[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 14694 Non

- Argument Calendar

________________________ D.C. Docket No. 1:13

- cr - 20801

- WPD

- 4

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus LUIS ROLANDO BUENO JIMENEZ, a.k.a. El Mono,
Defendant

- Appellant.

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

________________________ (November 29, 2018) Before WILLIAM PRYOR , JORDAN and FAY , Circuit Judges.
PER CURIAM:

Case: 17-14694 Date Filed: 11/29/2018 Page: 1 of 162 Luis Jimenez , who c onditionally pleaded guilty to conspir ing to violate the Maritime Drug Law Enforcement Act by possess ing with intent to distribute five kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States , 46 U.S.C. §§ 70503(a), 70506(b), appeals the denial of his motions to dismiss his indictment. The district court denied Jimenez’s motion to dismiss
based on the denial of a speedy trial under the Sixth Amendment after applying the balancing test outlined in Barker v. Wingo , 407 U.S. 514 (1972)

. The district court also denied as foreclosed by precedent Jime nez’s omnibus motion to dismiss that challenged the validi ty of the Act. We affirm. I. BACKGROUND Agent s of the Drug Enforcement Agency work ing with a cooperating source and law enforcement officers in Colombia, South America , learn ed that Jimenez
construct ed self

- propelled semisubmersible submarines for the Renteria G ranados organization to transport large quantities of cocaine to Central America. The international task force thrice interrupted the activ ities of Renteria Granados

. In March 2012, a n aircraft operated by the United States M arine s Corps discovered a submarine used by the organization in Honduran waters and succeeded in rescuing the four man crew after they scuttled the ship , one of wh om confess ed that t he ship was transporting cocaine from Colombia . In July 2012, members of Renteria Granados burned a submarine they had stored in a remote jungle area as they were

Case: 17-14694 Date Filed: 11/29/2018 Page: 2 of 163 being converged on by Colombian law enforce me n t

. Within t wo weeks, federal agents recorded a telephone call in which Jimenez be moaned ha vin g “more bad luck than who knows what.” In December 2012, federal agents reco rded Jimenez lamenting the loss of a third submarine in Panamanian waters that its crew scuttled when trapped b y agents of the United States, Costa Rica, and Panama

. On October 17, 2013, a federal grand jury indicted Jimenez and four cohorts
in Renteria Granados for conspir ing to engage in maritime drug t raffic king between February 1 and December 31, 2013

. Th e government moved immediately
to seal the indictment to protect witnesses, to prevent flight by the defendants, and
to safeguard the ongoing investigation . T he district court granted the motion. The ongoing investigation proved fruitful. With the aid of several informants and 71 wiretaps, the t ask force discover ed that Jimenez was assisting other drug trafficking organizations to build semisubmersible submarines to transport cocaine internationally. O n Augus t 13, 2014, the task force seize d a submarine that Renteria Granados constructed to transport multiple tons of cocaine from Guyana to Europe. In December 2014, federal a gents learned that Renteria Granados pa id Jimenez to build a submarine to replace the one seized in August

. The government declined to pursue a super s eding indictment , and o n March 10, 2015, i t moved t o unseal the indictment to apply for provisional arrest warrants
t o obtain the extradit ion of Jimenez and his codefendants from Colombia. In July

Case: 17-14694 Date Filed: 11/29/2018 Page: 3 of 164 2015, the U.S. State Department received provisional arrest warrants and forwarded the m to the Co lombia n government

. During August 2015, federal agents met with Colombian law enforcement and naval intell igence about locat ing and arresting the defendants. By December 2015, the task force h ad locat ed all the defendants, but the Colombian authorities postpone d the arrests until after the Christmas and New Years holidays

. On January 24, 2016, a gents arrested Jimenez . On February 2 7 , 2017, Jimenez arrived in Florida and appeared for arraign ment . Jimenez entered a plea of not guilty to the conspiracy charge

. On March 27, 2017, Jimenez moved to dismiss his indictment based on the denial of his right to a speedy trial

. Jimenez argued that the delay preceding his arrest and initial appearance was presumptively prejudicial, that the government
faile d t o act with due diligence , that he had promptly asserted his right to a speedy trial, and that he d id not need to prove actual prejudice. The government opposed dismissal and attached to its opposition a nine

