United States v. Hernandez-Rivas, Jua ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2647
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN HERNANDEZ-RIVAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 05 CR 73—Rudy Lozano, Judge.
____________
ARGUED OCTOBER 23, 2007—DECIDED JANUARY 23, 2008
____________
Before BAUER, CUDAHY, and SYKES, Circuit Judges.
BAUER, Circuit Judge. On May 10, 2005, around
10:00 a.m., Trooper Jason Carmin of the Indiana State
Police was traveling eastbound in the left lane of the
Indiana Toll Road. Approximately 200 or 300 feet ahead
of him in the right lane, he saw a full-sized white van
with California license plates and tinted windows. He
also saw another vehicle in the right lane behind the
van, as well as other vehicles traveling in front of the
van. Trooper Carmin watched the van cross over the
center line about one foot into the left lane two times
within one mile, without using its turn signal. Believing
the driver of the van to be intoxicated and a possible
danger to other vehicles on the road, Trooper Carmin
2 No. 06-2647
pulled the van over. He approached the vehicle and asked
the driver for his license. The driver appeared nervous;
his hands were shaking and he would not make eye
contact. Trooper Carmin told the driver to exit the
vehicle and proceeded to ask the driver some questions.
The driver told Trooper Carmin that he was traveling
from California to New Jersey, and that he did not know
the name of the owner of the van. While the driver stood
at the back of the van, Trooper Carmin approached the
passenger side. Hernandez-Rivas was sitting in the
front seat. The trooper asked Hernandez-Rivas who
owned the van. Hernandez-Rivas told him that the van
was a rental, but could not produce any rental agreement.
When Trooper Carmin asked the other eleven passengers
if anyone had proper documentation to be in the United
States legally, no one responded. Trooper Carmin noticed
that the passengers were wearing several layers of clothes,
and that there was trash scattered on the floor of the van.
The trooper contacted Immigration and Customs En-
forcement (“ICE”) agents because he believed he was
dealing with a human trafficking case. He also issued
the driver a written warning for unsafe lane movement.
Hernandez-Rivas and the other occupants of the van
were transported to a nearby police station in Chesterton,
Indiana, where ICE Special Agents Rodolfo Medellin and
Karel Matyska conducted interviews of Hernandez-Rivas,
the driver, and the other occupants of the van. Hernandez-
Rivas was carrying a California Identification Card, a
Mexican Identification Card, and $2,599.85 in United
States currency. During the interview, Hernandez-Rivas
confessed that on May 10, 2005, he was transporting
fifteen illegal aliens from California to New Jersey, and
that for his services, he would receive $3500 from a
man named Abraham. He also said that before the van
was pulled over by Trooper Carmin, he dropped off four
passengers in the Chicago area, collecting $500 to $650
No. 06-2647 3
from relatives that were waiting to pick up the passengers.
He admitted that he made three previous trips in the
month of May, with fifteen to sixteen passengers in the
van on each trip. The agents also learned that Hernandez-
Rivas had been previously removed from the United
States and had reentered the country illegally.
On May 18, 2005, Hernandez-Rivas was indicted for
conspiring to transport illegal aliens for commercial or
private gain, transporting illegal aliens for commercial or
private gain, and illegal re-entry into the United States
after being deported. On July 22, 2005, an amended plea
agreement was filed with the court, where Hernandez-
Rivas agreed to plead guilty to the first two charges in
exchange for the government’s dismissal of the illegal
reentry charge.
A plea hearing for Hernandez-Rivas was held on
August 9, 2005.1 Initially, the district court judge told
Hernandez-Rivas that “[i]f you can’t hear the interpreter,
if the electronic equipment doesn’t work, or for some rea-
son you can’t hear [the interpreter] tell me and I’ll have
her repeat the interpretation or we’ll have to fix the
equipment. Do you understand?” Hernandez-Rivas stated
that he did. Pursuant to Federal Rule of Criminal Proce-
dure 11, the judge engaged Hernandez-Rivas in a colloquy
to determine whether, inter alia, he understood the nature
of the charges against him, what the possible penalties
were, and whether he was coerced or threatened by any-
one to plead guilty. Hernandez-Rivas’s responses satis-
fied the judge, and thereafter, pursuant to Rule 11(b)(3),
he attempted to elicit a factual basis for the guilty plea
1
Although Hernandez-Rivas understands some English, a
Spanish interpreter was present at all proceedings. Further-
more, District Court Judge Rudy Lozano, who presided over all
of the proceedings, is fluent in Spanish.
