Filed: Mar. 31, 2020
Latest Update: Mar. 31, 2020
Summary: Case: 18-13327 Date Filed: 03/31/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-13327 Non-Argument Calendar _ D.C. Docket No. 8:15-cr-00076-VMC-AAS-1 UNITED STATES OF AMERICA, Plaintiff - Appellee. versus JORGE ELIECER CIFUENTES-CUERO, Defendant - Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (March 31, 2020) Before MARTIN, JORDAN and ROSENBAUM, Circuit Judges. PER CURIAM: Case: 18-1332
Summary: Case: 18-13327 Date Filed: 03/31/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-13327 Non-Argument Calendar _ D.C. Docket No. 8:15-cr-00076-VMC-AAS-1 UNITED STATES OF AMERICA, Plaintiff - Appellee. versus JORGE ELIECER CIFUENTES-CUERO, Defendant - Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (March 31, 2020) Before MARTIN, JORDAN and ROSENBAUM, Circuit Judges. PER CURIAM: Case: 18-13327..
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Case: 18-13327 Date Filed: 03/31/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13327
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00076-VMC-AAS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee.
versus
JORGE ELIECER CIFUENTES-CUERO,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 31, 2020)
Before MARTIN, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 18-13327 Date Filed: 03/31/2020 Page: 2 of 9
Jorge Cifuentes-Cuero pled guilty to conspiring to possess with intent 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), 70506(a)
and (b), and 21 U.S.C. § 960(b)(1)(B)(ii). He appeals his conviction, arguing that
the factual basis for his guilty plea was insufficient and that the Maritime Drug Law
Enforcement Act, 46 U.S.C. § 70501 et. seq., as applied to his conduct, exceeds
Congress’ authority under the Foreign Commerce Clause. For the following
reasons, we affirm.
I
On March 18, 2015, a federal grand jury returned a two-count indictment
against Mr. Cifuentes-Cuero, charging him with conspiracy to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 963 and 960(b)(1)(B)(ii)
(count one), and conspiracy to possess with intent 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), 70506(a) and (b), and 21 U.S.C. §
960(b)(1)(B)(ii) (count two). On April 30, 2018, he pled guilty to the second count,
pursuant to a written plea agreement.
The plea agreement set forth the factual basis for Mr. Cifuentes-Cuero’s
offense as follows. From 2011 to 2015, Mr. Cifuentes-Cuero—who had been
involved in maritime narcotics trafficking since 2001—was a principal member of a
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Colombian and Ecuadorian-based drug trafficking organization. During that time,
he organized the logistics of multiple maritime drug-trafficking ventures, including
holding meetings with others and supplying information about vessel routes,
rendezvous points, and final destinations. He owned several vessels that were used
to transport cocaine and materials to launch sites where other vessels were staged
and dispatched. He also hired and paid crewmembers on board the vessels that were
transporting cocaine and funded the supplies necessary to conduct the ventures,
including the purchase of vessels, fuel, engines, and electronic equipment.
On at least two occasions, Mr. Cifuentes-Cuero organized cocaine smuggling
ventures that were interdicted by law enforcement.
First, Mr. Cifuentes-Cuero organized the distribution of cocaine by a go-fast
vessel that was interdicted by the Coast Guard on January 4, 2013, in the
international waters of the Pacific Ocean, approximately 120 nautical miles south of
Acajutla, El Salvador. The crew made no claim of nationality or registry for the
vessel, rendering the vessel without nationality and subject to the jurisdiction of the
United States. The Coast Guard conducted a law enforcement boarding and
recovered 318 kilograms of cocaine. The United States filed certifications by the
Department of State that the vessel was subject to the jurisdiction of the United
States.
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Second, Mr. Cifuentes-Cuero organized the distribution of cocaine by the go-
fast vessel that was interdicted by the Coast Guard on July 20, 2014, in the
international waters of the Pacific Ocean, approximately 75 nautical miles northwest
of Isla de Malpelo, Colombia. The crew claimed Colombian nationality for the
vessel. The Government of Colombia was unable to confirm or deny the vessel’s
nationality, rendering it without nationality and subject to the jurisdiction of the
United States. The law enforcement boarding team drilled into the deck of the vessel
and discovered a hidden compartment that contained 587 individually wrapped
packages containing a total of 704 kilograms of cocaine. The United States filed
certifications by the Department of State that the vessel was subject to the
jurisdiction of the United States.
At the change-of-plea hearing, the magistrate judge reviewed the plea
agreement with Mr. Cifuentes-Cuero, confirming that he had a chance to review all
the facts and evidence with his attorney. The government read the factual basis for
his offense from the written plea agreement at the hearing. After the government
read the factual proffer into the record, the magistrate judge asked Mr. Cifuentes-
Cuero if he had any disagreement with the facts as stated by the government. He
responded, “Nope. It is what is written there.” D.E. 64 at 27. The magistrate judge
then asked, “So everything is true then?” and Mr. Cifuentes-Cuero responded,
“Yes.”
Id.
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After the hearing, the magistrate judge recommended that the district court
accept Mr. Cifuentes-Cuero’s guilty plea. Mr. Cifuentes-Cuero did not object to the
report and recommendation. The district court accepted the plea, entered a judgment
of conviction, and imposed a sentence of 262 months’ imprisonment. This appeal
followed.
II
A
“Before entering judgment on a guilty plea, the court must determine that
there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). Generally, “[t]he
standard for evaluating [such a claim] is whether the [district] court was presented
with evidence from which it could reasonably find that the defendant was guilty.”
