UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
EDILSON BUSTOS-USECHE, also known as Pacifico
also known as Edilson Useche Bustos,
Appeal from the United States District
for the Southern District of Texas, Houston
November 13, 2001
Before EMILIO M. GARZA, and PARKER, Circuit
Judges, and ELLISON, District Judge.(1)
ROBERT M. PARKER, Circuit Judge:
Defendant-Appellant Edilson Bustos-Useche
pleaded guilty to possession with intent to distribute a controlled substance
and conspiracy to possess with intent to distribute a controlled substance
in violation of the Maritime Drug Law Enforcement Act. See 46 U.S.C.
app. § 1903. The district court sentenced Bustos to 210 months in
prison, followed by a five-year term of supervised release. On appeal,
Bustos argues that the district court did not have jurisdiction to accept
his guilty plea, that the court should have suppressed his statement to
United States Coast Guard officials, and that the court erroneously enhanced
his offense level for possession of a dangerous weapon.
In May of 1999, the M/V CHINA BREEZE, a 510-foot
Panamanian freighter bound for Portugal, sailed through the international
waters south of the passage between Hispanola and Puerto Rico. The United
States government suspected the vessel's use in drug trafficking based
on information from federal authorities in Greece. On May 27, 1999, the
Panamanian government issued a statement of no objection to allow the United
States Coast Guard to board the freighter and search for contraband. The
Coast Guard boarded the vessel and found four tons of cocaine in a disabled
sewage tank. The following day, Panama gave express permission for the
enforcement of United States laws on the vessel. The Coast Guard then ordered
the M/V CHINA BREEZE to Galveston, Texas. During the ten-day voyage to
Galveston, Coast Guard officials questioned the crew members about the
Agent Mihalopoulos of the Drug Enforcement
Administration interviewed Bustos on May 31, 1999. Three other uniformed
officers and a translator were present during the interview. After Agent
Mihalopoulos recited the Miranda Warnings, Bustos asked the officers
whether his right to counsel entailed postponing the interview until a
lawyer arrived. One of the officers stated that Bustos was correct. Bustos
claimed that an officer told him that it would be in his best interest
to cooperate because he was facing a potential twenty-year prison sentence.
Bustos began crying and agreed to give a statement.
When asked about his identification, Bustos
claimed that the documents identifying him as Pacifico Duarte, a Panamainian
citizen born on December 4, 1975, were falsified. Bustos stated he was
Edilson Bustos-Useche from Columbia, born on June 9, 1977. He explained
that he traveled from Colombia to Panama in 1998 to obtain the false identification
so that he could work as a seaman on a Panamanian vessel. Bustos admitted
to being on three voyages where drugs were transported. Bustos claimed
he was responsible for accounting for the cocaine on the M/V CHINA BREEZE.
He also admitted that he possessed a .38 caliber revolver, which he threw
overboard when he heard the Coast Guard helicopters.
Following his arraignment, Bustos filed a
motion to suppress the statements he made to the Coast Guard and DEA officials.
Bustos also objected to the court's jurisdiction claiming that his true
date of birth was February 20, 1983, and therefore he was a juvenile at
the time of the offense and indictment. Bustos also filed a motion to incorporate
and adopt the motions of his co-defendants, who argued that the court lacked
jurisdiction under 42 U.S.C. app. § 1903(c) because Coast Guard officials
did not have consent from the Panamanian government to enforce United States
laws at the time the officials seized the cocaine. The district court rejected
Bustos's arguments and set the case for trial. On November 9, 1999, Bustos
volunteered an unconditional guilty plea to possession with intent to distribute
a controlled substance under 46 U.S.C. app. § 1903(a) and conspiracy
to possess with intent to distribute a controlled substance pursuant to
46 U.S.C. § 1903(j). Prior to sentencing, Bustos objected to the two-level
enhancement recommendation in the presentence report, arguing that his
possession of a firearm was unrelated to the charged offenses. The district
court adopted the conclusions in the presentence report and sentenced Bustos
to a 210-month term of imprisonment and five years of supervised release.
II. Maritime Drug Law Enforcement Act
Bustos claims that the district court did
not have jurisdiction to accept his plea because the M/V CHINA BREEZE was
not subject to United States jurisdiction at the time the officers seized
the hidden cocaine. Before reaching the merits of Bustos's argument, we
assess whether his guilty plea prevents him from raising the issue on appeal.
