United States v. Bonnie Cortez-Hernandez , 673 F. App'x 587 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-2314
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bonnie Cortez-Hernandez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 23, 2016
Filed: December 9, 2016
[Unpublished]
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Before WOLLMAN, BRIGHT, and KELLY, Circuit Judges.
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PER CURIAM.
Bonnie1 Cortez-Hernandez was charged in five counts of a nine-count
indictment. She pleaded guilty to three of the five counts during a change-of-plea
1
The record is unclear as to whether the defendant’s first name is spelled
“Bonny” or “Bonnie.”
hearing conducted by a magistrate judge. The district court adopted the magistrate
judge’s report and recommendation2 and sentenced Cortez-Hernandez to a term of
imprisonment and supervised release on each count. On appeal, Cortez-Hernandez
challenges the voluntariness of her plea and the procedure by which the district court
adopted the magistrate judge’s recommendation.
I. Background
Cortez-Hernandez entered into a plea agreement with the government, agreeing
to plead guilty to one count of conspiracy to distribute five-hundred (500) grams or
more of a mixture containing methamphetamine in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 846 (Count 1); one count of conspiracy to commit money
laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and (h) (Count 2); and one
count of aiding and abetting the use, carrying, and possession of a firearm during a
drug trafficking offense in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(i) (Count 7).
The plea agreement required that she waive her rights to withdraw her guilty plea and
appeal her sentence (except in limited circumstances), informed her of the potential
maximum sentence for each count of conviction, and warned her of the government’s
ability to use any false statements she may make at the plea hearing against her in a
subsequent perjury prosecution.
At the outset of Cortez-Hernandez’s change-of-plea hearing, the magistrate
judge spoke with Cortez-Hernandez, her lawyer, and counsel for the government
regarding Cortez-Hernandez’s right to have an Article III judge preside over the
hearing. No one objected to the magistrate judge presiding. In conducting the
hearing, the magistrate judge failed to inform Cortez-Hernandez of the maximum
2
The Honorable Gary A. Fenner, United States District Court for the Western
District of Missouri, adopting the report and recommendation of the Honorable Robert
E. Larsen, United States Magistrate Judge for the Western District of Missouri.
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possible punishment on Count 7 and failed to inform Cortez-Hernandez of the
government’s right to prosecute Cortez-Hernandez for perjury should she make any
false statements under oath during the change-of-plea hearing. The magistrate judge
thereafter issued a written report and recommendation that the district court accept
Cortez-Hernandez’s guilty plea. Neither party filed objections to the report, and the
district court adopted the report and recommendation. At sentencing,
Cortez-Hernandez received a 132-month sentence on each of Counts 1 and 2, to run
concurrently, and a 60-month sentence on Count 7, to run consecutive to Counts 1 and
2, for a total term of imprisonment of 192 months, plus a subsequent term of
supervised release and a special assessment.
Cortez-Hernandez challenges her guilty plea.3 She argues that her plea was not
knowing and voluntary because the magistrate judge failed to explain
Cortez-Hernandez’s right to have an Article III judge conduct the hearing, the
potential maximum sentence on Count 7, and the possibility of a future perjury
prosecution. She also argues that the district court failed to conduct a de novo review
of the magistrate judge’s report and recommendation. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
II. Discussion
Cortez-Hernandez did not object to the magistrate judge conducting her change-
of-plea hearing or allege any violation of Federal Rule of Criminal Procedure 11 in
the district court. Therefore, we review these issues for plain error. See United States
v. Thompson, 770 F.3d 689, 694 (8th Cir. 2014) (addressing voluntariness of plea on
3
The government moves to dismiss Cortez-Hernandez’s appeal, arguing that she
waived her right to appeal her conviction as part of her plea agreement. “We decline
to address the validity of the appeal waiver because, even assuming
[Cortez-Hernandez]’s waiver does not preclude appeal, [she] is not entitled to relief.”
