Federal Criminal Law Opinions

Appeals from the U.S. District Court for the Northern District of Georgia (No. 04-00072-CR-HLM-4).

(Before HULL and PRYOR, Circuit Judges, and MOORE,* District Judge.)

(MOORE, District Judge.) There are two main issues involved in this appeal. First, this Court reviews whether there was sufficient evidence to convict codefendants Christopher Michael Dean and Ricardo Curtis Lopez (“Appellants”) for conspiracy to interfere with interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Second, this Court also examines whether 18 U.S.C. § 924(c)(1)(A)(iii), a sentencing enhancement for discharge of a firearm, includes an intent element. Lopez also raises separate issues involving a claimed erroneous jury instruction and the consolidation of his juvenile offenses.

Appellants claim insufficient evidence was presented as to the victim bank’s Federal Deposit Insurance Corporation insured status. However, 18 U.S.C. § 1951(a), unlike 18 U.S.C. § 2113, requires no such proof. Consequently, the government needed to prove only that Dean and Lopez committed a robbery that had an effect on interstate commerce. The government met this burden through the testimony of an AmSouth Bank branch manager; consequently, we deny Dean and Lopez’s § 1951(a) insufficient evidence argument.

Further, given that § 924(c) is a sentencing enhancement, not an element of an offense, this Court holds that § 924(c)(1)(A)(iii) does not contain a separate intent requirement. The mere discharge of a firearm during any crime of violence or drug trafficking, even accidental, is subject to the sentencing enhancement requiring a minimum of ten additional years of imprisonment. Therefore, Appellants’ discharge of firearm argument is likewise denied.

I. BACKGROUND
Dean and Lopez were brothers-in-law who cohabitated at the Hidden Glen complex, which is located in or around Rome, Georgia. According to the testimony of Jimmy Tanner, the former manager of AmSouth Bank’s Rome, Georgia branch, on November 10, 2004, a masked man entered the bank around 10:00 a.m. The individual, later identified as Christopher Michael Dean, through his own confession, carried a pistol and yelled at everyone to get on the ground. Dean approached the teller stations, opened the security gate, and gained access to the teller area. Once inside the teller area, Dean removed bills of currency from the drive-through teller drawer with his left hand, while holding the pistol with his right hand. Next, Dean approached the head teller station. The head teller was on her knees below the station. Dean reached over the crouched teller and with his left hand started taking money from the teller drawer. As he was grabbing the money, Dean discharged the gun in his right hand, leaving a bullet hole in the partition between the two teller work stations. Upon discharge, Dean cursed himself as if the shot was inadvertent. Immediately after the shot, Dean grabbed as much money as he could from the head teller drawer and ran out of the bank. Manager Tanner observed Dean exit the bank and enter a silver Ford Taurus without licence plates. In all, Dean stole $3,642.00.

Through further trial testimony, it was established that AmSouth Bank is headquartered outside of Georgia in Birmingham, Alabama. After the robbery, the Rome, Georgia branch remained closed for the remainder of the day. Also during the course of Tanner’s trial testimony, the government moved for admission of AmSouth’s FDIC certification, which revealed that AmSouth operated in numerous states and was FDIC insured. Defense counsel objected and argued that the certificate was testimonial and not self-authenticating. The document was admitted over objection.

After their arrest, both Lopez and Dean, at different times, claimed responsibility for the robbery. The government maintained that the evidence supported finding that Dean and Lopez conspired to rob AmSouth based upon (1) their cohabitation; (2) joint drug debt; (3) Lopez’s knowledge of the robbery’s factual details; (4) and Lopez’s possession of the firearm used in the bank robbery. Ultimately, the jury found both Dean and Lopez guilty of conspiring to interfere with interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (count one); and aiding and abetting each other in the discharge of a pistol during an armed robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 18 U.S.C. § 2 (count two). The district court sentenced Dean to 100 months as to count one and 120 months as to count two, consecutive to count one, whereas Lopez was sentenced to 78 months on count one and 120 months as to count two, consecutive to count one.

II. STANDARDS OF REVIEW
This Court reviews the first issue, sufficiency of the evidence for Appellants’ Hobbs Act violations, under a de novo standard of review. See United States v. Yates, 438 F.3d 1307, 1311 (11th Cir. 2006). The Court also employs a de novo standard of review in analyzing the district court’s legal conclusion that 18 U.S.C. § 924(c)(1)(A)(iii) did not contain a separate mens rea requirement. King v. Moore, 312 F.3d 1365, 1366 (11th Cir. 2002).

