USA v. Ricardo David Salazar-Marcano

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12182
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO DAVID SALAZAR-MARCANO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 4:21-cr-10019-JEM-3
____________________
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2 Opinion of the Court 22-12182
Before N EWSOM , BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Ricardo David Salazar-Marcano pleaded guilty, pursuant to
a written plea agreement, to one count of conspiracy with intent
to distribute cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of the Maritime Drug
Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503(a)(1),
70506(b). He now appeals, arguing that venue was not proper in
the Southern District of Florida and that the district court erred in
denying his motion to dismiss the indictment. After review, we
affirm.
I. Background
The United States Coast Guard apprehended Salazar-
Marcano, along with two other individuals, on a go-fast vessel
carrying cocaine in international waters. Upon being detained,
Salazar-Marcano was placed on a coast guard cutter which
proceeded into the inner harbor of San Juan, Puerto Rico. He was
then transferred (without going ashore) to another vessel and
eventually arrived at a port in the Southern District of Florida.
Thereafter, Salazar-Marcano was indicted in the Southern District
of Florida on two counts: (1) conspiracy to possess with intent to
distribute a controlled substance while on board a vessel subject to
the jurisdiction of the United States; and (2) possession with intent
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22-12182 Opinion of the Court 3
to distribute a controlled substance while on board a vessel subject
to the jurisdiction of the United States.
Salazar-Marcano moved to dismiss the indictment, arguing
that venue was inappropriate in the Southern District of Florida.
He maintained that, under 21 U.S.C. § 955a(f),1 venue was
appropriate in the first port of entry in the United States that he
entered following his detention, which was San Juan, Puerto Rico.
The district court denied the motion to dismiss, concluding that
venue was proper in the Southern District of Florida, under
§ 70504(b)(2) of the MDLEA.2
1 Section 955a is a statute in an older version of what is now known as the
MDLEA. As relevant to this appeal, it provided that “it is unlawful for any
person on board a vessel of the United States, or on board a vessel subject to
the jurisdiction of the United States on the high seas, to knowingly or
intentionally manufacture or distribute, or to possess with intent to
manufacture or distribute, a controlled substance.” 21 U.S.C. § 955a(a) (1980).
Subsection (f) further provided that “[a]ny person who violates this section
shall be tried in the United States district court at the point of entry where that
person enters the United States, or in the United States District Court for the
District of Columbia.”
Id. § 955a(f). In 1986, Congress struck virtually the
entire existing act, and then reenacted an expanded version entitled “the
Maritime Drug Law Enforcement Act,” which was recodified in Title 46.
See
United States v. Ahumedo-Avendano, 872 F.2d 367, 372 n.5 (11th Cir. 1989)
(citing The Coast Guard Authorization Act, Pub. L. No. 99-640, § 17, 100 Stat.
3552 (1986)).
2 The MDLEA provides that a person violating 46 U.S.C. §§ 70503 or 70508
“may be tried in any district” “if the offense was begun or committed upon the
high seas.” 46 U.S.C. § 70504(b)(2).
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4 Opinion of the Court 22-12182
Thereafter, Salazar-Marcano pleaded guilty, pursuant to a
written plea agreement, to Count 1 of the indictment. The plea
agreement did not contain an appeal waiver, nor did it reserve his
right to appeal the venue ruling. The district court sentenced
Salazar-Marcano to 84 months’ imprisonment, followed by two
years’ supervised release. Additionally, at the sentencing hearing,
Salazar-Marcano’s previously filed motion to dismiss based on
improper venue was discussed, and at the end of the sentencing
hearing, his counsel noted that he “preserve[d] all motions and
issues.” The district court agreed, stating that “[a]ll of them, all
motions filed by all of the defendants shall be preserved.” The
government did not object. Salazar-Marcano timely appealed.
II. Discussion
Salazar-Marcano argues that, under 21 U.S.C. § 955a(f), San
Juan was the proper venue for his case because it was his first point
of entry into the United States and that the district court erred in
denying his motion to dismiss the indictment. In response, the
government argues that (1) Salazar-Marcano waived this argument
by entering an unconditional guilty plea, and (2) the argument is
meritless due to the plain, controlling language of 46 U.S.C.
§ 70504(b).3
“A voluntary, unconditional guilty plea waives all non-
jurisdictional defects in the proceedings.”
United States v. Patti,
3 Salazar-Marcano did not file a reply brief.
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22-12182 Opinion of the Court 5
337 F.3d 1317, 1320 (11th Cir. 2003). Generally, a defendant who
elects to plead guilty and who wishes to preserve a non-
jurisdictional claim for appeal must enter a conditional guilty plea
in writing, with the consent of the district court and the
government. Fed. R. Crim. P. 11(a)(2). Venue is non-jurisdictional
and can be waived.
See Neirbo Co. v. Bethlehem Shipbuilding
Corp., 308 U.S. 165, 167–68 (1939);
Baeza v. United States, 543 F.2d
572, 573 (5th Cir. 1976) (“Venue is a mere personal and technical
right which may be waived.”).4
Here, it is undisputed that Salazar-Marcano’s plea
agreement did not preserve his right to appeal the denial of his
motion to dismiss based on improper venue, and he did not request
to reserve that right during the plea colloquy. Although he
expressed his desire at sentencing to preserve all motions for appeal
and the government did not object, that statement did not convert
his unconditional guilty plea into a conditional guilty plea.
See
United States v. Betancourth, 554 F.3d 1329, 1331–32 (11th Cir.
2009) (holding that, although the defendant’s attorney stated the
defendant’s desire to preserve an issue for appeal, “that did not
convert [the defendant’s] guilty plea into a conditional plea”
because “[a] conditional plea must be in writing and must be
4 We are bound by decisions of the former Fifth Circuit issued prior to the
close of business on September 20, 1981.
Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981).
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6 Opinion of the Court 22-12182
consented to by the court and by the government” (quotations
omitted)). Thus, Salazar-Marcano’s venue challenge is waived.
Nevertheless, even assuming, arguendo, that the issue is not
waived, it fails on the merits. Under the current version of the
MDLEA, which applies here, “if the offense was begun or
committed upon the high seas, or elsewhere outside the
jurisdiction of any particular State or district, [the defendant] may
be tried in any district.” 46 U.S.C. § 70504(b)(2). Accordingly,
venue was appropriate in the Southern District of Florida.
AFFIRMED.
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