United States v. Javier Ballestas

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2015 Decided July 28, 2015

No. 13-3107

UNITED STATES OF AMERICA,

APPELLEE

v.

JAVIER EDUARDO JUAN BALLESTAS, ALSO KNOWN AS EL

MONO,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cr-00050-6)

Marie L. Park, appointed by the court, argued the cause

and filed the briefs for appellant.

Scott A.C. Meisler, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief was

Meredith Mills, Trial Counsel. John A. Romano, Trial

Attorney, and Elizabeth Trosman, Assistant U.S. Attorney,

entered appearances.

Before: GARLAND, Chief Judge, and SRINIVASAN and

WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

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SRINIVASAN, Circuit Judge: Javier Eduardo Juan

Ballestas, a Colombian citizen, was indicted under the

Maritime Drug Law Enforcement Act (MDLEA) and

extradited to the United States for prosecution. Ballestas

pleaded guilty to a charge of conspiracy to distribute drugs

“on board . . . a vessel subject to the jurisdiction of the United

States,” in violation of the MDLEA. 46 U.S.C. §§ 70503(a),

70506(b). He reserved the right to bring an appeal on certain

issues, including whether the MDLEA’s conspiracy provision

reaches extraterritorially to encompass his charged conduct in

Colombia, and whether the application of the MDLEA against

him violates the Due Process Clause of the Fifth Amendment

because of the absence of an adequate nexus between his

conduct and the United States. Because we are unpersuaded

by Ballestas’s arguments on those and other issues, we affirm.

I.

A long-term investigation conducted by United States

and Colombian officials uncovered an international drug-

trafficking operation based in Colombia. The organization

used stateless vessels to transport large quantities of cocaine

from Colombia through international waters, ultimately

destined for the United States. Email and phone surveillance

revealed that Ballestas supported the organization’s drug

smuggling activities. He provided maps and law enforcement

reports purporting to reveal the location of United States,

Colombian, and other nations’ air and maritime forces in the

vicinity of the Caribbean Sea at specific times. Vessels

engaged in trafficking runs used those reports to evade

detection and capture.

Between May 2008 and September 2010, law

enforcement agents seized or attempted to seize eight of the

organization’s cocaine shipments. Intercepted

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communications linked Ballestas to at least four of the seized

shipments, which together accounted for thousands of

kilograms of seized cocaine.

The government sought indictment of Ballestas and six

co-conspirators for violating the MDLEA, 46 U.S.C.

§§ 70501 et seq. The MDLEA provides that an “individual

may not knowingly or intentionally manufacture or distribute,

or possess with intent to manufacture or distribute, a

controlled substance on board . . . a vessel subject to the

jurisdiction of the United States,” id. § 70503(a), or attempt or

conspire to do the same, id. § 70506(b). The statute defines a

“vessel subject to the jurisdiction of the United States” to

include “vessel[s] without nationality.” Id. § 70502(c)(1)(A).

See generally United States v. Miranda, 780 F.3d 1185 (D.C.

Cir. 2015).

In February, 2011, a federal grand jury returned an

indictment charging Ballestas with conspiring to distribute

drugs “on board . . . a vessel subject to the jurisdiction of the

United States” in violation of the MDLEA. See 46 U.S.C.

§§ 70503(a), 70506(b). Ballestas was arrested in Colombia

and extradited to the United States to stand trial.

In September, 2012, Ballestas filed a motion to dismiss

the indictment. He contended that the MDLEA’s conspiracy

provision did not extend extraterritorially to reach individuals

(like Ballestas) who never came “on board” the relevant

vessels. Id. § 70503(a). Ballestas also argued that applying

the MDLEA against him violated the Due Process Clause

because of the absence of a nexus between his conduct and

the United States.

In response to Ballestas’s motion, the government

proffered facts supporting the conspiracy charge. Two boats

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in particular, the government submitted, supported Ballestas’s

prosecution under the MDLEA for conspiring to distribute

drugs on board a vessel without nationality. First, a boat

intercepted in international waters near Panama on March 3,

2010, displayed no visible flag and held no valid registration.

Second, another boat, seized in Panamanian waters on March

11, 2010, similarly had no flag or registration. Officials

observed the vessel in international waters, pursued the vessel

into Panamanian waters, and then seized it. According to the

government’s proffer, Ballestas provided assistance with the

cocaine shipments aboard both of those vessels.