III. DISCUSSION
Appellants each contend that the government failed to prove that AmSouth’s deposits were insured by the FDIC, which they maintain requires this Court to vacate their convictions. In support of their argument, Appellants claim that exhibit 6, which is the FDIC certification and affidavit of the Assistant Secretary of the FDIC, was testimonial evidence admitted in violation of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).

To obtain a conviction for conspiring to interfere with interstate commerce through robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), the government need only prove a robbery and effect on commerce. United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000) (holding “[t]wo elements are essential for a Hobbs Act Prosecution: robbery and an effect on commerce”). At trial, Dean admitted to committing the robbery; thus, the only remaining issue is whether the government sufficiently proved that the robbery affected commerce. Appellants argue that the government did not meet its burden in proving an effect on commerce because the FDIC certificate and supporting affidavit were improperly admitted.

Before turning to the issue of its admissibility, we address whether the FDIC certificate was even necessary to prove a Hobbs Act violation. As discussed supra, a Hobbs Act violation requires proof of a robbery and an effect on commerce. Id. To prove an effect on commerce, however, the government is only required to establish “a minimal effect on interstate commerce.” Id. This Court has held that a “mere depletion of assets” is sufficient proof of an effect on interstate commerce. Id.

AmSouth Branch Manager Tanner testified that AmSouth’s headquarters were located outside the state of Georgia in Birmingham, Alabama. Tanner also stated the Rome, Georgia branch remained closed following Dean’s 10:00 a.m. robbery of $3,642.00. The robbery forced the Rome branch to close and prevented any additional patrons from transacting business for the remainder of the day. This case is similar to United States v. Guerra, where an individual stole $300 dollars from a service station, which was subsequently forced to close for two hours. There, this Court found an effect on interstate commerce and labeled the case a “classic ‘depletion of assets’ scenario.” 164 F.3d 1358, 1361 (11th Cir. 1999). In Rodriguez, this Court found an effect on commerce where the perpetrator had robbed a motel because some of the motel guests were from out of state. 218 F. 3d at 1244. Given our Hobbs Act sufficiency of evidence jurisprudence, the government’s evidence, which included the stealing of $3,642.00 from a bank with interstate branches and that is open to out of state customers, was sufficient to establish an effect on commerce. Further, the stealing of the money depleted AmSouth’s cash reserve and thereby affected commerce. This evidence was sufficient to sustain Appellants’ convictions for violation of 18 U.S.C. § 1951(a).

Appellants argue that the FDIC certificate and accompanying affidavit were improperly admitted in violation of the Confrontation Clause. Proof of a Hobbs Act violation does not require proof of FDIC insurance. FDIC insured status is an element of armed bank robbery under 18 U.S.C. § 2113, but not of 18 U.S.C. § 1951(a). See Poole v. United States, 832 F.2d 561, 564-65 (11th Cir. 1987). Appellants claim that United States v. Sandles requires reversal based upon the government’s alleged erroneous use of the FDIC certificate and accompanying affidavit. 469 F.3d 508 (6th Cir. 2006). The situation in Sandles is inapposite because there the defendant was charged with armed bank robbery, which, as stated above, requires proof of FDIC insurance. Therefore, it is not necessary for this Court to address Appellants’ Confrontation Clause claim surrounding admission of the FDIC certificate and affidavit. Even if the FDIC certificate and affidavit were admitted in error, the error was harmless, as no proof of FDIC insured status was needed and the government provided separate evidence establishing the Hobbs Act violation. See United States v. Ndiaye, 434 F.3d 1270, 1286 (11th Cir. 2006) (stating “denial of a defendant’s Confrontation Clause right to cross-examination is examined for harmless error”).

Furthermore, Appellant Lopez argues that proof of FDIC insured status was necessary for the government to meet its burden with respect to the Hobbs Act’s effect on commerce prong. A bank’s FDIC status could be relevant to the effect on commerce inquiry, see United States v. Spinello, 265 F.3d 150, 156-57 (3d Cir. 2001) (bank robbery case), but it is not required here. As discussed above, a mere depletion of assets is sufficient to prove an effect on commerce. Here, the depletion was proven; consequently, proof of FDIC insured status was not necessary because the trial testimony established depletion of assets, bank closure, and out of state branches, which proved the requisite effect on commerce.

