United States Court of Appeals For the First Circuit

No. 19-1791

UNITED STATES OF AMERICA,

Appellee,

v.

LAWRENCE ANDERSON FONSECA, f/k/a Lawrence Anderson Fonseca-Garcia,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Lipez, Circuit Judges.

José R. Olmo-Rodríguez for appellant. Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

September 8, 2022 LIPEZ, Circuit Judge. Lawrence Anderson Fonseca and

four co-defendants were charged with conspiring to import cocaine

into the United States, in violation of

, 960 and

963, and money laundering to promote this conspiracy in violation

of

(a)(2)(A). Following the denial of his motion

to dismiss the indictment, Fonseca pleaded guilty to the conspiracy

count. He subsequently filed several motions to withdraw his plea,

each of which was denied by the district court. On appeal, Fonseca

argues that he should be allowed to withdraw his guilty plea and

that the indictment against him should be dismissed. Although our

rationale on the plea withdrawal request differs somewhat from

that of the district court, we affirm.

I.

A. The Underlying Conviction

Fonseca is a citizen and resident of the British Virgin

Islands ("BVI"). As set forth in the statement of facts

incorporated into his plea agreement, Fonseca and his co-

defendants conspired, from approximately May 2012 to July 2014, to

import at least five kilograms of cocaine into the United States.

The statement of facts identifies several overt acts committed in

the United States in furtherance of the conspiracy, although

ultimately no drugs were ever imported into the country. The

government has not disputed that Fonseca lived in the BVI

throughout the relevant timeframe.

- 2 - Fonseca first moved to dismiss the indictment in October

2015. Relying on principles of extraterritorial jurisdiction, he

argued that the district court lacked subject matter jurisdiction

over the case because he was a citizen and resident of the BVI

and, he claimed, had taken no actions with an actual or intended

effect in the United States. He also argued that any overt acts

undertaken in the United States by his co-conspirators were too

insignificant to support subject matter jurisdiction over him.

Finally, Fonseca argued that the court lacked personal

jurisdiction over him because he had been unlawfully transported

to Puerto Rico after being detained by United States agents in the

Dominican Republic, and that the court should, at a minimum, hold

an evidentiary hearing on this issue. The district court denied

these claims in March 2016.

Fonseca pleaded guilty in August 2016 with the

assistance of counsel. As described above, the plea agreement

incorporated a statement of facts, which Fonseca "adopt[ed] . . .

as his own testimony." In this statement, he acknowledged that he

had conspired to import cocaine into the United States and that he

or his co-conspirators had engaged in several overt acts involving

money transfers to or from the United States. The transactions

included Fonseca's receipt of a $5,000 wire transfer from

California, sent by his co-defendant Terrence Edwards, and a

$35,000 transfer of funds from co-defendant Justin Gumbs to the

- 3 - United States bank account of Fonseca's wife and co-defendant,

Sharon Rodriguez. The plea agreement also included a waiver of

appeal provision, in which Fonseca agreed that if his sentence was

consistent with (or more lenient than) the recommendation set forth

in the plea agreement, he "knowingly and voluntarily waive[d] and

surrender[ed] his right to appeal the judgment and sentence in

this case." On the recommendation of a magistrate judge, the

district court accepted his guilty plea.

B. Fonseca's Plea Withdrawal Motions

In March 2017, several days before his scheduled

sentencing date, Fonseca filed his first pro se motion to withdraw

his plea, as well as a motion to "withdraw" his counsel from the

case. In the plea withdrawal motion, he argued that he was

innocent, claiming that his involvement in the conspiracy was

"[i]nconclusive," and that his attorney had misled and pressured

him into pleading guilty and had not adequately investigated the

allegations.