Several months after responding to the motion to dismiss,

the government informed Ballestas that the crew members

apprehended during the March 3rd seizure had been charged

and convicted under the MDLEA in the Middle District of

Florida. The government provided Ballestas with the docket

number and name of that case.

In February 2013, the district court denied Ballestas’s

motion to dismiss the indictment. The court concluded that

the conspiracy provision of the MDLEA applied

extraterritorially to Ballestas’s actions in Colombia. Physical

presence “on board” a vessel, the district court held, is not an

essential element of a conspiracy offense under the MDLEA.

The court further held that the vessels apprehended on March

3rd and 11th qualified as stateless vessels “subject to the

jurisdiction of the United States.” 46 U.S.C. § 70502(c)(1).

In addition, the court rejected Ballestas’s due process

challenge, finding that there is no requirement to show a

nexus to the United States when the alleged crimes involve

stateless vessels.

Ballestas sought reconsideration of the district court’s

denial of his motion to dismiss. He argued that certain

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intervening decisions undermined the court’s

extraterritoriality and due process holdings. The district court

denied the motion for reconsideration, and, shortly thereafter,

Ballestas pleaded guilty to a superseding information. In

connection with Ballestas’s sentence, the superseding

information omitted certain drug quantity specifications that

had appeared in the indictment in order to avoid triggering a

ten-year mandatory minimum term of imprisonment.

Ballestas’s plea agreement reserved his right to appeal

“the specific and limited issue” of the denial of his motion to

dismiss and motion for reconsideration. App. 192. The

agreement also preserved his right to appeal his sentence on

the grounds that it “exceeds the maximum permitted by

statute or results from an upward departure from the guideline

range established by the Court at sentencing.” Id. at 193. In

connection with his plea agreement, Ballestas and the

government entered a joint statement of stipulated facts.

Those facts established Ballestas’s awareness of and

involvement with the vessel interdicted on March 3rd and also

established that the vessel was “without nationality” and

therefore subject to the jurisdiction of the United States. Id. at

181-82. The district court accepted Ballestas’s plea after

conducting a colloquy in accordance with Federal Rule of

Criminal Procedure 11.

In November 2013, the district court calculated

Ballestas’s sentencing guidelines range to be seventy to

eighty-seven months based on the quantity of drugs stipulated

to have been recovered from the March 3rd vessel. The court

sentenced Ballestas to a below-guidelines sentence of sixty-

four months of imprisonment followed by three years of

supervised release. Ballestas now appeals, challenging the

denial of his motion to dismiss, the denial of his motion for

reconsideration, and his sentence.

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II.

A.

Ballestas first contends that the MDLEA’s conspiracy

provision does not apply extraterritorially to reach his conduct

in Colombia. We disagree.

The MDLEA’s conspiracy provision, 46 U.S.C.

§ 70506(b), provides that a “person attempting or conspiring

to violate section 70503 of this title is subject to the same

penalties as provided for violating section 70503.” The

underlying substantive offense set forth in § 70503 prohibits

“knowingly or intentionally manufactur[ing] or distribut[ing],

or possess[ing] with intent to distribute, a controlled

substance on board,” inter alia, “a vessel subject to the

jurisdiction of the United States,” id. § 70503(a), which

includes “a vessel without nationality,” id. § 70502(c)(1)(A).

In arguing that the MDLEA’s conspiracy provision fails

to reach extraterritorially, Ballestas relies on two canons of

statutory interpretation. First, he invokes the presumption

against extraterritoriality, which dictates that, “[w]hen a

statute gives no clear indication of an extraterritorial

application, it has none.” Morrison v. Nat’l Austl. Bank Ltd.,

561 U.S. 247, 255 (2010). Second, he relies on the so-called

Charming Betsy canon, which takes its name from a decision

in which the Supreme Court explained that “an act of

Congress ought never to be construed to violate the law of

nations if any other possible construction remains.” Murray

v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118

(1804).

