United States v. Andres Camilo Ruiz

USCA11 Case: 21-14299 Document: 38-1 Date Filed: 02/08/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14299
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES CAMILO RUIZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cr-60223-RKA-1
____________________
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2 Opinion of the Court 21-14299
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Andres Camilo Ruiz appeals his convictions for production
of child pornography, attempted production of child pornography,
enticement of a minor, distribution of child pornography, and child
pornography. On appeal, he argues that the district court erred in
denying his motion to suppress certain evidence. The government,
in turn, moves for summary affirmance and to stay the briefing
schedule, arguing that Ruiz waived his right to challenge any pre-
plea defects, including the district court’s suppression ruling, by en-
tering into an unconditional guilty plea.
I.
Summary disposition is appropriate, in part, where “the po-
sition of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the
case . . . .” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969). 1 Under this Court’s local rules, a motion for sum-
mary affirmance shall postpone the due date for the filing of any
remaining brief until we rule on such a motion. 11th Cir. R. 31-1(c).
1 Decisions of the United States Court of Appeals for the Fifth Circuit issued
prior to September 30, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (en banc).
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21-14299 Opinion of the Court 3
A voluntary, unconditional guilty plea waives all non-juris-
dictional defects occurring prior to the plea. United States v. Patti,
337 F.3d 1317, 1320 (11th Cir. 2003); United States v. Pierre, 120
F.3d 1153, 1155 (11th Cir. 1997). If a defendant wishes to preserve
a non-jurisdictional ground for appeal, he must enter a conditional
plea in accordance with Fed. R. Crim. P. 11(a)(2). Pierre, 120 F.3d
at 1155. A conditional plea needs to be consented to by the district
court and the government. Id. Of note, a district court’s refusal to
suppress evidence is non-jurisdictional and is waived by a guilty
plea. United States v. Charles, 757 F.3d 1222, 1227 n.4 (11th Cir.
2014); United States v. McCoy, 477 F.2d 550, 551 (5th Cir. 1973).
Moreover, an appellant abandons a claim where he makes it
only by passing reference or in a perfunctory manner without au-
thority or argument in support. United States v. Smith, 967 F.3d
1196, 1204 n.5 (11th Cir. 2020).
Under Rule 11, before a court can accept a guilty plea, it
must inform the defendant of his rights should he plead not guilty,
the nature of the charges against him, the potential penalties, and
the court’s obligation to calculate his advisory guideline range. See
Fed. R. Crim. P. 11(b)(1)(B)–(E), (G)–(M). The court must also ex-
plain that a guilty plea waives the defendant’s trial rights and en-
sure that the plea is entered voluntarily and is supported by an ad-
equate factual basis. See Fed. R. Crim. P. 11(b)(1)(F), (b)(2)–(3).
Further, the court must explain that the defendant can be prose-
cuted for perjury for testifying falsely under oath. See Fed. R.
Crim. P. 11(b)(1)(A).
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4 Opinion of the Court 21-14299
In evaluating whether a Rule 11 error substantially has af-
fected a defendant’s rights, we have examined Rule 11’s three “core
principles,” which are ensuring that: (1) the guilty plea is free of
coercion; (2) the defendant understands the nature of the charges
against him; and (3) the defendant understands the direct conse-
quences of the guilty plea. United States v. Presendieu, 880 F.3d
1228, 1238 (11th Cir. 2018). Regarding the first core principle, Rule
11(b)(2) elaborates that the court must ensure that the plea did not
result from force, threats, or promises not included in the plea
agreement. Fed. R. Crim. P. 11(b)(2). Whether the court has com-
plied with the second core principle depends on a variety of factors,
including the complexity of the offense and the defendant’s intelli-
gence and sophistication. Presendieu, 880 F.3d at 1238–39. To
comply with the third core principle, the district court must inform
the defendant of the rights that he gives up by pleading guilty, the
court’s authority to impose certain punishments, and the possibil-
ity of a perjury prosecution for false statements during the plea col-
loquy. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.
2005); see also Fed. R. Crim. P. 11(b)(1).
Ultimately, to show that an unpreserved Rule 11 error af-
fected substantial rights, a defendant “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);
see also United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.
2005). We have indicated that, for Rule 11 error to substantially
prejudice a defendant’s rights, it must be tantamount to the district
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21-14299 Opinion of the Court 5
court’s “total or almost total failure to address a Rule 11 core con-
cern,” as distinct from a situation in which the court “adequately
addressed the three core concerns but slipped up and failed to cover
explicitly one item in the Rule 11 list.” United States v. Monroe,
353 F.3d 1346, 1355 (11th Cir. 2003) (quotation marks omitted). If
an error committed during a plea colloquy does not affect one of
Rule 11’s core principles, and it is clear that the defendant under-
stands the plea and its consequences, any error is harmless. United
States v. Jones, 143 F.3d 1417, 1420 (11th Cir. 1998).
Here, we grant the government’s motion for summary affir-
mance. As an initial matter, Ruiz does not expressly challenge the
validity of his guilty plea in his initial brief, so he has abandoned
any argument in this respect. Smith, 967 F.3d at 1204 n.5. How-
ever, even if he has implicitly preserved such a challenge, it still
fails, because his plea was valid.
There is no indication that the district court committed any
Rule 11 error. But even if it had, however, such an error was harm-
less, as it did not affect one of Rule 11’s core principles, and the
record is clear that Ruiz understood his plea and its consequences.
Jones, 143 F.3d at 1420.
Next, there is no evidence in the record showing that his
guilty plea was conditional. Because Ruiz entered a valid uncondi-
tional guilty plea, he waived all non-jurisdictional arguments on
appeal. Patti, 337 F.3d at 1320. And a suppression challenge is a
non-jurisdictional argument. Charles, 757 F.3d at 1227 n.4; McCoy,
477 F.2d at 551. Therefore, Ruiz has waived his motion to suppress
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6 Opinion of the Court 21-14299
arguments, and we affirm the decision of the district court based
on that waiver. Patti, 337 F.3d at 1320. 2
Finally, we note that Ruiz, in reply, has requested leave to
file a second brief on appeal. Our “longstanding case law rule,”
subject to exceptions not at issue here, is that an appellant who
does not raise an issue in his opening brief may not do so in a sup-
plemental brief. United States v. Durham, 795 F.3d 1329, 1330-31
(11th Cir. 2015) (en banc); 11th Cir. R. 28-1 I.O.P.5. Accordingly,
and because Ruiz does not identify a claim he could raise for the
first time in a supplemental brief, we deny Ruiz’s request.
In sum, the government’s position is clearly correct as a mat-
ter of law, so we GRANT its motion for summary affirmance,
DENY its motion to stay the briefing schedule as moot per 11th
Cir. R. 31-1(c). Groendyke Transp., Inc., 406 F.2d at 1162. We also
DENY Ruiz’s request for leave to file a second appellate brief.
2 In his reply, Ruiz raises, as an argument against holding him to his waiver,
the ineffectiveness of his counsel. Assuming such a claim would justify with-
drawal of Ruiz’s guilty plea, he did not seek to do so below, nor did he allege
ineffective assistance during the district court proceedings. Likewise, because
he did not mention that in his initial brief, it is abandoned. Smith, 967 F.3d at
1204 n.5. In any event, we have stated that the “preferred means for deciding
a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion
even if the record contains some indication of deficiencies in counsel’s perfor-
mance.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (quo-
tation marks omitted); see also Massaro v. United States, 538 U.S. 500, 504
(2003). Thus, we decline to address reach this point, for the preceding reasons.
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21-14299 Opinion of the Court 7
AFFIRMED.