The district court postponed the sentencing hearing

pending a decision on these motions and referred the attorney

withdrawal motion to a magistrate judge for disposition, who denied

it after a hearing. The district court denied the plea withdrawal

motion, finding that Fonseca had pleaded guilty knowingly,

voluntarily, and intelligently. The court noted that Fonseca's

"general, unsubstantiated" statement that he was innocent was not

- 4 - entitled to any weight and that he had not explained why he had

adopted the statement of facts in his plea agreement admitting to

the offense conduct. The district court also found that Fonseca

had not proffered any evidence that he had been confused about the

accusations or had been unduly pressured into pleading guilty.

Finally, the court found that the delay of more than seven months

between Fonseca's guilty plea and the motion weighed against

withdrawal, as did the prejudice to the government if withdrawal

were permitted (i.e., the court's belief that the government would

be prejudiced by the additional cost to prepare for trial).

In May 2017, Fonseca again moved pro se to withdraw his

guilty plea and asserted various defenses. Several months later,

before that motion was decided, he filed a third pro se motion

raising similar arguments and emphasizing the court's purported

lack of personal jurisdiction over him. The court denied both

motions in November 2017, concluding that Fonseca had not put forth

any new arguments.

In February 2018, four days before Fonseca's rescheduled

sentencing date, new counsel for Fonseca appeared and filed a

request to again continue sentencing, which the court granted.

Following several more postponements allowed by the court, Fonseca

filed a fourth motion to withdraw his guilty plea.

In support of his new request, Fonseca cited statements

made by his co-defendant Edwards, who had testified at the

- 5 - sentencing hearing of co-defendant Gumbs. At this sentencing

hearing -- which occurred in August 2017, between Fonseca's second

and third plea withdrawal requests -- Edwards made several comments

that Fonseca claims are exculpatory as to him. First, Edwards

testified that he had traveled to the BVI in October 2012 to help

Fonseca and Gumbs obtain narcotics but found that "there was

nothing" when he arrived. Edwards also stated that, at several

points during the conspiracy, Edwards had told Gumbs that he

believed Gumbs was lying about whether Gumbs and Fonseca would

ultimately procure drugs. Fonseca argued that this testimony

showed that Fonseca's communications with his co-defendants about

importing drugs were actually part of a scam to steal money from

them -- and, hence, that Fonseca had not taken part in any actual

conspiracy to import drugs.

The new request was referred to a magistrate judge, who

found that Fonseca's assertion that he is innocent and the timing

of his request -- which was made after he learned of Edwards's

testimony -- weighed in favor of withdrawal. However, the

magistrate judge found that Fonseca's plea had been knowing and

voluntary and that Edwards's testimony was not new, nor was it

exculpatory -- findings that weighed against withdrawal.1 The

1 Nevertheless, as we will discuss in more detail, the magistrate judge -- and later the district court -- appears to have erroneously believed that the mere invocation of an innocence

- 6 - magistrate judge then considered the question of prejudice to the

government and concluded that the government would not be

significantly prejudiced by withdrawal. Weighing these factors

together, the magistrate judge recommended that the district court

grant Fonseca's motion.

The district court took a different view. Although it

agreed with the magistrate judge's assessment of several of the

factors militating for and against withdrawal, it disagreed that

the timing of the request favored withdrawal. The district court

also found that Fonseca had not adequately explained either the

nearly one-year gap between Edwards's testimony and Fonseca's

fourth withdrawal motion, or the initial seven-month delay between

the plea itself and his first withdrawal motion in March 2017.

Further, the district court found that the government would be

prejudiced by withdrawal. It therefore denied Fonseca's request

to withdraw his plea.

Fonseca filed two motions for reconsideration, both of

which were denied. In June 2019, he was sentenced to 120 months'

imprisonment, which was consistent with the recommendation set

forth by the government in his plea agreement. This appeal

followed.

claim was sufficient to tilt this factor in Fonseca's favor, regardless of the strength of the claim.

- 7 - II.