- page chronology of its investigation
and its co llaboration with Colombian authorities

. Jimenez also filed an omnibus mo tion to dismiss . Jimenez argued that Congress exceeded its authority in enacting the Maritime Drug Law Enforcement
Act ; the Act violated his right to due process under the Fifth Amendment ; and the Act violated his rights to have a jury find each element of the c rime char ged and to

Case: 17-14694 Date Filed: 11/29/2018 Page: 4 of 165 confront the preparer of a testimonial certificate under the Sixth Amendment. Jimenez also argued that the exclusion of the Act from safety valve relief , 18 U.S.C. § 3553(f), violate d his right to equal protection under the F ifth Amendment

. T he district court denied Jimenez’s omnibus motion. After a n evidentiary hearing , t he district court denied Jimenez ’s motion to
dismiss for lack of a speedy trial . The district court determine d that the first and third Barker factors “weigh[ed] heavily against the government” because the delay was sufficient to trigger a speedy trial inquiry and because Jimenez timely had invoked his right to a speedy trial. T he district court determined that the second Barker factor involving the reason for the delay weigh ed “ in favor of the government” or “only slightly against it” even though Jimenez bore no “responsibility for the delay.” Th e district court found that delay s were “appropriate to continue the investigation of the d rug trafficking organization” with the Colombian government, t o coordinate the arrests of “ all defendants simultaneously , ” and to “locate[] defendants in Colombia and extradit[e] them

. ” Because the government “ unseal ed the indictment as soon as the legitim ate need for delay had been completed , ” the district court determin ed that the “postponement of the prosecution [was not] to gain some impermissible advantage
at trial

. ” The district court r uled that Jimenez’s speedy trial claim failed because Case: 17-14694 Date Filed: 11/29/2018 Page: 5 of 166 the first three Barker factors “did not weigh heavily against the government” and he failed to prove actual prejudice. Jimenez plead ed guilty to conspiring to engage in maritime drug trafficking, 46 U.S.C. §§ 705 03(a), 70506(b), and reserved the right to appeal the de nial of his motions to dismi ss. H e admitted that he assisted Renteria Granados in construct ing
submarines used to transport large quantities of cocaine from Colombia to Central America ; that the submarines could store up to three tons of cocaine; and that law enforcement recorded multiple telephone conversations that implicated him in the maritime drug traffic king . The district court sentenced Jimenez to 120 months of imprisonment. See id. § 70506(a); 21 U.S.C. § 960(b)(1)(B). II. STANDARDS OF REVIEW The denials of Jimenez’s motions to dismiss involve mixed questions of fact and law. See United States v. Villarreal , 613 F.3d 1344, 1349 (11th Cir. 2010) (speedy trial); United States v. Cruickshank , 837 F.3d 1182, 1187 (11th Cir. 2016) (Maritime Drug Law Enforcement Act )

. We review factual findings for clear error
and will reverse only if “ we are left with the definite and firm conviction that a mistake h as been committed.” Villarreal , 613 F.3d at 1349 (internal quotation marks and citation omitted). We review de novo the application of the law to the facts. Id. Case: 17-14694 Date Filed: 11/29/2018 Page: 6 of 167 III. DISCUSSION
Jimenez contend s that the district court should have dismiss ed his
indictment

. Jimenez argues that the government intentionally delayed his prosecution and , because the second Barker factor weigh ed heavily against the government , he was excused from having to prove actual prejudice to prevail on his speedy trial claim. Ji menez also argues that the Maritime Drug Law Enforcement Act is unconstitutional and that he is e ntitl e d t o a reduction of his sentence under the safety valve . These arguments fail.