Appellants next claim that 18 U.S.C. § 924(c)(1)(A)(iii) requires that the sentencing enhancement for discharge of a firearm applies only to intentional firearm discharges. Testimony at trial supports Dean’s assertion that the discharge of the firearm inside the bank was a surprise even to Dean and, thus, was likely accidental. Our Court has not squarely addressed in any published opinion whether a firearm discharge must be intended before the sentencing enhancement is applicable. We now hold that nothing in the language of the statute requires separate proof of intent before applying the sentencing enhancement.

Section 924(c)(1)(A)(iii) is a sentence enhancement and merely reflects factors that will enhance sentencing, not elements of an offense. Harris v. United States, 536 U.S. 545, 556 (2002). Section 924(c)(1)(A)(iii) states in pertinent part, “any person who . . . uses or carries a firearm . . . shall, in addition to the punishment provided for such crime of violence or drug trafficking crime[,] — (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” The plain language of § 924(c)(1)(A)(iii) requires only a person to “use[ ] or carr[y] a firearm” to be subject to the sentence enhancement; there is no reference to any mens rea requirement. Looking to our case law, we analyzed a similar mens rea sentencing enhancement claim in United States v. Brantley, 68 F.3d 1283, 1290 (11th Cir. 1995).

Brantley involved possession of a semi-automatic firearm that, unbeknownst to its carrier, had been illegally altered into a fully automatic weapon. Id. at 1289. This Court held that the carrier had to have known of the firearm’s altered status to be found guilty of carrying an illegal firearm under 26 U.S.C. § 5861(d). Id. at 1290. We, however, found that the defendant’s conviction under § 924(c) did not require any separate intent. Id. This Court differentiated the intent requirements of § 5861 and § 924(c) because it was concerned that removing the mens rea requirement from § 5861 could punish an innocent individual who did not realize the firearm was prohibited. We did not have the same fear of punishing an unknowing individual under § 924(c) because imposition of that sentence enhancement first demands the government prove the defendant engaged in an underlying violent or drug trafficking crime, which will have its own mens rea requirement. Id. at 1289-90 (stating “unlike the law abiding individual who unknowingly comes into possession of an illegal firearm, the §924(c) defendant whose sentence is enhanced based upon the type of weapon he carried has demonstrated a ‘vicious will’ by committing the principal offense”).

In addition to our Brantley decision, this Court is also persuaded by the Tenth Circuit’s reasoning in United States v. Nava-Sotelo, 354 F.3d 1202 (10th Cir. 2003). In that case, the brother of an inmate attempted to rescue the inmate on his way back from receiving dental treatment outside of the prison. Id. at 1203. In a struggle between the defendant and one of the prison transporting officers, the prison officer grabbed the defendant’s gun and as the two were fighting over it, the defendant accidentally discharged the weapon into the ground. Id. The Tenth Circuit supported its finding that § 924(c)(1)(A)(iii) did not have an additional mens rea requirement by finding the plain language of the statute did not include any requirement of intent. Id. at 1207. Further, the Tenth Circuit stated § 924(c)(1)(A)(iii) lists sentencing enhancements, not elements of an offense, and when the underlying offense requires a vicious will the danger of imposing punishment upon an innocent party is absent. Id. Given this reasoning, the Nava-Sotelo Court succinctly concluded “[a]ccountability is strict; the mere fact that the weapon discharged is controlling.” Id. at 1206.

Appellants urge this Court to adopt the D.C. Circuit’s reasoning in United States v. Brown, 449 F.3d 154 (D.C. Cir. 2006), which found § 924(c)(1)(A)(iii) did require intent to discharge in order for a defendant to receive the ten year sentencing enhancement. The D.C. Circuit found that the three subsections of § 924(c) worked in concert to impose increasingly heavier penalties as the defendant’s conduct became more egregious. Id. at 156. The D.C. Circuit, therefore, reasoned that § 924(c)(1)(A)(iii) [discharge] must contain an intent requirement because it contains a harsher penalty than § 924(c)(1)(A)(ii) [brandishing]. Id. This reasoning is not persuasive because discharging a firearm, regardless of intent, presents a greater risk of harm than simply brandishing a weapon without discharging it. The penalty is an enhancement for conduct that occurred, not intent. The D.C. Circuit also found a mens rea requirement because of the general presumption against strict liability in criminal statutes. This reason is equally unpersuasive as there is a distinction between elements of an offense and sentencing enhancements for conduct during perpetration of a violent criminal act.