Fonseca raises three arguments on appeal. He claims

that the district court (1) abused its discretion by denying his

request to withdraw his guilty plea,2 (2) erred in denying his

motion to dismiss for lack of subject matter jurisdiction, and (3)

erred in denying his motion to dismiss for lack of personal

jurisdiction.

A. Plea Withdrawal

Before turning to the merits of Fonseca's plea

withdrawal claim, we briefly address the waiver-of-appeal

provision in his plea agreement, which prohibits an appeal from

the "judgment and sentence" in his case. Unlike most other

circuits, we have never squarely addressed whether an appeal from

the denial of a motion to withdraw a plea constitutes a challenge

to a defendant's "judgment" or "conviction" as a matter of law.3

2 While Fonseca has moved to withdraw his plea several times, the arguments he raises on appeal pertain to his fourth plea withdrawal request, and he does not renew any arguments that were specific to any of his earlier requests. Accordingly, our analysis is limited to his fourth motion. See Young v. Wells Fargo Bank, N.A.,

(1st Cir. 2016) (stating that we do not consider arguments for reversing a district court's decision that were not raised in a party's opening brief). 3 We have previously suggested that there is a "strong argument" that an appeal from the denial of a motion to withdraw a plea is encompassed by the language of an appellate waiver barring challenges to the conviction and sentence. See United States v. Caramadre,

, 377 n.9 (1st Cir. 2015). Indeed, all other circuits to have addressed the issue have found that a plea withdrawal motion constitutes a challenge to the defendant's conviction. See, e.g., United States v. Alcala, 678

- 8 - If it does, then Fonseca's motion would fall within the scope of

the appeal waiver, and we would ordinarily enforce this provision

so long as it was entered into knowingly and voluntarily, and so

long as doing so would not work a "miscarriage of justice." See

United States v. Teeter,

(1st Cir. 2001).4

However, the government has conceded that we should

proceed directly to the merits of Fonseca's appeal on the motion

to withdraw issue -- i.e., the question of whether the district

court abused its discretion in denying Fonseca's motion to withdraw

his guilty plea. In making this concession, the government relies

on a series of cases in which we have held that "a court may opt

to go directly to the merits of an appeal where a defendant who

has entered a guilty plea and agreed to waive his right to appeal

seeks to challenge an aspect of the plea which, 'if successful,

would invalidate both the plea itself and the waiver of his right

to appeal.'" United States v. Sevilla-Oyola,

, 10 n.

(7th Cir. 2012) (holding that "a defendant challenges his conviction when he challenges the district court's denial of his motion to withdraw a plea"); United States v. Toth,

, 378–79 (6th Cir. 2012) (same, and collecting cases from other circuits). 4 The "miscarriage of justice" exception to enforcement of an otherwise valid appellate waiver "requires a strong showing of innocence, unfairness, or the like." Sotirion v. United States,

(1st Cir. 2010) (quoting United States v. Gil- Quezada,

(1st Cir. 2006)). We express no view on whether Fonseca could meet this requirement, as he has not raised this issue.

- 9 - (1st Cir. 2014) (quoting United States v. Chambers,

(1st Cir. 2013)).

The government is correct that we have previously held

that a motion to withdraw a guilty plea is a challenge to the

plea's validity when the defendant argues that the plea was not

entered into knowingly and voluntarily. See Chambers,

. Likewise, we have held that a motion to withdraw a guilty

plea on the ground that the district court failed to ascertain a

sufficient factual basis for the plea is also a challenge to the

plea's "validity." See United States v. Torres-Vázquez,

(1st Cir. 2013). However, our case law has yet to directly

address the specific scenario raised here: whether a claim of newly

discovered exculpatory evidence underlying a claim of innocence,

asserted as part of the grounds for permitting the withdrawal of

a guilty plea, is a challenge to the plea's validity.