Each of those “principle[s],” however, “represents a

canon of construction, or a presumption about a statute’s

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meaning, rather than a limit upon Congress’s power to

legislate.” Morrison, 561 U.S. at 255. Thus, notwithstanding

the presumption against extraterritoriality, a statute will be

construed to apply extraterritorially if Congress gives a “clear

indication” of that intention. Id. With regard to the

Charming Betsy canon, similarly, if “a statute makes plain

Congress’s intent,” a court “must enforce the intent of

Congress irrespective of whether the statute conforms to

customary international law.” United States v. Yousef, 327

F.3d 56, 93 (2d Cir. 2003). After all, “Congress is not bound

by international law,” so “it may legislate with respect to

conduct outside the United States, in excess of the limits

posed by international law.” Id. at 86.

Here, the extraterritorial reach of the MDLEA’s

substantive prohibitions is clear. Section 70503(b), entitled

“extension beyond territorial jurisdiction,” provides that

§ 70503(a), which sets forth the substantive prohibitions,

“applies even though the act is committed outside the

territorial jurisdiction of the United States.” 46 U.S.C.

§ 70503(b). That straightforward expression of

extraterritorial application settles the extraterritorial reach of

§ 70503(a).

Ballestas, however, attempts to draw a line between the

extraterritorial reach of the MDLEA’s substantive offense in

§ 70503(a) and the reach of the MDLEA’s conspiracy offense

in § 70506(b). He relies on the understanding that, “[w]hen a

statute provides for some extraterritorial application, the

presumption against extraterritoriality operates to limit that

provision to its terms.” Kiobel v. Royal Dutch Petroleum Co.,

133 S. Ct. 1659, 1667 (2013) (quoting Morrison, 561 U.S. at

265). In Ballestas’s view, the MDLEA’s extraterritorial

application therefore should be confined to the substantive

prohibitions set forth in § 70503(a), and should not extend to

8

conspiracy (or attempt) to commit those substantive crimes

under § 70506. We are unpersuaded.

Under the presumption against extraterritoriality, the

extraterritorial reach of a particular provision will not

necessarily be imputed to an entire statute. But in the

particular context of “an ancillary offense like aiding and

abetting or conspiracy,” we have held that, “[g]enerally, the

extraterritorial reach of [the] ancillary offense . . . is

coterminous with that of the underlying criminal statute.”

United States v. Ali, 718 F.3d 929, 939 (D.C. Cir. 2013). As a

result, “when the underlying criminal statute’s extraterritorial

reach is unquestionable, the presumption [against

extraterritoriality] is rebutted with equal force” for ancillary

offenses in the same statute. Id.; see United States v. Hill, 279

F.3d 731, 739 (9th Cir. 2002). Here, because the substantive

offense established in § 70503(a) applies extraterritorially, we

conclude that conspiracy to commit that substantive offense

under § 70506 also has extraterritorial reach. And with the

extraterritorial reach of the conspiracy provision clearly

established, we have no occasion to apply the Charming Betsy

canon.

Our decision in United States v. Ali is highly instructive.

Ali faced two sets of conspiracy charges. First, he was

charged under the blanket conspiracy statute, 18 U.S.C. § 371,

with conspiracy to commit piracy. The generic conspiracy

provision, we observed, lacks affirmative indication of an

intention to reach extraterritorially. Because the provision is

“ambiguous as to [its] application abroad,” we applied the

Charming Betsy canon to determine whether extraterritorial

application would be consistent with the law of nations. Ali,

718 F.3d at 935; see Kiobel, 133 S. Ct. at 1664-65. Ali was

also charged with conspiracy to commit hostage taking under

the Hostage Taking Act, 18 U.S.C. § 1203. Like the

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MDLEA, the Hostage Taking Act specifically provides for its

extraterritorial application, and it also criminalizes conspiracy

in the same statute. Id. § 1203(a). Because the Hostage

Taking Act made clear its extraterritorial reach, and because

that understanding applied to the Act’s conspiracy

prohibition, we declined to apply the Charming Betsy canon.

Ali, 718 F.3d at 943.

We follow the same course here with respect to the

MDLEA. To be sure, the Hostage Taking Act’s prohibition

against conspiracy appears in the same statutory subsection as

the underlying substantive offense, 18 U.S.C. § 1203(a),

whereas the MDLEA codifies its conspiracy prohibition in a

separate statutory section, 46 U.S.C. § 70506(b). But we

view that to be a distinction without a difference.