Here, despite the evidence that Dean accidentally discharged his pistol during the AmSouth robbery, the district court correctly found that he remained subject to the § 924(c)(1)(A)(iii) sentencing enhancement. Consistent with our reasoning in Brantley, Appellants had the vicious will to conspire to commit the underlying crime of robbery in violation of the Hobbs Act, which ensures that they are not innocent individuals unfairly held to a strict liability offense. Finally, adopting the Tenth Circuit’s reasoning, Dean’s mere discharge of the pistol is controlling. Therefore, the district court did not err in holding that § 924(c)(1)(A)(iii) lacks a separate mens rea requirement.

On appeal, Lopez levied two additional arguments not raised by his codefendant. First, Lopez claims that the district court’s jury instruction created an unconstitutional mandatory presumption. Second, he argues that the district court erroneously found that his prior juvenile armed robbery convictions were not functionally consolidated.

Lopez raises his objection to the district court’s jury instruction for the first time on appeal; consequently, this Court reviews the instruction for plain error. United States v. Vasquez, 53 F.3d 1216, 1221 (11th Cir. 1995). Further, we must review the challenged jury instruction in its entirety. United States v. Myers, 972 F.2d 1566, 1573 (11th Cir. 1992).

Lopez finds error with the district court’s following instruction: “You may find the requisite effect upon interstate commerce has been proven if you find beyond a reasonable doubt that the bank described in the indictment was engaged in doing business both within and without the state of Georgia.” Lopez contends that this jury instruction lowers the standard of proof by creating the mandatory presumption that the robbery of the Rome, Georgia branch affected interstate commerce.

A jury instruction which creates a burden shifting presumption or a conclusive presumption deprives a defendant of his right to the due process of the law. See Sandstrom v. Montana, 442 U.S. 510, 524 (1979). An instruction must not relieve the government of its burden of proving each and every element of an offense. Id. “The threshold inquiry in evaluating whether a jury instruction impermissibly shifts the burden of proof is whether the instruction is a permissive inference or a mandatory presumption.” Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1995). Further, “[a] permissive presumption merely allows an inference to be drawn and is constitutional so long as the inference would not be irrational.” Id. This Court, in Myers, held a permissive inference permits the jury to make an inference from the evidence proven by the prosecution, but does not mandate any such finding. United States v. Myers, 972 F.2d 1566, 1573 (11th Cir. 1992) (stating “[t]he district court explicitly informed the jury that it ‘may’ infer that a person ordinarily intends all the natural and probable consequences of an act . . . . This circuit has approved similar jury instructions that allow the jury to infer intent from the natural and probable consequences of any act.”).

In the instant case, the district court similarly instructed the jury that it “may” find an effect upon interstate commerce. Id. The court did not create a mandatory presumption through the use of unqualified language such as must or shall. The court also did not relieve the prosecution of its burden because it still required the jury to “find beyond a reasonable doubt that the bank described in the indictment was engaged in doing business both within and without the state of Georgia.” The government put into evidence the testimony of Branch Manager Tanner that revealed AmSouth’s out of state headquarters and its half-day closure, which provided the jury with the opportunity to reasonably infer an effect upon interstate commerce. Further, the instruction resembles the one we previously upheld in Myers. Accordingly, this Court finds that the challenged instruction created a permissive inference, did not relieve the prosecution of proving each and every element beyond a reasonable doubt, and, thus, did not constitute plain error.

Defendant Lopez pled guilty to four counts of armed robbery in the Georgia juvenile court system. Lopez committed five armed robberies over a span of four days in late July, 1997. After the final robbery, Lopez was arrested and charged separately for the four crimes.1 Each charge of armed robbery was assigned a separate case number, but one lawyer represented Lopez in each case and a single plea agreement was reached covering all four offenses. In addition, the juvenile court imposed a single sentence for all four robberies at one proceeding. Lopez, based upon these facts, argues his underlying armed robbery adjudications were functionally consolidated and the district court should have treated them as related cases under U.S.S.G. § 4A1.2, Application Note 3(C).

