United States v. Lourdes Gonzales Cardenas , 230 F. App'x 933 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
JULY 25, 2007
No. 06-13239
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 04-00082-CR-T-24-MSS
UNITED STATES OF AMERICA,
Defendant-Appellee,
versus
LOURDES GONZALES CARDENAS,
a. k. a. Lourdes Gonzalez-Cardenas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 25, 2007)
Before EDMONDSON, Chief Judge, ANDERSON and BARKETT, Circuit
Judges.
PER CURIAM:
Defendant-Appellant Lourdes Gonzales Cardenas appeals his conviction
and 135-month sentence imposed after pleading guilty to possession with intent to
distribute cocaine, 21 U.S.C. § 841(a)(1). No reversible error has been shown; we
affirm.
Cardenas was sentenced before the Supreme Court issued its decision in
United States v. Booker, 125 S. Ct. 738 (2005), which, among other things,
“rendered the [Sentencing G]uidelines effectively advisory [to] comport with the
Sixth Amendment . . . .” United States v. Davis, 407 F.3d 1269, 1270 (11th Cir.
2005). Cardenas first argues that he did not knowingly and voluntarily enter into
the sentence appeal waiver provision of his plea agreement because, when he
entered into the plea agreement and later was sentenced, neither Cardenas nor the
district court knew that the Supreme Court’s future decision in Booker would
render sentencing under a mandatory Guidelines system unconstitutional.
Because the government acknowledges that Cardenas has not raised an
issue that would be subject to the sentence appeal waiver provision of his plea
agreement, we do not discuss further Cardenas’s argument about the applicability
of his appeal waiver.1 To the extent that Cardenas argues that his guilty plea was
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But, although his briefs do not make this argument clear, it appears that Cardenas could be
arguing that the district court erred in sentencing him under a mandatory application of the
Guidelines. To the extent that Cardenas raises this argument, Cardenas’s claim is barred by the
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rendered involuntary by the Supreme Court’s decision in Booker, we reject this
argument because a guilty plea is not invalidated by a later change in the law. See
United States v. Sanchez, 269 F.3d 1250, 1283-85 (11th Cir. 2001) (en banc)
(applying Brady v. United States, 90 S. Ct. 1463 (1970), to reject argument that
defendants’ guilty pleas had been rendered involuntary and unknowing in the light
of the Supreme Court’s later decision in Apprendi v. New Jersey, 120 S. Ct. 2348
(2000)).
Cardenas next contends that his guilty plea was involuntary because,
according to Cardenas, his lawyer advised him that he would receive a sentence
shorter than the sentence ultimately imposed by the district court, even though
Cardenas was sentenced at the lowest point of his then-mandatory Guidelines
range. We are unpersuaded by Cardenas’s argument.2
sentence appeal waiver in this case, which provides that Cardenas waived the right to appeal his
sentence “except for an upward departure by the sentencing judge, a sentence above the statutory
maximum, or a sentence in violation of the law apart from the sentencing guidelines.” Based on our
review of the record, Cardenas made a knowing and voluntary waiver of his right to appeal his
sentence under all but the listed circumstances, which do not apply here. And even if we were to
conclude that Cardenas’s appeal waiver was invalid, Cardenas’s claim still would fail because he has
not demonstrated that a reasonable probability existed that the district court would have imposed a
lesser sentence on him but for the mandatory Guidelines scheme. See United States v. Shelton, 400
F.3d 1325, 1331-33 (11th Cir. 2005).
2
Cardenas raised this argument for the first time in his 28 U.S.C. § 2255 motion to vacate to his
sentence. The government asserts that, even though Cardenas raised the issue in his section 2255
motion, because he did not move to withdraw his guilty plea with the district court, we should review
Cardenas’s claim that his guilty plea was involuntary only for plain error. Cardenas asserts that the
voluntariness of a guilty plea is an issue that we review de novo. For the reasons that will be
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During Cardenas’s plea colloquy, the district court judge told Cardenas --
and Cardenas stated that he understood -- that the district court was not required to
accept sentencing recommendations made by the parties and could give him the
maximum sentence allowed by law. Cardenas also acknowledged that, if he
received a sentence higher than what the parties had recommended or if he
otherwise disagreed with the sentence imposed, he could not withdraw his guilty
plea. Cardenas told the district court that he was not relying on promises made to
him outside of his plea agreement and that no one had told him exactly what
sentence he would receive in this case. And before entering his guilty plea,
Cardenas told the district court judge that he was willing to plead guilty, even
though he did not know what sentence he would receive as a result of his guilty
plea.
We apply a “strong presumption” that statements made by a defendant
during his plea colloquy are true, United States v. Medlock, 12 F.3d 185, 187
(11th Cir. 1994); therefore, “when a defendant makes statements under oath at a
plea colloquy, he bears a heavy burden to show his statements were false.” United
States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). Nothing in the record shows
discussed, under either standard of review, Cardenas’s claim that he involuntarily entered his guilty
plea fails.
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that Cardenas has satisfied his burden of showing that his sworn statements made
during the plea colloquy -- including that no one had predicted what sentence he
would receive -- were false; and we reject his claim that his guilty plea was
involuntary.
Cardenas also asserts that his 135-month sentence was unreasonable in the
light of the factors set out at 18 U.S.C. § 3553(a) because he has two children, has
work skills, and had a significant work history before his arrest in this case. He
contends that he should have received the statutory minimum sentence of 120
months’ imprisonment.
As we have discussed, Cardenas was sentenced before the Supreme Court
issued its decision in Booker. For that reason, we question whether we can review
his sentence for reasonableness; and we note that other circuits have decided that
this review is unavailable to such defendants. See, e.g., United States v.
Benedetti, 433 F.3d 111, 120 (1st Cir. 2005) (“[R]eview for reasonableness based
on the factors enumerated in section 3553(a) is not applicable to sentences . . .
imposed pre-Booker but heard on appeal post-Booker.”); United States v.
Martinez, 418 F.3d 1130, 1133 n.3 (10th Cir.) (explaining that reasonableness
review is inappropriate for sentences imposed before Booker), cert. denied, 126
S. Ct. 841 (2005). Cardenas raised no argument at sentencing about application of
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the section 3553(a) factors; and we see no reason to grant Cardenas relief based on
the arguments he now makes about receiving a lower sentence.
We affirm Cardenas’s conviction and sentence.
AFFIRMED.
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