United States v. Arroyo-Benitez , 237 F. App'x 815 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GELACIO ARROYO-BENITEZ, a/k/a Roberto Benitez-
Soto,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-04-62)
Argued: May 21, 2007 Decided: July 30, 2007
Before WILLIAMS, Chief Judge, and MOTZ and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Clinton Louis Rudisill, RUDISILL & ASSOCIATES, P.A.,
Marshall, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gelacio Arroyo-Benitez appeals his sentence of 87 months,
imposed after he pleaded guilty to conspiracy to possess with
intent to distribute powder cocaine, in violation of 21 U.S.C.
§§ 841, 846 (2000). He contends that the district court erred in
accepting his plea after the magistrate judge amended the
indictment in court so that the drug quantity in the indictment
matched that in the plea agreement. Because Arroyo-Benitez cannot
show plain error, we affirm.
I.
A federal grand jury charged Arroyo-Benitez with conspiracy to
possess with intent to distribute 50 grams or more of powder
cocaine. After initially pleading not guilty, he changed his mind
and entered into a plea agreement with the Government on April 7,
2005 (“Agreement I”). The parties stipulated in Agreement I that
the Government could attribute to Arroyo-Benitez at least 3.5
kilograms but less than 5 kilograms of cocaine powder and at least
150 grams but less than 500 grams of crack cocaine. Agreement I
also indicated that Arroyo-Benitez faced a sentence of not less
than ten years’ and no more than life imprisonment.
Arroyo-Benitez consented to a magistrate judge conducting the
Rule 11 hearing. At the hearing, the magistrate judge noticed that
the minimum drug quantity charged in the indictment, 50 grams, did
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not constitute the minimum drug quantity necessary to support the
ten-years-to-life sentence set forth in Agreement I. The
magistrate judge adjourned the proceedings to allow the Government
to cure the indictment.
The court reconvened approximately three months later. During
the interim period, the parties signed an amended plea agreement
(“Agreement II”), which deleted the reference to crack cocaine and
listed the applicable statutory sentence as not less than five
years’ and no more than forty years’ imprisonment. The Government
did not, however, file a superseding indictment.
At a hearing on July 18, 2005, the Government moved to
withdraw Agreement I and proceed with Agreement II; the magistrate
judge granted the motion. The magistrate judge also noted,
however, that the indictment still stated that the offense involved
50 grams or more of powder cocaine, but that “it would be 500 grams
or more of powder that would give rise to a sentence of 5 to 40
[years],” as set forth in Agreement II. According to the
magistrate judge, “if you just take the language of the bill of
indictment itself, the maximum penalty for this offense based on
that language would not be as indicated in the plea agreement. It
would be less.”
To resolve the discrepancy between the indictment and
Agreement II, the magistrate judge changed the indictment to
reflect 500 rather than 50 grams of cocaine powder. The
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prosecutor, defense counsel, and Arroyo-Benitez all agreed to this
revision and initialed the amended indictment indicating their
agreement. The court then explained to Arroyo-Benitez his grand
jury rights, and Arroyo-Benitez agreed to waive his right to have
the grand jury amend the indictment. After further colloquy with
Arroyo-Benitez, the magistrate judge accepted his guilty plea.
At a sentencing hearing on October 11, 2005, the parties
stipulated to the existence of an independent factual basis to
support the guilty plea, and the district court found that a
factual basis existed to support the plea. Arroyo-Benitez then
indicated that he had “objections” to the Presentence Report (PSR),
and that it included “[a l]ot of mistakes.” He stated, “Well,
since we started . . . there was a mistake . . . . They charged me
with . . . in the indictment 50 grams. Then they make me sign 500,
you know, when the offense involved 250 grams.” The court noted
that the indictment had been amended to reflect 500 grams of
cocaine powder, to which Arroyo-Benitez responded, “the offense
involved 250 grams . . . . I thought that the 500 grams wouldn’t
change the amount on here, you know . . . .” He further maintained
that he signed something “that’s not true,” and that while he was
involved in a conspiracy, the 3.5 to 5 kilograms of cocaine
indicated in the plea agreement was “too much.”
In response, the court asked defense counsel if she wished to
present any evidence regarding the drug quantity. The lawyer
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stated that she did not have any evidence to offer, and Arroyo-
Benitez declined to testify, stating, “Well, sir, I’m -- I’m tired
of -- I want to go through with this thing, you know . . . . I
just want something, you know, fair.” The district court then
accepted the plea agreement and adopted the PSR. The PSR
calculated a sentencing range of 87 to 108 months. After rejecting
Arroyo-Benitez’s request for a variance, the district court
sentenced him to 87 months’ imprisonment.
Arroyo-Benitez timely appealed. In a brief filed pursuant to
Anders v. California, 386 U.S. 738 (1967), Arroyo-Benitez’s counsel
argues that the in-court amendment of the indictment violated
Arroyo-Benitez’s Fifth Amendment right to be charged by a grand
jury. Whether a district court violated a defendant’s Fifth
Amendment grand jury right is a question of law we review de novo.
See United States v. Bolden, 325 F.3d 471, 493 (2003).
II.
The Fifth Amendment provides that “[n]o person shall be held
to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury.” U.S. Const. amend. V.
As a result of this requirement, “only the grand jury may broaden
or alter the charges in [an] indictment.” United States v.
Randall, 171 F.3d 195, 203 (4th Cir. 1999). To amend an indictment
requires “resubmission to the grand jury, unless the change is
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merely a matter of form.” Russell v. United States, 369 U.S. 749,
770 (1962). Arroyo-Benitez claims that the district court violated
his Fifth Amendment right by accepting his guilty plea after the
magistrate judge amended the indictment in court, rather than
requiring the Government to amend the indictment by grand jury.