A. The D istrict C ourt D id N ot E rr in W eighing the Barker F actors and D enying Jimenez’s M otion to D ismiss

. The Sixth Amendment provid es , “ I n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. To determine whether a delay between indictment and trial violates a defendant’s right to a speedy trial, “the conduct of the Government must be weighed against the conduct of the defendant.” United States v. Carter , 603 F.2d 1204, 1207 (5 th Cir. 1979) . In Barker , the Supreme C ourt i nstructed courts to evaluate whether a delay deprived the defendant of a speedy trial based on four factors : the length of the delay between indictment and trial , the reason for th at delay, whe n the defendant asserted his right to a speedy trial, and whether he was prejudice d by the delay

. Barker , 407
U.S. at 530

– 33

. If the length of the post

- indictment delay is sufficiently long to trigger consideration of the other factors , and if the reason fo r the delay and

Case: 17-14694 Date Filed: 11/29/2018 Page: 7 of 168 assertion of the right to a speedy trial also “weigh heavily” against the Government, the defendant is not required to prove actual prejudice to succeed on his speedy trial claim. United States v. Oliva , 904 F.3d 910, 916 (11 th Cir. 2018). We review the determination of the district court with respect to each factor “with considerable deference.” Doggett v. United States , 505 U.S. 647, 652 (1992)

. The weight to be accorded a d elay varies with its cause. Barker , 407 U.S. at 531. A deliberate attempt to delay trial to hamper the defense weighs heavily against the government. Id. N eutral reasons for delay , such as negligence , weigh less heavily against the government. Villareal , 613 F.3d at 1351. But n eutral

reason s do “ not necessarily tip the scale in favor of the defendant, particularly where [he] was at liberty and outside the jurisdiction where the indictment was returned.” United States v. Bagga , 782 F.2d 1541, 1544 (11 th Cir. 1986). A valid

reason that serves a legi timate government purpose justifies reasonable delay. See Doggett , 505 U.S. at 656 (“ p retrial delay is often both inevitable and wholly justifiable , ” for instance, when “[t] he government

. . . need [s] time to collect witnesses against the accused, oppose his pretrial motions, or, if he goes into hiding, track him down. ”). When weighing a factor “there is no hard and fast rule to apply .

. . , and each case must be decided on its own facts.” United State s v. Clark , 83 F.3d 1350, 1354 (11 th Cir. 1996).

Case: 17-14694 Date Filed: 11/29/2018 Page: 8 of 169 The government does not dispute that the first and third Barker factors weigh heavily against it

. The 40

- month delay between Jimenez’s indictment and
his initial appe ar anc e was sufficient ly lengthy to entitle him to a presumption of prejudice

. S ee id. at 1352

. And Jimenez’s prompt assertion of his right to a speedy trial tilted in his favor

. S ee id. at 1353

. Because of the weight that the district court assigned t o those two factors, Jimenez’s right to relief turns on the second Barker factor

— the reason for the delay. Jimenez accuses the government of “inaction” between his indictment and initial appearance, but the district court did not clearly err in making a contrary finding

. The government “establish[ed] valid reasons for the delay ” in its response to Jimenez’s motion and an attached nine

- page report that described an ongoing international investigation that led to the search for and apprehension of Jimenez
and his codefendants

. S ee Villarreal , 613 F.3d at 1351

. Th e report de scribed the international i nvestigati on that began in December 2012 and continued after the government unsealed Jimenez’s indictment

. Pages 3 through 6 of the report catalogue

— from Jimenez’s indictment on October 17, 2013 , through mid

December 2014

— the use of informants and wiretaps to collect information about Jimenez’s w ork with Renteria Granados and other drug trafficking organization s and their af filiations with paramilitary commanders, financiers, and cocaine Case: 17-14694 Date Filed: 11/29/2018 Page: 9 of 1610 suppliers ; the seiz ur e of a submarine constructed to transport multiple tons of cocaine ; and the d iscover y of a plot f or Jimenez to construct a nother submarine. It is undisputed that the investigation ended when the government de c lined to pursue a superseding indictment, ye t th at decision dovetailed with the motion of the government to unseal the indictment. Page 6 of the report reflects that federal agents met with confidential sources during December 2014 and obtained permission on January 15, 2015, to tap a cellular telephone in Colombia for 180 days. T h at wiretap overlapped with the filing on March 10, 2015, of the motion to unseal Jimenez’s indictment to apply for provisional arrest warrants

