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United States v. Aybar-Ulloa

United States Court of Appeals, First Circuit

January 9, 2019

JOHVANNY AYBAR-ULLOA, Defendant, Appellant.


          Heather Clark, with whom Clark Law Office was on brief, for appellant.

          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 appellee.

          Before Torruella, Lynch, and Barron, Circuit Judges.


         Johvanny 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 sentence.


         At 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 "numerous packages."

         HMS 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 nationality."

         Law 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.[1] The men on board the vessel, including Aybar, were transferred to HMS Lancaster along with the packages that were taken from the vessel.

         A 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 enforcement.

         On 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.

         The 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.

         On 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.

         The 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.

         Following 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.

         The 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.

         At 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.


         In 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).[2] 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.

         The 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.

         Thus, 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 ...

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