Harmless Dupree Career-Offender Error: Keene Alternative-Sentence Affirmance While Reaffirming MDLEA Jurisdiction in Foreign EEZs

Introduction

United States v. Luis Alfonso Nunez (consolidated with appeals by Mario Tovar and Geraldo Rodriguez) is an Eleventh Circuit decision arising from a Maritime Drug Law Enforcement Act (“MDLEA”) prosecution after the Coast Guard interdicted a vessel carrying roughly 800 kilograms of cocaine off the coast of Colombia.

The vessel bore no indicia of nationality. A claim of Colombian nationality was made, but when U.S. authorities contacted Colombia, the Colombian government could neither confirm nor deny registration. The Coast Guard therefore treated the vessel as “without nationality” and thus subject to U.S. jurisdiction under the MDLEA. Following a bench trial, all three defendants were convicted of:

  • Conspiracy to possess with intent to distribute five kilograms or more of cocaine on a vessel subject to U.S. jurisdiction (46 U.S.C. § 70506(b)); and
  • Possession with intent to distribute five kilograms or more of cocaine on a vessel subject to U.S. jurisdiction (46 U.S.C. § 70503(a)(1)).

On appeal, the defendants advanced constitutional challenges grounded primarily in the Felonies Clause (U.S. Const. art. I, § 8, cl. 10), and Rodriguez also challenged his sentence—specifically, the use of the career-offender enhancement based on prior conspiracy convictions.

Summary of the Opinion

The Eleventh Circuit affirmed all convictions and Rodriguez’s sentence.

  • The constitutional challenges to MDLEA jurisdiction were rejected as foreclosed by binding precedent:
    • Other nations’ exclusive economic zones qualify as “high seas” for Felonies Clause purposes.
    • Congress may define “vessel without nationality” to include a vessel whose claimed nation does not affirmatively and unequivocally assert nationality.
    • No U.S. “nexus” is constitutionally required for prosecution of drug trafficking on a stateless vessel in international waters.
  • Rodriguez’s career-offender enhancement was indeed erroneous under United States v. Dupree, but the panel affirmed because the district court expressly stated it would impose the same sentence regardless, and the sentence was substantively reasonable under the correct guideline range, consistent with United States v. Keene.

Analysis

Precedents Cited

1) Standards of review and appellate posture

  • United States v. Hill, 119 F.4th 862, 866 (11th Cir. 2024):

    The court used Hill to set the framework: constitutional issues are reviewed de novo, but when a defendant raises an argument for the first time on appeal, review is for plain error. This mattered for the defendants’ “no nexus” due process argument, raised only on appeal.

  • United States v. Dupree, 57 F.4th 1269, 1272 (11th Cir. 2023) (en banc):

    Cited for de novo guideline interpretation and, crucially, for its holding that inchoate offenses such as conspiracy are not “controlled substance offenses” for the career-offender enhancement. That made Rodriguez’s enhancement erroneous.

  • United States v. Fox, 926 F.3d 1275, 1278 (11th Cir. 2019):

    Cited for the deferential abuse-of-discretion standard governing substantive reasonableness.

2) Felonies Clause, “high seas,” and EEZ enforcement

  • United States v. Alfonso, 104 F.4th 815, 823, 827 (11th Cir. 2024):

    Alfonso directly controlled the defendants’ argument that Colombia’s exclusive economic zone is not the “high seas” and that customary international law limits Congress’s Felonies Clause authority. The panel reiterated Alfonso’s rule: for Felonies Clause purposes, foreign EEZs are treated as part of the “high seas”, making MDLEA enforcement proper there.

    The opinion also referenced Alfonso’s description of an EEZ: it extends beyond territorial waters up to 200 nautical miles from the coastal baseline.

3) “Vessel without nationality” and Congress’s definitional power

  • United States v. Canario-Vilomar, 128 F.4th 1374, 1379-81 (11th Cir. 2025):

    This case foreclosed the challenge to 46 U.S.C. § 70502(d)(1)(C), which deems a vessel “without nationality” when a claim of registry is made but the claimed nation does not “affirmatively and unequivocally assert” nationality. The panel relied on Canario-Vilomar for the proposition that international law does not limit Congress’s authority to define “stateless vessel” for MDLEA purposes.