Arroyo-Benitez did not object at the Rule 11 hearing when the
magistrate judge amended the indictment and asked the lawyers and
Arroyo-Benitez to initial the change. Indeed, Arroyo-Benitez
explicitly agreed to waive his right “to have the grand jury make
[the] change.” The Supreme Court has instructed that “the grand
jury right can be waived.” United States v. Cotton, 535 U.S. 625,
630 (2002) (citing Fed. R. Crim. Proc. 7(b); Smith v. United
States, 360 U.S. 1, 6 (1959)).1 We need not here decide whether
Arroyo-Benitez properly waived his right to have a grand jury amend
the indictment, however, because Arroyo-Benitez at a minimum
forfeited his Fifth Amendment claim by failing to object to the
amended indictment, and so must show plain error, which he fails to
do. See United States v. Olano, 507 U.S. 725, 733 (1993) (noting
the difference between waiver and forfeiture, and explaining that
1
We note that because it appears that Arroyo-Benitez waived
his grand jury rights at the time the magistrate judge amended the
indictment, the amended indictment could possibly be treated
instead as an information. But because neither party has argued on
appeal that the charging document was an information, we treat it,
as they have, as an indictment.
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forfeiture “is the failure to make the timely assertion of a
right”).
In Cotton, the Supreme Court considered a forfeited claim that
an indictment failed to allege threshold drug quantities, and held
that “defects in an indictment do not deprive a court of its power
to adjudicate a case.” 535 U.S. at 630. Instead, the Court
concluded that when a defendant fails to object to a defective
indictment at trial, the plain error standard of Federal Rule of
Criminal Procedure 52(b) applies. Id at 631. “Under th[e plain
error] test, before an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is plain, and
(3) that affects substantial rights.” Id. (internal quotation
marks and alterations omitted). “If all three conditions are met,
an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id. at 631-32 (internal quotation marks and alterations omitted).
The Cotton Court held that the Government’s error in failing
to allege a drug quantity in the indictment, while plain, “did not
seriously affect the fairness, integrity, or public reputation of
judicial proceedings” because the evidence that the conspiracy at
issue involved at least 50 grams of cocaine base -- the minimum
drug quantity required to support the enhanced sentence imposed by
the district court -- “was overwhelming and essentially
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uncontroverted.” Id. at 632-33 (internal quotation marks omitted).
According to the Court, “[s]urely the grand jury, having found that
the conspiracy existed, would have also found that the conspiracy
involved at least 50 grams of cocaine base.” Id. at 633.
Here, too, “overwhelming and essentially uncontroverted”
evidence exists that Arroyo-Benitez participated in the conspiracy
for which he was sentenced -- one involving at least 500 grams of
cocaine powder. Agreement II contained a stipulation that “[t]he
amount of cocaine powder that was known to or reasonably
foreseeable by the defendant was at least 3.5 kilograms but less
than 5 kilograms.” Only after the prosecutor and defense counsel
stipulated at sentencing “to the existence of an independent basis
in fact to support the plea,” did the district court accept
Agreement II as “a stipulation of the parties in terms of the
foreseeable amount of cocaine.”2
Hence, we have no trouble concluding, like the Supreme Court
in Cotton, that “the grand jury, having found that the conspiracy
existed, would have also found that the conspiracy involved at
2
Arroyo-Benitez did claim at sentencing that the offense
involved only 250 grams of cocaine powder, even though he had
already pleaded guilty based on an agreement stipulating that the
offense involved between 3.5 and 5 kilograms of cocaine powder.
But when the district court gave him an opportunity to present
evidence about the drug quantity, his attorney stated she had no
evidence to offer and Arroyo-Benitez himself declined to testify.
His sentencing claims thus do not undermine the district court’s
finding that there was a factual basis to support the plea
agreement.
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least [500] grams of cocaine [powder],” 535 U.S. at 633.
Accordingly, if the district court committed any error here by
allowing the in-court amendment of the indictment, it did not
affect the “fairness and integrity of the criminal justice system,”
id. at 634, as is required for Arroyo-Benitez to show plain error.3
3
Arroyo-Benitez has also filed a pro se supplemental brief
raising two additional claims. First, he contends that his counsel
was ineffective for failing to alert the district court that
Arroyo-Benitez did not understand English well, for “coerc[ing him]
to sign a plea agreement he did not fully understand,” and for
failing to argue that the Government had agreed to deport him to
Mexico. An ineffective assistance of counsel claim is generally
not cognizable on direct appeal, however, but instead should be
asserted in a post-conviction motion under 28 U.S.C. § 2255 (2006).
See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
We have recognized an exception to this general rule when “it
conclusively appears from the record that defense counsel did not
provide effective representation.” Id. (internal quotation marks
omitted). But the record here does not conclusively establish that
counsel was ineffective. Therefore, we conclude that Arroyo-
Benitez’s claim is not cognizable on direct appeal.
Arroyo-Benitez next argues that the Government promised to
deport him immediately to Mexico upon his guilty plea, and that the
Government breached the plea agreement when it failed to argue for
deportation at sentencing. “It is settled that a defendant
alleging the Government’s breach of a plea agreement bears the
burden of establishing that breach by a preponderance of the
evidence.” United States v. Snow, 234 F.3d 187, 189 (4th Cir.
2000). Arroyo-Benitez has offered no evidence that the Government
offered to immediately deport him. Agreement II, which Arroyo-
Benitez signed, contains no promise of deportation, but it does
contain an integration clause stating, “There are no agreements,
representations, or understandings between the parties in this
case, other than those explicitly set forth in this Plea Agreement
and none will be entered into unless executed in writing and signed
by all parties.” Accordingly, we reject Arroyo-Benitez’s argument
that the Government breached the plea agreement by failing to
deport him immediately after his guilty plea.
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III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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