 F.3d at 1254–55. Thus, Counts 1 and 4 were not multiplicitous.

See Costa, 947 F.2d at 926. Therefore, Castro Vargas’s consecutive sentences on

Counts 1 and 4 also were not multiplicitous. See Mastrangelo, 733 F.2d at 800.

      Finally, Castro Vargas’s claim that the district court imposed consecutive

sentences in excess of the applicable statutory maximum is unavailing. Under the

applicable statutes of conviction, Castro Vargas faced a statutory maximum

sentence of five years’ imprisonment as to each count. See 18 U.S.C. § 371; 31

U.S.C. § 5324(a)(3), (d)(1). Thus, neither his 60-month sentence as to Count 1,

nor his 12-month sentence as to Count 4, exceeded the applicable statutory

maximum.

      AFFIRMED.




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