4 No. 06-2647
from Hernandez-Rivas. The judge first asked him why he
was guilty, and Hernandez-Rivas explained that a man
told him to transport individuals from Los Angeles to
New Jersey, in exchange for $1000. The following ex-
change then took place between the district court judge
and Hernandez-Rivas:
Q: Did you ask [the man] any questions of who you
were going to transport?
A: No, I never asked him.
Q: Did you know anything about the people you were
going to transport?
A: No, I didn’t know that either.
Q: Were you ever told anything about the people you
were going to be transporting?
A: No, that was never told to me.
Q: Would you have to deduct anything [from the
payment of $1000] for expenses? Was that a
thousand dollars free and clear?
A: No, that thousand dollars was payment for the
work of having driven.
...
Q: At the time, did you believe that you were doing
anything illegal?
A: No, your Honor. At no time did I believe that I was
doing anything illegal.
Q: Did you ever ask any questions regarding whether
anything you were going to be doing would be
illegal?
A: No, I never asked any questions, your Honor.
...
No. 06-2647 5
Q: You didn’t think anything was illegal because of
how much money you were getting?
A: No, your Honor.
The court called for a sidebar, and the prosecutor
immediately stated, “I say just go to trial, Judge.”
Hernandez-Rivas’s counsel asked the district judge if
the Spanish interpreter was translating correctly, and he
responded that she was. The judge said he was “strug-
gling” with eliciting the factual basis, and expressed
concern that giving Hernandez-Rivas opportunity to
take a break would result in Hernandez-Rivas returning
with a different story. A second illustrative dialogue
between the district judge and Hernandez-Rivas followed:
Q: Did you ever suspicion that the individuals in the
van were illegal aliens?
A: No, your Honor, I never had those suspicions.
Q: If you had known that they were illegal aliens,
would you have continued to transport them to
New Jersey?
A: No, sir.
...
Q: Did anything occur on the trip that led you to
believe that these individuals were illegal aliens?
A: No, your Honor.
The judge called another sidebar, and once more ex-
pressed skepticism that Hernandez-Rivas’s statements
established a sufficient factual basis. The prosecution
again requested that they proceed to trial. The judge
granted a recess to allow counsel for Hernandez-Rivas
to speak with his client, but expressed hesitation in doing
so, stating, “I have no problem with [counsel speaking
to Hernandez-Rivas], but I’m not sure I’ll accept a differ-
6 No. 06-2647
ent story. I gave [him] two opportunities. I told [him] to
be totally honest with me.”
After the recess, the judge gave Hernandez-Rivas yet
another opportunity to explain why he was guilty. He told
the judge that he began to realize he was transporting
illegal aliens when they left Los Angeles, and became
more aware of their illegal status when they arrived in
Chicago. Hernandez-Rivas said that he did not under-
stand the judge’s previous questions because the head-
phone he was using to hear the Spanish interpreter was
making noise. He also blamed the misunderstanding on his
nerves and the length of the hearing. Hernandez-Rivas
then admitted that he “would like to accept responsibility,”
and that he was “guilty of having brought these people
[into the United States] without documents.”
The district judge stated that there was not a sufficient
factual basis made, commenting that even if he were to
accept the answers from the second colloquy, he was
not confident that he could “give [the answers] any credi-
bility because of the inconsistency to the first answers.”
The judge went on to say “[i]f anything, it’s more suspect”
that Hernandez-Rivas’s stories were inconsistent. Conse-
quently, the judge rejected Hernandez-Rivas’s guilty
plea, finding that there was not a sufficient basis for a
finding of guilty and Hernandez-Rivas’s answers were
“totally inconsistent.”
On November 18, 2005, during a motions hearing,
Hernandez-Rivas made another attempt to plead guilty,
which the court denied, again noting the inconsistencies
in his stories.