Our conclusion that the MDLEA’s conspiracy provision

applies extraterritorially is consistent with Congress’s purpose

in enacting it. As the Senate Report for the MDLEA explains,

Congress sought to address concerns about difficulties

encountered in prosecuting persons involved with shipments

of drugs to the United States on vessels, both with respect to

the crew on board and others associated with the enterprise.

Before the MDLEA’s enactment, when the Coast Guard

seized illegal drug shipments, the government could not

“prosecute the crew or others involved in the smuggling

operation” in the absence of often elusive evidence that the

drugs were destined for the United States. S. Rep. No. 96-

855, at 2 (1980), reprinted in U.S.C.C.A.N. 2785, 2786 (July

16, 1980) (emphasis added). In light of the obstacles to

successful prosecution in the United States, the Coast Guard’s

drug interdiction efforts had “little deterrent effect on the

crews or the trafficking organizations.” Id. (emphasis added).

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Recognizing that “trafficking in controlled substances

aboard vessels is a serious international problem, is

universally condemned, and presents a specific threat to the

security and societal well-being of the United States,” 46

U.S.C. § 70501, Congress enacted the MDLEA to enhance

the government’s ability to prosecute members of drug

trafficking organizations. Giving the MDLEA’s conspiracy

provision the construction suggested by Ballestas would

effectively inoculate many members of such organizations—

including organizations targeting the United States—against

prosecution. Drug kingpins and other conspirators who

facilitate and assist in carrying out trafficking schemes would

fall beyond the reach of the statute, compromising the

overriding intent of Congress in enacting it. Those

considerations reinforce our conclusion that the MDLEA’s

conspiracy provision reaches Ballestas’s extraterritorial

conduct in this case.

B.

Ballestas next argues that, even if the MDLEA’s

conspiracy provision applies extraterritorially, his particular

conduct is still beyond the statute’s reach. The MDLEA’s

substantive provision criminalizes the manufacture,

distribution, or possession of a controlled substance “on

board” a covered vessel. 46 U.S.C. § 70503(a). That

language, Ballestas claims, imposes an express limitation on

the scope of the MDLEA’s extraterritorial application. The

qualifying phrase “on board,” according to Ballestas, means

that the MDLEA should apply extraterritorially only when a

person’s charged conduct took place on board a covered

vessel.

At the outset, we note that, under the interpretation

Ballestas urges us to adopt, the conspiracy and attempt

11

prohibition contained in § 70506(b) would seemingly do little

practical work. Under his interpretation, § 70506(b) would

reach individuals conspiring or attempting to violate § 70503

only if their conduct took place while physically “on board

vessels” covered by the statute. But it is unclear whether

someone could conspire or attempt to violate § 70503(a)

while “on board a vessel” without simultaneously violating

the substantive prohibition itself. If a person on a covered

vessel knows that drugs destined for distribution are on the

vessel and has played a role in the trafficking enterprise (as

would be the case in a conspiracy or attempt prosecution),

that person might well also have committed the underlying

substantive offense by “possess[ing]” (at least constructively),

with intent to distribute, “a controlled substance on board” the

vessel. 46 U.S.C. § 70503(a).

In any event, we need not definitively decide in this case

whether, or to what extent, the phrase “on board a vessel”

might limit the extraterritorial application of the MDLEA.

Regardless, Ballestas’s conduct would still fall within the

statute’s exterritorial reach. It is a well-established principle

of conspiracy law that “the overt act of one partner in a crime

is attributable to all.” Pinkerton v. United States, 328 U.S.

640, 647 (1946). And “[a]s long as a substantive offense was

done in furtherance of the conspiracy, and was reasonably

foreseeable as a ‘necessary or natural consequence of the

unlawful agreement,’ then a conspirator will be held

vicariously liable for the offense committed by his or her co-

conspirators.” United States v. Washington, 106 F.3d 983,

1012 (D.C. Cir. 1997). Those settled principles apply to

Ballestas.

The stipulated facts establish, first, that criminal conduct

took place “on board” vessels covered by the MDLEA, and

second, that the criminal conduct is attributable to Ballestas as

12

a co-conspirator. Ballestas stipulated to his involvement in a

drug trafficking organization that regularly transported drugs

on board vessels traveling over the high seas. App. 179-80.

