United States v. Andres Fernando Cabezas

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10258
Non-Argument Calendar
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D.C. Docket No. 6:17-cr-00148-PGB-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES FERNANDO CABEZAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 5, 2019)
Before MARCUS, NEWSOM, and HULL, Circuit Judges.
PER CURIAM:
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Andres Fernando Cabezas, proceeding pro se, appeals his conviction, the
denial of his motion to withdraw his guilty plea, and his 151-month prison
sentence imposed for receiving child pornography. On appeal, Cabezas first
argues that the district court abused its discretion in denying his motion to
withdraw his guilty plea because (1) his plea was not knowing and voluntary; (2)
the factual proffer supporting his plea was false and insufficient; (3) the district
court erred in failing to wait 14 days to adopt the magistrate judge’s Report and
Recommendation; and (4) he asserted a verifiable actual-innocence claim, and the
district court failed to grant him an evidentiary hearing to prove it. Second,
Cabezas argues that his conviction is void because either (1) his guilty plea lacked
a factual basis or (2) the district court plainly erred in failing to sua sponte find that
18 U.S.C. § 2252A is void for vagueness. Third, Cabezas argues that his sentence
should be vacated because the district court left several disputed facts unaddressed
at sentencing.
I
We review for abuse of discretion a district court’s denial of a defendant’s
motion to withdraw his guilty plea. United States v. Freixas, 332 F.3d 1314, 1316
(11th Cir. 2003). A district court may permit a defendant to withdraw his guilty
plea before sentencing for “a fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B).
In determining whether a defendant has shown a fair and just reason, a court
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should “evaluate[] the totality of the circumstances, including ‘(1) whether close
assistance of counsel was available; (2) whether the plea was knowing and
voluntary; (3) whether judicial resources would be conserved; and (4) whether the
government would be prejudiced if the defendant were allowed to withdraw his
plea.’” Freixas, 332 F.3d at 1318 (quoting United States v. Najjar, 283 F.3d 1306,
1309 (11th Cir. 2002)). Once the district court determines that the defendant
received close assistance of counsel and entered a knowing and voluntary plea, the
third and fourth factors are not given considerable weight. United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987).
A
Under Federal Rule of Criminal Procedure 11, the district court must
“address the defendant personally in open court and inform the defendant of, and
determine that the defendant understands . . . the nature of the charge to which the
plea is offered and the potential consequences of that plea.” United States v.
Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997) (internal quotation marks and citation
omitted). To determine whether a guilty plea is knowing and voluntary, a court
must comply with the “three core principles” of Rule 11 by ensuring that “(1) the
guilty plea [is] free from coercion; (2) the defendant . . . understand[s] the nature of
the charges; and (3) the defendant . . . know[s] and understand[s] the consequences
of his guilty plea.” United States v. Jones, 143 F.3d 1417, 1418–19 (11th Cir.
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1998) (quotation omitted). On direct appeal, we strongly presume that the
defendant’s statements at the plea colloquy were truthful, including his admission
of guilt and his representation that he understood the consequences of his plea. See
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
Here, the district court did not abuse its discretion in denying Cabezas’s
motion to withdraw. The first Freixas factor did not favor allowing Cabezas to
withdraw his plea because he enjoyed the close assistance of counsel before and
during his plea colloquy. Freixas, 332 F.3d at 1318. As to the second Freixas
factor, Cabezas’s guilty plea was knowing and voluntary based on his sworn
statements at the Rule 11 hearing, which we strongly presume were truthful. See
id.; Medlock, 12 F.3d at 187. As a result, we need not “give particular attention” to
the other two Freixas factors. See Gonzalez-Mercado, 808 F.2d at 801.
B
“Before entering judgment on a guilty plea, the court must determine that
there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). Rule 11 requires a
showing of “a factual basis for each essential element of the crime.” United States
v. Montoya-Camacho, 644 F.2d 480, 485 (5th Cir. Unit A May 1981). Normally,
in reviewing whether the plea agreement has a sufficient factual basis, we will
determine “whether the district court was presented with evidence from which it
could reasonably find that the defendant was guilty.” United States v.