On November 21, 2005, an evidentiary hearing was held
on Hernandez-Rivas’s motion to suppress the evidence
seized following Trooper Carmin’s traffic stop and subse-
quent search of the van. Hernandez-Rivas argued that the
stop was pretextual because Trooper Carmin believed the
No. 06-2647 7
occupants were suspicious. The district court denied the
motion, finding that the stop was not pretextual, and that
Trooper Carmin had reasonable suspicion to stop the van
when he saw it swerve over the white center line twice
in one mile, while other vehicles were in the vicinity, and
the van’s movements violated §§ 9-21-8-24 and 9-21-8-11
of the Indiana Motor Vehicle Code. Moreover, the court
found that improper lane usage is a legitimate reason for
an investigatory stop. The district court also held that
Trooper Carmin had probable cause to believe that the
driver of the van had committed a traffic offense and
posed a danger to others on the road.
On January 3, 2006, Hernandez-Rivas filed a motion to
dismiss his counsel, claiming that his attorney told him
that the judge would only accept his plea if Hernandez-
Rivas said that he knew the occupants of the van were
illegal aliens. Hernandez-Rivas further contended that,
in fact, he did not know that the occupants were undocu-
mented, and he did not want to be untruthful. The court
denied his motion, finding that Hernandez-Rivas’s attor-
ney had an obligation to tell Hernandez-Rivas the truth—
that the judge would not accept the plea because
Hernandez-Rivas could not provide a sufficient factual
basis.
The jury trial began on March 13, 2006. Before voir
dire, Hernandez-Rivas petitioned the court to allow him
to plead guilty, arguing that he confused the laws of the
United States with the laws of Mexico, and he “want[ed] to
accept responsibility for his actions.” The judge rejected
the plea once again, noting the many inconsistencies
in Hernandez-Rivas’s stories, and that he could not
certify that Hernandez-Rivas was making a knowing
and voluntary plea when he provided the court with a
different story each time.
A jury found Hernandez-Rivas guilty of conspiring to
transport and transporting illegal aliens for commercial or
8 No. 06-2647
private gain, both in violation of 8 U.S.C. §1324(a)(1)(A),
and illegal re-entry into the United States after being
deported, in violation of 8 U.S.C. §1326(a). Hernandez-
Rivas was sentenced to sixty-three months and twenty-
four months’ imprisonment, to be served concurrently.
This timely appeal followed.
First, Hernandez-Rivas argues that the district court
erred in finding that Trooper Carmin had reasonable
suspicion and probable cause to stop the van that
Hernandez-Rivas was traveling in, because the driver did
not violate any Indiana traffic laws, particularly §§ 9-21-8-
24 and 9-21-8-11 of the Indiana Motor Vehicle Code.
On appeal, Hernandez-Rivas argues on different grounds
than he asserted in his motion to suppress. Hernandez-
Rivas argued in his motion that the stop was pretextual
under United States v. Trigg, 878 F.2d 1037 (7th Cir.
1989), claiming that Trooper Carmin’s stop was based
on his heightened scrutiny of the van due to its occupants.
He concedes in his reply brief that the stop was not
pretextual, and instead argues that Trooper Carmin
lacked reasonable suspicion or probable cause to stop the
van under any circumstances, without regard to the
officer’s underlying motive.
Arguments not raised before the trial court are forfeited
on appeal, resulting in our review for plain error only. See
United States v. Raney, 342 F.3d 551, 556 (7th Cir. 2003).
However, Hernandez-Rivas essentially makes the same
underlying argument here as he did in his motion to
suppress—that the trooper did not have reasonable
suspicion or probable cause to stop the van—so the issue
was properly preserved for appeal.2
2
We note that accusing an officer of making a “pretextual” stop
warrants little discussion in light of Whren v. United States, 517
U.S. 806, 813 (1996), where the Supreme Court foreclosed the
(continued...)
No. 06-2647 9
We review a district court’s legal conclusions on a mo-
tion to suppress de novo, and the underlying findings of
fact for clear error. United States v. Burks, 490 F.3d 563,
565 (7th Cir. 2007). Reversal is warranted only when we
are left with the definite and firm conviction that a
mistake has been made. Id. Because the resolution of a
motion to suppress is a fact-specific inquiry, we give
deference to credibility determinations of the district
court judge, who had the opportunity to listen to testi-
mony and observe the demeanor of witnesses at the
suppression hearing. United States v. Parker, 469 F.3d
1074, 1077 (7th Cir. 2006).