In particular, Ballestas stipulated to his awareness that the

organization transported approximately 1500 kilograms of

cocaine on board a vessel apprehended by the United States

Coast Guard on or about March 3, 2010. Id. at 181. The

overt acts of other conspirators on board the March 3rd vessel

are therefore attributable to Ballestas, satisfying any “on

board a vessel” requirement that might arguably circumscribe

the MDLEA’s extraterritorial application.

III.

Ballestas next challenges Congress’s authority to

criminalize his actions under the Define and Punish Clause,

U.S. Const. art. I, § 8, cl. 10. That clause grants Congress the

authority “[t]o define and punish Piracies and Felonies

committed on the high Seas, and Offenses against the Law of

Nations.” The clause encompasses three distinct powers: (i)

to define and punish piracy; (ii) to define and punish felonies

committed on the high seas; and (iii) to define and punish

offenses against the Law of Nations. See United States v.

Smith, 18 U.S. (5 Wheat.) 153, 158-59 (1820). In defending

Congress’s constitutional authority to apply the MDLEA in

the circumstances of this case, the government relies solely on

Congress’s power under the Felonies Clause, i.e., its power to

define and punish felonies committed on the high seas. We

agree that the Felonies Clause grants Congress authority to

criminalize Ballestas’s conduct.

Ballestas’s argument relies in substantial part on the

Eleventh Circuit’s decision in United States v. Bellaizac-

Hurtado, 700 F.3d 1245 (11th Cir. 2012). In that case,

Panamanian officials apprehended the defendants on board a

13

stateless vessel in Panamanian waters. Panama consented to

the prosecution of the defendants in the United States, but the

Eleventh Circuit found that the application of the MDLEA to

the defendants’ conduct lay beyond Congress’s constitutional

authority. Critically, however, the government in Bellaizac-

Hurtado relied solely on the Law of Nations Clause to support

the constitutionality of the MDLEA’s application.

Responding to the government’s argument, the Eleventh

Circuit held that “drug trafficking is not a violation of

customary international law and, as a result, falls outside the

power of Congress under the [Law of Nations] Clause.” Id. at

1249. Bellaizac-Hurtado did not address whether any

alternative source of congressional authority—such as the

Felonies Clause—could serve to criminalize the defendants’

conduct. Id. at 1258. In fact, the court observed that “all of

the [other] appeals in which we have considered the

constitutionality of [drug trafficking] laws involved conduct

on the high seas,” and those convictions were upheld “as an

exercise of [Congress’s] power under the Felonies Clause.”

Id. at 1257. Because the government in this case defends

Congress’s authority under the Felonies Clause, not the Law

of Nations Clause, Bellaizac-Hurtado is of little assistance to

Ballestas.

In assessing whether the Felonies Clause grants Congress

the power to criminalize Ballestas’s behavior, we again rely

on the established principles of conspiracy law set forth

above. As discussed, “the overt act of one partner in a crime

is attributable to all,” Pinkerton, 328 U.S. at 647, as long as

the act “was done in furtherance of the conspiracy, and was

reasonably foreseeable as a ‘necessary or natural consequence

of the unlawful agreement,’” Washington, 106 F.3d at 1011

(quoting Pinkerton, 328 U.S. at 647-48). Here, the stipulated

facts establish that Ballestas’s co-conspirators committed

felonious acts on the high seas, and also that those acts are

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directly attributable to him. Ballestas acknowledged that one

of the drug trafficking organization’s vessels was

apprehended on March 3, 2010, carrying approximately 1500

kilograms of cocaine. App. 181. He further acknowledged

that the vessel had “traveled through the high seas.” Id. As

an admitted co-conspirator of the crew members, the acts of

the crew—committed on the high seas—are attributable to

Ballestas. The Felonies Clause therefore provides Congress

with authority to “punish” Ballestas for his role in that

conspiracy.

IV.

We next consider Ballestas’s argument that the

application of the MDLEA in his case violated the Due

Process Clause because the government failed to demonstrate

a nexus between his actions abroad and the United States.

Our circuit has yet to decide “whether the Constitution limits

the extraterritorial exercise of federal criminal jurisdiction.”

Ali, 718 F.3d at 943-44. Several other courts of appeals,

though, have found that the Due Process Clause imposes

limits on the extraterritorial application of federal criminal

laws. See, e.g., United States v. Brehm, 691 F.3d 547, 552-54

(4th Cir. 2012); United States v. Ibarguen-Mosquera, 634

F.3d 1370, 1378-79 (11th Cir. 2011). Those courts generally

require a showing of “sufficient nexus between the defendant

and the United States, so that . . . application [of the law]

would not be arbitrary or fundamentally unfair.” United

States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990) (citation

omitted).

