FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District
Heather Clark, with whom Clark Law Office was on brief, for
Margaret Upshaw, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and John A. Mathews II,
Assistant United States Attorney, were on brief, for
Torruella, Lynch, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE
Aybar-Ulloa ("Aybar") pleaded guilty in 2015 to two
counts of drug trafficking in international waters while
aboard a "stateless" vessel in violation of the
Maritime Drug Law Enforcement Act ("MDLEA"), 46
U.S.C. §§ 70501-08. He now challenges those
convictions on the ground that Congress lacks the authority
under Article I, Section 8, Clause 10 of the United States
Constitution to criminalize his conduct, given that he
contends that the conduct for which he was convicted lacks
any nexus to the United States. Aybar separately challenges
the sentence that he received for those convictions. For the
reasons that follow, we affirm the convictions but vacate the
change of plea hearing, the government described, and Aybar
does not dispute, the following events as having occurred on
August 9, 2013. HMS Lancaster, a foreign warship,
was on patrol in the Caribbean Sea and launched a helicopter
that spotted a small vessel dead in the water. The vessel was
located in international waters at the time and contained
Lancaster launched a small boat in order to conduct
a right-of-visit approach. During this approach, Aybar and
his co-defendant, who were aboard the vessel with the
packages, claimed to be citizens of the Dominican Republic,
although the vessel bore "no indicia of
enforcement personnel aboard the small boat conducting the
approach then determined that the vessel was "without
nationality," as Aybar conceded to the District Court
was true, and boarded it. The men on board the vessel, including
Aybar, were transferred to HMS Lancaster along with
the packages that were taken from the vessel.
narcotics field test performed on board HMS
Lancaster confirmed that the packages contained
cocaine. At this point, Aybar was transferred to a United
States Coast Guard vessel and transported to Puerto Rico,
where he was held in custody by United States law
August 13, 2013, a federal grand jury in the District of
Puerto Rico returned an indictment against Aybar. The
indictment charged him under the MDLEA with conspiring to
possess with intent to distribute cocaine on board a vessel
subject to the jurisdiction of the United States, in
violation of 46 U.S.C. § 70506(b) (count one), and
aiding and abetting possession with intent to distribute
cocaine on board a vessel subject to the jurisdiction of the
United States, in violation of 46 U.S.C. §§
70502(c)(1)(A), 70503(a)(1), 70504(b)(1), 70506(a), and 18
U.S.C. § 2 (count two). A forfeiture allegation, under
46 U.S.C. § 70507, was also made against Aybar.
MDLEA provides in part: "While on board a covered
vessel, an individual may not knowingly or intentionally . .
. manufacture or distribute, or possess with intent to
manufacture or distribute, a controlled substance . . .
." 46 U.S.C. § 70503(a)(1). A "covered
vessel" includes "a vessel subject to the
jurisdiction of the United States." Id. §
70503(e)(1). A "vessel subject to the jurisdiction of
the United States" is in turn defined to include "a
vessel without nationality." Id. §
70502(c)(1)(A). And, as we mentioned, Aybar conceded below
that he was on board a vessel "without nationality"
at the time he was apprehended.
October 2, 2014, Aybar filed a motion to dismiss the
indictment for lack of jurisdiction. He argued that Congress
lacked the power to criminalize his conduct, given the lack
of what Aybar claimed to be any constitutionally sufficient
nexus between his charged conduct and the United States,
because Congress's power under Article I of the
Constitution "[t]o define and punish Piracies and
Felonies committed on the high Seas, and Offences against the
Law of Nations," U.S. Const. art. I, § 8, cl. 10,
did not extend to his conduct in such circumstances.
government opposed Aybar's motion. The District Court
denied Aybar's motion on December 22, 2014 and issued a
nunc pro tunc opinion and order on January 5, 2015. The
District Court acknowledged that the vessel was not a
"vessel of the United States" within the meaning of
the MDLEA, 46 U.S.C. § 70503(e)(1); that Aybar was not a
citizen of the United States; and that the other members of
the crew were not either. But, the District Court reasoned,
because "international law allows the United States
'to treat stateless vessels as if they were its own,
'" it followed that "persons navigating the
high seas aboard a vessel without nationality have
effectively waived their rights to object to the exercise of
jurisdiction over them by the United States." The
District Court therefore concluded that Aybar's
"as-applied constitutional challenge fails" because
his vessel was stateless.
a change of plea hearing, Aybar entered a guilty plea to all
charges on March 11, 2015. At that hearing, Aybar engaged in
the following colloquy with the Magistrate Judge:
The Magistrate: Now, do you admit that in addition to the
conspiracy you actually and the other co-defendants possessed
with the intent to distribute these substances, this cocaine?
Aybar: Yes, Your Honor.
The Magistrate: In the same circumstances on board this
vessel without nationality and therefore subject to
jurisdiction of the United States?
Aybar: Yes, Your Honor.
District Court accepted Aybar's guilty plea, and the case
proceeded to sentencing. A probation officer prepared a
presentence report ("PSR") using the 2014 United
States Sentencing Guidelines Manual. The PSR assigned Aybar a
base offense level of thirty-eight under the United States
Sentencing Guidelines. After receiving the PSR, Aybar filed
an objection in which he argued that two levels should be
subtracted from his offense level under § 3B1.2(b) of
the Guidelines because he was a minor participant.
sentencing, the District Court declined to reduce his offense
level as Aybar had argued and sentenced Aybar to 135 months
in prison. Aybar timely filed a notice appealing the judgment
entered against him.
prior cases in our circuit that have presented constitutional
challenges to MDLEA convictions not unlike the one that Aybar
now makes to us, the defendant had either waived or forfeited
the constitutional argument challenging the scope of
Congress's power under Article I to criminalize conduct
supposedly lacking a sufficient nexus to the United States.
See, e.g., United States v.
Diaz-Doncel, 811 F.3d 517 (1st Cir. 2016) (waived);
United States v.
Nueci-Peña, 711 F.3d 191 (1st Cir. 2013)
(forfeited). But that is not the case here. Aybar
timely raised below the challenge that he now makes on
appeal. And while Aybar did plead guilty to the offenses that
underlie the convictions that he challenges on appeal, the
government concedes that, in consequence of the Supreme
Court's holding in Class v. United
States, 138 S.Ct. 798 (2018), Aybar's guilty plea
does not bar him from challenging Congress's
constitutional power to criminalize his conduct pursuant to
its Article I powers.
government does separately argue that Aybar waived his right
to bring this challenge because he conceded in the plea
colloquy that the vessel he was on board was "without
nationality" -- which is one of the MDLEA's
definitions for a "vessel subject to the jurisdiction of
the United States." 46 U.S.C. § 70502(c)(1)(A).
But, as we read the record, Aybar conceded only that his
conduct fell within the MDLEA's scope and not that the
MDLEA was a valid exercise of Congress's constitutional
power under Article I insofar as it covered his conduct.
we review de novo the district court's rejection of
Aybar's constitutional challenge to Congress's power
to criminalize the conduct for which he was convicted.
See United Statesv.Bravo, 489
F.3d 1, 6 (1st Cir. 2007). Nevertheless, as we will explain,
the particular constitutional challenge to Congress's
power that Aybar develops fails because, although we have not
had occasion directly to address it before, related precedent
from our circuit ...