An officer has probable cause for a traffic stop when he
has an objectively reasonable basis to believe a traffic
law has been violated. United States v. Dowthard, 500
F.3d 567, 569 (7th Cir. 2007). Moreover, probable cause
exists when the circumstances confronting a police
officer support the reasonable belief that a driver has
committed even a minor traffic offense. United States v.
Cashman, 216 F.3d 582, 586 (7th Cir. 2000) (citing Whren
v. United States, 517 U.S. 806 (1996)).
Trooper Carmin testified that he observed the van,
traveling in the left lane, move partly into the right lane
and back to the left lane twice in one mile without a
turn signal. The trooper also testified that there were
other vehicles on the roadway, in the vicinity of the van.
The district court credited the trooper’s testimony when
it found that the van’s movements were in violation of
2
(...continued)
pretextual argument, holding that the subjective motivations
of an officer in stopping a vehicle are irrelevant to an ordinary
probable cause analysis. See also United States v. Moore,
375 F.3d 580, 583 n.1 (7th Cir. 2004); United States v. Robinson,
314 F.3d 905, 907 (7th Cir. 2003).
10 No. 06-2647
§§ 9-21-8-24 and 9-21-8-11 of the Indiana Motor Vehicle
Code,3 and Hernandez-Rivas admits on appeal that the
van crossed over the center lane twice within one mile.
We have held improper lane usage is a legitimate reason
for an investigatory stop. See United States v. Quinones-
Sandoval, 943 F.2d 771, 774 (7th Cir. 1991) (stop of a
car for twice running over the left and right fog lines of
the highway); United States v. Fiala, 929 F.2d 285, 288
(7th Cir. 1991) (stop of a car for weaving over the fog
line of the highway for 5-10 seconds).
Hernandez-Rivas maintains that the van was predomi-
nately in the same lane and maintained a direct course,
therefore its movements were not a change from one
traffic lane to another, and were conducted with reason-
able safety. However, this argument was rejected by
the district court when it credited Trooper Carmin’s
testimony in holding that the van violated either provi-
sion of the Indiana Code. We see no reason to disturb
the district court’s finding that the stop was valid and
supported by probable cause.
Next, Hernandez-Rivas argues that the district court
abused its discretion when it refused to accept his
3
Section 9-21-8-24 provides, in part, that “[a] person may not . . .
change from one (1) traffic lane to another; unless the move-
ment can be made with reasonable safety. Before making a
movement described in this section, a person shall . . . give
an appropriate stop or turn signal . . . if any other vehicle may
be affected by the movement.”
Section 9-21-8-11 provides, in part, that “whenever a road-
way has been divided into three (3) or more clearly lanes for
traffic, . . . [a] vehicle shall be driven as nearly as practicable
entirely within a single lane and may not be moved from the
lane until the person who drives the vehicle has first ascer-
tained that the movement can be made with safety.” The Indiana
Toll Road is a four-lane roadway.
No. 06-2647 11
guilty plea, because it did not consider any other evid-
ence other than Hernandez-Rivas’s allocution, and the
court failed to determine if there was a factual basis to
support whether Hernandez-Rivas demonstrated “reckless
disregard” for the illegal status of the occupants in the
van. Hernandez-Rivas also claims that the district court
erred by failing to consider his later attempts to plead
guilty.
A defendant has no absolute right to have a court
accept his guilty plea, and a court may reject a plea in
the exercise of sound judicial discretion. Santobello v.
New York, 404 U.S. 257, 262 (1971); United States v.