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Puentes-Hurtado, 794 F.3d 1278, 1287 (11th Cir. 2015) (alteration omitted)
(quotation omitted). But, as explained below, we review this issue only for plain
error here.
When the district court refers a dispositive matter to a magistrate judge, a
party has 14 days to submit written objections after being served with a copy of the
Report and Recommendation. Fed. R. Crim. P. 59(b)(2). “Failure to object in
accordance with this rule waives a party’s right to review.” Id. If a defendant
pleads guilty before a magistrate judge and fails to object to his recommendation
that the plea be accepted, the defendant waives any “argument that the district
court should not have accepted his guilty plea.” See United States v. Garcia-
Sandobal, 703 F.3d 1278, 1282 (11th Cir. 2013); see also Fed. R. Crim. P.
59(b)(2). Still, we “may review on appeal for plain error if necessary in the
interests of justice.” 11th Cir. R. 3-1. Because Cabezas made no objection to the
factual basis of his guilty plea before either the magistrate judge or district court,
his challenge to the factual basis of his guilty plea merits at most plain error
review. See United States v. Evans, 478 F.3d 1332, 1338 (11th Cir. 2007).
Here, the factual basis for the plea of guilty was more than sufficient.
Cabezas admitted in open court that the stipulated statement of facts detailing his
receipt and viewing of child pornography was correct. By itself, this admission
provides a sufficient factual basis because the stipulated facts satisfy all the
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elements of the charged offense. See Puentes-Hurtado, 794 F.3d at 1287.
Refusing to allow Cabezas to withdraw his plea on grounds that its factual basis
was deficient was therefore not an error, much less plain error. See Garcia-
Sandobal, 703 F.3d at 1282; 11th Cir. R. 3-1.
C
In criminal proceedings, objections or arguments that are not raised before
the district court are also reviewed for plain error. See, e.g., Evans, 478 F.3d at
1338. “[T]here can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving an issue.” United States v. Cavallo,
790 F.3d 1202, 1234 (11th Cir. 2015) (alteration omitted). Furthermore, if a party
affirmatively “induces or invites the district court into making an error,” we are
entirely “precluded from reviewing that error on appeal.” United States v.
Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (quotations omitted). “[F]ailing to
object"—in and of itself—“does not trigger the doctrine of invited error,” but
unambiguously agreeing with a course of action proposed by the court does. See
United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012).
Here, any possible error that the district court made in failing to wait the full
14 days to accept the Report and Recommendation was likely invited by Cabezas
when he filed a notice of non-objection. See Brannan, 562 F.3d at 1306; Dortch,
696 F.3d at 1112. Even if reviewed for plain error, however, Cabezas’s argument
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fails. Neither this Court nor the Supreme Court has ever required that a district
court wait the full 14 days to adopt a Report and Recommendation when both sides
have given non-objection notices, so the district court did not plainly err by failing
to wait. See Cavallo, 790 F.3d at 1234 (holding that because there was “no
controlling precedent resolving [the defendant’s] present claim,” any error with
respect to that issue would not be plain).
Cabezas’s argument here, however, suffers from an even more profound
defect. Even were this Court inclined to hold that the 14-day period for objections
cannot be waived and that a Report and Recommendation cannot be effectively
adopted until that time elapses, Cabezas did not even attempt to withdraw his plea
within the 14 days. He first moved to withdraw his plea nearly two months after
the magistrate judge issued the Report and Recommendation. As a result, even
assuming that the district court’s adoption of the Report and Recommendation was
legally ineffective at first because the time for objections had not yet elapsed, the
adoption became effective at the end of 14 days—long before Cabezas attempted
to withdraw his plea. Consequently, Cabezas lost the right to withdraw his plea
“for any reason or no reason” and was required to “show a fair and just reason” for
withdrawal. Fed. R. Crim. P. 11(d)(1), (d)(2)(B). As already noted, he failed to
make that showing.
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D
“A mere declaration of innocence does not entitle a defendant to withdraw
his guilty plea.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988).
Further, where a magistrate judge conducts an extensive plea colloquy, the district
court does not abuse its discretion in refusing to hold an evidentiary hearing on a
defendant’s motion to withdraw his guilty plea. See United States v. Brehm, 442
F.3d 1291, 1298 (11th Cir. 2006).