A. Effect of Bustos's Guilty Plea
A guilty plea forecloses appellate review
of the factual and legal elements necessary to sustain a final judgment
of guilt and a lawful sentence. See United States v. Broce, 488
U.S. 563, 569 (1989). "By entering a plea of guilty, the accused is not
simply stating that he did the discrete acts described in the indictment;
he is admitting guilt of a substantive crime." Id. at 570. A defendant
who pleads guilty may challenge "the very power of the State to bring the
defendant into court to answer the charge against him." Blackledge v.
Perry, 417 U.S. 21, 30 (1974). Defendants may therefore raise jurisdictional
defects on appeal. See United States v. Cabrera-Teran, 168 F.3d
141, 143 (5th Cir. 1999) (explaining that errors on the face of an indictment
constitute jurisdictional defects, which are not waived by a guilty plea);
United States v. Owens, 996 F.2d 59, 60 (5th Cir. 1993) ("By pleading
guilty to an offense, therefore, a criminal defendant waives all non-jurisdictional
defects preceding the plea.");
United States v. Ruelas, 106 F.3d
1416, 1418 (9th Cir. 1997) (stating that a guilty plea does not confer
jurisdiction on a district court to receive the plea). The validity of
a guilty plea is a question of law we review de novo. See United States
v. Hernandez, 234 F.3d 252, 254 (5th Cir. 2000).(2)
A defendant violates the provisions of the Maritime Drug Law Enforcement
Act if he possesses with intent to distribute a controlled substance while
on board a vessel subject to the jurisdiction of the United States. See
U.S.C. app. § 1903(a). A marine vessel flying the flag of a foreign
nation is subject to the jurisdiction of the United States if "the flag
nation has consented or waived objection to the enforcement of United States
law . . .." 46 U.S.C. app. § 1903(c)(1)(C). Bustos argues that if
the United States did not have jurisdiction over the vessel, then the district
court did not have jurisdiction to accept his guilty plea.
Bustos's argument hinges on whether the jurisdictional
requirements of section 1903 are merely substantive elements of the crime
or prerequisites to the district court's subject matter jurisdiction. Certain
elements of an offense may be jurisdictional in nature, yet not a condition
to subject matter jurisdiction. See, e.g., United States v. Johnson,
194 F.3d 657, 659 (5th Cir. 1999) (holding that the interstate commerce
requirement is merely an element of the offense and not essential to subject
matter jurisdiction), vacated on other grounds, United States
v. Johnson, 529 U.S. 848 (2000); United States v. Rea, 169 F.3d
1111, 1113 (8th Cir. 1999) (same); United States v. Robinson, 119
F.3d 1205, 1212 n.4 (5th Cir. 1997) (noting that the interstate commerce
element in the Hobbs Act is not purely jurisdictional). Based on the former
language of section 1903, courts construed the phrase "a vessel subject
to the jurisdiction of the United States" as a factual element of the offense.
United States v. Cardales, 168 F.3d 548, 554 (1st Cir.), cert. denied,
528 U.S. 338 (1999); United States v. Klimavicius-Viloria, 144 F.3d
1249, 1256 (9th Cir. 1998); United States v. Medina, 90 F.3d 459,
461 (11th Cir. 1996). Cf. United States v. Pretel, 939 F.2d 233,
236-37 (5th Cir. 1991) (stating that whether an exiled Panamanian leader
had authority to consent was a political question that was not appropriate
for submission to a jury).
Congress added subsection (f) to the statute
in 1996. Subsection (f) states that "[j]urisdiction 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 by the trial judge." 46 U.S.C. app. §
1903(f). Based on this addition to the statute, we conclude that the district
court's preliminary determination of whether a flag nation has consented
or waived objection to the enforcement of United States law is a prerequisite
to the court's jurisdiction under § 1903.(3)
Bustos is therefore not foreclosed from raising the issue on appeal.
B. Jurisdiction Under the Maritime Drug Law
Bustos argues that the district court did
not have jurisdiction under the statute because the United States lacked
jurisdiction over the vessel at the time Coast Guard officials seized the
cocaine. Bustos claims that the Coast Guard received permission to enforce
United States law the day after the drugs were discovered.(4)
He argues that he cannot be prosecuted for violating section 1903 if the
statute did not apply to him during the time he possessed the cocaine.(5)
We review the district court's legal conclusions on jurisdiction de novo.
Foster v. Townsley, 243 F.3d 210, 213 (5th Cir. 2001).
Persons charged with a crime under section
1903 do not have standing to raise issues of international law. See
U.S.C. app. § 1903(d). By enacting section 1903(d), Congress intended
to eliminate jurisdictional impediments to convictions under the statute.