We need not decide whether Fonseca's innocence claim

falls squarely within this line of cases, however, because -- even

assuming we were to resolve this question favorably to Fonseca and

conclude that the waiver of appeal provision in the plea agreement

does not bar an appeal from the denial of his motion to withdraw

the plea -- his argument that the district court abused its

discretion fails on the merits. We therefore accept the

government's concession and assume, as do the parties, that

- 10 - Fonseca's claim is reviewable for the purposes of resolving this

appeal.

1. Legal Standard

We review the district court's denial of a request to

withdraw a guilty plea for abuse of discretion. United States v.

Mendoza,

(1st Cir. 2020). The ultimate question

is whether the defendant has demonstrated that a "fair and just

reason" for withdrawal exists. See United States v. Parrilla-

Tirado,

(1st Cir. 1994) (quoting Fed. R. Crim. P.

32(d)). To assess whether that burden has been met, courts

consider the totality of the circumstances, including: "(1)

whether the plea was knowing and voluntary and in compliance with

[Federal] Rule [of Criminal Procedure] 11, (2) the strength of the

reason for withdrawal, (3) the timing of the motion to withdraw,

(4) whether the defendant has a serious claim of actual innocence,

(5) whether the parties had reached (or breached) a plea agreement,

and (6) whether the government would suffer prejudice if withdrawal

is allowed." United States v. Gardner,

(1st Cir.

2021).5 The most important consideration is whether the plea was

5 At times we have suggested that district courts are required to defer consideration of prejudice to the government until after the defendant has made a preliminary showing of a fair and just reason for withdrawal. See United States v. Merritt,

(1st Cir. 2014). At other times we have treated the presence or absence of prejudice to the government holistically, as a relevant factor to be weighed against the others in determining whether a fair and just reason for withdrawal exists. See United States v.

- 11 - knowing and voluntary. See United States v. Isom,

(1st Cir. 2009).

2. The Strength of the Reason for Withdrawal and a Serious Claim of Actual Innocence

Fonseca primarily argues that he should be allowed to

withdraw his guilty plea because the testimony of co-defendant

Edwards provided exculpatory evidence that was unavailable to him

when he pleaded guilty. As previously described, Edwards testified

at co-defendant Gumbs's sentencing hearing that, in October 2012

when Edwards first traveled to the BVI to help Fonseca procure

drugs, "there was nothing" -- i.e., Fonseca and Gumbs had not

identified or secured any drugs. He also testified that he could

never be sure when Gumbs was lying about his plans to import drugs

with Fonseca. Fonseca argues that this testimony supports his

claim that his interactions with Edwards and others were part of

a scam, that he never intended to import drugs, and that he pleaded

guilty to help secure a more favorable plea deal for his wife (co-

defendant Rodriguez).6 He maintains that he would not have pleaded

Dunfee,

(1st Cir. 2016) (per curiam); compare Gardner,

-19 & n.9 (considering these factors holistically), with

(Lynch, J., dissenting) (arguing that a court may consider prejudice only if the totality of the other factors weighs in favor of withdrawal). This case does not require us to resolve this apparent uncertainty in our case law, as the totality of the circumstances weigh against Fonseca's request regardless of which approach is taken. 6 Fonseca also made general assertions of innocence in his first three plea withdrawal motions, but these motions did not

- 12 - guilty if Edwards's testimony had been available to him at the

time.

A court must assess the force and plausibility of the

reasons proffered for withdrawal. See United States v. Isom,

(1st Cir. 1996). Here, because the primary reason

for withdrawal Fonseca proffered -- Edwards's testimony -- is

inextricably bound up with his claim of innocence, we consider the

"strength of the reason" and the "serious claim of actual

innocence" factors together.