. The record supports the finding that the government was actively involved in Jimene z’s case until his initial appearance . As stated on page 7 of the report, on July 9, 2015, the State Department received provisional arrest warrants and forwarded the m to the Colombian government on July 23, 2015. Pages 7 and 8 of
t he report describes meetings between federal agents and Colombian authorities during August 2015 to locate and arrest the defendants and t o collect additional intelligence. The government stated o n page 15 of its response that the “[t]he last defendant [was] locate d . . . around December 2015” and that Colombian authorities “delayed the arrests until the end of January 2016.” Jimenez was arrested on January 24, 2016 , hi s arrest warrant state s that he was extradited to the

Case: 17-14694 Date Filed: 11/29/2018 Page: 10 of 1611 United States in February 2017 , and t he docket sheet reflects that he appeared for arraignment on February 27, 2017. The government had , at a minimum , neutral reasons for its delay. The district court identified three activities that delayed Jimenez’s prosecution: the “ongoing investigation , ” the “coordination of [the defendants’] arrests , ” and “the logistics of locating defendants in Colombia and extraditing them.” We readily dispose of the latter two activities b ased on our precedents holding that delays attributable to seeking the assistan ce of a foreign government and to marshaling codefendants for trial weigh minimally against the government

. In United States v. Hayes , 40 F.3d 362 (11 th Cir. 1994), we held that the government had a valid reason for sealing the indictment and delaying the defendant’s trial for almost five years while working with the United Kingdom and the government of Zimbabwe
to locate, arrest, and extradite a codefend ant who might have “frustrated . . . attempts to secure his arrest and deportation if he [had been] aware of [the indictment]

. ” Id. at 365

– 66. And in United States v. Davenport , 935 F.2d 1223, 1239

– 40 (11 th Cir. 1991), we held that a delay of almost two ye ars “inherent to the government’s good faith effort to conduct a complex

. . . trial involving nineteen codefendants” in a manner consistent with this Circuit’s “judicial policy favoring joint trials” in conspiracy cases provided “ at worst, neutral reasons” for the delay

. Id. at 1239

– 40. T he delays owing to the collaboration with Colombian authorities

Case: 17-14694 Date Filed: 11/29/2018 Page: 11 of 1612 to coordinate the defendants’ arrests and to extradit e the defendants “will not be held against the Government.” See Hayes , 40 F.3d a t 366. The district court did not err in classifying the ongoing international investigation , at worst, as a neutral reason that weighed “only slightly against” the government. As the Supreme Court stated when addressing whether an investigation that contribute s to preindictment delay violate s the Due Process Clause of the Fifth Amendment , “investigative delay is fundamentally unlike delay undertaken by the Government solely to gain tactical advantage over the accused , precisely beca use investigative delay is not so one

- sided .” United States v.
Lovasco , 431 U.S. 783, 795 (1977) (internal quotation marks and citation omitted). Investigative delay can involve “fully exploit[ ing ] .

. . potentially fruitful sources of information,” id. at 792, and protect in g those informa n t s , see id . at 796 n. 19 , and
those matters may be “beyond the control of the prosecuting authorities.” I d. T he government had to balance its “ duty to make a diligent, good faith effort to bring an indicted defendant to trial promptly ,” Hayes , 40 F.3d at 365, with its needs to discover the full scope of drug trafficking by Jimenez and his cohorts, to protect informants, and to assist Colombian authorities with their investigation. As the district court stated, t he government sensibly “decided [not] to jeopardize [its] investigations and relations with Colombia by unsealing the indictment earlier.” While Jimenez’s indictment was sealed, the task force amassed evidence of

Case: 17-14694 Date Filed: 11/29/2018 Page: 12 of 1613 internation al drug tra ffic king and interrupted those illegal activities. Because the government postpone d action for t he investigation , and “[t]here is absolutely no evidence of bad faith by the government,” Davenport , 935 F.2d at 1240, the delay attributable to the investigation counts marginally against t he government

