United States v. Isabel Gonzalez , 616 F. App'x 631 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4834
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISABEL GONZALEZ, a/k/a Chabello, a/k/a Isabel Garcia,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:00-cr-00077-BO-1)
Submitted: July 17, 2015 Decided: July 24, 2015
Before MOTZ, KING, and WYNN, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Raymond C. Tarlton, TARLTON LAW PLLC, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isabel Gonzalez appeals his conviction and 365-month sentence
imposed pursuant to his guilty plea to conspiracy to import
cocaine. * On appeal, he asserts that his guilty plea was not
knowing or voluntary and that his sentence, imposed pursuant to
the mandatory Guidelines system, violated United States v. Booker,
543 U.S. 220 (2005). The Government asserts that Gonzalez’s
sentencing challenge is barred by the waiver of appellate rights
in his plea agreement. We affirm in part and dismiss in part.
Gonzalez first argues that his plea was involuntary because
the magistrate judge failed to explain to him during his plea
colloquy that he had a right to an appointed attorney at trial
when it became obvious that he had been abandoned by his lead
counsel. Gonzalez contends that his lead attorney declined to
continue representation when Gonzalez could not pay him and that
local counsel, who represented him at his guilty plea hearing, was
only paid a nominal fee and, therefore, had no incentive to go to
trial. The fee allegations were not raised until Gonzalez’s
collateral proceedings and were, therefore, not known to the
magistrate judge at the time of the plea colloquy.
* Gonzalez’s judgment was originally entered in 2001.
However, pursuant to his 28 U.S.C. § 2255 (2012) motion, the
district court re-entered judgment in 2014 to permit Gonzalez to
file a timely appeal.
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“In order for a guilty plea to be valid, the Constitution
imposes ‘the minimum requirement that [the] plea be the voluntary
expression of [the defendant’s] own choice.’” United States v.
Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (quoting Brady v.
United States, 397 U.S. 742, 748 (1970)). “It must reflect a
voluntary and intelligent choice among the alternative choices of
action open to the defendant.” Id. (citation and internal
quotations omitted). “In evaluating the constitutional validity
of a guilty plea, courts look to the totality of the circumstances
surrounding [it], granting the defendant’s solemn declaration of
guilt a presumption of truthfulness.” Id. (citation and internal
quotations omitted).
In federal cases, Rule 11 of the Federal Rules of Criminal
Procedure “governs the duty of the trial judge before accepting a
guilty plea.” Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969).
Rule 11 “requires a judge to address a defendant about to enter a
plea of guilty, to ensure that he understands the law of his crime
in relation to the facts of his case, as well as his rights as a
criminal defendant.” United States v. Vonn, 535 U.S. 55, 62
(2002). This court “accord[s] deference to the trial court’s
decision as to how best to conduct the mandated colloquy.” United
States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). A guilty
plea may be knowingly and intelligently made based on information
received before the plea hearing. See id.; see also Bradshaw v.
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Stumpf, 545 U.S. 175, 183 (2005) (trial court may rely on counsel’s
assurance that the defendant was properly informed of the elements
of the crime).
When, as here, a defendant does not seek to withdraw his
guilty plea in the district court, we review any claims that the
court erred at his guilty plea hearing for plain error. United
States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002). It is
Gonzalez’s burden to show (1) error; (2) that was plain;
(3) affecting his substantial rights; and (4) that this court
should exercise its discretion to notice the error. See id. at
529. For prejudice, he “must show a reasonable probability that,
but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
Here, Gonzalez was informed that he was entitled to the
assistance of counsel should he wish to go to trial, and he
testified that he was satisfied with his attorney. He was given
the opportunity to make statements or ask questions, and he
declined to do so. In addition, the magistrate judge specifically
discussed the details of the situation involving Gonzalez’s
retained and local counsels to which the judge was privy; Gonzalez
was fully informed regarding the status of his counsel, and he
testified that he was completely satisfied. Moreover, he
reiterated his satisfaction in the written “Entry and Acceptance
of Guilty Plea.” Under such circumstances, the magistrate judge
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did not err (much less plainly err) in accepting Gonzalez’s guilty
plea without further inquiry into his relationship with his
attorney.
Next, Gonzalez contends that the magistrate judge erred by
failing to determine whether Gonzalez read and signed his plea
agreement prior to the Rule 11 hearing with the aid of a Spanish
interpreter. Gonzalez avers that this error was compounded by the
fact that the district court did not explain the concept of
conspiracy in detail and that the case was very complex.
At the Rule 11 hearing with the aid of a Spanish interpreter,
Gonzalez stated that he discussed the contents of the indictment
with his attorney and that he fully understood the charges. His
attorney stated that she had reviewed the charges with Gonzalez
and was confident that he fully understood. Gonzalez declined to
have the indictment read to him. Moreover, when the judge
discussed the plea agreement, he provided the elements of the
charged conspiracy to Gonzalez.
We conclude that the magistrate judge did not commit plain
error in failing to further examine Gonzalez regarding his
understanding of the charges against him. There was simply nothing
in the Rule 11 hearing alerting the judge to any lack of
understanding on Gonzalez’s part requiring additional colloquy.
Both Gonzalez and counsel stated that Gonzalez had been informed
of the elements and understood them. Moreover, while Gonzalez now
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argues that he would have gone to trial, he does not explain how
his alleged lack of understanding of the charges against him caused
him to plead guilty. Under these circumstances and further given
the lack of any showing of any prejudice, we determine that the
magistrate judge did not plainly err in failing to more fully
explore Gonzalez’s English language competency.
Finally, Gonzalez argues that the district court erred in
treating the Guidelines as mandatory. The Government contends
that Gonzalez waived the right to challenge his sentence. Gonzalez
avers that the waiver was invalid given his short responses during
the Rule 11 hearing and the lack of information as to the presence
of an interpreter when the plea agreement was explained to him.
A defendant may waive the right to appeal if that waiver is
knowing and intelligent. United States v. Blick, 408 F.3d 162,
169 (4th Cir. 2005); United States v. Broughton-Jones, 71 F.3d
1143, 1146 (4th Cir. 1995) (determining whether a waiver is knowing
and intelligent by examining the background, experience, and
conduct of the defendant). Generally, if the district court fully
questions a defendant regarding the waiver of his right to appeal
during the Rule 11 colloquy, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). The question of whether a defendant validly waived
his right to appeal is a question of law that we review de novo.
Blick, 408 F.3d at 168.
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Here, the district court fully complied with the requirements
of Rule 11 during the plea colloquy and ensured that Gonzalez
understood he was waiving his right to appeal his sentence.
Gonzalez stated, with the aid of an interpreter, that he understood
on more than one occasion. Accordingly, we find that Gonzalez’s
waiver of appellate rights was knowing and intelligent. A plea
agreement’s appellate waiver accepted prior to Booker is not
invalidated by the Booker decision. Id. at 170-73; see also
Johnson, 410 F.3d at 150-52 (rejecting the argument that a
defendant cannot waive the right to an appeal based on subsequent
changes in the law). Thus, we conclude that Gonzalez’s appellate
waiver is valid and enforceable and that Gonzalez’s sentencing
argument is within the scope of that waiver. See Blick, 408 F.3d
at 170 (holding that Booker claim is one that relates to the manner
in which a sentence is imposed).
Based on the foregoing, we affirm Gonzalez’s conviction and
dismiss the appeal of his sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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