The district court found that Fonseca's explanation for

the withdrawal request was implausible. It noted that the

substance of Edwards's testimony was not new. In so concluding,

it relied on summaries of recorded phone calls between Edwards and

Gumbs that were provided to Fonseca in discovery prior to his

plea.7 These summaries included conversations between Edwards and

Gumbs in the spring of 2014 discussing Fonseca's past failure to

secure drugs. During these conversations, Edwards told Gumbs that,

among other things, Fonseca was "full of shit" and did not have

any drugs. Elsewhere in the call summaries, Edwards expresses to

Gumbs that he does not trust Fonseca and is tired of dealing with

develop the argument that he raised in his fourth motion, and on appeal, regarding the efforts to "scam" his co-defendants. 7Fonseca's plea agreement confirmed that "[f]ull discovery ha[d] been provided to the defendant."

- 13 - him. The district court further concluded that, "while portions

of Edwards's testimony may support [Fonseca's] claim of innocence,

they are certainly not exculpatory." Finally, the district court

noted Fonseca's shifting explanations for his guilty plea. In his

first two motions to withdraw his plea, Fonseca had argued that he

had been pressured to plead guilty by his counsel. In his fourth

plea withdrawal request, however, Fonseca conceded that his plea

had been knowing and voluntary, and instead asserted for the first

time -- and with no record support -- that he had pleaded guilty

to secure a better deal for Rodriguez.

We see no error in the district court's consideration of

Fonseca's proffered reasons for withdrawal. The statements

Fonseca received in discovery were substantially similar to

Edwards's testimony, and Fonseca therefore could have made the

same arguments about his lack of intent before he pleaded guilty.

See United States v. Adams,

(1st Cir. 2020)

(affirming denial of a plea withdrawal motion based on evidence to

which the defendant had access before his plea). Nor did the

district court err in finding that Fonseca's evolving rationales

for seeking to withdraw his guilty plea raised concerns about the

veracity of his newly proffered reasons. Cf. Parrilla-Tirado,

("[P]lausibility [of the asserted reasons for

withdrawal] must rest on more than the defendant's second thoughts

- 14 - about some fact or point of law, or about the wisdom of his earlier

decision [to plead guilty]." (internal citations omitted)).

The district court's conclusion that Edwards's testimony

was not "exculpatory" is also supportable. Edwards's testimony,

if credited, would establish that Edwards harbored some mistrust

of Fonseca, but this fact is not inherently exculpatory. Moreover,

other portions of Edwards's testimony could undermine Fonseca's

claim of innocence. For example, Edwards also attested to the

authenticity of a photograph of what is alleged to be a brick of

cocaine in Fonseca's car.8

As to the "serious claim of actual innocence" factor,

the district court did not explicitly analyze whether Fonseca had

raised such a claim. Instead, it determined that Fonseca's

repeated assertions of his innocence since pleading guilty weighed

in favor of withdrawal, without considering whether these

assertions were "serious." We have made clear that "weak and

implausible assertions of innocence" do not weigh in favor of

withdrawal. See United States v. Sanchez-Barreto,

(1st Cir. 1996); see also United States v. Gates,

(1st Cir. 2013) ("Merely voicing a claim of innocence has no weight

in the plea-withdrawal calculus; to be given weight, the claim

must be credible."). The district court therefore erred in

8 Fonseca disputed that this was cocaine before the district court.

- 15 - crediting Fonseca for merely asserting his innocence. See United

States v. Ramos,

(1st Cir. 1987) (noting that

the "court did not abuse its discretion in refusing to give weight

to a self-serving, unsupported claim of innocence raised

judicially for the first time after the Rule 11 hearing").

However, we take the district court's supportable conclusion that

Edwards's testimony was not exculpatory as tantamount to a finding

that Fonseca's claim of innocence -- which is primarily supported

by Edwards's testimony -- is not "serious." We therefore conclude

that the district court supportably found that Fonseca had not

proffered a "serious claim of actual innocence" notwithstanding

the fact that it also erroneously credited him for the mere

assertion of his innocence. See Sanchez-Barreto,

(suggesting that district courts are better positioned to

determine whether invocations of innocence are credible and

affirming a district court's assessment that the defendants'

claims were too weak to favor withdrawal).9

3. The Remaining "Fair and Just Reason" Factors

We briefly address the remaining factors assessed by the

district court: the timing of Fonseca's motion, whether his plea

9 We note that we are particularly reluctant to disturb the district court's conclusion where, as here, the claim of innocence contradicts statements made or adopted by Fonseca in the plea agreement and at the change of plea hearing. See United States v. Santiago Miranda,

(1st Cir. 2011).

