United States v. Ospino Luis Chamarro-Britton ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 2, 2008
No. 06-10872 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-20948-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSPINO LUIS CHAMARRO-BRITTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 2, 2008)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Ospino Luis Chamarro-Britton appeals his conviction
for conspiracy to possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. After review,
we affirm.
On appeal, Chamarro-Britton argues that his guilty plea is invalid because,
during the plea colloquy, the district court failed to advise him of certain rights as
required by Federal Rule of Criminal Procedure 11. Because Chamarro-Britton
raises this issue for the first time on appeal, we review the validity of his guilty
plea for plain error. See United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.
2005). “To establish plain error, a defendant must show there is (1) error, (2) that
is plain, and (3) that affects substantial rights.” Id. If a defendant meets all three
of these conditions, we may exercise our discretion to recognize the error “only if
the error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (quotation marks omitted). “Furthermore, ‘a defendant who
seeks reversal of his conviction after a guilty plea, on the ground that the district
court committed plain error under Rule 11, must show a reasonable probability
that, but for the error, he would not have entered the plea.’” United States v.
Evans, 478 F.3d 1332, 1338 (11th Cir.), cert. denied, __ U.S. __, 128 S. Ct. 257
(2007) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct.
2333, 2340 (2004)). “A defendant must thus satisfy the judgment of the reviewing
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court, informed by the entire record, that the probability of a different result is
sufficient to undermine confidence in the outcome of the proceeding.” Dominguez
Benitez, 542 U.S. at 83, 124 S. Ct. at 2340 (quotation marks omitted).
Chamarro-Britton claims that the district court wholly failed to advise him
that the government could use any false statements he made against him in a
perjury prosecution and of his rights to persist in a plea of not guilty, to be
protected against self-incrimination, and to have an attorney appointed at trial and
every stage of the proceedings.1 However, the district court did inform Chamarro-
Britton that he was “under oath subject to the penalty of perjury if you lie.”
Further, as to the right to plead not guilty, the district court thoroughly questioned
Chamarro-Britton as to whether he wanted to plead guilty and understood what a
guilty plea meant, advised him that he could go to trial and make the prosecutor
prove the crime, and told him that he should plead guilty only if he believed he was
guilty and understood the crime to which he was pleading. The district court also
informed Chamarro-Britton of his right to be protected against self-incrimination
by explaining that, in pleading guilty, he was giving up his right to remain silent
and that he had a right to plead not guilty. As to appointed counsel, Chamarro-
Britton had appointed counsel during the plea colloquy and the district court
1
Chamarro-Britton also contends the plea colloquy was defective as to its explanation of
restitution, but no restitution was ordered in any event.
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informed Chamarro-Britton that a guilty plea meant he was giving up his right to
have a lawyer try his case.
Although the plea colloquy could have been somewhat better, Chamarro-
Britton cannot show that the district court failed to satisfy Rule 11’s three core
concerns. A district court accepting a guilty plea must comply with Rule 11 and
address the three core concerns that: (1) the guilty plea is voluntary; (2) the
defendant understands the nature of the charges; and (3) the defendant understands
the consequences of his plea. Moriarty, 429 F.3d at 1019. However, “[t]his Court
has upheld plea colloquies that fail to address an item expressly required by Rule
11 so long as the overall plea colloquy adequately addresses these three core
concerns.” United States v. Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003).
Chamarro-Britton argues only that he did not appreciate the consequences of his
plea. However, our review of the record assures us that the district court
adequately satisfied this and the other core concerns outlined in Moriarty and
Monroe. For example, as to his understanding of the consequences of his plea,
Chamarro-Britton acknowledged he understood that by pleading guilty, he was
giving up his right to go to trial and the rights attendant to trial, and that once he
pled guilty he could not withdraw his guilty plea even if he did not like his
sentence. Chamarro-Britton was also aware of the sentencing procedures and
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possible punishment, including the mandatory minimum and potential maximum
sentences.
Moreover, even assuming arguendo that there was a Rule 11 error that was
plain, a defendant is required to show a reasonable probability that, but for the
error, he would not have entered the plea. See Evans, 478 F.3d at 1338. Here,
Chamarro-Britton has not alleged, much less shown, that, but for the district
court’s alleged errors, he would not have pled guilty. Instead, Chamarro-Britton
asks that this Court vacate the judgment and remand the case so that he may
replead or go to trial by jury. Nothing in the record demonstrates the probability of
a different result that would undermine our confidence in the outcome of the
proceeding.2
Finally, Chamarro-Britton’s brief argues that his plea and sentence appeal
waiver are invalid because the district court failed to explain adequately the appeal
waiver in the plea agreement. We disagree because the district court explained
2
Under plain error review, we also reject Chamarro-Britton’s claim as to the district
court’s alleged failure to administer an oath to the interpreter. The record is unclear as to
whether Chamarro-Britton pled guilty in English or in Spanish, whether the interpreter was used,
and whether the district court administered an oath to the interpreter. At any rate, Chamarro-
Britton cannot demonstrate prejudice on this basis. Chamarro-Britton’s brief makes no claim
that the interpreter was inaccurate, that Chamarro-Britton had any language difficulties during
the plea colloquy, or that Chamarro-Britton would have pled differently if the oath had been
administered. See United States v. Pluta, 176 F.3d 43, 52 (2d Cir. 1999) (concluding that the
failure to administer an oath to the interpreter was not plain error because the defendant failed to
identify any interpretation errors or show prejudice).
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how the sentencing guidelines work and what Chamarro-Britton could be
sentenced to, and informed Chamarro-Britton that in pleading guilty he was giving
up the right to appeal. Chamarro-Britton responded that he understood he was
giving up his right to appeal and he still wanted to plead guilty. In any event,
Chamarro-Britton does not raise any error as to the advisory guidelines calculation
or as to the imposition of his 37-month sentence.
For all of these reasons, we affirm Chamarro-Britton’s conviction and
sentence.
AFFIRMED.
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