Just as in Ali, we need not definitively resolve whether

the Due Process Clause constrains the extraterritorial

application of federal criminal laws. Even assuming the

existence of a due process limitation, the extraterritorial

15

application of the MDLEA in this case would not run afoul of

it. As we observed in Ali, nexus with the United States

merely serves as a “proxy for due process” requirements. Ali,

718 F.3d at 944. “The ‘ultimate question’” under the Due

Process Clause is not nexus, but is “whether ‘application of

the statute to the defendant [would] be arbitrary or

fundamentally unfair.’” Id. (quoting United States v. Juda, 46

F.3d 961, 967 (9th Cir. 1995)). There is no arbitrariness or

fundamental unfairness in the circumstances of this case.

Again, Ballestas’s factual stipulations establish that he

was part of an international drug smuggling organization that

used stateless vessels to transport drugs across the high seas,

bound ultimately for the United States. The conduct to which

Ballestas pleaded guilty involved obtaining and selling reports

and maps “indicat[ing] where U.S., Colombian and other

countries’ . . . maritime assets were operating in the

Caribbean Sea on a particular day.” App. 180 (emphasis

added). He stipulated to his knowledge that his co-

conspirators used the maps to “plan the best route to be taken

by the cocaine-laden vessels so as to avoid detection by

maritime and law enforcement authorities,” including,

specifically, United States authorities. Id. Those admissions

establish that application of a United States drug trafficking

law (the MDLEA) to Ballestas was neither arbitrary nor

fundamentally unfair.

V.

Ballestas claims that the district court erred in accepting

the government’s allegations as true when the court denied his

motion to dismiss the indictment. In denying the motion, the

district court relied on the “the Government[’s] proffer[] that

the vessel seized on March 3rd, 2010, was a vessel without

nationality” (and thus a vessel subject to the jurisdiction of

16

the United States). App. 76. In Ballestas’s view, the court

could not deny his motion without requiring the introduction

of evidence on whether the vessel in fact was subject to the

jurisdiction of the United States and presenting that issue to

the jury for proof beyond a reasonable doubt.

Ballestas’s argument fundamentally misperceives the

nature of a motion to dismiss an indictment. Because a

court’s “use[] [of] its supervisory power to dismiss an

indictment . . . directly encroaches upon the fundamental role

of the grand jury,” dismissal is granted only in unusual

circumstances. Whitehouse v. U.S. Dist. Court, 53 F.3d 1349,

1360 (1st Cir. 1995) (citing Bank of Nova Scotia v. United

States, 487 U.S. 250, 263 (1988)). An “indictment’s main

purpose is ‘to inform the defendant of the nature of the

accusation against him.’” United States v. Hitt, 249 F.3d

1010, 1016 (D.C. Cir. 2001) (quoting Russell v. United States,

396 U.S. 749, 767 (1962)). It therefore need only contain “a

plain, concise, and definite written statement of the essential

facts constituting the offense charged.” Fed. R. Crim. P. 7(c).

When considering a motion to dismiss an indictment, a court

assumes the truth of those factual allegations. See Boyce

Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952).

Consequently, the district court did not err when it assumed

the truth of the government’s proffered facts in denying

Ballestas’s motion, including with regard to whether the

pertinent vessel was subject to the jurisdiction of the United

States.

VI.

Ballestas next argues that the government violated its

constitutional obligation to disclose exculpatory evidence

under Brady v. Maryland, 373 U.S. 83 (1963). According to

Ballestas, the government waited too long to notify him of a

17

related trial that took place in the Middle District of Florida in

2010. That trial involved the prosecution of the crew

members apprehended during the seizure of the vessel on

March 3, 2010. Instead of disclosing the existence of the

Florida prosecution at Ballestas’s first appearance before the

district court in February 2012, it appears that the government

waited until December to notify Ballestas of the Florida

proceeding. That delay, Ballestas contends, prevented him

from gaining access to several documents that he thinks

would have strengthened his case. The government argues

that we should not reach the merits of Ballestas’s Brady claim

because he waived any Brady argument when he entered a

guilty plea. See United States v. Ruiz, 536 U.S. 622, 628

(2002). We need not resolve the government’s waiver

argument, however, because we conclude that no

constitutional violation took place in any event.