4) Due process “nexus” challenges to MDLEA prosecutions

  • United States v. Campbell, 743 F.3d 802, 810-12 (11th Cir. 2014):

    Campbell foreclosed the claim that due process requires a U.S. connection before prosecuting noncitizens seized on the high seas for drug trafficking. The panel emphasized Campbell’s rationale: the MDLEA provides clear notice because drug trafficking on stateless vessels is universally condemned.

  • Canario-Vilomar, 128 F.4th at 1382-83:

    Cited again to confirm that nexus-based attacks remain foreclosed in this circuit.

5) Guideline error, alternative sentences, and harmlessness

  • United States v. Keene, 470 F.3d 1347, 1349-50 (11th Cir. 2006):

    Keene supplied the key doctrine for affirmance despite guideline error: when the district court would have imposed the same sentence even under the defendant’s guideline view, and the sentence remains substantively reasonable under the correct range, remand is unnecessary.

    The district court’s statement—“[e]ven if [Rodriguez] were not a career offender, that would be the sentence ... under any circumstance in this case”—was thus pivotal.

  • United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006):

    Cited for the purposes of sentencing under 18 U.S.C. § 3553(a), including seriousness, respect for law, just punishment, deterrence, and protection of the public.

  • United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016):

    Used to list the broader § 3553(a) considerations and to stress that weight allocation among factors is largely committed to the district court’s discretion.

  • United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc):

    Provided the substantive-unreasonableness test: reversal only when left with a “definite and firm conviction” of a clear error of judgment in weighing § 3553(a).

  • United States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014):

    Cited for indicators of reasonableness: sentences within the guideline range are ordinarily expected to be reasonable, and a sentence well below the statutory maximum supports reasonableness.

Legal Reasoning

1) MDLEA jurisdiction and the Felonies Clause

The defendants’ constitutional objections shared a common theme: that Congress’s Felonies Clause power to punish felonies on the “high seas” is constrained by customary international law, and that the location (a foreign EEZ) and the vessel’s nationality claim should have placed the case outside U.S. reach. The panel did not re-litigate these propositions on the merits because the Eleventh Circuit had already resolved them.

The court applied the MDLEA’s jurisdictional chain in a straightforward way:

  • The MDLEA applies to drug possession/distribution and conspiracy on a “vessel subject to the jurisdiction of the United States.” (46 U.S.C. §§ 70503(a)(1), (e)(1); 70506(b)).
  • That includes “a vessel without nationality.” (46 U.S.C. § 70502(c)(1)(A)).
  • “Vessel without nationality” includes one where a registry is claimed but the claimed nation does not “affirmatively and unequivocally assert” nationality. (46 U.S.C. § 70502(d)(1)(C)).
  • The MDLEA applies even when conduct is “committed outside the territorial jurisdiction of the United States.” (46 U.S.C. § 70503(b)).

Because Alfonso treats foreign EEZs as “high seas” for Felonies Clause purposes, and Canario-Vilomar approves Congress’s definition of “vessel without nationality” even where the claimed state is noncommittal, the court concluded jurisdiction was proper under binding circuit law.

2) Due process and the absence of a U.S. nexus

The defendants’ nexus argument fared even worse procedurally and substantively. Procedurally, it was raised for the first time on appeal, triggering plain-error review under United States v. Hill. Substantively, United States v. Campbell forecloses the claim: prosecuting drug trafficking on stateless vessels on the high seas does not offend due process, because the MDLEA gives sufficient notice and such conduct is universally condemned.

3) Sentencing: acknowledging Dupree error but affirming under Keene

On sentencing, the panel’s reasoning followed a two-step pathway:

  1. Guideline error identified: Rodriguez’s career-offender status rested on prior cocaine conspiracy convictions. Under United States v. Dupree, conspiracy is not a “controlled substance offense” for the career-offender enhancement, so the enhancement was erroneous (a point the government conceded).
  2. No remand because the error was harmless under circuit doctrine: Under United States v. Keene, the court looks to whether the district judge would have imposed the same sentence and whether the sentence is substantively reasonable under the corrected guideline range. Here, the district court explicitly announced an alternative sentence independent of career-offender status. The panel then calculated the corrected range (criminal history category IV; total offense level 35; range 235–293 months) and found Rodriguez’s 240-month sentence sat at the low end of that range and far below the statutory maximum of life—supporting reasonableness under Stanley.