United States v. Puentes-Hurtado,
794 F.3d 1278, 1287 (11th Cir. 2015) (citation
and internal quotation marks omitted; alterations in original).
Mr. Cifuentes-Cuero argues that the district court erred in accepting his plea
because there was not a sufficient factual basis to support his conviction. The
government responds that we should not consider this argument, because Mr.
Cifuentes-Cuero waived it by failing to object to the magistrate judge’s finding that
there was a sufficient factual basis for his plea.
Under Federal Rule of Criminal Procedure 59(b)(2), failing to object to a
magistrate judge’s report and recommendation “waives a party’s right to review” of
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the unobjected-to issue on appeal. Eleventh Circuit Rule 3-1 provides, however, that
“[i]n the absence of a proper objection” to a magistrate judge’s report, “the court
may review on appeal for plain error if necessary in the interests of justice.” To
establish plain error, a defendant must show that: “(1) an error occurred; (2) the error
was plain; (3) it affected his substantial rights; and (4) it seriously affected the
fairness of the judicial proceedings.” United States v. Gresham,
325 F.3d 1262, 1265
(11th Cir. 2003).
Mr. Cifuentes-Cuero did not object to the magistrate judge’s finding that the
offense charged was supported by “an independent basis in fact[.]” D.E. 45. Indeed,
at his change-of-plea hearing, Mr. Cifuentes-Cuero confirmed that he had a chance
to review all the facts and evidence with his attorney and admitted that the factual
proffer was correct. See D.E. 64 at 8, 27. Mr. Cifuentes-Cuero therefore waived his
challenge to the sufficiency of the factual basis for his plea. See United States v.
Garcia-Sandobal,
703 F.3d 1278, 1283 (11th Cir. 2013) (holding that the defendant
waived his argument that the district court erred when it accepted his guilty plea
because he did not file any objections to the magistrate judge’s recommendation that
the district court accept his plea).
Even if we were to review for plain error, there is no plain error here. Contrary
to Mr. Cifuentes-Cuero’s assertions, the factual proffer established that he took
specific actions to organize multiple maritime drug trafficking ventures—including
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that he owned vessels that were used to traffic cocaine, organized the logistics of
cocaine trafficking ventures, hired and paid crewmembers to carry them out, and
purchased fuel, engines, and other equipment needed. It also established that on at
least two of the ventures, the vessels were subject to the jurisdiction of the United
States. Mr. Cifuentes-Cuero admitted that these facts were correct. See D.E. 64 at
27. On this record, we cannot say that the district court plainly erred in finding that
there was a sufficient factual basis to support his plea. See
Puentes-Hurtado, 794
F.3d at 1287.
B
Mr. Cifuentes-Cuero next argues that the MDLEA is unconstitutional under
the Foreign Commerce Clause as applied to him, because his offense conduct
occurred entirely within a foreign country and did not have any ties to the United
States. He raises this argument for the first time on appeal, so we review only for
plain error. See United States v. Peters,
403 F.3d 1263, 1270 (11th Cir. 2005).
The MDLEA, as applied to Mr. Cifuentes-Cuero’s conduct, does not exceed
Congress’ authority under the Foreign Commerce Clause. This is because Congress’
power to enact the MDLEA is derived from the Felonies Clause—which grants
Congress “the power to define and punish felonies committed on the high seas”—
not the Foreign Commerce Clause. See United States v. Bellaizac-Hurtado,
700
F.3d 1245, 1248, 1257 (11th Cir. 2012) (“[W]e have always upheld extraterritorial
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convictions under our drug trafficking laws as an exercise of the power under the
Felonies Clause.”). Indeed, “this Court has held that the MDLEA is a valid exercise
of Congress’s power under the Felonies Clause as applied to drug trafficking crimes
without a ‘nexus’ to the United States.” United States v. Cabezas-Montano,
949
F.3d 567, 587 (11th Cir. 2020) (citing United States v. Campbell,
743 F.3d 802, 809–
10 (11th Cir. 2014)).
Mr. Cifuentes-Cuero argues that Congress’ power to proscribe his conduct
cannot be derived from the Felonies Clause because his actions occurred entirely on
foreign land—and thus were not “committed on the high seas.” Reply Br. at 7. But
the fact that Mr. Cifuentes-Cuero was not physically on board the vessels is of no
consequence. In a conspiracy, “the overt act of one partner in a crime is attributable
to all,” so long is it can be “reasonably foreseen as a necessary or natural
consequence of the unlawful agreement.” Pinkerton v. United States,
328 U.S. 640,
647–48 (1946). Even if Mr. Cifuentes-Cuero’s own acts were not committed on the
“high seas,” the factual proffer established that his co-conspirators committed
felonious acts in international waters that are attributable to him. The Felonies
Clause therefore gives Congress the power to punish Mr. Cifuentes-Cuero for his
role in the conspiracy. See United States v. Ballestas,
795 F.3d 138, 147 (D.C. Cir.
2015) (holding that the Felonies Clause “provides Congress with authority to
‘punish’ Ballestas for his role” in a drug trafficking conspiracy even though he was
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never on board the relevant vessels because his “co-conspirators committed
felonious acts on the high seas” that “are directly attributable to him”). Accordingly,
there is no error in applying the MDLEA to Mr. Cifuentes-Cuero’s conduct, let alone
plain error.
III
For the foregoing reasons, we affirm Mr. Cifuentes-Cuero’s conviction.
AFFIRMED.
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