USA v. James Esaud Asprilla Moreno, No. 13-11677 (11th Cir. 2014)

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Case: 13-11677 Date Filed: 02/05/2014 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-11677 Non-Argument Calendar ________________________ D.C. Docket No. 1:11-cr-20674-FAM-3 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JAMES ESAUD ASPRILLA MORENO, Defendant - Appellant. ________________________ No. 13-11678 Non-Argument Calendar ________________________ D.C. Docket No. 1:11-cr-20674-FAM-2 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus Case: 13-11677 Date Filed: 02/05/2014 Page: 2 of 4 RICAURTE MARTINEZ MURILLO, a.k.a. Ricaurte Javier Martinez Murillo, Defendant - Appellant. ________________________ No. 13-11679 Non-Argument Calendar ________________________ D.C. Docket No. 1:11-cr-20674-FAM-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOSE VICENTO MONTANO GRANJA, a.k.a. Jose Vicento Montano Granja, Defendant - Appellant. ________________________ Appeals from the United States District Court for the Southern District of Florida ________________________ (February 5, 2014) Before TJOFLAT, WILSON and ANDERSON, Circuit Judges. PER CURIAM: 2 Case: 13-11677 Date Filed: 02/05/2014 Page: 3 of 4 These consolidated appeals challenge appellants post-judgment motions to dismiss the indictment in this case. The indictment charged appellants with multiple offenses, including, in Count 1, violating 46 U.S.C. § 70506(b) by conspiring 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. § 70503(a)(1). 1 Appellants pled guilty to that count pursuant to a plea agreement containing an appeal waiver, and, on December 28, 2011, the District Court sentenced them to prison for a term of 46 months. In February 2013, appellants severally moved the District Court, pursuant to Fed. R. Cri. P. 48(a) or, alternatively, 28 U.S.C. § 2241, to dismiss the indictment based on our decision in United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), which, they asserted, held the MDLEA unconstitutional as applied to the facts of their case. The Government responded with a statement that the court lacked jurisdiction to consider the motions because appellants cases were no longer pending. The court agreed and dismissed their motions. They now appeal pro se, asking this court to issue a writ of mandamus compelling the District Court to consider their motions to dismiss on the merits. We affirm. 1 Section 70503 et seq., referred to as the Maritime Drug Law Enforcement Act (MDLEA), prohibits possessing with intent to distribute a controlled substance aboard a vessel subject to the jurisdiction of the United States. Appellants were arrested aboard a fishing vessel containing 57 bales of cocaine. 3 Case: 13-11677 Date Filed: 02/05/2014 Page: 4 of 4 A motion, filed under Fed. R. Cri. P. 12(b)(3), alleging a defect in the indictment generally must be filed prior to trial, although, while the case is pending, the court may consider a claim that the indictment fails to invoke the court s jurisdiction or allege an offense. Id. This case was no longer pending when appellants submitted their motions to dismiss to the District Court; hence, the court lacked jurisdiction to consider them. The appropriate vehicle for appellants attack on their convictions is 28 U.S.C. § 2255. Their briefs concede, however, that a § 2255 motion would be time-barred and do not identify any other jurisdictional basis upon which the District Court could have considered their motions.2 The court s rulings are, accordingly, AFFIRMED. 2 Appellants present arguments in their reply briefs, but failed to raise them in their initial briefs. We do not consider them. 4

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