To succeed on the merits of his Brady claim, Ballestas

must show that (i) the government suppressed evidence; and

(ii) the evidence was favorable and material. See Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). Ballestas’s claim fails

at the first step. When a defendant challenges the

government’s alleged delay in disclosure of exculpatory

evidence, “the defendant must show a reasonable probability

that an earlier disclosure would have changed the trial’s

result.” United States v. Dean, 55 F.3d 640, 663 (D.C. Cir.

1995). If a “defendant receives exculpatory evidence ‘in time

to make effective use of it,’ a new trial is, in most cases, not

warranted.” Id. (quoting United States v. Paxson, 861 F.2d

730, 737 (D.C. Cir. 1988)).

Here, the government alerted Ballestas to the existence of

the Florida prosecution by December 2012. Additionally, the

government around that time disclosed to Ballestas law

enforcement materials containing information about the

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March 2010 vessel seizures. Those materials included the

precise Coast Guard declaration Ballestas now claims is

Brady material. Although the disclosures came after Ballestas

had submitted briefing on his motion to dismiss, they

occurred three months before the district court ruled on the

motion and nine months before Ballestas entered his guilty

plea. Ballestas therefore had ample time to “make effective

use” of any information from the Florida trial in support of his

motion to dismiss and in deciding whether to enter a plea of

guilty. Consequently, Ballestas has not shown a “reasonable

probability” that earlier disclosure of the Coast Guard

declaration would have made any difference. Id.

Ballestas separately suggests that the government should

have pointed Ballestas to a habeas petition filed by one of the

Florida defendants—Victor M. Ballestero Linares. That

petition included an affidavit by Linares, which Ballestas

maintains would have been helpful to his case. But Linares’s

affidavit was listed under the criminal docket number

disclosed to Ballestas by the government in December 2012.

Because Ballestas had access to that affidavit “in time to

make effective use of it,” he cannot show that the government

suppressed the document. Paxson, 861 F.2d at 737.

VII.

Finally, Ballestas challenges the sentence imposed by the

district court. He claims that the MDLEA does not give the

district court authority to consider conduct beyond the activity

that took place on board the vessel seized on March 3, 2010—

the only vessel specifically identified in the factual

stipulations as having traveled through the high seas..

Appellant Br. 42-43. As an initial matter, the nature of

Ballestas’s argument is unclear. His guilty plea laid out the

guideline calculations supported by the stipulated facts and

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concluded that “the Defendant’s Total Offense Level would

be 27/Criminal History Category I or a Guidelines range of 70

to 87 months.” App. 188. That guidelines range was based

solely on the drug amount recovered from the vessel seized on

March 3rd. See id. at 186-88. While the district court

considered other conduct in ultimately selecting a sentence

within (or, actually, below) that range, courts enjoy

substantial discretion to consider a wide range of factors when

imposing a sentence following calculation of the guidelines

range. See 18 U.S.C. § 3553.

In any event, Ballestas’s guilty plea waived his right to

appeal his sentence except insofar as “the sentence exceeds

the maximum permitted by statute or results from an upward

departure from the guideline range established by the Court at

sentencing.” App. 192. Ballestas cannot succeed in

challenging his sentence on either of the two grounds he

preserved. His guilty plea laid out the guidelines calculations

supported by the stipulated facts, arriving at a guidelines

range of seventy to eighty-seven months of imprisonment

based on the amount of drugs recovered from the March 3rd

vessel. Id. at 188. The district court ultimately sentenced him

to a below-guidelines sentence of sixty-four months.

Ballestas therefore has no basis for appealing his sentence on

the ground that it “results from an upward departure from the

guideline range established by the [district court].” Id. at 192.

Additionally, because the MDLEA allows for a maximum

sentence of twenty years of imprisonment for the charged

conduct, see 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(3),

Ballestas likewise has no basis for challenging his sixty-four

month sentence on the ground that it “exceeds the maximum

permitted by statute.” App. 192.

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* * * * *

For the foregoing reasons, we reject Ballestas’s

challenges and affirm the judgment of the district court.

So ordered.