- 16 - was entered knowingly and voluntarily, and any prejudice to the

government.

i. The Timing of the Motion

Courts consider the length of time between the entry of

a guilty plea and a motion for withdrawal. An "excessive delay

saps strength from any proffered reason for withdrawal." United

States v. Doyle,

(1st Cir. 1992).

The district court found that this factor also weighed

against withdrawal, noting that, by the time Fonseca filed his

fourth withdrawal motion in August 2018, roughly six months had

passed since his new attorney's notice of appearance and over one

year had passed since Gumbs's sentencing hearing, at which Edwards

had testified. The district court reasoned that Fonseca had not

justified either of these delays, nor had he justified the seven-

month delay between the entry of the plea itself and his first

plea withdrawal request.10

The district court reasonably weighed these delays

against withdrawal. Even assuming, arguendo, that Fonseca only

needed to justify the roughly year-long gap between Edwards's

testimony and his fourth withdrawal request (as opposed to the

10 In this respect, the district court's reasoning differed from that of the magistrate judge. The magistrate judge recommended that the timing factor be weighed in Fonseca's favor because his motion came after he learned of Edwards's testimony. We find the district court's reasoning more persuasive.

- 17 - longer delay from the entry of the plea itself), Fonseca has failed

to proffer any reason for this lengthy delay. Nor has he justified

the months-long delay between his new attorney's February 2018

notice of appearance and the motion. See, e.g., United States v.

Dunfee,

(1st Cir. 2016) (per curiam) (holding

that an approximately two-month delay between entry of the guilty

plea and defendant's motion to withdraw weighed against

withdrawal); United States v. Pagan-Ortega,

(1st

Cir. 2004) (same).

ii. Knowing and Voluntary

Fonseca concedes that his plea was knowing and

voluntary. Given that the knowing and voluntary nature of a plea

is the "most important" issue to consider in the withdrawal

analysis, the district court properly reasoned that Fonseca's

undisputedly knowing and voluntary plea weighed heavily against

withdrawal. See Isom,

.

iii. Prejudice to the Government

The district court also addressed the issue of

prejudice. It found that the government would be prejudiced by

the burden of trial preparation and the unavailability of one of

its witnesses, Peter Lev, who had since been deported. Fonseca

objects to the district court's reliance on Lev's absence because

the government did not raise this argument before the magistrate

judge and introduced it for the first time in its objections to

- 18 - the report and recommendation. Fonseca is correct that the

government has waived this argument. See United States v. Rosado-

Cancel,

(1st Cir. 2019) (deeming an argument waived

when it was not properly raised before a magistrate judge).

Moreover, in the absence of an argument regarding Lev, the

government's general invocation of prejudice from its trial

preparation obligations falls short of tilting this factor in its

favor. See Gardner,

(noting that this factor

did not weigh in the government's favor when the government could

show no prejudice "beyond the burdens that inevitably accompany

any withdrawal [such as] . . . proceeding to trial").