. The district court did not err by denying Jimenez’s motion to dismiss for lack of a speedy trial. The Supreme Court “has consistently been of the view that ‘[t]he right of a spee dy trial is necessarily relative.’” United States v. Ewell , 383 U.S. 116, 120 (1966) (quoting Beavers v. Haubert , 198 U.S. 77, 87 (1905)). “It secures rights to a defendant” while guarding “the rights of public justice.” Id. (quoting Beavers ). The governme nt provided compelling reasons for its delay: to protect the maritime drug trafficking investigation and its informants, to preserve amity with Colombian authorities, and to arrest and extradite Jimenez and his codefendants. Jimenez offered no evidence tha t the government delayed prosecution to prejudice him or to gain a tactical advantage for itself. S ee Barker , 407 U.S. at 531. Although the first and third Barker factors

— the length of the delay and Jimenez’s prompt assertion of his right to a speedy trial

— weigh heavily against the government, the second factor

— the reasons for the delay

— weighs “only slightly against it.” When “the reasons for the delay do not weigh heavily against the government [, the defendant is]

. . . not excus e[d] from . . . showing . .

. actual prejudice.” Davenport , 935 F.2d at 1240. Jimenez never alleged that he was

Case: 17-14694 Date Filed: 11/29/2018 Page: 13 of 1614 prejudiced by the delay . A balancing of the Barker factors establishes that the government did not deprive Jimenez of his right to a speedy trial.
B. The District Court Also Did Not Err by Den ying Jimenez’s Omnibus Motion to Dismiss

. Jimenez argues that his conviction under the Maritime Drug Law Enforcement Act is unconstitutional in four ways . He also argues that his ineligibility for relief from a mandatory minimum sentence under the safety valve, 18 U.S.C. § 3553(f), violates his constitutional right to equal protection of the law und er the F if th Amendment.
O ur precedents foreclose Jimenez’s four challenges to his conviction for violating the Act. First, Jimenez argues that the power of Congress to punish maritime felonies does not extend to drug trafficking offenses that lack a nexus to the United States, but “we have repeatedly held that Congress has the power, under the Felonies Clause, to proscribe drug trafficking on the high seas , ” United States v. Campbell , 743 F.3d 802, 812 (11th Cir. 2014) ; see Cruickshank , 837 F.3d at 1188

. Second, Jimenez argues that the district court v iolate d the Due Process Clause of the Fifth Amendment by exercis ing jurisdiction over his o ffense without proof of a domestic nexus, but in Campbell we held that “ the conduct proscribed by the Act need not have a nexus to the United States because universal and protective principles support its extraterritorial reach ,” 743 F.3d at 810

. Third, Jimenez argues that the A ct violates his right to due process under the Fifth

Case: 17-14694 Date Filed: 11/29/2018 Page: 14 of 1615 Amendment and his right to a jury trial under the Sixth Amendment because it removes the factual basis of the jurisdictional requirement from a jury ’ s consideration , but the Court in Campbell also h e ld that the Fifth and Sixth Amendment s do not require a jury to determi ne whether extraterritorial jurisdiction exists under the Maritime Act, 743 F.3d at 809

. F ourth , Jimenez argues that the acceptance by the district court of a certificate from the Secretary of State as conclusive proof of jurisdiction under the Act violate s his right of confrontation under the Sixth Amendment, but we explained in Cruickshank that a “ certification of jurisdiction under the [Act] does not implicate the Confrontation Clause because it does not affect the guilt or innocence of a defendant ,” 837 F.3d at 1191

. Our recent decision in United States v. Castillo , 899 F.3d 1208 (11th Cir. 2018) , also forecloses Jimenez ’s challenge to his s entence. In Castillo , we held that “international concerns” provided Congress a rational basis to “mete out [more] hefty sentences to maritime drug runners” than to their domestic counterparts. Id.
at 1213. W e concluded that “ Congress ha s legitimate reasons to craft strict sentences for violations of the Act” because, “[i] n contrast with domestic d rug offenses, “international drug trafficking raises pressing concerns about foreign relations and global obligations , ” as evidenced by our commitment by treaty to thwart maritime drug trafficking , and because the more severe p enalty for maritime trafficki ng c ould “deter would

- be offenders

. ” I d. Case: 17-14694 Date Filed: 11/29/2018 Page: 15 of 1616 IV. CONCLUSION
We AFFIRM Jimenez’s conviction and sentence

. Case: 17-14694 Date Filed: 11/29/2018 Page: 16 of 16