In calculating Lopez’s criminal history score, the probation officer assessed two criminal history points for each of the four juvenile armed robberies. These eight points, along with a single point for an adult battery conviction, gave Lopez a total criminal history score of nine, which establishes a criminal history category of IV. Based upon his criminal history category and total offense level, Lopez’s guideline range, as to count one, was 77-96 months. On count one, the district court sentenced Lopez to 78 months imprisonment. At sentencing, the district court judge also stated that he still would have imposed a term of 78 months imprisonment as a reasonable sentence, regardless of any guidelines miscalculation, because of the facts of the case and defendant’s misleading and shifting testimony offered in an effort to hide the truth. Lopez contends that he should have received only two points for the four armed robberies because he was sentenced only once. This one robbery charge, in addition to the adult battery charge, would have given him a criminal history score of 3, a criminal history category of II, and a guideline range of 57-71 months.

This Court need not address Lopez’s specific arguments surrounding the alleged failure to consolidate his juvenile offenses because, as we held in United States v. Keene, where the district court imposes a reasonable sentence and states that it would impose the same sentence irrespective of any sentencing calculation errors, this Court will uphold the sentence rather than “send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm.” 470 F.3d 1347, 1350 (11th Cir. 2006).

Here, like Keene, the district court stated it would have imposed 78 months as a reasonable sentence based on the 18 U.S.C. § 3553(a) imposition of a sentence factors. According to our decision in Keene, the relevant analysis is as follows: “the question then is whether the [78-month] sentence the court imposed is reasonable, assuming exactly the same conduct and other factors in the case, but using an advisory range of [57-71] months.”2 470 F.3d at 1350. In this case, Lopez’s 78-month sentence was reasonable under the § 3553(a) factors because his criminal record and current offense show a disregard for the law, obstruction of justice and falsity, danger to the public, and a need to deter future transgressions. Therefore, the district court’s imposition of Lopez’s 78-month sentence was reasonable and stands despite the disputed guidelines issue.

IV. CONCLUSION
The district court judgment is AFFIRMED.

__________________

*Honorable K. Michael Moore, United States District Judge for the Southern District of Florida, sitting by designation.

1Two of the robberies were charged in a single petition, which made the two charges proper for consolidation as one armed robbery.

2This analysis assumes that the district court should have awarded Lopez a criminal history score of 3, which would have generated a criminal history category of II, leaving him with a guideline range of 57-71 months imprisonment.

* * *

Appeal from the U.S. District Court for the Middle District of Florida (No. 05-00393-CR-T-23TBM).

(Before DUBINA and MARCUS, Circuit Judges, and COOGLER,* District Judge.)

(DUBINA, Circuit Judge.) Appellant Gonzalo Arturo De La Garza appeals his conviction and sentence for conspiracy to possess with intent to distribute 5 kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of the Marine Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. App’x § 1903(a), (g), (j) (2005).1 De La Garza raises the following arguments on appeal, none of which were raised in the district court: (1) the Government breached its plea agreement with De La Garza by attacking his credibility during sentencing; (2) the district court had no subject matter jurisdiction over the offense because the stipulated facts did not show that De La Garza was on a vessel subject to the jurisdiction of the United States; (3) the MDLEA exceeded Congress’s authority; and (4) the MDLEA is unconstitutional because it does not provide for a jury to decide the jurisdictional facts. After reviewing the record, reading the parties’ briefs, and having the benefit of oral argument, we affirm De La Garza’s conviction and sentence.

I. Background
We reproduce the background facts verbatim from De La Garza’s plea agreement:

Prior to August 30, 2005, the defendant, Gonzalo Arturo De La Garza, was hired to travel from Puerto Vallarta to Huatulco, Mexico, in order to repair boat engines. Once De La Garza arrived at the vessel, which was on land, it was clear to him that the vessel was a “go-fast” vessel used for drug smuggling. Nevertheless, De La Garza knowingly and willingly prepared the vessel. Once the vessel was ready, De La Garza was, for the first time, instructed to be a crew member on a vessel that was initially tasked with providing support, in the form of food, water and fuel, to the go-fast vessel that had already left Mexico to pick up the cocaine at sea. De La Garza left Mexico onboard the support go-fast vessel with [several others]. Upon reaching the first go-fast, De La Garza and the other[s] discovered that the crew of the first go-fast was without food, water and fuel, and was unable to continue. The defendant and the other crew members were directed to take their go-fast vessel to accept the load of cocaine. Eventually, they did receive approximately 129 large bales of cocaine from a Colombian go-fast vessel. On or about August 30, 2005, the defendant and other crew members were onboard the go-fast vessel, in the eastern Pacific Ocean just south of the Galapagos Islands. The go-fast vessel, which was not flying any flag and had no indicia of nationality, was later stopped and boarded by the United States Coast Guard. Upon the Coast Guard boarding the go-fast vessel, approximately 2500 kilograms of cocaine was seized. The defendant was thereafter brought into the United States at St. Petersburg, in the Middle District of Florida.

