[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13758

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ORLANDO GRUESO VALENCIA, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:20-cr-00380-SCB-AAS-3

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2 Opinion of the Court 21-13758

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Before ROSENBAUM, LUCK and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Orlando Grueso Valencia appeals his conviction 

for one count of conspiring to possess with intent to distribute five 

kilograms or more of cocaine while onboard a vessel subject to the 

jurisdiction of the United States. On appeal, he argues for the first 

time that the district court erred by failing to determine sua sponte 

that 46 U.S.C. § 70502(d)(1)(C), the provision in the Maritime Drug 

Law Enforcement Act (“MDLEA”) that defines “vessels without 

nationality,” is unconstitutional under the Felonies Clause, U.S. 

Const. art. I, § 8, cl. 10. Having read the parties’ briefs and reviewed 

the record, we affirm Valencia’s conviction.

I.

A district court’s subject-matter jurisdiction “is a question of 

law that we review de novo even when it is raised for the first time 

on appeal.” United States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir. 

2016). Likewise, we normally review de novo the constitutionality 

of a criminal statute. United States v. Wright, 607 F.3d 708, 715 

(11th Cir. 2010). Nevertheless, when a non-jurisdictional constitutional challenge is raised for the first time on appeal, we review for 

plain error only. Id. at 715; United States v. Vereen, 920 F.3d 1300, 

1312 (11th Cir. 2019). Plain error occurs when “(1) there was error, 

(2) that was plain, (3) that affected the defendant’s substantial 

rights, and (4) that seriously affected the fairness, integrity, or 

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public reputation of judicial proceedings.” Wright, 607 F.3d at 715 

(quotation marks omitted). “When neither this Court nor the Supreme Court have resolved an issue, there can be no plain error in 

regard to that issue.” Vereen, 920 F.3d at 1312. 

II.

Article I of the Constitution empowers Congress “[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. 

Pursuant to this Clause, Congress enacted the MDLEA to prohibit 

knowing and intentional possession with intent to distribute a controlled substance onboard a vessel subject to the jurisdiction of the 

United States. United States v. Campbell, 743 F.3d 802, 805 (11th 

Cir. 2014); 46 U.S.C. § 70503(a)(1). The MDLEA describes a number of circumstances in which a vessel is subject to the jurisdiction 

of the United States, including when it is “a vessel without nationality” or a vessel registered in a foreign nation that has consented 

to, or waived objection to the defendant’s prosecution in the 

United States. 46 U.S.C. § 70502(c)(1)(A), (C). A vessel without 

nationality includes “a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed 

nation of registry does not affirmatively and unequivocally assert 

that the vessel is of its nationality.” Id. § 70502(d)(1)(C). 

A person charged with a violation of the MDLEA “does not 

have standing to raise a claim of failure to comply with international law as a basis for a defense.” Id. § 70505; see United States v. 

Hernandez, 864 F.3d 1292, 1301-02 (11th Cir. 2017). Such a claim 

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“may be made only by a foreign nation,” and “does not divest a 

court of jurisdiction.” 46 U.S.C. § 70505. Accordingly, “any battle 

over the United States’ compliance with international law in obtaining MDLEA jurisdiction should be resolved nation-to-nation in 

the international arena, not between criminal defendants and the 

United States in the U.S. criminal justice system.” Hernandez, 

864 F.3d at 1302.

We have previously held that Congress did not exceed its 

power under the Felonies Clause in enacting the MDLEA. Id. at 

1303; Campbell, 743 F.3d at 810-12; United States v. Estupinan, 

453 F.3d 1336, 1338 (11th Cir. 2006). We have “always upheld extraterritorial convictions under our drug trafficking laws as an exercise of power under the Felonies Clause.” Campbell, 743 F.3d at 

810 (quotation marks omitted). “Congress may assert extraterritorial jurisdiction over vessels in the high seas that are engaged in 

conduct that has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal 

systems.” Id. (quotation marks omitted). Moreover, because narcotics trafficking is condemned universally by law abiding nations, 

there is “no reason to conclude that it is fundamentally unfair for 

Congress to provide for the punishment of persons apprehended 

with narcotics on the high seas.” Estupinan, 453 F.3d 1336, 1338-

39 (11th Cir. 2006) (quotation marks omitted). 

III.

As an initial matter, we review Valencia’s constitutional 

challenge for plain error. Valencia does not contend on appeal that 

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the stipulated facts in the plea agreement are incorrect, or that under the stipulated facts, he is not subject to jurisdiction under 

§ 70502(d)(1)(C) as written. Instead, his argument is that the statute, as applied to him, is unconstitutional. As Valencia acknowledges, there is no binding precedent from this Court or the Supreme Court that directly addresses the specific issue of personal 

jurisdiction under § 70502(d)(1)(C). Thus, Valencia cannot show 

that any error was plain. Vereen, 920 F.3d at 1312.

Likewise, even if we deem Valencia’s argument to relate to 

the district court’s subject-matter jurisdiction and review it de 

novo, it still fails, as he has not shown any error. We have consistently found that the MDLEA is a permissible exercise of congressional power under the Felonies Clause. Campbell, 743 F.3d at 810-

12; Hernandez, 864 F.3d at 1303; Estupinan, 453 F.3d at 1338. We

have also stated, as has Congress, that asserting a violation of international law is not a defense under the MDLEA. 46 U.S.C. § 70505; 

Hernandez, 864 F.3d at 1301-02. Valencia has not shown that § 

70502(d)(1)(C) is an unconstitutional exercise of congressional authority under the Felonies Clause. Accordingly, based on the aforementioned reasons, we affirm Valencia’s conviction.

AFFIRMED. 

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