See S. REP. NO. 99-530, at 16 (1986), reprinted in 1986 U.S.C.C.A.N.
5986, 6001. As set forth in the Senate Report:
In the view of the Committee, only the flag
nation of a vessel should have a right to question whether the Coast Guard
has boarded that vessel with the required consent. The international law
of jurisdiction is an issue between sovereign nations. Drug smuggling is
universally recognized criminal behavior, and defendants should not be
allowed to inject these collateral issues into their trials.
Id. The legitimacy of a flag nation's
consent is therefore a question of international law that can be raised
only by the foreign nation. See, e.g., United States v. Greer,
223 F.3d 41, 55-56 (2d Cir. 2000) ("[T]he MDLEA requires the consent of
foreign nations for purposes of international comity and diplomatic courtesy,
not as a protection for defendants."). There is no dispute that the Panamanian
government consented to the enforcement of United States law on May 28,
While Bustos lacks standing to question whether
Panama's consent effectively granted jurisdiction to the United States,
he may nonetheless argue that the district court failed to satisfy the
jurisdictional requirements of the statute itself. The Maritime Drug Law
Enforcement Act is "United States law," not "international law." See
United States v. Maynard, 888 F.2d 918, 926-27 (1st Cir. 1989);
States v. Mena, 863 F.2d 1522, 1530-31 (11th Cir. 1989). "[H]ad Congress
intended to deprive defendants of standing to object to the government's
non-compliance with the terms of section 1903(a), Congress would not merely
have prevented defendants from raising objections under international law."
863 F.2d at 1531. Bustos does not argue that Panama failed to effectively
consent to the enforcement of United States law on May 28, 1999. He argues
that section 1903 requires a flag nation to consent before United States
officials seize illegal cargo. Because his argument involves statutory
interpretation as opposed to application of international law, he is not
barred from raising his argument on appeal.
The exact timing of a flag nation's permission
is not a condition to consent under subsection (c)(1)(C). A defendant may
be tried for an offense under the statute if the flag nation acquiesces
after a vessel is commandeered. See Greer, 223 F.3d at 55 (finding
that the United States had jurisdiction over a vessel even when the flag
nation consented five years after the completion of the offense). See
also Cardales, 168 F.3d at 552; United States v. Medjuck, 48
F.3d 1107 (9th Cir. 1995); United States v. Khan, 35 F.3d 426, 431
(9th Cir. 1994). The only statutory prerequisite to the district court's
jurisdiction under section 1903(c)(1)(C) is that the flag nation consent
to the enforcement of United States law before trial. Because Panama consented
to the enforcement of United States law over the M/V CHINA BREEZE on May
28, 1999, the district court satisfied the jurisdictional requirements
of the statute.(7)
III. Whether Bustos Was a Juvenile
Bustos claims that the district court lacked
jurisdiction to accept his plea because he was a juvenile at the time of
the offense and indictment.(8) We review
the district court's factual findings pertaining to Bustos's age for clear
error. See, e.g., United States v. Juvenile No. 1, 118 F.3d
298, 307 (1997).
Bustos admitted on numerous occasions that
he was born on June 9, 1977. On board the M/V CHINA BREEZE, Bustos told
officials that the Panamanian documents identifying him as Pacifico Duarte
were fraudulent. He stated his real name was Edilson Bustos-Useche born
on June 9, 1977. Bustos claimed he was twenty-one at the Harris County
Jail and at his arraignment before the magistrate judge. Bustos again admitted
the June 9, 1977 date of birth in a handwritten statement. A Columbian
identification document procured after Bustos's arrest also listed June
9, 1977 as his date of birth.
Bustos claimed that the Columbian document
was also fraudulent and that his date of birth was actually February 20,
1983. Bustos offered no documentation in support of his testimony. In light
of Bustos's repeated statements and the Columbian identification document,
the district court did not clearly err by concluding that Bustos was an
adult at the time of the offense and indictment.
IV. Increase of Bustos's Base Offense Level
Finally, Bustos argues that the district court
should not have increased his offense level by two points for possession
of a dangerous weapon. Although he admits to carrying a firearm on board
the M/V CHINA BREEZE, he claims that he did not possess the weapon to assist
himself in committing the offense. The district court's conclusion that
Bustos possessed a weapon during the commission of his offense is a factual
determination that we review for clear error. See United States v. Westbrook,
119 F.3d 1176, 1192 (5th Cir. 1997).
The Sentencing Guidelines provide for a two-level
increase in a defendant's offense level for possession of a dangerous weapon.