(R. Vol. 1 DE 89 at 11.)

Based on these facts, De La Garza pleaded guilty to 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. App’x § 1903(g) and (j). In accepting the plea agreement, De La Garza acknowledged that he understood both the nature of the offense to which he was pleading guilty and the elements thereof. When asked if he understood the charge, De La Garza responded “yes,” and when asked how he pled to that charge, De La Garza said “guilty.” De La Garza conceded in the plea agreement that the court had jurisdiction and authority to impose a sentence upon him. He also reaffirmed that the stipulated facts in the plea agreement were true.

The district court then proceeded to sentencing. At the sentencing hearing, De La Garza testified that he did not know that the work in Huatulco involved drugs until he arrived, that he did not know he would be a crew member until he finished the repairs, and that the lead drug smuggler coerced him to work on the go-fast vessel. The Government questioned the credibility of De La Garza’s testimony by noting that Huatulco is over 1000 miles from Puerto Vallarta and arguing that it made no sense for De La Garza to be chosen for the repair and crew work when he was so far away. The prosecutor later made other statements challenging De La Garza’s credibility: “I don’t think there is any part of [De La Garza's story] that makes sense”; and “Even if what he says is true, to the point where he gets [to Huatulco] and he has now been deceived,” he still worked on the vessel willingly. De La Garza made no objection to these statements.

The district judge found De La Garza credible and found that he was coerced to get on the go-fast vessel, but he declined De La Garza’s request for a U.S.S.G. § 3B1.2 decrease in offense level for a “minor role” and De La Garza’s request for a U.S.S.G. § 5K2.12 downward departure for coercion. The judge reasoned that a “minor role” finding was inappropriate because a mechanic plays an important role in the crew of a month-long drug shipment and “duress doesn’t reduce your role.” The judge rejected De La Garza’s § 5K2.12 argument because De La Garza openly admitted that he willfully and knowingly committed the offense conduct — repairing a drug vessel in furtherance of a conspiracy to possess with intent to distribute 5 or more kilograms of cocaine on a vessel subject to the jurisdiction of the United States. In other words, De La Garza was coerced to get on the vessel, but he was not convicted of any crime for that action. The judge then sentenced De La Garza to 135 months imprisonment and five years of supervised release, the low end of the Guidelines range.

II. Discussion
A. Breach of Plea Agreement

Whether the Government breached a plea agreement is a question of law, to be reviewed de novo. United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). Because De La Garza failed to raise this issue before the district court, however, we review for plain error. United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Under plain error review, there must be (1) an error, (2) that is plain, (3) that affects the defendant’s substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. For an error to affect substantial rights, “in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993). The defendant has the burden of persuasion as to prejudice. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).

According to De La Garza, the Government violated the terms of the plea agreement by arguing that his sentencing testimony was not credible. He contends that the attack on his credibility breached the plea agreement because the Government challenged the veracity of facts stipulated in the agreement. This court has held that the Government breaches a plea agreement where the Government introduces or supports facts at sentencing that contradict the facts stipulated to in the agreement. See United States v. Boatner, 966 F.2d 1575, 1579 (11th Cir. 1992). At sentencing, De La Garza testified that he did not learn of the nature of the work he would be performing until he arrived in Huatalco, that he was not told to join the go-fast vessel’s crew until after he finished the repair work, and that he refused to join the crew until he was coerced. Under the stipulated facts, De La Garza did not learn of the nature of his work until he arrived in Huatulco, and the smugglers did not instruct him to be a crew member until he completed the repairs. With regard to whether De La Garza was coerced to work as a crew member, however, the facts are silent.

Because the Government did not stipulate that De La Garza was coerced, the Government could question De La Garza’s credibility to attack that assertion without breaching the plea agreement. The Government, however, also questioned why De La Garza would have been chosen for the repair and crew work when he lived over 1000 miles away. The prosecutor said that portion of De La Garza’s story did not “make[ ] sense” and stated that “[e]ven if what he says is true [about his ignorance that drugs were involved], to the point where he gets there, and he has now been deceived,” he completed the work on the vessel anyway. The prosecutor essentially argued that it made no sense to get a mechanic from over 1000 miles away unless that mechanic was part of the drug smuggling plot from the outset. In short, the Government contested the stipulated fact that De La Garza did not know drugs were involved until he arrived in Huatulco. Accordingly, we conclude that the Government breached the plea agreement.