United States v. Jones, 756 F.3d 1121, 1121 n.2 (8th Cir. 2014) (per curiam).
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direct appeal); United States v. Haubrich, 744 F.3d 554, 558 (8th Cir. 2014) (Rule 11
violations); United States v. Torres, 258 F.3d 791, 794 (8th Cir. 2001) (magistrate
judge conducting plea hearing). “Under plain error review, the defendant must show
(1) an error that, (2) was plain, (3) affects substantial rights, and (4) seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Haubrich, 744
F.3d at 558. Plain error requires that an error be “clear or, equivalently, obvious,” and
that the error “must have been prejudicial: It must have affected the outcome of the
district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993)
(quotations omitted).
First, Cortez-Hernandez argues she did not knowingly consent to proceed
before the magistrate judge because she was not adequately informed of her right to
have an Article III judge preside over the hearing. This allegation is not supported by
the record. The magistrate judge explained that the change-of-plea hearing was
pending before the district court, but had been referred to him. He asked both the
lawyer for the government and Cortez-Hernandez’s lawyer whether they objected to
proceeding before the magistrate; neither lawyer voiced any objection.
Cortez-Hernandez’s lawyer explained that he had also spoken with Cortez-Hernandez
about the issue, and that she had no objection. Cf. Peretz v. United States, 501 U.S.
923, 932 (1991) (defendant knowingly consented to magistrate judge conducting voir
dire in felony trial through counsel). The magistrate judge then addressed
Cortez-Hernandez directly. He explained that the district judge would impose the
sentence and that he, as a magistrate judge, could not take her plea without her
consent. When the magistrate judge asked Cortez-Hernandez if it was “okay” with
her to proceed, she responded that it was. She then declined the opportunity to ask the
judge “any questions about it.” Cortez-Hernandez knowingly consented to proceed
before the magistrate judge, and the lower court committed no error, plain or
otherwise, in proceeding with the plea before the magistrate judge. See United States
v. Underwood, 597 F.3d 661, 669–72 (5th Cir. 2010) (noting that courts can presume
defense counsel is aware of a defendant’s right to plead guilty before an Article III
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judge and that a “defendant’s personal right to have an Article III judge conduct his
plea proceeding is waived if neither he nor his attorney raised an objection before the
magistrate judge”); United States v. Woodard, 387 F.3d 1329, 1331, 1333 (11th Cir.
2004) (per curiam) (defendant’s oral consent to magistrate judge presiding over
change of plea hearing sufficient); see also Peretz, 501 U.S. at 936.
Next, Cortez-Hernandez argues that her plea was not knowing and voluntary
because the magistrate judge made at least two errors during the Rule 11 plea
colloquy. The parties do not dispute that the magistrate judge erred by failing to
inform Cortez-Hernandez of the potential maximum sentence on Count 7, as required
by Rule 11(b)(1)(H). Similarly, though the magistrate judge informed Cortez-
Hernandez that she was obligated to tell the truth, he did not warn her of any potential
penalties for failing to be truthful. We therefore assume for purposes of this analysis
that the magistrate judge also erred by failing to inform Cortez-Hernandez of the
possibility of a future perjury prosecution, as required by Rule 11(b)(1)(A).
“A Rule 11 error affects substantial rights only where the defendant shows a
reasonable probability that but for the error, [s]he would not have entered a guilty
plea.” Haubrich, 744 F.3d at 558. A Rule 11 violation may be harmless “where the
defendant was aware, or could have been made aware, of the omitted information
through other means, e.g., a plea agreement containing the information the court
omitted during the plea hearing.” United States v. Gray, 581 F.3d 749, 754 (8th Cir.