Cabezas has failed to demonstrate that he was entitled to withdraw his guilty
plea based on his actual innocence. He does little more than assert his innocence,
which is insufficient by itself. See Buckles, 843 F.2d at 472. To his bald
assertions, Cabezas adds only the claim that his confiscated phone contains no
child pornography. But that fact, even if proved, is not meaningfully exculpatory
at this point. The record already contains an admission by Cabezas’s lawyer that
Cabezas deleted the video after viewing it. The absence of pornography from the
phone is thus entirely consistent with his guilt. Cabezas, then, has not offered any
evidence of his actual innocence. And because the magistrate judge conducted an
extensive Rule 11 hearing, the district court did not abuse its discretion in denying
Cabezas an evidentiary hearing to shore up his flimsy argument. See Brehm, 442
F.3d at 1298.
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II
We review de novo “whether a criminal statute is unconstitutionally vague.”
United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010). A criminal
statute is void for vagueness if it either (1) “fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct” is prohibited, or
(2) “authorizes or even encourages arbitrary and discriminatory enforcement.” Id.
(quotation omitted).
We have held that 18 U.S.C. § 2252A is not unconstitutionally vague.
United States v. Woods, 684 F.3d 1045, 1059 (11th Cir. 2012). In Woods, we also
held that the words “knowingly” and “receive” clearly conveyed that a person who
intentionally viewed, acquired, or accepted child pornography from an outside
source violated § 2252A. Id. at 1058. Under the well-established prior panel
precedent rule, we are bound by a prior panel’s holding “unless and until it is
overruled or undermined to the point of abrogation by the Supreme Court or by
this Court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th
Cir. 2008).
As previously explained, the factual basis of Cabezas’s plea was sufficient.
To the extent that Cabezas argues that his plea is void for factual insufficiency, that
argument fails for the reasons already given. Cabezas’s contention that his plea is
void because the statute under which he plead guilty is unconstitutionally vague
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also fails. We review Cabezas’s vagueness challenge for plain error, as he failed to
raise it before the district court. See, e.g., Evans, 478 F.3d at 1338. Moreover, we
have explicitly held that 18 U.S.C. § 2252A is not unconstitutionally vague. See
Woods, 684 F.3d at 1059. We are bound by our holding in Woods. See Archer,
531 F.3d at 1352. Accordingly, the district court did not err, much less plainly err,
in failing to sua sponte find that § 2252A was unconstitutionally vague.
III
“We review the validity of a sentence appeal waiver de novo.” United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence-appeal waiver will
be enforced if it was made knowingly and voluntarily. United States v. Bushert,
997 F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was made
knowingly and voluntarily, the government must show either that “(1) the district
court specifically questioned the defendant” about the waiver during the plea
colloquy or (2) the record makes clear “that the defendant otherwise understood
the full significance of the waiver.” Id.
A valid appeal waiver waives “the right to appeal difficult or debatable legal
issues [and] blatant error.” United States v. Grinard-Henry, 399 F.3d 1294, 1296
(11th Cir. 2005). In Johnson, we discussed the Eighth Circuit’s application of a
“miscarriage of justice” exception to sentence-appeal waivers, but we did not
purport to adopt this exception. 541 F.3d at 1069 n.5.
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Here, Cabezas’s sentence-appeal waiver bars his argument regarding his
sentence because the government has shown that the waiver was made knowingly
and voluntarily. At the plea colloquy, the district court specifically questioned
Cabezas about the waiver, and he acknowledged that he understood that his rights
to appeal were limited to a few exceptions inapplicable here. See Bushert, 997
F.2d at 1351. To the extent that Cabezas argues that a miscarriage of justice would
result from enforcement of his sentence appeal waiver, we have not adopted a
“miscarriage of justice” exception. See Johnson, 541 F.3d at 1069 n.5. Cabezas’s
sentence-appeal waiver is therefore enforceable, and thus, we will not consider his
arguments regarding his sentence. Accordingly, we dismiss his challenge to his
sentence.
AFFIRMED IN PART; DISMISSED IN PART.
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