United States v. Flores ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAGOBERTO SANTAMARIA FLORES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00211-RLV)
Submitted: September 8, 2008 Decided: October 14, 2008
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dagoberto Santamaria Flores appeals from his conviction
and 135-month sentence for conspiracy to possess with intent to
distribute quantities of cocaine, methamphetamine, and marijuana,
in violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2008).1
Flores’ counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which he asserts there are no meritorious
issues for appeal, but asks this court to review the adequacy of
Flores’ plea hearing and the reasonableness of his sentence.
Flores was given an opportunity to file a pro se supplemental
brief, but has not done so. Finding no error, we affirm.
Under Fed. R. Crim. P. 11(b)(1), the district court must
address the defendant in open court and inform him of the
following: the nature of the charge; any mandatory minimum sentence
and the maximum possible sentence; the applicability of the
Sentencing Guidelines; the court’s obligation to impose a special
assessment; the defendant’s right to an attorney; his right to
plead not guilty and be tried by a jury with the assistance of
counsel; his right to confront and cross-examine witnesses; his
right against self-incrimination; and his right to testify, present
evidence, and compel the attendance of witnesses. The defendant
1
The indictment alleged that the conspiracy was responsible
for 500 grams or more of a mixture or substance containing cocaine,
500 grams or more of a mixture or substance containing
methamphetamine, and a mixture or substance containing marijuana.
2
also must be told that a guilty plea waives any further trial and
that his answers at the proceeding may be used against him in a
prosecution for perjury. Under Rule 11(b)(2), the court must
address the defendant to determine that the plea is voluntary. The
court must determine a factual basis for the plea under Rule
11(b)(3) and require disclosure of any plea agreement under Rule
11(c)(2). Because Flores did not move in the district court to
withdraw his guilty plea, any challenges to the Rule 11 hearing are
reviewed for plain error. See United States v. Martinez, 277 F.3d
517, 524-25 (4th Cir. 2002).
Flores contends the magistrate judge erred during the
Rule 11 hearing by failing to inform him of the elements of the
crime to which he was pleading guilty or to determine that he
understood the nature of the charge.2 The magistrate judge is
required to inform the defendant of, and determine that he
understands, “the nature of each charge to which [he] is pleading.”
Fed. R. Crim. P. 11(b)(1)(G). At the Rule 11 hearing, the
magistrate judge accurately explained the nature of the single
charge to Flores. Following the recitation of the charge, the
magistrate judge informed Flores as to the minimum and maximum
sentences he faced, “based on these quantities, 500 grams of
2
Flores consented to proceeding before a magistrate judge.
See 28 U.S.C. § 636(c)(1) (2000); United States v. Benton, 523 F.3d
424, 431-32 (4th Cir. 2008), petition for cert. filed, U.S.L.W.
(U.S. July 25, 2008) (No. 08-5534).
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cocaine and 500 grams of methamphetamine.” Flores stated that he
understood the charge and the potential sentence he faced. In
light of the magistrate judge’s explanation and Flores’ admission
that he understood the charge and possible sentence,3 there is
nothing in the record to support Flores’ claim that he believed he
was pleading guilty to “the separate individual offenses of a
methamphetamine and marijuana conspiracy only.” See Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977). Furthermore, while Flores
contends he was responsible for a much lower drug amount than that
charged in the indictment, the magistrate judge specifically stated
that Flores was charged with being part of a conspiracy responsible
for at least 500 grams of cocaine and 500 grams of methamphetamine.
See Martinez, 277 F.3d at 530. Accordingly, we find the magistrate
judge adequately informed Flores of the nature of the charge.
Flores’ next claim is that there was not a sufficient
factual basis to support his guilty plea. Rule 11(b)(3) provides
that “[b]efore entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea.” This
requirement ensures that the district court “make[s] clear exactly
what a defendant admits to, and whether those admissions are
factually sufficient to constitute the alleged crime.” United
3
As part of the Rule 11 hearing, Flores also signed a document
indicating he had discussed the contents of the indictment with his
attorney and fully understood the charge against him. Furthermore,
at his sentencing hearing, Flores again stated that he understood
the charge and the possible penalties.