* * *

In sum, the district court's analysis of the plea

withdrawal motion was flawed in two respects. First, the district

court erred in concluding that Fonseca's mere assertion of

innocence weighed in favor of withdrawal, despite the substantive

weakness of his claim. Second, it erred in its prejudice analysis

by assigning weight to a waived argument and to garden-variety

trial preparation by the government. However, the district court

properly found that Fonseca's reasons for seeking withdrawal

lacked plausibility, that his claim of innocence was not strong,

- 19 - that his motion was belated, and that his plea was voluntary -- all

factors that properly weigh against withdrawal.11

Ultimately, the district court's errors were immaterial

to the result it reached. Its error in assigning weight to

Fonseca's repeated assertions of innocence was favorable to

Fonseca. If the court had properly declined to credit Fonseca's

substantively weak assertion of innocence, the fair and just reason

for withdrawal calculus would have weighed even more heavily

against him. And while the court applied undue weight to the

government's general invocation of prejudice, this error in

finding prejudice to the government was also immaterial under the

circumstances. The mere absence of prejudice to the government,

without more, does not suffice to establish a "fair and just

reason" for withdrawal. See Nunez Cordero v. United States,

(1st Cir. 1976) (rejecting the premise that "absent

a showing of prejudice by the government, withdrawals of pleas

before sentence should be granted as a matter of course").

In criminal matters subject to the trial court's

discretion, we typically find an abuse of discretion only when the

court commits a "material error of law" or some sort of "meaningful

error in judgment." United States v. Jordan,

, 445

11 We also note that the parties reached a plea agreement, which was not breached. Although the district court did not analyze this factor, we have held that this fact, too, weighs against withdrawal. See Isom,

.

- 20 - (1st Cir. 2016) (quoting Ruiz–Troche v. Pepsi Cola of P.R. Bottling

Co.,

(1st Cir. 1998)) (applying this standard with

regard to the exclusion of expert testimony); see also United

States v. Walker,

(1st Cir. 2011) (adopting

a similar standard regarding motions for change of venue). Here,

although the district court erred in weighing two of the relevant

factors, these errors, for the reasons we have explained, were not

material errors of law or judgment that undermined the court's

proper exercise of discretion in denying the motion to withdraw

the guilty plea. Hence, we find no abuse of discretion, and a

remand would serve no purpose. Cf. United States v. Gendraw,

(1st Cir. 2003) (noting that we are not required to

remand when the record contains no basis to support a different

decision).

B. Subject Matter Jurisdiction

The parties agree that the appeal waiver provision in

Fonseca's plea agreement does not bar his challenge to the district

court's subject matter jurisdiction, an issue that may be raised

at any time. See United States v. González,

(1st Cir. 2002). We review the court's jurisdictional ruling de

novo. See United States v. Vargas-De Jesús,

(1st

Cir. 2010).

Fonseca claims that the district court lacked subject

matter jurisdiction over the conspiracy charge because he never

- 21 - entered the United States during the conspiracy and did not intend

for his actions to have an impact in the United States. This

argument has no merit. Federal district courts have jurisdiction

over "all offenses against the laws of the United States."

. "Thus, if an indictment or information alleges the

violation of a crime set out 'in Title 18 or in one of the other

statutes defining federal crimes,' that is the end of the

jurisdictional inquiry" on a motion to dismiss. See United States

v. George,

(1st Cir. 2012) (quoting González,

); see also United States v. Frias,

(2d Cir. 2008) (stating that an indictment that "plainly

track[ed] the language of the statute and state[d] the time and

place of the alleged [crime]" was sufficient to invoke the district

court's jurisdiction).

Fonseca does not contest that the indictment tracked the

language of

, 960, and 963, the statutes he was

charged with violating. Nor does he raise any other challenge to

the indictment itself. He instead disputes whether the government

would ultimately be able to prove that he personally acted with

the intent to cause any effects in the United States. This

argument goes to the sufficiency of the evidence, not to whether

the indictment -- which was facially valid -- should be dismissed.

See United States v. Stewart,

(1st Cir. 2014)

("[A]t the motion-to-dismiss stage, the allegations are taken as

- 22 - true, leaving for the jury the questions of the actual scope of

the conspiratorial agreement . . . .").

Moreover, Fonseca concedes that a federal court has

jurisdiction over a conspiracy, and every member of that

conspiracy, if at least one overt act alleged to be in furtherance

of the conspiracy was committed in the United States. See United

States v. Inco Bank & Tr. Corp.,

(11th Cir.