Nonetheless, De La Garza’s argument fails because he has not shown that the prosecutor’s breach affected his substantial rights — a requirement under plain-error review. Indeed, despite the challenge to De La Garza’s credibility, the district court credited his testimony — not only that he did not know drugs were involved until arriving in Huatulco, but also that he was coerced to join the go-fast vessel crew. The district court nonetheless found no reason to reduce De La Garza’s Guidelines range or grant a downward departure: it refused to grant a § 3B 1.2 decrease in offense level for a “minor role” because a mechanic is an important participant and, though De La Garza was coerced, “duress doesn’t reduce your role”; it refused to grant a § 5K2.12 downward departure for coercion because the crime — joining the conspiracy by fixing the go-fast vessel — was complete before De La Garza was coerced.2 This reasoning would be the same whether De La Garza knew drugs were involved before departing for Huatulco or not. Moreover, the district court sentenced De La Garza at the low end of the Guidelines range. Under these circumstances, De La Garza’s argument that there was a reasonable probability that he might have obtained a better result had he not been required to counter the Government’s position is insufficient to meet his burden to establish prejudice. It is, at best, uncertain whether the Government’s breach had an effect on his sentence, and therefore we hold that De La Garza failed to establish plain error. See Rodriguez, 398 F.3d at 1301.

B. Other Arguments

De La Garza’s remaining arguments are that the district court had no subject matter jurisdiction over the offense because the stipulated facts did not show that De La Garza was on a vessel “subject to the jurisdiction of the United States”; the MDLEA is unconstitutional because it does not provide for a jury to decide that fact; and the MDLEA is unconstitutional because it was beyond Congress’s power to enact.

De La Garza knowingly waived the latter two arguments. (R. Vol. 1 DE 89 at 8.) “A defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). Our decision in United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en banc), submitted by De La Garza as supplemental authority, is inapposite. In Lewis, we adopted the distinction between forfeiture, “the simple failure to assert a right,” and waiver, “the intentional relinquishment of a known right.” Id. at 1222. While waived claims are not reviewed on appeal, we held that claims simply forfeited would be reviewed for plain error. Id. The defendant in Lewis proceeded through trial and conviction without asserting the Double Jeopardy Clause as a bar to his prosecution, but he never waived the double jeopardy argument; we therefore reviewed his double jeopardy claim for plain error. Id.

Here, on the other hand, De La Garza pleaded guilty, knowingly waiving all non-jurisdictional challenges to his conviction. (R. Vol. 1 DE 89 at 8.) His arguments that Congress had no authority to enact the MDLEA and that the MDLEA violates an individual’s Fifth and Sixth Amendment rights by allowing judicial determination of facts were therefore waived, so we do not address them.

De La Garza did not waive his subject matter jurisdiction argument because it cannot be waived. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005). We hold, however, that the district court had subject matter jurisdiction over the charge for which De La Garza was convicted.

“[D]istrict courts . . . have original jurisdiction . . . [over] all offenses against the laws of the United States.” 18 U.S.C. § 3231; see also U.S. CONST. art. III, § 2 (“The judicial Power shall extend to all Cases . . . arising under . . . the Laws of the United States.”). Here, the Government charged De La Garza with an offense against the laws of the United States, so absent a separate limit on subject matter jurisdiction, the district court had authority to adjudicate whether De La Garza conspired to violate the MDLEA.