Lucas, 429 F.3d 1154, 1157 (7th Cir. 2005). Nevertheless,
a court cannot arbitrarily reject a plea, and must articulate
on the record a “sound reason” for the rejection. United
States v. Kelly, 312 F.3d 328, 330 (7th Cir. 2002). Our
review is deferential, recognizing that the district court
has significant discretion in accepting or rejecting
guilty pleas. United States v. Rea-Beltran, 457 F.3d 695,
701 (7th Cir. 2006). We reverse only for an abuse of that
discretion. Id.To guide courts in this exercise of discretion, Federal
Rule of Criminal Procedure 11 requires that a reasonable
plea colloquy take place between the court and the defen-
dant, to ensure that the defendant makes a knowing
and voluntary plea. The court must ensure that the
defendant was not coerced into making the plea, and that
he understands the nature of the charges against him.
The court must also determine that a sufficient factual
basis exists for a guilty plea. Fed. R. Crim. P. 11(b)(3). A
district court may find the factual basis in anything that
appears on the record, however, the factual basis con-
templated by Rule 11 is normally established when the
defendant describes the conduct that gave rise to the
12 No. 06-2647
charge.4 Rea-Beltran, 457 F.3d at 701; see also Lucas, 429
F.3d at 1157 (“This factual basis is most easily established
when a defendant describes the conduct that gave rise to
the charge in the indictment.”) (internal quotations
omitted); United States v. Fountain, 777 F.2d 351, 356 (7th
Cir. 1985), cert. denied, 475 U.S. 1029 (1986) (“[A] dialogue
between the court and the person making the plea is
the best method for establishing the factual basis of a plea
as well as its voluntariness.”); but see United States v.
Arenal, 500 F.3d 634, 638 (7th Cir. 2007) (finding that
the district court may consider not only the informa-
tion proffered at the plea hearing, such as the plea agree-
ment, but also information contained in the pre-sentencing
report to establish a factual basis before entry of judg-
ment and imposition of sentence).
Hernandez-Rivas argues that the court abused its
discretion when it did not consider any evidence other than
his unsuccessful attempt to provide a factual basis.
Rule 11 encourages this kind of factual questioning
by instructing that a judge should not accept a plea of
guilty without being satisfied that there is a factual basis
for the plea. See Fed. R. Crim. P. 11(f ). While it is true
that the district judge had a number of options to find
a factual basis, including a confession that was con-
4
Fed. R. Crim. P. 11(f ) advisory committee’s notes to the 1966
Amendments state: “The court should satisfy itself, by inquiry
of the defendant or the attorney for the government, or by
examining the presentence report, or otherwise, that the con-
duct which the defendant admits constitutes the offense
charged in the indictment or information or an offense included
therein to which the defendant has pleaded guilty. Such inquiry
should, e.g., protect a defendant who is in the position of plead-
ing voluntarily with an understanding of the nature of the
charge but without realizing that his conduct does not actually
fall within the charge.” (emphasis added).
No. 06-2647 13
tained in Hernandez-Rivas’s plea agreement or eliciting
the facts from the prosecutor, we believe that the judge
did not err in looking to Hernandez-Rivas to provide the
factual basis. Moreover, during the initial colloquies, it
was apparent Hernandez-Rivas claimed that he did not
understand that his actions constituted a crime: he
stated that he did not know he was being paid to transport
illegal aliens, and had he known the individuals were
illegal aliens, he would not have continued to drive
them across the country. His statements led the judge
to believe that Hernandez-Rivas’s plea was not knowing
and voluntary, a Rule 11 requirement that must be
satisfied in order for a court to accept a guilty plea. See
United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir.
1994) (“Unless the defendant understands the elements
of the crime he is admitting, his plea cannot be said to
have been knowingly and voluntarily entered.”).5 There-
fore, the district court judge did not abuse his discretion
when he rejected Hernandez-Rivas’s guilty plea after
repeated attempts to obtain a sufficient factual basis
from Hernandez-Rivas under Rule 11.
Hernandez-Rivas further contends that the judge lim-
ited its inquiry to whether Hernandez-Rivas knew that
he was transporting illegal aliens, and that the statute
requires a lesser standard of reckless disregard under
5
In addition to the court, the prosecutor should also be unwill-
ing to accept a defendant’s guilty plea if it is unclear whether
the defendant understands or has admitted to the charges
against him. See Nevarez-Davis v. United States, 870 F.2d 417,
421 (7th Cir. 1989). Here, after Hernandez-Rivas’s initial failed
attempt to provide a factual basis, the prosecutor fulfilled his
duty by telling the court on numerous occasions thereafter
that he wanted to go to trial.