4
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Rule
11(b)(3) also serves to “protect[] a defendant who is in the
position of pleading voluntarily with an understanding of the
nature of the charge but without realizing that his conduct does
not actually fall within the charge.” United States v. Mastrapa,
509 F.3d 652, 660 (4th Cir. 2007) (internal citation and quotation
marks omitted). In determining whether a factual basis for the
plea exists, the district court is not limited to the Rule 11
colloquy, as the court “may conclude that a factual basis exists
from anything that appears on the record.” DeFusco, 949 F.2d at
120. The district court may also defer its inquiry until the
sentencing hearing. Martinez, 277 F.3d at 522 n.4. The district
court’s determination that there was a sufficient factual basis is
reviewed for abuse of discretion. Mastrapa, 509 F.3d at 660.
Flores contends there was not a sufficient factual basis
to support his guilty plea because he never admitted being involved
in the types and quantities of drugs charged in the indictment.
While Flores did equivocate on this matter during the sentencing
hearing, the district court may satisfy the factual basis
requirement by examining the presentence report (“PSR”). See
Martinez, 277 F.3d at 531-32. In this case, the PSR stated that
“[a]ll the drugs involved in this conspiracy were reasonably
foreseeable by Flores,” and that the organization was responsible
for at least six kilograms of methamphetamine powder, three
5
kilograms of crystal methamphetamine, sixteen kilograms of cocaine
powder and 100 pounds of marijuana. The district court adopted the
PSR, which provided sufficient information to support the elements
of the charge to which Flores pled guilty. See Martinez, 277 F.3d
at 531-32. Despite objecting to the probation officer’s findings
as to the total amounts of cocaine and methamphetamine for which he
was held responsible, Flores provided no specific testimony during
the sentencing hearing in regard to cocaine. Additionally, Agent
Joseph Barringer’s testimony provided a sufficient factual basis
for the district court to determine that the methamphetamine
amounts provided in the PSR were properly attributable to Flores.4
Accordingly, we find the district court did not abuse its
discretion in determining that a sufficient factual basis existed
to support Flores’ guilty plea.
Finally, Flores claims that his sentence was
unreasonable, as there were a “number of factors presented” that
justified a sentence below the Guidelines range. Following United
States v. Booker, 543 U.S. 220 (2005), a district court must engage
4
Even if there was an insufficient factual basis for the
district court’s cocaine finding, its methamphetamine and marijuana
findings were more than sufficient to supply a factual basis for
Flores’ guilty plea to the § 846 conspiracy. Importantly, under
the contention Flores presents for plain error review, he admits
that he intended, in pleading guilty, to acknowledge responsibility
for eight ounces of methamphetamine and fifty-four kilograms of
marijuana. See Br. of Appellant 14. This admission alone
justifies the acceptance of his guilty plea to the § 846 conspiracy
and the sentence imposed.
6
in a multi-step process at sentencing. First, it must calculate
the appropriate advisory Guidelines range. It must then consider
the resulting range in conjunction with the factors set forth in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) and determine an
appropriate sentence. Gall v. United States, 128 S. Ct. 586, 596
(2007). We review the district court’s imposition of a sentence
for abuse of discretion. Id. at 597; see also United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This court “must first
ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence--including an explanation for any deviation from
the Guidelines range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, we then consider the
substantive reasonableness of the sentence. Id. “Substantive
reasonableness review entails taking into account the totality of
the circumstances, including the extent of any variance from the
Guidelines range.” Pauley, 511 F.3d at 473 (internal quotation
marks and citation omitted). While this court may presume a
sentence within the Guidelines range to be reasonable, we may not
presume a sentence outside the range to be unreasonable. Id.Moreover, we must give deference to the district court’s decision
7
that the § 3553(a) factors justify imposing a variant sentence and
to its determination regarding the extent of any variance. Id. at
473-74. “Even if we would have reached a different sentencing
result on our own, this fact alone is ‘insufficient to justify
reversal of the district court.’” Id. at 474 (quoting Gall, 128
St. Ct. at 597).
At the sentencing hearing, the district court
appropriately treated the Guidelines as advisory, considered the
relevant factors under § 3553(a), and sentenced Flores at the
bottom of the properly calculated Guidelines range. Flores has
failed to demonstrate his sentence is either procedurally or
substantively unreasonable, especially in light of the fact that he
was sentenced at the bottom of the Guidelines range and there was
no argument at his sentencing hearing for a downward variance.
Therefore, we find that the sentence imposed by the district court
was reasonable and should be affirmed.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Flores’ conviction and sentence. This court
requires counsel to inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
8
Counsel’s motion must state that a copy thereof was served on the
client. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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