U.S.S.G. § 2D1.1(b)(1). The commentary suggests adjusting the offense
level if the weapon was present during the commission of the offense, "unless
it is clearly improbable that the weapon was connected with the offense."
at cmt. 3. "Possession of a firearm will enhance a defendant's sentence
. . . where a temporal and spatial relationship exists between the weapon,
the drug-trafficking activity, and the defendant." United States v.
Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997).
Bustos admits possessing the firearm when
he boarded the M/V CHINA BREEZE. Bustos boarded the vessel from the same
speed boats that transported the cocaine from Columbia. He explained that
he brought similar weapons on earlier drug smuggling voyages, but always
gave them to the captain when he boarded the vessel. Bustos admits that
he did not give the gun to the captain on this voyage. He claims that he
threw the weapon overboard when he heard the approaching Coast Guard helicopters.
Bustos argues that he never used the weapon or showed it to anyone on board.
We will not reverse the district court's sentence
adjustment simply because the defendant did not "display or brandish" the
Marmolejo, 106 F.3d at 1216. Bustos boarded the M/V CHINA
BREEZE with the weapon at the same time the cocaine was loaded on the vessel.
His only duty on the voyage was to account for the cocaine. The firearm
remained in his possession until he threw it overboard. Based on these
facts, there was a sufficient connection between the weapon and the offense.
The district court's two-level adjustment was appropriate.
We find that the district court satisfied
the statutory requirements for jurisdiction under 46 U.S.C. app. §
1903. We also affirm the court's conclusions that Bustos was not a juvenile
and that he possessed a firearm in conjunction with trafficking narcotics.
Bustos's remaining issues on appeal are foreclosed by his valid guilty
1. District Judge of the
Southern District of Texas sitting by designation.
2. Bustos concedes that
he has waived his non-jurisdictional arguments pertaining to the statements
he made to authorities on board the M/V CHINA BREEZE.
3. Circuit courts have
recognized that subsection (f) eliminates jurisdiction as an element of
the offense. See Cardales, 168 F.3d at 554 n.3; Klimavicius-Viloria,
144 F.3d at 1256 n.1.
4. Although there is some
debate over the effect of Panama's first approval to board and search the
M/V CHINA BREEZE, we will assume for purposes of this appeal that the Coast
Guard did not receive permission to enforce United States law until after
the cocaine was discovered and seized.
5. Bustos avoids raising
issues concerning treaties or domestic laws that have no relation to the
jurisdiction of United States courts. See, e.g., United States
v. Alvarez-Machain, 504 U.S. 655 (1992) (holding that a defendant had
no rights under international law or an extradition treaty); United
States v. Postal, 589 F.2d 862, 875-876, 875 n.19 (5th Cir. 1979) (explaining
that there is no defect in a court's jurisdiction for violation of domestic
laws that are unrelated to the court's jurisdiction).
6. Consent or waiver of
objection by the flag nation is conclusively proven by certification from
the Secretary of State or the Secretary's designee. See 46 U.S.C.
app. § 1903(c).
7. We recognize that the
language in 46 U.S.C. app. § 1903(f) could arguably be interpreted
to relate to the district court's authority to act on this case, separate
and apart from whether the United States had jurisdiction over the vessel.
However, we are not convinced that this is a proper interpretation. In
our view, the United States's jurisdiction over the vessel and the district
court's jurisdiction to act are inextricably intertwined. Because Panama
consented to the enforcement of United States law over the M/V China Breeze
prior to Bustos's trial, the district court had jurisdiction to act on
the case so long as the criminal statute under which Bustos was prosecuted
meets the subject matter jurisdiction requirements of Article III of the
United States Constitution and 18 U.S.C. § 3231. Section 1903(a) defines
a "law of the United States" sufficiently enough to satisfy Article III
and defines an "offense against the law of the United States" sufficiently
enough to satisfy 18 U.S.C. § 3231. Therefore, the district court
had the authority to act on this case.
8. In order for the district
court to assert jurisdiction over a juvenile, the United States Attorney
General must certify the case pursuant to 18 U.S.C. § 5032. "The need
for certification . . . is a jurisdictional requirement; therefore, a challenge
to the legal sufficiency of the certification . . . can be raised at any
time." United States v. Sealed Juvenile 1, 225 F.3d 507, 508 (5th
Cir. 2000). Bustos's argument is therefore jurisdictional and cannot be
waived by a valid guilty plea. See Owens, 996 F.2d at 50.