Case: 13-11677   Date Filed: 02/05/2014   Page: 1 of 4


                                                      [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-11677
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 1:11-cr-20674-FAM-3



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

versus

JAMES ESAUD ASPRILLA MORENO,

                                            Defendant - Appellant.


                     ________________________

                           No. 13-11678
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 1:11-cr-20674-FAM-2



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

versus
              Case: 13-11677    Date Filed: 02/05/2014   Page: 2 of 4




RICAURTE MARTINEZ MURILLO,
a.k.a. Ricaurte Javier Martinez Murillo,

                                                 Defendant - Appellant.


                           ________________________

                                 No. 13-11679
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:11-cr-20674-FAM-1



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

versus

JOSE VICENTO MONTANO GRANJA,
a.k.a. Jose Vicento Montano Granja,

                                                 Defendant - Appellant.

                           ________________________

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

                                (February 5, 2014)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:



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                 Case: 13-11677        Date Filed: 02/05/2014       Page: 3 of 4


       These consolidated appeals challenge appellants’ post-judgment motions to

dismiss the indictment in this case. The indictment charged appellants with

multiple offenses, including, in Count 1, violating 46 U.S.C. § 70506(b) by

conspiring 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)(1). 1 Appellants pled guilty to that count pursuant to a plea agreement

containing an appeal waiver, and, on December 28, 2011, the District Court

sentenced them to prison for a term of 46 months.


       In February 2013, appellants severally moved the District Court, pursuant to

Fed. R. Cri. P. 48(a) or, alternatively, 28 U.S.C. § 2241, to dismiss the indictment

based on our decision in United States v. Bellaizac-Hurtado, 

(11th

Cir. 2012), which, they asserted, held the MDLEA unconstitutional as applied to

the facts of their case. The Government responded with a statement that the court

lacked jurisdiction to consider the motions because appellants’ cases were no

longer pending. The court agreed and dismissed their motions. They now appeal

pro se, asking this court to issue a writ of mandamus compelling the District Court

to consider their motions to dismiss on the merits. We affirm.


1
  Section 70503 et seq., referred to as the Maritime Drug Law Enforcement Act (MDLEA),
prohibits possessing with intent to distribute a controlled substance aboard a vessel subject to the
jurisdiction of the United States. Appellants were arrested aboard a fishing vessel containing 57
bales of cocaine.


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                 Case: 13-11677        Date Filed: 02/05/2014         Page: 4 of 4


       A motion, filed under Fed. R. Cri. P. 12(b)(3), alleging a defect in the

indictment generally must be filed prior to trial, although, while the case is

pending, the court may consider a claim that the indictment fails to invoke the

court’s jurisdiction or allege an offense. 

was no longer pending

when appellants submitted their motions to dismiss to the District Court; hence, the

court lacked jurisdiction to consider them.

       The appropriate vehicle for appellants’ attack on their convictions is 28

U.S.C. § 2255. Their briefs concede, however, that a § 2255 motion would be

time-barred and do not identify any other jurisdictional basis upon which the

District Court could have considered their motions.2 The court’s rulings are,

accordingly,

       AFFIRMED.




       2
           Appellants present arguments in their reply briefs, but failed to raise them in their
initial briefs. We do not consider them.


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