14 No. 06-2647
8 U.S.C. §1324(a)(1)(A).6 He believes that the judge “had
an obligation to probe further to develop a factual basis
as to whether Mr. Hernandez-Rivas was in reckless
disregard of the fact that his passengers were unlawful
aliens.” We disagree. During the first two attempts to
elicit a factual basis, the judge specifically questioned
Hernandez-Rivas about whether he knew that he was
doing something illegal. He gave Hernandez-Rivas ample
opportunity to tell the court why he was guilty, and
Hernandez-Rivas simply denied that he had any knowl-
edge of the illegality of his actions.
Finally, Hernandez-Rivas argues that the court errone-
ously denied all subsequent attempts by Hernandez-Rivas
to plead guilty. He relies on a D.C. Circuit case, United
States v. Maddox, 48 F.3d 555 (D.C. Cir. 1995), where the
district court judge asked Maddox during the plea colloquy
if he was guilty of conspiring to distribute cocaine base,
and Maddox responded, “No.” The district court then
immediately rejected his guilty plea and set the case
for trial, and denied a later request to plead guilty,
stating that the plea would not be voluntary. The D.C.
Circuit specifically declined to accept Maddox’s claim
that a district court could not reject a guilty plea based
solely on a defendant’s refusal to admit factual guilt of a
crime, holding that a court could in fact reject a plea in
this instance due to doubts about the voluntariness of
the plea. However, the D.C. Circuit remanded the case
back to the district court to conduct new plea pro-
6
8 U.S.C. § 1324(a)(1)(A) provides, in part, that “[a]ny person
who . . . (ii) knowing or in reckless disregard of the fact that
an alien has come to, entered, or remains in the United States
in violation of law, transports, or moves or attempts to transport
or move such alien within the United States by means of
transportation or otherwise, in furtherance of such violation
of law” is subject to criminal penalties.
No. 06-2647 15
ceedings, finding that the district court abused its dis-
cretion in rejecting the guilty plea based solely on Mad-
dox’s denial of factual guilt during previous plea colloquy,
where Maddox explained that he had initially misunder-
stood the court’s questions. “Where a defendant offers
a timely and reasonable explanation for actions that
prompted a district court to reject a guilty plea, the
court must at least exercise its discretion to ascertain
whether its earlier concerns have been addressed.” Mad-
dox, 48 F.3d at 560.
The facts of this case are easily distinguishable from
Maddox. Hernandez-Rivas was given ample opportunity
to provide a factual basis, and he failed to recount a
consistent story. In the initial attempts to elicit a
factual basis, he denied any knowledge and could not
provide facts that he was even in reckless disregard of the
illegal nature of his actions. After an opportunity to talk
with counsel, Hernandez-Rivas provided the court with a
number of explanations, which were insufficient and far
from reasonable. The court told Hernandez-Rivas at the
beginning of the hearing that if he could not hear the
interpretations, or had any problems with the head-
phones, to alert the court. However, Hernandez-Rivas
failed to tell the court about the noise in the headphones
until his third attempt at a factual basis.
Moreover, when Hernandez-Rivas moved to dismiss
his counsel, he argued that his attorney told him that
the judge would only accept his plea if Hernandez-
Rivas admitted that he knew the passengers were illegal
aliens. Hernandez-Rivas further maintained that he did
not know the individuals were illegal aliens, and he did not
want to lie to the court. Yet again, Hernandez-Rivas
changed his story, this time reverting back to the
position that he did not know he was committing a crime.
We will not disturb the court’s findings that the incon-
sistencies in Hernandez-Rivas’s stories and his excuses
16 No. 06-2647
were insufficient to establish a factual basis for the
charges against him.
In light of his failed attempts to plead guilty, and in
light of the myriad of inconsistencies in his pleas, the
court reasonably interpreted Hernandez-Rivas’s remarks
as an indication that his plea was not knowing and
voluntary, and that he did not believe he had committed
a crime. The district judge acted within his discretion
when he rejected Hernandez-Rivas’s initial guilty plea, and
his reasons for rejecting the initial plea and the sub-
sequent attempted pleas are sound.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-23-08