2009) (per curiam); see United States v. Gillen, 449 F.3d 898, 903–04 (8th Cir. 2006)
(concluding that error in failure to give Rule 11 warning verbatim was harmless when
agreement contained warning and defendant affirmed that he understood the
agreement); see also United States v. Dominguez Benitez, 542 U.S. 74, 85 (2004)
(“And even if there were reason to think the warning from the bench could have
mattered,” the warning contained in the plea agreement “tends to show that the Rule
11 error made no difference to the outcome here.”). Here, Cortez-Hernandez’s plea
agreement accurately identified the maximum potential punishment for each count of
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conviction, including Count 7, and warned Cortez-Hernandez of the possibility of a
future perjury prosecution. Plain error review puts the burden on Cortez-Hernandez
to show that any errors affected her substantial rights. See Fed. R. Crim. P. 11(h) (“A
variance from the requirements of this rule is harmless error if it does not affect
substantial rights.”); Haubrich, 744 F.3d at 558 (defendant must demonstrate a
“reasonable probability” that she would not have pleaded guilty but for these errors).
Cortez-Hernandez offers no evidence in support of her assertion that she would not
have pleaded guilty absent these errors. Therefore, there was no plain error.4
Finally, Cortez-Hernandez challenges the procedure by which the district court
accepted her guilty plea. A magistrate judge may take a guilty plea in a felony case
when the defendant consents to proceed before the magistrate judge and the district
court “conduct[s] a de novo review of the magistrate judge’s recommendation before
entering the conviction.” Torres, 258 F.3d at 796 (adopting the Second and Fifth
Circuits’ rationale in applying the consent requirement of Peretz, 501 U.S. at 932–37,
to a magistrate judge’s taking of a guilty plea).5 Cortez-Hernandez argues that the
district court did not conduct de novo review because it did not identify the errors
discussed above, and therefore the district court’s adoption of the magistrate judge’s
report failed to meet Torres’ constitutional requirements. The parties agree that
4
Cortez-Hernandez requests that we reconsider the principle that a warning
contained in a plea agreement may satisfy Rule 11 because it places an unfair
presumption of knowledge on criminal defendants. However, because “[i]t is a
cardinal rule in our circuit that one panel is bound by the decision of another panel,”
we decline to do so. United States v. Eason, 829 F.3d 633, 641 (8th Cir. 2016)
(quoting United States v. Anderson, 771 F.3d 1064, 1066–67 (8th Cir. 2014)).
5
Torres held that this procedure—defendant’s consent to proceed before a
magistrate judge followed by the district court’s de novo review—is constitutional.
258 F.3d at 796. We decline Cortez-Hernandez’s request to revisit the
constitutionality of this process. See Eason, 829 F.3d at 641 (precedent set by another
panel is binding absent intervening change in law).
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because Cortez-Hernandez did not raise this issue in the lower court, this argument is
subject to plain error review. Id. at 794.
There is insufficient evidence in the record to demonstrate that the district court
failed to conduct de novo review. The district court had a transcript of the plea
hearing more than two weeks before formally accepting Cortez-Hernandez’s guilty
plea. In its order adopting the magistrate judge’s report and recommendation, the
district court stated that it engaged in “careful and independent review” before finding
that “the defendant’s plea was knowledgeable and voluntary” and that there was a
factual basis for the plea. See Edmundson v. Turner, 954 F.2d 510, 513–14 (8th Cir.
1992) (district court’s explicit statement that it reviewed report and recommendation
de novo is not required where the district court’s order otherwise indicates that it
engaged in an independent review of the record). In arguing that the district court
failed to conduct a de novo review, Cortez-Hernandez points only to the district
court’s failure to identify the errors she claims occurred during the plea hearing. But,
even if we assume procedural error, Cortez-Hernandez has not articulated any basis
for the conclusion that she would not have pleaded guilty but for this error. Because
she has not shown that any failure to conduct de novo review “affected the outcome
of the district court proceedings,” Olano, 507 U.S. at 734, she has not met her burden
under plain error review.
III. Conclusion
We deny the government’s motion to dismiss Cortez-Hernandez’s appeal and
affirm Cortez-Hernandez’s conviction.
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