The panel also credited the district court’s § 3553(a) explanation: the seriousness of attempting to import an enormous quantity of cocaine, deterrence, and Rodriguez’s extensive criminal history, while still granting a downward variance in view of age and health.

Impact

1) MDLEA litigation: narrowing viable constitutional avenues in the Eleventh Circuit

Although unpublished, the opinion demonstrates the practical force of recent published precedent. It signals that, in this circuit:

  • Felonies Clause challenges premised on the view that a foreign EEZ is not the high seas are effectively barred by United States v. Alfonso.
  • Attacks on 46 U.S.C. § 70502(d)(1)(C) arguing that a “neither confirm nor deny” response cannot support statelessness are barred by United States v. Canario-Vilomar.
  • Due process nexus challenges are barred by United States v. Campbell and reiterated by Canario-Vilomar.

The combined effect is that future MDLEA defendants in the Eleventh Circuit will face steep odds unless they can distinguish these precedents on facts, preserve issues for en banc or Supreme Court review, or identify statutory (rather than constitutional) defects.

2) Sentencing practice: reinforcing the value of explicit alternative sentences

The sentencing portion reinforces a clear practice point: when district courts articulate a well-reasoned alternative sentence under § 3553(a), appellate courts can affirm despite guideline error under United States v. Keene. Post-Dupree, this is especially salient in cases where career-offender status might have been triggered by conspiracy predicates.

For defendants, the decision illustrates that demonstrating guideline error may be insufficient; they must also show that the error mattered to the sentence or that the sentence is substantively unreasonable under the correct range.

Complex Concepts Simplified

  • Felonies Clause: A constitutional provision letting Congress define and punish certain crimes committed on the “high seas.” The defendants argued its reach is limited by international law; circuit precedent rejected that limitation in this context.
  • Exclusive Economic Zone (EEZ): A maritime band outside territorial waters, extending up to 200 nautical miles from a coastal baseline. Under United States v. Alfonso, it is treated as “high seas” for Felonies Clause analysis in the MDLEA setting.
  • “Vessel without nationality” / Statelessness (MDLEA): The MDLEA treats a vessel as “without nationality” if a nation is claimed but does not clearly confirm the claim (46 U.S.C. § 70502(d)(1)(C)). That statutory definition expands jurisdiction and was upheld in United States v. Canario-Vilomar.
  • Plain error review: A tougher appellate standard used when an argument was not raised in the trial court. The appellant must show a clear, obvious legal error affecting substantial rights. The “nexus” argument failed at the threshold because precedent foreclosed it.
  • Career-offender enhancement: A guideline rule that increases sentencing ranges for defendants with certain prior felony convictions. After United States v. Dupree, conspiracy offenses do not qualify as “controlled substance offenses” for this enhancement in the Eleventh Circuit.
  • Substantive reasonableness: Whether the sentence is reasonable in light of the § 3553(a) factors. Even with a guideline mistake, a sentence may stand if it is still reasonable and the judge would have imposed it anyway (United States v. Keene).

Conclusion

The Eleventh Circuit’s decision affirms MDLEA convictions and a substantial sentence by applying a set of settled circuit rules: foreign EEZs may be treated as “high seas” for Felonies Clause purposes (United States v. Alfonso), Congress may define “vessel without nationality” to include “neither confirm nor deny” registry responses (United States v. Canario-Vilomar), and due process does not require a U.S. nexus for prosecuting drug trafficking on stateless vessels (United States v. Campbell).

On sentencing, the opinion’s most practically significant takeaway is its application of United States v. Keene: even where a Dupree-recognized career-offender error exists, an appellate court may affirm if the district court clearly stated it would impose the same sentence and the sentence is substantively reasonable under the correct guideline range.