1988) (per curiam); see also Rivera v. United States,

(1st Cir. 1932) ("The place of the conspiracy is immaterial

provided an overt act is committed within the jurisdiction of the

court."). And he does not dispute that at least some of his co-

defendants committed overt acts in the United States that were

alleged to be part of the conspiracy. Indeed, he stipulated in

his plea agreement that his co-defendants transferred at least

$40,000 either to or from the United States, with the intent to

further a drug trafficking conspiracy.

Fonseca attempts to avoid this precedent by arguing that

the acts of his co-conspirators were so insignificant and

inconsequential that the exercise of jurisdiction over him would

be unreasonable as a matter of law. In so arguing, Fonseca appears

to invoke the territorial effects doctrine, which holds that "a

sovereign only possesses jurisdiction to prosecute a crime where

. . . the effect within the territory is substantial." United

- 23 - States v. Woodward,

(1st Cir. 1998) (internal

quotation marks omitted).

However, Fonseca provides no support for the proposition

that the $40,000 in transferred funds referenced in his plea

agreement -- the existence of which he has not disputed -- is

somehow insignificant as a matter of law. Indeed, Fonseca cites

no case in which any monetary amount was considered so

insignificant as to render unreasonable the exercise of

jurisdiction over a drug trafficking offense. And while he argues

that the amount of money transferred by his co-conspirators was

insufficient to purchase a distribution-level quantity of cocaine,

this argument could only conceivably relate to the scope of the

conspiracy and whether these overt acts furthered the conspiracy's

objectives. But, as we have discussed, these questions are

inappropriate for resolution at the motion to dismiss stage. See

Stewart,

.

The district court properly denied Fonseca's motion to

dismiss for lack of subject matter jurisdiction.

C. Personal Jurisdiction

Fonseca also argues that the district court should have

divested itself of personal jurisdiction over him or, in the

alternative, granted him a hearing to assess whether it should do

so. This claim is based on his allegation that he was unlawfully

transported to the United States to secure his appearance in this

- 24 - case. See United States v. Toscanino,

(2d Cir.

1974) (holding that, in extreme circumstances, a district court

should divest itself of jurisdiction over a criminal case if the

defendant's presence was secured by the government's "deliberate,

unnecessary and unreasonable invasion of the accused's

constitutional rights").12

Fonseca's claim fails, however, because it is barred by

the appeal waiver provision in his plea agreement. Indeed, Fonseca

develops no serious argument otherwise. While he claims in his

brief that the plea agreement "contains a waiver of appeal from

the sentence, but not from the denial of the motions to dismiss

for lack of in personam jurisdiction," this argument flies in the

face of the agreement's plain text, which bars appeal of both his

"judgment and sentence." Fonseca's argument that the district

court should have declined to exercise personal jurisdiction over

him is necessarily a challenge to its "judgment" of guilt in this

case. See United States v. Baramdyka,

(9th

Cir. 1996) (holding that a valid waiver of the right to appeal the

12We note that the Second Circuit has since held that one of the holdings of Toscanino -- that noncitizens "may invoke the Fourth Amendment against searches conducted abroad by the U.S. government" -- was abrogated by the Supreme Court in United States v. Verdugo-Urquidez,

(1990). See In re Terrorist Bombings of U.S. Embassies in E. Afr.,

, 167 n.5 (2d Cir. 2008). Because we conclude that the waiver of appeal provision in the plea agreement bars this claim, we need not delve further into the merits of Fonseca's reliance on Toscanino.

- 25 - defendant's conviction and sentence applied to his challenge to

the district court's purported lack of personal jurisdiction over

him). Fonseca's challenge to the district court's exercise of

personal jurisdiction therefore falls within the scope of the

appeal waiver provision.

Affirmed.

- 26 -