We have interpreted the “on board a vessel subject to the jurisdiction of the United States” portion of the MDLEA as a congressionally imposed limit on courts’ subject matter jurisdiction, akin to the amount-in-controversy requirement contained in 28 U.S.C. § 1332. See United States v. Tinoco, 304 F.3d 1088, 1107 (11th Cir. 2002) (stating that MDLEA “provides that the question of whether a vessel is subject to the jurisdiction of the United States should be treated purely as an issue of subject matter jurisdiction for the court to decide”).3 Therefore, for a district court to have adjudicatory authority over a charge that a defendant “knowingly or intentionally . . . possess[ed] with intent to manufacture or distribute a controlled substance” in violation of 46 U.S.C. App’x § 1903(a), the Government must preliminarily show that the defendant was “on board a vessel subject to the jurisdiction of the United States.” Id. Furthermore, for a district court to have adjudicatory authority over a charge that a defendant conspired to violate the substantive crime defined in subsection (a), the Government must preliminarily show that the conspiracy’s vessel was, when apprehended, “subject to the jurisdiction of the United States.” Id.; see 46 U.S.C. App’x § 1903(j) (2005) (“Any person who attempts or conspires to commit any offense defined in this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”); see generally United States v. McPhee, 336 F.3d 1269 (11th Cir. 2003) (requiring “subject to the jurisdiction of the United States” showing though defendant was convicted of conspiracy only).

“[A] ‘vessel subject to the jurisdiction of the United States’ includes . . . a vessel without nationality.” 46 U.S.C. App’x § 1903(c)(1)(A) (2005). Here, De La Garza stipulated that the go-fast vessel “was not flying any flag and had no indicia of nationality.” (R. Vol. 1 DE 89 at 11.) At his plea proceedings, the Magistrate Judge explained the charge and, as part of the explanation, noted that “our Government claims it has jurisdiction over [the vessel].” (R. Vol. 3 DE 143 at 12.) When asked whether he understood the charge, De La Garza answered “Yes.” (Id. at 15.) Despite this understanding, De La Garza nonetheless affirmed that he wished to plead guilty. (Id. at 21-22.) We hold that these particular circumstances are sufficient to establish that the conspiracy involved a “vessel without nationality,” and therefore the court had jurisdiction.4

III. Conclusion
For the aforementioned reasons, De La Garza’s conviction and sentence are affirmed.

AFFIRMED.

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*Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama, sitting by designation.

1The MDLEA is now codified at 46 U.S.C. §§ 70501-70507.

2We offer no opinion on the propriety of this reasoning. As part of his plea deal, De La Garza waived the right to directly challenge the district court’s sentencing reasoning. (R. Vol. 1 DE 89 at 8.)

3The Government challenges Tinoco’s characterization, repeated in United States v. Rendon, 354 F.3d 1320, 1324-25 (11th Cir. 2003), that the “vessel subject to the jurisdiction of the United States” element is a limit on subject matter jurisdiction. It argues that the characterization in each case is incorrect because the element deals with the territorial jurisdiction of the United States and not the adjudicatory power of the federal courts. Moreover, the Government contends that the characterization is not binding because it is dicta, and it conflicts with the Supreme Court’s subsequent decision in Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16, 126 S. Ct. 1235, 1244-45, 163 L. Ed. 2d 1097 (2006). Because the element does not limit subject matter jurisdiction, the Government contends, De La Garza waived his argument that the element was not met. We need not decide the issue to resolve this appeal because even if the “vessel subject to the jurisdiction of the United States” argument is properly before us, it fails.

4To be thorough, we note that the following arguments touched upon, though not explicitly raised, in De La Garza’s brief do not relate to subject matter jurisdiction, and therefore we do not consider them: the United States has no personal jurisdiction over De La Garza, or applying United States law to De La Garza otherwise violated the Due Process Clause of the Fifth Amendment, see Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 103- 04, 108 S. Ct. 404, 409, 98 L. Ed. 2d 415 (1987) (noting that to exercise personal jurisdiction over a defendant there must be, inter alia, “a constitutionally sufficient relationship between the defendant and the forum”); the United States has no prescriptive jurisdiction over De La Garza’s wholly extraterritorial conspiracy (also known as “legislative jurisdiction” or “jurisdiction to prescribe,” see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813, 113 S. Ct. 2891, 2918, 125 L. Ed. 2d 612 (1993) (Scalia, J. dissenting)); Congress did not intend for the conspiracy portion of the MDLEA to apply to wholly extraterritorial conspiracies, see United States v. MacAllister, 160 F.3d 1304, 1307 (11th Cir. 1998) (“The general rule is that a conspiracy to violate the criminal laws of the United States, in which one conspirator commits an overt act in furtherance of that conspiracy within the United States, is subject to prosecution in the district courts.”); international comity concerns require that the conspiracy portion of the MDLEA not apply to wholly extraterritorial conspiracies, see Hartford Fire, 509 U.S. at 798 (majority opinion) (deciding “whether a court with Sherman Act jurisdiction should ever decline to exercise such jurisdiction on grounds of international comity”).

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